Death row inmate�s attorney fails to impress CoA
Mpho Mokwape | Tuesday July 7, 2015 15:58
Yesterday before the bench of three judges, Martin Dingake argued that Gabaakanye was convicted purely based on circumstantial evidence.
The 55-year-old Gabaakanye was convicted and sentenced to death by the High Court in 2014 for the murder of an elderly couple at Ga-Mosu Lands in 2010 that left an old blind man dead and his wife wounded.
He was also sentenced to five years for unlawfully wounding. Dingake submitted that in the absence of solid evidence, his client was entitled to an acquittal.
“My client’s conviction was largely based on circumstantial evidence. This is so because none of the state witnesses said they saw Gabaakanye commit the crime in which he stood charged and subsequently convicted for,” he said.
He argued that the stolen items that were found in his client’s possession and used to link him to the murder could have changed hands in a short space of time.
Dingake said the trial court disregarded the evidence of recent possession given the nature and value of the alleged stolen items that they can change hands much quicker.
“The trial court failed to consider the doctrine of recent possession and nature and value of items stolen in the context of the passage of time from the date of the alleged offence and when they were found in my client’s possession,” he said.
He further argued that a conviction could not be based purely on the doctrine of recent possession especially where interference is possible. However, when the judges pressed hard on the submission of circumstantial evidence, Dingake changed tune and said that if indeed it was his client who attacked the old couple, the act was not premeditated.
Justices Monametsi Gaongalelwe, Justice Isaac Lesetedi and Justice Elijah Legwaila were adamant that circumstantial evidence was still admissible in court; he did not challenge most of the evidence put before him, and therefore he should not push for acquittal of Gabaakanye.
Dingake said his client was not a murderer and that given a second chance he can change for the better.
“It is respectfully submitted that this is not a proper case where the death sentence should be imposed and in the solemn circumstances, we beg for mercy and for a second chance and for a custodial sentence other than death penalty,” he said. However, the judges insisted this was a premeditated murder. The bench questioned why Gabaakanye went to the old couple’s place armed and concealing his face.
“He was armed with dangerous objects, the old man was reported to have died from deep head injuries. He had many blows to the head and when he thought the couple was dead, he proceeded robbing them. That is premeditation,” the judges said.
Justice Lesetedi also indicated that he was not impressed with the manner in which the state handled the case, especially not marking and identifying exhibits. “This case looks like it was handled by someone who did not do law and procedure. This is disappointing because here we are dealing with a case where someone was murdered and the other’s life (the appellant) is hanging in the balance.
“You ought to do a proper job,” he said.