Durban — The murder trial against a pensioner alleged to have shot and killed a father of three in a road rage incident will resume in February in the Pinetown Magistrate’s Court.
The murder trial has been paused as the defence fights the State for access to the investigating diary in the docket.
Anthony Ball is charged with the murder of Dean Charnley who was shot and killed last year on the Everton Road turn-off from the M13 in Kloof.
In his not-guilty plea, Ball’s version is that he was on his 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 Ball shouting and hitting the roof of his car with his hand violently. Ball fired a warning shot out of the Subaru’s open window before Charnley reached him.
Ball alleges that Charnley leaned through the window grabbed him and partially opened the door grabbing the gun which he still held on to. The second fatal shot went off inadvertently during a scuffle.
In August the defence indicated that it would bring such an application before the court, after the cross-examination of State witness, Timm Wegmann, 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.
The application seeking relief from the court comes after State prosecutor Rowen Souls refused the defence access in an answering affidavit.
On Tuesday, it was said that the court would make a ruling on the application in January and the trial was set down to be heard for two days in February.
Senior advocate K Singh, acting on behalf of the State for this application, said there was no reason for the relief sought to be granted.
“The applicant has given his defence to the charges, how can he now say he can’t prepare his defence without access to the diary.”
He said ahead of the trial discoveries (documentation in relation to evidence the State had against the accused) were provided.
“A pre-trial conference was held in which the defence in essence indicated they were ready for trial to proceed.
“That confirmation of readiness indicates he has been given all he needs to continue with the trial,” said Singh.
Ball’s defence earlier this month in the application had directed the court to case law – of State vs Panayiotou – where the accused had brought the same application as Ball before the court.
In the Panayiotou decision, he was asking for access to the investigating diary which was granted as he sought to challenge the conduct of the investigation to establish that this investigation should be excluded from the trial.
“Here it was about when Luthando Siyoni was arrested he became a section 204 witness and he claimed that he was assaulted after being arrested.
“In this present matter, there is no section 204 witness, no pointing out and no confession, by virtue of that the principle of the Panayiotou decision does not apply. Three eyewitnesses have testified and the State’s case is premised on this direct evidence. Needless to say, Panayiotou was sentenced and convicted,” said Singh.
In addressing the issue of Charnley’s wife having had access to the witness’s statement, Singh said the State had explained that there was an attorney on watching brief for the family and he was given the statement.
“This does not amount to failure of justice, how will this statement in the wife’s possession damage or prejudice the trial?” asked Singh.
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