Judge quashes rape conviction

Patricia Edwin
Staff Writer | Tuesday April 16, 2013 00:00

Relatives, some coming from as far away as Serowe to lend support to their kin, Modisaotsile Kethamile, threw caution to the win and shouted with joy, disrupting court proceedings. Their loud chatter as they filed out of the court forced the judge to wait for a few minutes for the din to die down.Through Francistown attorney, Mishingo Jeremiah, Kethamile challenged the conviction and sentence arguing that the basics of trial were not explained to him. This includes the right to cross-examine and the purpose of cross-examination. 'It is my considered view that in the circumstances of this case that the applicant was not afforded a fair hearing and in my view this has resulted in a failure of justice,' Makhwade ruled.

He said the case record does not reflect the details of the explanations given by the trial court. 'What is apparent, however, from the record is that the applicant did not ask any questions that were related to eventual defence,' he said.He said the accused did not lay any foundation for his defence. 'It is apparent from the record that the magistrate was probably not aware of the nature of the defence until the applicant gave evidence. I say so because if the foundation of the defence had been laid, relevant questions would have been asked,' said the judge. He added that it follows from the failure to ask relevant questions that the applicant may not have been aware of the fact that he should have laid the foundation of his defence in asking questions to the complainant and another witness. Makhwade stated that in his view, the matter could be resolved with reference to only one ground of appeal.

'This ground of appeal is that the applicant did not have a fair trial as envisaged in Section 10 of the Constitution for the reason that the magistrate failed to guide the applicant of procedural rights. The main issue that was raised on behalf of the applicant is that the magistrate did not advise and assist the applicant in ensuring that his rights to cross-examination are fully understood as well as properly applied,' said Makhwade. He said that Section 10 of the Constitution provides for an accused person to be afforded a fair hearing within a reasonable time by an independent and impartial court established or recognised by law. 'The only issue in this application is that the applicant was not afforded a fair trial,' he said.During the appeal, Jeremiah said the magistrate convicted the appellant based on the evidence of the complainant whose testimony was not challenged through cross-examination because his client had no clue as to his rights to cross-examine and the purpose of cross-examination.