Prosecution blunder sets 'rape' appellant free
Innocent Selatlhwa | Tuesday February 21, 2023 06:00
Keabetswe was a relieved man when a panel of three judges, Justice Isaac Lesetedi, Justice Leatile Dambe, and Justice Fritz Brand set him free on Friday after he was sentenced to 15 years behind bars in March 2021.
The charge According to court records, Keabetswe was convicted in the Magistrate's Court held at Gumare on a charge of rape for which the minimum sentence which was held to have been accompanied by violence, is 15 years imprisonment. Because this minimum sentence exceeded the sentencing jurisdiction of the Magistrate the appellant was committed to the High Court, before Justice Lot Moroka sitting in Maun. Moroka confirmed the conviction and sentenced the appellant to 15 years imprisonment hence Keabetswe approached the Court of Appeal. The charge against Keabetswe was that on September 29, 2012, in Gumare, he raped the complainant. At the trial, the witness statement of the complainant as well as the report by the medical practitioner who examined her after the event was introduced by consent of Keabetswe who appeared in person.
How did his DNA enter her vagina? The only evidence relied on by the state to establish the essential link between Keabetswe and the crime, relied on a DNA analysis performed by a forensic scientist who was called by the state to give evidence at the trial. Her expert testimony was that on August 24, 2013, she received two sealed packages from Constable Petrus of the Gumare Police Station, marked A and B. "Package A was a sealed sexual assault evidence collection box with serial number 10BFA524SA, which identified the complainant as the victim and bore the date September 29, 2012. "Package B was a sealed small size Botswana Police evidence envelope which contained a drop of blood stained micro card" labelled with the name of the appellant. The evidence shows no details as to when the envelope in B was sealed and by whom. Nor does it reveal by whom the blood sample was taken. According to the forensic expert, her analysis of these two samples established that the DNA in B matched the male DNA contained in A, which was taken from the complainant after the rape. This justified the conclusion, so the expert testified that the rape was committed by the person whose blood was on B. She quite fairly made the rather obvious concession, however, she had no way of linking the blood sample B to the appellant or anyone else. That link depended on other evidence. In this regard, the investigating officer testified that he arrested the appellant on August 27, 2013, and then took him to Gumare Primary Hospital "where his blood sample was taken on an FTA card and that after collecting the blood samples which were labelled with the name of the appellant he sent the sample with sexual assault kit bearing the name of the complainant for DNA analysis at Police forensic lab". Under cross-examination by the appellant, the investigating officer was asked to identify the doctor who took the blood sample, but he was unable to do so. The appellant then pertinently put to the witness that no blood was taken from him, effectively challenging the state to call the doctor who took the blood sample. But the state never took up the challenge and in the end, the doctor was never called.
‘My blood samples were never taken’ Moreover, the appellant disputed being in Gumare during the night of the rape. He also called two witnesses who testified that during the night in question, they were at a party in Gaborone where the appellant was also present. Although the state was given the opportunity to investigate the merits of the alibi defence, it never did so. During the cross-examination, the investigating officer suggested that the appellant visited the police station shortly before the incident to collect some of his property and that he must have signed the register for it. Despite an invitation by the appellant to produce the register, this was never done. In the end, the only challenge of the alibi witnesses in cross-examination by the state rested on the proposition that in light of the DNA evidence, the appellant could not have been in Gaborone on the night of the rape. In convicting the appellant, the Magistrate was persuaded by the same line of reasoning when she said: "I am satisfied that the DNA results disprove his alibi as there is still no explanation how his semen would be found in the vagina of the complainant who was raped in Gumare if he was in Gaborone."
Court of Appeal verdict The CoA panel found that the statement reveals the flaw of circuitous reasoning that, because the DNA evidence must be accepted, the alibi evidence could not be true. They found that this line of reasoning avoids the logic of the converse; namely that if the alibi evidence is to be accepted, a conclusion based on the DNA analysis, that the appellant was in Gumare at the night of the crime, could not be accepted. “In the light of the onus resting on the state to establish its case beyond any reasonable doubt, the otherwise uncontroverted alibi evidence must therefore in my view gives rise to additional caution in the enquiry into the validity of the conclusion based on the DNA evidence. This is in addition to the general requirement for reliance on the evidence of this kind dictated by earlier cases, which requires the establishment of the relevant chain of evidence involved, including evidence that the relevant samples had been properly taken and safeguarded until they were tested in the laboratory,” Justice Brand said as he read out the judgment. Brand said the disturbingly casual approach adopted concerning the collection and transmission of the relevant blood sample stands in stark contrast to the requirements thus established by the courts. “In this light in the best tradition of the legal profession, Mr Mhandu has rightly conceded that the conviction cannot be supported by the state. In the result, the appeal is upheld and the conviction and sentence imposed by the High Court are set aside,” he said.