When police investigations or prosecutorial duties are not properly carried out, the guilty may go scot free on insufficiency of acceptable evidence, while the innocent may be convicted on compromised evidence, Gaborone High Court Judge Key Dingake said last week.
When delivering judgment in a marathon murder case that has been running for almost five years, Justice Key Dingake discharged and acquitted murder suspect Kegone Victor Sebina who was, together with former army commando Thabo Stimela and Aubrey Nkuna, accused of murdering Lesley Manga Ntshwane in 2011 in Mochudi. Sebina was left in the dock to answer to the murder charges after the court acquitted Stimela and Nkuna.
When he retained Sebina in the dock, Justice Dingake said the fact that the deceased was found in his warehouse, and his blood in Sebina’s car, was enough to justify a case of murder. When freeing Stimela and Nkuna, Justice Dingake said the evidence presented by the prosecution was circumstantial and not concrete enough to tie them to the murder. He added that the fact that the accused were seen at the crime scene was not enough to prove that they murdered the deceased. On Wednesday last week, Justice Dingake once again set Sebina free, saying there was no evidence to suggest that he committed the murder even though he was seen at the crime scene.
Justice Dingake said even though there is evidence that the deceased was assaulted by four men who dragged him and put him in a white Toyota Hilux double cab, the exact identities of these assailants remain unknown. He added that on the evidence tendered by the state, none of the witnesses saw the accused assaulting the deceased. In an endeavor to prove the state’s case beyond reasonable doubt, said Justice Dingake, there was heavy reliance on circumstantial evidence. Part of the circumstantial evidence by the state showed that Sebina’s family had sent Tirelo Balopi, Botshabelo Bagwasi and Derrick Leburu to deliver to the family of the deceased, funeral contributions comprising of a truck load of firewood, an ox and P7 500 Pula in cash.
But Justice Dingake dismissed the state’s evidence, saying it was not sufficient to prove that Sebina was guilty. He added that the defense had argued that the contribution was just a praiseworthy kindness and certainly not an admission of guilt, necessitated by the fact that the deceased had been found in Sebina’s warehouse. He further faulted the state for failing to bring forth evidence that the blood swab extracted from Sebina’s car matched the blood sample of the deceased. He said it is a matter of record that there were four assailants.
“But, even if this court was to accept the evidence that the accused was at the house of the deceased on that fateful day, that on its own cannot translate into adequate evidence that he caused grievous harm to the deceased. The question that the state has not satisfactorily answered relates to the whereabouts of the fourth accused. The state has not called evidence to prove that Sebina knew and had anything to do with the presence of the blood of the deceased on his vehicle and the presence of the deceased in his warehouse. His ownership of the vehicle and the warehouse cannot, without much more, make him guilty of causing grievous harm. He cannot be guilty of causing grievous harm simply because he owned the vehicle and the warehouse,” said Justice Dingake.
On totality of the evidence submitted, said Justice Dingake, the state had failed to prove beyond reasonable doubt that it was Sebina who caused grievous bodily harm that resulted in the deceased suffering from cranio-cerebral injuries and dying. Justice Dingake said on the strength of the circumstantial evidence led, no irresistible conclusion could be reached that Sebina assaulted the deceased.
“Even when simply put, the bits and pieces of circumstantial evidence still simply failed to nail the accused,” said Justice Dingake. Sebina was represented by Attorney Unoda Mack and Advocate Sidney Pilane.