Saturday, June 22, 2024

A case to answer for the Morupisis puts it on a cliff hanger

It is said that when defendants apply for a no case to answer in a criminal case, they are so confident that the judicial officer will rule in their favour. And the reason would be that the prosecutor was at sixes and sevens in trying to prove the case beyond reasonable doubt.  Not so lucky it has emerged for Rre Carter Morupisi and his wife. Justice Christopher Gabanagae is resolute that the Morupisis have some serious explaining to do with respect to charges they face. At the heart of the expected explanation is how they acquired the high end land cruiser complete with personally installed extras and valued at over P 630,000. It is my considered view that had the Morupisis provided plausible explanation to the investigator on how they acquired the land cruiser, it would not be subject to any judicial scrutiny as it is the case. The cliff hanger aspect will be characterised by what the Morupisis versions of events are to the extent that such could persuade for an acquittal.   

A ‘no case to answer’ is defined by legal scholars as an application launched by the defence team to the presiding magistrate or judge after the prosecution has closed its case against the accused. The application is launched when the defence team is of the view that evidence presented by the prosecution team is so flimsy, weak or insufficient to secure a conviction. The presiding judicial officer would then evaluate the entire evidence so presented by the prosecution team to decide whether it justifies him/her to rule in favour of the defence team or, that the prosecution evidence before him/her is sufficient to warrant rebuttal from the defence. Justice Gabanagae has run with the latter position. The following should further explain the ‘no case to answer’ concept if I may call it that.   

Mosojane J held in a judgment (Citation 2005(2) BLR 453(HC) in which a no case to answer application was made before him that ‘A submission of no case to answer would only be upheld where there was no evidence that the accused person committed the offence as charged or any other offence of which he might be convicted thereon….The test to be applied to determine the sufficiency of the evidence was not whether there was evidence upon which a reasonable court should convict but whether the evidence presented by the prosecution was of such a nature that a reasonable tribunal of fact, properly instructed, might convict the accused.’ Professor J.A. Coutts, Dean of the Faculty of Law, University of Bristol said in The Journal of Criminal Law published in 1963 that ‘magistrates’ decision whether there is a case to answer should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. It follows that, whatever the subjective opinion of magistrates themselves, at that stage, if a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer….A submission of no case to answer is a proposition that the prosecution has not made its case, that is, that it has not proved its case beyond reasonable doubt….’  

Delivering his judgement on the no case to answer application, Justice Gabanagae said ‘I take the view that there is evidence of which a reasonable tribunal of fact might convict of the offences charged on count 1 and 2 (corruption)…..In conclusion, I find the prosecution has established a prima facie against the three accused in respect of the charges they are facing.’ By this ruling, the Judge was effectively in my view throwing down the gauntlet on the defence team to poke holes in the prosecution evidence if you like, in order to discredit such evidence to the benefit of the Morupisis.

Is it only a question of the defence holding the view that the prosecution has presented insufficient evidence against the Morupisis and therefore launching a no case to answer application or, evidence as led by the prosecution would be difficult to be rebutted by the defence hence the escape route of such an application? This question is not based on any legal principle or authority but on my layman’s view that when the odds look, or are stacked against some litigants, they will try to find some hurdles through which they can escape. Perfectly legal as such hurdles could be, it would appear in some instances to be cases of testing the waters.  If and when a police officer approaches me to inquire on how I acquired property like a motor vehicle for example, I should be ready without ducking and diving to provide complete financing arrangement thereto. If that property was financed through a bank loan, it should be easy for me to obtain confirmation from the bank. If the same was financed from personal finances, that should be easy as well. The moment I begin to provide ‘incoherent’ information to such acquisition, the police officer will be left with no option but to seize the property until a plausible explanation is provided. It appears to be the case with the land cruiser.         

The prosecution is saying the land cruiser in question was purchased by ‘blood’ money that went through twists and turns whereupon it was sanitized to make it look like it was legitimate; that such money is the property of Botswana Public Officers Pension Fund (BPOPF) of which Rre Morupisi was the Chairman; that he signed the transactional documents of the purchase on behalf of his wife’s company (the purported owner of the vehicle) yet he is neither its director nor a shareholder. From what can be inferred from the prosecution evidence, Rre Morupisi used his positions as the Chairman of BPOPF and that of the Permanent Secretary to the President respectively to derive personal benefit of some sorts.  

With the ball now firmly in the Morupisis court to return if possible, it is my view that I am looking forward to the grand finale of the last leg of the trial to see which way the wind blows the ball. If a plausible explanation on the acquisition of the land cruiser could not be provided to the investigator during the early days of the investigation, what other plausible explanation can now be provided? It appears two payments for the ‘same’ car were made: one for a new one valued at over P 630,000.00 and the other for a not so new motor vehicle valued at over P 514,000.00. From where I stand and given the decision by Justice Gabanagae to reject the no case to answer application, the Morupisis could very well be standing on the edge of a cliff. Only time will tell. Judge for Yourself!

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