Shotgun murder trial ‘confession’ ruled out

AN ALLEGED confession made by a Windhoek resident who is accused of murdering his older brother with a shotgun last year, cannot be used as evidence in his trial, it was ruled in the High Court in Windhoek this week.

A trial within a trial on the admissibility of an alleged confession that Theophilus Sisande made on the day after he allegedly murdered his brother in their family home in Katutura, ended on Monday with a ruling that the statement by Sisande would not be allowed as evidence in his trial.Sisande was not sufficiently informed of his right to legal representation before the late Magistrate Tuyenikelao Haikongo took down the statement from him, Judge Kato van Niekerk found in her ruling on the admissibility of the alleged confession that Sisande made before the Magistrate on April 29 last year.The statement was made on the day after Sisande (40) had been arrested on a charge of murder. He was arrested after his brother, Pius Gotthardt Mannetti (43), died when he was shot in the chest with a shotgun. The shooting took place in the house where the two brothers were staying in Soweto in Katutura.Sisande pleaded not guilty at the start of his trial before Judge Van Niekerk three weeks ago. He admitted in a plea explanation that he had a shotgun in his possession on the evening of April 28 last year, which was when Mannetti was shot, and that his brother was killed by a shot that was fired from the shotgun.Sisande however claimed that the shot went off accidentally when his brother tried to grab the shotgun as he (Sisande) was trying to leave their home with the loaded gun. Sisande also informed the court that he had gone to collect the loaded gun from his room after he had been assaulted by his brother.During the trial within a trial on the admissibility of the statement that he made before Magistrate Haikango, the court heard that Sisande had told the Police officer who was investigating his case that the shooting arose from a quarrel between him and his brother. He told the officer that he went to his room, fetched the shotgun, and then shot his brother, the court heard.When the Magistrate asked him where he obtained the knowledge about which he was about to make a statement, Sisande told her: ‘I just realise that what I did was wrong and I just want to tell the truth.’Sisande claimed that he was not informed of his right to legal representation before he made the statement to the Magistrate. Judge Van Niekerk rejected this claim by him, finding that not only did the Magistrate inform him of this right, but the investigating officer had also done so earlier.However, a form that the Magistrate used to tell him of this right is normally used only during court proceedings, the Judge noted.She remarked that she could not exclude the possibility that Sisande could have believed that the right to legal representation he was being informed of was limited to the trial stage of his case.Indicating that the Magistrate should have explained the right to Sisande in more detail, the Judge ruled that the prosecution would as a result not be allowed to use Sisande’s statement as evidence in the trial.Judge Van Niekerk’s ruling was followed by testimony from medical doctor Simasiku Kabanje about the autopsy that another doctor, who has since left the country, did on Mannetti’s remains.According to the autopsy report Mannetti was shot at close range in the right side of his chest, with the trajectory of the shotgun pellets to the left side of his chest and in an upward direction. The tip of Mannetti’s left thumb was also almost entirely severed.Dr Kabanje agreed that a demonstration by defence lawyer Jan Wessels, in which he tried to re-enact the way Sisande claims the fatal shot went off as his brother tried to grab the shotgun that he had in his hands, could possibly fit in with the injuries Mannetti sustained.The trial is scheduled to continue on Wednesday next week with State advocate Constance Moyo planning to present further evidence for the prosecution.Sisande remains free on bail.