A warning statement made by one of three men accused of gang-raping a young woman at Otjurukune Reserve in the Gobabis area on 17 June 2014 was admitted into evidence on Tuesday by Windhoek High Court Judge Naomi Shivute.
Jan Gemeng disputed the warning statement in which he had admitted raping the complainant, and said his rights to apply for legal aid and not to incriminate himself were not properly explained to him when he made the statement.
His lawyer, Mese Tjituri, objected to the admission of the warning statement when the State, represented by Felicitas Sikerete-Vendura, wanted to introduce it as evidence.
A trial-within-a-trial then ensued to determine the admissibility of the warning statement.
Gemeng and his co-accused Tjaava Ebson and Godlieb Rapanka Katuuo pleaded not guilty to nine counts of rape and one count of assault to cause grievous bodily harm when their trial started.
The State, however, withdrew a charge of common assault since the complainant in the charge is deceased, the court was told.
According to the charge-sheet, the complainant, who may not be named, was at a bar (Marina’s Place) at the reserve with her boyfriend and two other friends drinking alcohol, and the accused were also at the same place. The complainant later left the drinking place and walked home alone. Whilst on her way, the three accused attacked and assaulted her. Her boyfriend heard the screams and tried to come to her rescue and take her home, but Ebson and Katuuo turned on him and assaulted him. They managed to chase him away, and he left the complainant at the mercy of the accused persons out of fear for his life, the indictment reads.
It is further alleged that the three accused continued to assault the complainant until she was too weak to offer any resistance, and Gemeng proceeded to have unlawful intercourse with her. When he finished, Ebson and Katuuo also took their turns to rape the complainant, the State alleges. The indictment further states that after the three accused finished with their dastardly deed, they pulled the complainant into some bushes and left her there.
In her ruling, Judge Shivute said what is to be determined is whether Gemeng was informed of his right to legal representation, and the right to remain silent and not incriminate himself. She further said the officer who arrested Gemeng used a pro-forma document, which states that the accused is warned that he is not obliged to answer any question put to him and make any statement, but what he chooses to say will be taken down in writing and may be used against him at a later stage as evidence in a court of law. He was also informed that he has the right to consult a legal practitioner of his choice at his own expense before deciding to remain silent or answer questions or give an explanation and to assist him when answering questions, and that he has the right to apply for legal aid, the judge stated. She added that Gemeng indicated that he understood his rights, and that he opted not to have legal representation and to make a statement.
“This court had the benefit of observing the accused person testifying, as well as the police officer. Warrant officer Gawie Jantjies gave his evidence in a straightforward manner, whilst the accused contradicted himself. Although the right to apply for legal aid is not stated in the pro-forma, Jantjies informed the accused of this right as conceded by the accused through cross-examination that he was indeed informed that he had the right to apply for a government lawyer, Judge Shivute said.
All three accused are out on bail.