05 Sep 2019

A trial within a trial for murder accused, Raphael Chabaesele of Shashe in Maun, continued before Francistown High Court’s Justice Phadi Solomon at Maun Magistrate Court on September 4.

The trial within a trial was meant to establish whether 38-year-old murder accused voluntarily gave a confession statement before former Maun magistrate, Mr Clifford Foroma, on April 18, 2012.

The main trial, which dated back to 2015, was suspended at the Francistown High Court to pave way for the mini-trial.

 Chabaesele is being tried for the murder of Mogopodi Monnawatlala near Ditshagwane cattle post in Maun on or between April 9 and 12, 2012 over a misunderstanding concerning a horse belonging to the accused.

Justice Solomon said the ruling for the trial within a trial case will be delivered in Francistown on November 20. 

She said the allegations laid against the state counsel by the accused were serious.

The accused, who is represented by Attorney Kefentse Moalosi, alleged that the prosecutor, Mr Carlos Diwundu, was present during submission of his confession statement on April 18, 2012.

The accused also said Mr Diwundu took part in the process by asking questions and helping the court interpreter for Magistrate Foroma.

Speaking on the sidelines of the case, Attorney Molosiwa said a confession statement should be voluntary and that the trial within a trial was meant to establish whether his client was not forced to give the confession statement.

“A confession statement must be free and voluntary, the accused should be the one who asks to do it, here it is the other way round, only the accused, magistrate and interpreter should be present not the prosecutor as alleged, this kind of statement should not see the light the day,” he said.

When crossing examining the accused, Mr Diwundu argued that he was not present when the accused made the confession statement since the case was not yet registered with the magistrate court.

He said the issue about him being present during the confession statement was an orchestrated one by the accused and his defence lawyer, which came about on Monday after they heard evidence given by former Magistrate Foroma.

In an interview, Mr Diwundu said the ruling on the confession statement would decide on whether the statement would be admitted or removed from evidence for the main trial.

He said the state had already called four witnesses in the main trial and was yet to call about six witnesses.

One state witness, Constable Kgetsi Resegofetse said he took the accused from the Maun police cell to the Maun Magistrate Court on the said date.

He said he took the accused to Magistrate Foroma’s chambers where he left him in the presence of three officers being the magistrate, the interpreter and court clerk.

Constable Resegofetse said Mr Diwundu was not present in the court chambers, since the case was not yet registered. ENDS