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Desmond Nair Delivers Bail Decision

Aired February 22, 2013 - 08:30   ET


DESMOND NAIR, CHIEF MAGISTRATE, SOUTH AFRICA: Although the accused guilt may be relevant in a bail application, evidence thereon should be confined to the central issue: whether the interest of justice permits the release of the accused on bail.

Abuse by the prosecution of the right to cross-examination on that issue may result in the evidence being excluded at the trial. The record of bail proceedings is neither automatically excluded from nor included in the evidentiary material at trial. Whether or not it is to be excluded is governed by the principles of a fair trial. Bail serves not only the liberty interests of the accused but the public interest by reducing the high number of awaiting trial prisoners clogging our already overcrowded correctional system and reducing the number of families deprived of a breadwinner.

The case law regarding the concept exceptional circumstances are too numerous to mention. However in S. versus Poulton 2004 2SSCR242C (ph) at page 12 and I quote, in determining whether or not a bail applicant has established the existence of extraordinary circumstances within the meaning of section 60.11a of the criminal procedure act the court has to make a decision on the facts, judged within the context of the particular case, facts which might be sufficient in one case might not be enough to warrant the grant of bail in the particular context of another matter.

This court will be guided by the factors set out in 64A to E, read with section 65 to section 68A, also section 69 which shall be referred to in the reasons for the ruling. The state in this matter argued this was a schedule six offense and in the charge sheet (ph) heard the argument (ph), and in the response to a request for further particulars avert that it will show the deceased Reeva Steenkamp arrived at premises between 1700 and 1800 hours on the 13th February 2013 and planned to spend the night with the accused. An overnight bag was found in the main bedroom and cosmetic bag in the bathroom. Both toilet and bathroom were upstairs. The distance from the main bedroom to the bathroom is seven meters, a passage links the bedroom and bathroom. The accused was shot three times on the toilet, she died from the gunshot wounds.

The defense brought an application in terms of section 16.11A for information to be provided by the state so as to give the applicant a reasonable opportunity to produce evidence which satisfies the court that exceptional circumstances exist which in the interest of justice permit the applicant's release on bail. The state responded by adding the following to its argument supporting that this is a schedule six offense. It was stated in the response that the state will internally (ph) rely on the deliberate firing of the shots aimed at the toilet seat from a distance of 1.5 meters, the fact that the entrance wounds were on the right-hand side of the body, the fact she was dressed at the time of shooting, the fact that the door was locked from inside, the state is in possession of a witness statement to the effect that the witness overheard talking non-stop like fighting for a whole hour between 2:00 and 3:00 in the morning, on the morning of the incident. The defense argued that this could never have been premeditated murder and I've heard extensive and thorough argument on that scope.

In the issue of determining whether we are dealing with premeditated murder at bail stage has previously been dealt with by our courts and I said so in the ruling that I made which I do not intend to repeat. I wish to add, however, on the question of premeditated murder, and as has been the issue throughout this trial, having heard the arguments and given my ruling I would venture to say at this point of the hearing I am not at this point as much seized with the issue of finding beyond a reasonable doubt that the applicant had committed a premeditated murder.

What is important at this time is for the state, to my mind ,to be able to prima facie put forward some facts as set out in section 16.11A, either by certificate by the director of public prosecution or a complete indictment, and in this instance the state not only handed in a charge sheet, they handed in a further charge sheet and amplified that heads of argument and further amplified that responding to the section 16.11a request, all that in its totality absent the certificate from the director of public prosecutions is in any event to my mind enough for the state to have met the threshold to establish and put before me premeditated murder from which I should work for the purpose of this bail application.

I am not clear at this point in time to find the accused guilty of premeditated murder. Of course, at the end of the murder and after all the evidence has been heard, it will be for the trial judge to draw that inference as the only reasonable inference that the facts show premeditated murder.

At this point, I have to look at what facts the state who is dominus litus has to give me. I must rely on the bona fides of senior counsel who is presenting the state's case and what he has in his possession at this point is nothing more than circumstantial evidence, but that does not prevent the matter falling under the category of schedule six, and I'm going to approach it in that vain from here onwards.

Would it be possible for me to get five minutes?

UNIDENTIFIED MALE: Indeed, indeed (ph)

NAIR: Thank you. Court will adjourn.


O'BRIEN: Welcome back, everybody. So they just played the music, because they have taken a five-minute break in this case but we've heard over the last literally one hour from the chief magistrate in this case is he's been reviewing the history, not only of the last four days in which the defense and the prosecution have been presenting their arguments but also he has sort of reviewed legal history behind all of his decisions including history back to the Bora war, back to the Romans. Why is he being what I would read as very defensive about how he's laying out every decision is he making? Is it only because this is a case that is being literally watched around the globe?

