10 Jul 2013

A lawyer representing murder convict, Buang Makwati, says the presiding judge failed to pay attention to some pertinent issues when sentencing his client to death. 

Making submissions before a panel of three judges at the ongoing Court of Appeal session, defence lawyer, Mr Mshingo Jeremia of Jeremia Attorneys said when the Francistown High Court handed a death sentence to Makwati for the murder of Ms Kediapere Lopang on November 2007, it did not interrogate some issues particularly evidence led by the third state witness who was also an investigating officer.

Mr Jeremia said the investigating officer’s evidence was contradictory and was also conflicting with what was written in both his statement and summary of evidence and therefore could not be relied upon. He further observed that the investigating officer, Sergeant Sefore Kgosipula failed to bring before the court his so called independent witness whom he alleged had witnessed everything that led to the death of the deceased.

According to the defence lawyer, what baffled him was that even after the court granted postponement to allow Sergeant Kgosipula to bring the star witness whom he said was readily available and had recorded a statement, he came back and told the court that the witness was now unwilling to testify.

He therefore said it was quite disturbing to learn that his client was convicted because of the misapprehension of facts by the judge, noting that had he carefully analysed the whole evidence submitted before the court, he could have arrived at a different verdict.

He said the state called three witnesses, who included the investigating officer Sergeant Kgosipula, in a bid to prove that it was the appellant who caused fatal injuries to the deceased by hitting her with a metal pipe on the head.

He argued that the holding by the judge that the appellant did not challenge the investigating officer’s evidence of pointing out and retrieving the metal pipe at the deceased’s home in cross examination was wrong and it was a misdirection.

He noted that the evidence of the investigating officer was challenged forcefully and at great length as shown in the case record. Mr Jeremia further noted that the appellant at trial stated clearly that he did not point out anything to the police officers, neither did he sign anything related to what he had allegedly pointed out.

“The point here is that it was misdirection for the learned judge to hold that the appellant failed to challenged evidence and using that against him, leading to the conviction, when this was the case as  the record reflects”, he submitted.

He said the judge found the appellant guilty on the basis of circumstantial evidence because he pointed out a metallic pipe to police officers, which caused death to the deceased and therefore concluded that he was responsible for hitting the deceased with the same pipe.

He argued that in so finding, the judge failed to apply the appropriate test as required when dealing with circumstantial evidence, as he failed to observe cardinal rules. He therefore prayed the court to set aside conviction and sentence aside.

However, the prosecutor, Mr Mpho Letswalo from the Directorate of Public Prosecutions (DPP) said the trial judge did not err in his findings, noting that third state witness was a credible witness who the court could rely upon.

Mr Letswalo also submitted that it was clear that the appellant, who was the deceased’s traditional doctor was the one who hit the deceased with the metal pipe, which he showed to the police, noting that it was unfortunate that one possible witness who claimed to have seen the whole incident ultimately refused to come and testify. Judgement will be delivered on July 26. ENDS