Montshiwa murder trial: Prosecution evidence inadmissible
Mpho Mokwape | Tuesday June 7, 2022 06:00
As part of its case against the accused persons, David Modise and Tumelo Tshukudu, the prosecution had wished to submit into evidence computer printouts from two telecommunication operators (PTO), Mascom Wireless and Orange Botswana, to show call traffic between the first accused, Modise and the deceased.
The State also wished to submit a ballistics report prepared in Zimbabwe, which identified the gun and bullet used in the murder of Montshiwa.
Following a disagreement between the parties about the evidence to be submitted, High Court judge, Zein Kebonang was forced to make a determination on the matter.
The judge ruled on Thursday that only a computer printout from Mascom would be admitted into evidence and an affidavit from one Nonofo Dichabe of the Botswana Police Service while a computer printout from Orange Botswana and the ballistics expert evidence were all excluded from admitted evidence.
Kebonang explained that it was the duty of the prosecution to make full and timely disclosure to the defence of all relevant information known to it.
“Information which can reasonably be used by the defence either in meeting the prosecution’s case, advancing a defence or otherwise in making a decision which may affect the conduct of the defence must be timely,” he said.
“In this instant case, the timely production of the PTOs system’s certificate from BOCRA would have been relevant and useful to both prosecution and defence as it had a direct bearing on the ongoing proceedings.”
Justice Kebonang explained that the prosecution was obliged to supply all documents upon which the reliance may be placed on an accused before the commencement of the trial.
He pointed out that certificates required in terms of the Electronic (Records) Evidence Act are not subject to any rules of privilege, which would justify their exclusion or non-disclosure to the defence or any party to legal proceedings where the use of electronic records was an issue.
“Although accepting that no certification had been provided in respect of the Mascom Wireless printouts, there was a suggestion though not fully developed by the prosecution that certification could be provided at a later stage of the trial. The above submission came about because the prosecution had mistakenly believed that the information from Mascom Wireless had been obtained after the Act had come into operation,” he noted.
The judge emphasised that had that been the position, the prosecution could not make its case as it went along as it would encourage trials by ambush and practically no end to litigation.
Meanwhile, the facts are that as the prosecution wanted to submit all this evidence, the defence objected on the basis that they do not meet the statutory requirements for admission into evidence.
The affidavits and exhibits the defence objected to are those that relate to four witnesses being Mbaki Pitso, Phenyo Dingalo, Dichabe and Admire Mutizwa.
According to court documents, Pitso is employed by Mascom Wireless in the Fraud Management department. Mascom was requested and did provide from their system a printout of calls between the accused, Modise and the deceased.
On the other hand, Dingalo is employed by Orange Botswana as the Legal Service Manager and the telecommunications company was asked and did provide from their system a printout of calls made between the deceased and several other people.
Another witness, Dichabe is a computer forensics expert employed by the Botswana Police and he compared data from several phones, some of the phones were owned by Modise.
Mutizwa is a ballistics expert employed by the Zimbabwe Police and he provided his affidavit related to the tests he carried out on the gun and bullet used in the commission of the murder offence. The affidavit contained his findings and conclusions.
Though both the prosecution and defence were in agreement that the exhibits sought to be admitted constituted documentary evidence, they however did not agree on their admissibility.
Modise is represented by Ofentse Khumomotse while Tshukudu is represented by Enoch Mazonde. Moagi Ndlovu represents the State.
The trial continues on Saturday.