Durban — In the murder trial against a pensioner alleged to have shot a man in a road rage incident, the State would be opposing an application by his defence to have access to the investigating diary.
This emerged on Monday in the Pinetown Magistrate’s Court where Anthony Ball is charged with Dean Charnley’s murder. He was shot and killed last year on the Everton Road turn-off from the M13 in Kloof.
A police officer was meant to take the stand to testify on Monday, but Ball’s lawyer, advocate Gideon Scheltema SC, said that before Sergeant Jethro Nqobile Khoza took the stand he had three issues he needed to raise.
“We had requested that the investigating officer who took Timm Wegmann’s statement be present today, this is relating to Wegmann’s statement. It involves the admissibility of this statement. We would like to deal with this as soon as possible before we finish his cross-examination. I had asked the prosecutor to assist in securing this investigating officer. The second issue relates to Wegmann’s evidence that the wife of the deceased was in possession of his statement even before he testified, this is grossly irregular. The prosecutor should know how she came to have it, this appears to be correctionally irregular, for a statement emanating from the docket to be in her possession.”
Wegmann is a State witness who began his evidence last week, his cross examination by the defence is set to continue in September.
Scheltema said the prosecutor had a request served on him by the defence, notifying him of the accused’s intention of requesting access to the investigating diary in this matter.
“We also indicated that should he oppose this request, he must state the full grounds for refusal and these should be placed on record. I do understand that he will oppose the request, I need the reasons why. The prosecutor should know why the State is not allowing the accused access to the investigating diary. Concerning these three things, I ask the prosecutor to respond.
“He should know how the statement came into the possession of the wife, he should know the contents of the investigating diary, and he should know by now the accessibility of the investigating officer, we have not been furnished with the investigating officer’s affidavit to date. These issues are pressing and important to the right of the accused to a fair trial.”
Magistrate M A Khumalo asked Scheltema about the importance of the presence of the investigating officer in question, saying there was no dispute over the admissibility of the statement; the defence was welcome to subpoena the officer to testify as the court could not force the State to call a witness.
“It’s about giving the accused a fair trial … In his plea explanation, the accused challenged the police investigation …This involves his fair trial rights, the accused has every right to challenge the police investigation,” said Scheltema.
State prosecutor Rowen Souls said the investigating officer who had taken Wegmann’s statement was not the current investigating officer and he would not be calling him as a witness.
“In terms of Wegmann’s statement at this stage, I have no knowledge as to how the wife got it. I just got the request this morning for the investigating diary, they can apply in court with grounds but at this stage, the State will be opposing it.
“The defence knows the procedures to follow if they want the diary.”
The matter resumes in September.
WhatsApp your views on this story to 071 485 7995.
Daily News