07 Jul 2015

Patrick Gabaakanye's life is squarely placed in the hands of the Court of Appeal (CoA) judges as his legal counsel on Monday (July 6) struggled to convince a panel of three judges that his client had nothing to do with the killing of an old man.

The CoA is expected to deliver judgement on July 30. 

Gabaakanye, whose case was postponed to the July session in May because his legal counse,l Mr Martin Dingake, was not ready to proceed, was sentenced to die by hanging by Justice Singh Walia in July 2014.

He was accused of the murder of a visually impaired 74-year-old Rapula Serojane at Ga-Mosu lands near Metsimotlhabe in 2010 after attacking the deceased and his wife, who suffered severe injuries. In the course of his attack, which was described as too hard by the panel, Gabaakanye also stole a radio, a cellphone, cups and spoons among others, belonging to the couple.

Arguing his appeal, Mr Dingake said since his client had never been closer to the scene of crime, if the court could find that he was the one who indeed committed the offence, it should be realised that he did not intend to do so.

He, however, acknowledged that Gabaakanye could have premeditated the murder because he arrived at the couple’s homestead with his face covered to conceal his identity. He also came in possession of the weapon that he allegedly used to hack to death the deceased.

Court records showed that during the main trial, the court heard that Gabaakanye had demanded money from the elderly couple upon his arrival late in the evening.

In his appeal he, however, stated that the trial judge erred in law in admitting and acting upon his inadmissible confession statement despite overwhelming evidence that such confession was not freely and voluntarily made.

He also submitted, through his lawyer, that the judge erred in both law and fact, when he failed to find that the state failed to prove its case, against the appellant,  particularly that there existed a material doubt in the prosecution case, which only stood to be resolved by giving the benefit of such doubt to the appellant.

In addition, he submitted that the conviction was contrary to law against the weight of evidence led in the entire case, including issues raised in the admitted confession statement making the case riddled with a reasonable doubt.

For his par, the state counsel, Mr Omphemetse Makale submitted that the accused person’s testimony remains unchallenged as it was unsworn testimony and therefore his credibility cannot be established. He also submitted that cross examination on the version of events by the accused could be the only avenue available for the court to make a finding on his credibility.

Mr Makale therefore submitted that the only possible inference that may be drawn from the facts of this case are that the trial court was right in convicting the appellant as charged.

“We humbly submit that extenuating circumstances as provided under Section 27(a) are factors which if taken into account, would reduce an accused person’s moral blameworthiness so as to render the imposition of the statutory minimum sentence inappropriate. We humbly submit that the deceased in this matter, an old and blind man who met his demise as we contend at the hands of the appellant, was defenseless victim who never posed any threat to appellant”, he said.

Mr Makale further argued that there was no act on the part of the deceased or his wife, which act may be deemed to have provoked the appellant to act in the manner he did and therefore said the trial court did not err in pronouncing that there were no extenuating circumstances in this matter.

In addition he submitted that the attack on the deceased’s wife was unprovoked and there is nothing warranting that she should have been attacked in such a vicious manner. Looking at all these factors he said the trial court handed over a justified sentence more especially that the appellant has a history of violent behaviour and acts. Ends