Nyangabgwe gynae charged for rape, indecent assault
Taelo Stompie | Friday January 10, 2020 15:46
The State alleges that the accused, Dr. Marco Antonio Cruz-Gurrero, 48, committed the offences on two different women during two different dates in March last year to allegedly satisfy his sexual gratification.
Cruz-Gurrero, who is represented by attorney Thekololo Letsholo, was initially charged with one count of rape and two counts of indecent assault, but one charge of indecent assault has since been dropped.
The investigations officer, Gaolathe Talibona, told the court when giving her evidence-in-chief in the rape case that Cruz-Gurrero, who is from Cuba, allegedly raped one of the complainants in an ultra-sound room during the course of his official duties on March 10, 2019.
Talibona said after the ordeal allegedly happened, she interrogated the complainant and accused in connection with the allegation at her office at Central Police Station.
“During interrogation, the complainant told me that the accused had sexual intercourse with her without her consent when he was examining her. The accused denied the allegation. The complainant further explained that she reported the matter to the police and was later escorted to NRH to look for two condoms that were allegedly used by the accused to commit the offence,” said Talibona when asked by prosecutor Sesafeleng Dijeng from the Directorate of Public Prosecutions (DPP).
She added: “She said that upon arrival at the ultra-sound room, another NRH doctor found the condoms in a waste bin. One of the condoms was filled with some fluid while another was empty.”
After interrogations at her office, Talibona said she went to NRH with the accused, complainant and crime scene investigator to further make inquiries, but they found the scene of crime had been tampered with, as another doctor was using it.
She further said: “We did not carry out any further investigations because the room was cleaned and then we went back to my office whereupon arrival I informed the accused that we have to go to Area W Clinic to extract blood samples for DNA tests from him and the complainant. He agreed to that proposal… I later proceeded to the police forensic laboratory in Gaborone to hand over the exhibits being a female assault kit, which was used to examine the complainant. I then proceeded with my investigations by taking statements from the accused and other witnesses.”
On March 25, 2019, Talibona said, she received the results in the form of an affidavit from the forensic laboratory.
“I then called the accused to my office and informed him that the results were ready and then I served him with the same. According to the results, one of the condoms contained DNA of the accused and the complainant. Lastly, I warned and cautioned the accused of the offence of rape,” said Talibona.
When cross-examined by Letsholo who wanted to find out why the condoms that were allegedly used in the commission of the offence were not brought in court as per procedure, Talibona said that she did not know.
When Letsholo said he put it to Talibona that the condoms were not presented in court because no crime happened or no condoms whatsoever were used to commit the offence as alleged because the rape never occurred, Talibona said other witnesses can corroborate that the condoms were used. Quizzed further by Letsholo that all witnesses who gave evidence in court never before mentioned any condoms, Talibona said she was not the one who sealed them.
Talibona also conceded that she had not seen the condoms even though she is the investigations officer in the matter.
After defining rape as having unlawful carnal knowledge of another person without his/her consent, Letsholo gave Talibona the Penal Code, which includes other essential elements of what constitutes the charge of rape.
Talibona thereafter told the court during cross-examination that violence, which is another essential element of rape, was not occasioned on the complainant.
When Letsholo pressed Talibona further if the accused derived sexual gratification from the alleged rape, she said, “I can’t answer that question.” Talibona also said that from her investigations, no force was applied to the complainant as per the definition of rape to coerce her to accede to have sexual intercourse with the accused…
Asked by Letsholo if the complainant suffered any injuries during the alleged ordeal as per the definition of rape, Talibona answered in the negative adding that the complainant was intimidated by the accused.
When Letsholo put it to Talibona that security officers who were very near the room where the alleged offence took place have previously told the court that they never heard the complainant screaming which was a sign that she was never threatened by the accused nor did he rape her, Talibona said that the complainant probably spoke in a low voice because she was afraid of the accused.
Talibona also admitted that she was not present at NRH when the alleged offence took place adding that her evidence was just hearsay… When Letsholo put it to Talibona that what the complainant told her was not the truth, she answered: “I can’t deny that because it is what she told me.” She continued: “I was not forced to lay a charge of rape against the accused because my investigations showed that there was a need to charge him”.
Quizzed by Letsholo if there was any form of physical objection when the accused made advances to the complainant as alleged, Talibona answered in the negative.
“The complainant never shouted when the alleged rape took place. She just told him that she didn’t want to have sex with the accused. I also admit that no violence was meted out to the complainant.
I further admit that the complainant never suffered any injuries,” said Talibona.
Asked by Dlamini-Ngandu that apart from the DNA, was there semen or spermatozoa that linked the accused to the alleged offence, Talibona said that there is an affidavit that would show that one of the condoms contained the accused’s semen.
At the end of the court session, the defence counsel told the court that he admitted the affidavit of the forensic scientist because there is nothing in the affidavit that links the accused with the offence.