Defence cites loophole in Kalafatis appeal

ISAIAH MOREWAGAE | Friday January 27, 2012 00:00

The defendant was convicted of being an accessory after the fact of murder while his three colleagues were found guilty of the crime.

Making their submissions before a panel of three judges of Court of Appeal, lawyers representing the state security operatives convicted of the crime argued that Mothobi was not initially charged with being an accessory after the fact. One of the lawyers, Michael Hellens submitted that being an accessory after the fact is not a competent verdict provided for in the Botswana Criminal Procedure and Evidence in a charge of murder. He submitted that for Mothobi to have been convicted of an offence of being an accessory after the fact to murder, he needed first to have been charged with that offence.

'The learned judge erred in law in convicting Mothobi of an offence with which he has not been charged with,' he argued. He stressed that the state submitted no response to the argument that it was not competent to convict Mothobi on a charge of being an accessory after the fact.

'It is taken that the concession is made that the conviction was not competent.

It is further taken that the state therefore concedes the appeal of Mothobi,' Hellens stated.

He noted that the state however argues that the Mothobi should have been convicted of murder. He asserted that because there is no notice of appeal filed by the state, the court cannot be invited to interfere with an acquittal.

'... no appeal lies to be heard by this court on the question of the acquittal of Mothobi on a charge of murder.

It is submitted that Section 325 of the Penal Code cannot be read so as to accord the Court of Appeal the right to interfere with an acquittal when the state has not intimated an appeal until the very last moment when heads of arguments are filed that the state attempted to raise this issue,' Hellens argued.

He criticised Justice David Newman finding that the convicts, Mothobi, Gotshosamang Sechele, Ronny Matako and Boitshoko Maifala lied in their testimonies.

He said Newman erred in confusing the place where Maifala stood with the place where Matako stood in order to find that Matako could not have made the warning that Kalafatis was pulling out his gun.

He added that Newman should have found that the forensic expert established significant uncertainties as to precisely where each one of the accused was standing whilst shooting.

Hellens said that the judge should have found that oral evidence of a credible nature contradicted some of the admitted statements.

'The learned judge should have found that whilst the Criminal Code of Botswana allows witnesses statements to be admitted, the admitted statements cannot take precedence over credible oral evidence which may water down, or contradict that admitted evidence,' he asserted.

Judgement in the matter will be delivered on February 10 by justices  Lord Alistair Abernethy, John Foxcroft and Steven Gaongalelwe.