Durban — The murder trial in the Pinetown Magistrate’s Court against a pensioner alleged to have shot and killed a father of three in a road rage incident has taken a back seat.
This comes as the court hears an application brought by the man’s defence to access the investigation diary in the docket.
Anthony Ball is charged with the murder of Dean Charnley, who was shot and killed last year in a road rage incident on the Everton Road turn-off from the M13 in Kloof.
Ball’s version which he tendered in with his not guilty plea is that he was on the way home and while on the M13 Charnley tailgated him.
And on Everton Road, Charnley stopped his Nissan in front of Ball’s Subaru and got out.
Charnley allegedly came towards him shouting and hit the roof of his car with his hand violently.
A warning shot was fired out of the Subaru’s open window by Ball before Charnley reached him.
He alleges that Charnley through the window grabbed him and partially opened the door, grabbing the gun which he still held onto, the second fatal shot had gone off inadvertently during a scuffle.
The accused’s counsel advocate Gideon Scheltema SC on Monday brought an application for relief from the court after a written request for the diary was refused by State prosecutor Rowen Souls.
Arguments in the application are based on Ball’s founding affidavits asking for access, and answering affidavit by the State Prosecutor refusing access, Ball’s reply affidavit to the refusal dated November 3.
The court also has before it short heads of arguments on behalf of Ball setting out case law required in terms of the application as well as the State’s heads of arguments dated November 9, 2023.
Acting on behalf of the State in this application is senior state advocate K Singh, and before Scheltema got into the application he asked if Singh, who confirmed to the court that he had not read the said diary, could be given time to go through the document.
“The document (affidavits) talk about the identity of informants, state secrets, and investigating techniques as well as co-operation between different law enforcement agencies that may be disclosed in refusing access to the diary…We know none of these exists,” said Scheltema.
However, Singh said that the application before the court is based on the affidavits handed to it, and in those circumstances, he did not see it necessary to have sight of the diary.
“This application is purely on the affidavits that have been filed. I request the matter be argued as is at present,” said Singh.
Magistrate MA Khumalo ruled in favour of the State in this regard that the application forge ahead based on the affidavits before him.
“If there's something that is not substantiated in the affidavits then the court will rule on that. The issue is whether the court can authorise access to this diary; however, the court can make a decision on whether the State’s refusal is accepted or not. We have to be mindful of issues that are not that important, we need to confine ourselves to what is relevant. The court is mindful of all that. I rule that the matter has to proceed on the papers,” said the magistrate.
Talks of the application began in August after the cross-examination of a State witness where it emerged that Charnley’s wife had access to the witness’s statement and that this statement had only been made to police a month after the incident.
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