Talkmore Givemore Sibanda, who is accused of manslaughter, has expressed doubt that he will have a fair trial in the absence of a photo album which was to be used in the case.
Sibanda has approached the Court of Appeal to determine whether in the circumstances of the charges he is facing, the absence of the photo album detailing the photos taken at the scene of discovery of the deceased’s body and in his absence and postmortem examination of the deceased’s body and in his absence will amount to an infringement of his right to a fair trial in that he will be compelled to accept without challenge ( by recourse to the photos ) the factual observations made by the Doctor and other witnesses in his absence.
Sibanda is appealing the decision of Francistown High Court Judge Bashi Moesi who had dismissed his application. Sibanda’s attorney, Kagiso Jani of Tshekiso Ditiro and Jani Legal Practice told the court that the application before Justice Moesi was prompted by the undisputable fact that the various witness statements served upon Sibanda indicated the photos clearly. He stated that it is also not in dispute that the postmortem report prepared by the medical Doctor was prepared consequent to visual observations or factual observations the photos (deceased’s body).
“The Appellant does not wish to rely on the factual observations (visual observations) made by the Doctor before he formed scientific observations/opinions, hence the Appellant, well within his rights, requested for the photo album as it was clear that photos were taken at the scene of discovery and at postmortem examination,” said Jani. According to the lawyer the absence of the photo album means that Sibanda must accept the visual observations made in his absence as correct. This, he said is where the miscarriage of justice occurs.
Jani argued that this is so because if the Doctor made a mistake in his visual observations, Sibanda is expected to accept that mistaken visual observation without scrutiny because the photos are not available.
He told the Full Bench of the Court of Appeal that Justice Moesi was to determine whether in these circumstances, the right to a fair trial will have been infringed as Sibanda will be constrained in the absence of the photo album, to effectively cross examine the Doctor especially in the circumstances of this case where the body of the deceased is alleged to have been eaten up by animals. “The extent of the eating up of the deceased’s body can be clearly ascertained with some measure of confidence by reference to the photo album.
The Respondent at the court a quo and in its counter argument sought to downplay the issue of the lack of the album as being a non-issue as the appellant will arguably cross-examine the Doctor. “The issue of the photos is not a creature of the appellant but it came out clearly from the Respondent prosecution statements and or documentation to be relied upon during trial,” argued Jani. He pointed out that the Doctor has made conclusions based on factual findings and the appellant is entitled to look at the factual situation by reference to the photos and then agree or dispute the findings of the Doctor. According to Jani it can therefore not be easily downplayed to say since the photos are not there; it should be assumed that the facts as seen by the Doctor and the police at the scene are correct.
“It is now common knowledge that whilst the appellant was in the process of preparing for trial, it became clear that the charge faced by the appellant has a disturbing fact arising from various documents served upon the appellant by the prosecution. This disturbing fact is that the body of the victim was found eaten up by animals and photographs were taken at the scene.” He revealed to the court that Sibanda then, reasonably so, requested for the photo album which to date, the state has failed to produce despite serving Sibanda with statements showing that photos were in fact taken at the scene and in his absence while he is facing a serious charge of manslaughter.
The respondent represented by Molome of Directorate of Public Prosecution (DPP) argued that with or without the photo album it would be for the trial court to decide if Sibanda would be prejudiced after hearing all the evidence and such evidence has been tested through cross-examination.
She told the court that it is too early for the matter to have reached the Court of Appeal. She explained that the photo album has never reached the prosecution. Molome told the court that a lot has not been done as the prosecution failed to collect all the evidence needed. “The high court has put us to test to locate crime scene officer and have trial within a trial to meet the ends of justice.
The accused was the last person to be seen with the deceased. We have sufficient evidence some of which is circumstantial. The matter should be sent back to the court of first instance which will decide on the matter,” Molome said. Judgement has been reserved for the 8th of February 2019.