Technical issues free convicted rapists
Mpho Mokwape | Tuesday April 26, 2016 15:24
Freeing the convict, Justice Isaac Lesetedi said despite the appellant being convicted of defilement on the basis of scientific evidence, there were irregularities that occurred during his trial.
He explained that there was a misdirection of law by the trial court in not advising the accused who was unrepresented, about the availability to him of the special defences. The special defences include Molefi choosing to say he was unaware that the complainant was below the legal age of consent.
“The appellant raised this during his appeal at the High Court and the court failed to consider this crucial ground of appeal. The appellant’s conduct of his case was very inept,” he said.
Lesetedi said the appellant did not even seem to understand what the real issues in dispute were, nor was he advised of the purpose of cross-examination.
The judge noted that given the failure of the trial court to appraise the appellant of the special statutory defence, it could not be said that Molefi still received a fair trial. He said the failure by the High Court to consider that ground of appeal was a case of “misdirection”.
“It cannot be confidently said that had the appellant been advised of the special defences available to him, he would not have raised the defence that he had reasonable cause to believe that the complainant was of or above the age of 16. In the premises, the conviction cannot stand,” he said.
Onneetse Ratshidi was next before the bench and again received the court’s favour when Justice Ian Kirby released him of his 10 years jail term. Ratshidi, who was convicted in 2011 for rape, was set free on the grounds that the trial court did not ensure that he had a fair trial.
Kirby cited a defective charge sheet in which he said the State had failed to specify in the particulars of the offence, that the alleged unlawful carnal knowledge had been without the consent of the complainant. Kirby said this was fatal to the charge.
“This is so because lack of consent is an essential element of the offence of rape. That offence is further aggravated by the refusal of the magistrate to allow the charge sheet to be amended when requested by the prosecutor to do so,” he said.
Kirby further explained that the magistrate’s failure to explain to the appellant his right to have a doctor called for cross-examination was also an irregularity.
He noted that the medical report was admitted into evidence without objection from the appellant, and though it contained some damaging hearsay remarks made by the complainant to the doctor, the magistrate never relied upon them.
“The magistrate was also too ready to find in such a positive fashion that the complainant’s evidence was credible and uncontroverted. No regard was given to the appellant and his witness that the woman had been his girlfriend for some time before March 2007,” he said.
Kirby said there was also no inquiry into the possible consumption of alcohol by the parties, as they had all spent time entertaining themselves and as such the state had failed to ensure that the appellant had a fair trial.