Convicted rapist blames judge for ignorance
Mpho Mokwape | Tuesday September 13, 2022 06:00
The convict, Gaoditlhong Keabetswe who came before the Court of Appeal seeking to be given a chance to file his appeal out of time, said he missed the deadline for appeal filing because he was never told that he could appeal directly to the Court of appeal (CoA).
He was convicted by the Gumare Magistrate’s Court but was committed to the High Court for sentencing. Keabetswe was then sentenced in March 26, 2021 to 15 years imprisonment and he applied to the CoA for condonation on June 13 a year later after he was sentenced. Reasons given by Keabetswe are that he fell victim to a non-functioning system causing him to miss a chance in time to fight his conviction and sentence.
“The applicant said he fell victim to systemic malfunctions in that Judge Moroka, following his judgement, did not advise him of his rights to appeal directly to this court, causing him erroneously to make an application for leave to appeal to CoA,” reads the court documents.
Though Justice Lakhvinder Singh Walia did not agree with his utterances and simply blamed his ignorance, he still listened to his plea. “Not only is there truth in this statement but the various steps taken by the convict manifest his ignorance of procedures and the absence of any assistance from any of the courts he appeared in,” he said.
Justice Walia allowed for his application to file his appeal solely on the basis that there were evident faults in the chain of forensic exhibits sent to a laboratory in Gaborone for analysis. He explained that he was only accepting the application on that reason as his appeal stands a great deal to succeed.
Justice Walia further pointed out that the custody of exhibits did not appear to have been completed and that the Magistrate failed to establish whether the state had disapproved the alibi that was given by the convict.
“In a criminal trial, the responsibility is on the state to prove the accused his guilty beyond reasonable doubt. The state also bears the responsibility of disproving any defence raised by the accused beyond reasonable doubt. It remains questionable in this case, if the onus of disapproving the alibi, standing alone was discharged,” he said. On the chain of custody of exhibits sent to forensic laboratory, he said it did not appear that sufficient regard had been placed on proper sealing and conveyance of the samples.
He emphasised that there was no explanation as to how the convict’s name appeared on the box sealed by a doctor on September 29, 2012 if he was only arrested in 2013. “In this case, no chain of custody had been testified to nor established and for that I am satisfied that the convicted has shown exceptional circumstances accounting for the delay in making the application and very prospects of success on appeal,” Walia said.