JEFFREY TOOBIN, CNN LEGAL ANALYST: High profile cases make judges do strange things and the judge here is doing what seems to be a very meticulous summary of first the law of public access televised trials in South Africa, then the issue of what evidence was presented over the course of this hearing. Then he moved to the history of bail in South Africa. The most important thing he did so far I think is he said that the evidence was sufficient for him to consider this case as one of premeditated murder level six in South African law. That establishes --

O'BRIEN: But he went on to say I'm not here to decide if in fact that, whether or not he's guilty.

TOOBIN: But it is still important for him to say at least the government presented evidence from which he could find premeditated murder, which establishes a higher threshold, which makes it harder for Pistorius to get out on bail. Now, we haven't heard his ruling yet, but that is a decision that is at least a preliminary victory for the prosecution that he will consider this as a premeditated murder case.

O'BRIEN: Cameron, he's covered a lot of ground but sort of the ground he has not covered is the context in which this whole entire case is happening, right? We know Pistorius has talked about how fearful he was because of the atmosphere of violence that exists already in South Africa, but there's another atmosphere of violence as well against women in South Africa.

CAMERON RUSSELL, FORMER MODEL: Definitely. I think this case can be sort of what Newtown was for gun control in the U.S. to domestic violence and violence against women in South Africa. Last year the World Health Organization reported that 60,000 women and children are victims of domestic violence a month in South Africa, that's the highest in the world.

O'BRIEN: A lot of that will depend on what is presented in this case. Is it a case of, as the prosecution has laid out, there are all these things that stand out in this case, they mentioned that she was dressed when she was went to the bathroom, took two cell phones with her, there are reports of witnesses hearing arguments for an hour before we know that the shooting took place, a lot of which direction this goes and if it can have an impact will depend on how the case is presented. Some people say it will be a forensic case.

CHRIS JOHN FARLEY, SENIOR EDITORIAL DIRECTOR, DIGITAL FEATURES, WSJ: It's fascinating he spent a lot of time talking about why he did not want to have cameras in the courtroom, why there was going to be an audio feed only justifying that, talking about how video tends to, can distort video editing can distort the perception of what happens in a courtroom when clearly it seems we're already seeing media distortion taking place right now in terms of how long he spent just detailing the case. This obviously --

O'BRIEN: Do you think that's distortion or do you think that's someone who is being so meticulous as Jeff described it because he wants to make sure with everyone watching no one can later say we decided to let him stay at the police station rather than being in a jail cell because he's a celebrity.

FARLEY: Perhaps distortion in a good way but still the detail seemed to be a distortion from the way things typically are done in terms of going into that level of detail, going back to Roman times, citing case law that relates to England. That's all very interesting and I wonder if that will continue as this case goes on.

O'BRIEN: Let me interrupt you. I want to go to Robyn Curnow, she's standing by for us, but I have to mention that people are once again taking their seats in the courtroom, so any moment, Robyn, we know that the magistrate could come back in and restart the case. They've taken a delay but we don't know how long. Robyn, why are they breaking? Do we know?

ROBYN CURNOW, CNN CORRESPONDENT: I don't and I must say it's cite frustrating standing outside this courtroom. I have two cell phones and my notes and I think like all of you, I feel like I also want to be squashed inside that tiny room. We do know this as we can hear from this magistrate he's been very thorough. He's fully aware of the magnitude of this, that people are listening literally to his every word. He's also perhaps playing a little bit of theater here as is done in many courtrooms, so he's probably just allowing a little bit of that suspense to build up again, and he has been pretty good at building it up, hasn't he, throughout this afternoon. He said five minutes. They'll take a break and start again. So I think he has got, let me look at my watch, he's got 15 minutes to come to a decision and he's going to take it to the wire because the court closes here at 4:00 p.m. local time which is in 15 minutes so I would say that he's just working up to the sort of final crescendo.

O'BRIEN: Is that because he is being defensive in his posture in terms of anyone later saying that the magistrate, as we've seen him pass cases here in the United States people will pick apart every single decision he's made so he's being very defensive. Looks like he's picking up again inside the courtroom so let me put you on hold and we'll listen to the chief magistrate.


NAIR: -- will endanger the safety of the public or any particular person or will commit a schedule one offense or where there's a likelihood the accused if he were released on bail will attempt to evade his trial or C, where there's a likelihood that the accused, if he or she were released on bail will attempt to influence or intimidate witnesses or to concede or destroy evidence or D, where there's a likelihood that the accused if he or she were released on bail will undermine or jeopardize the objectives or the proper function of the criminal justice system including the bail system. Or E, with exceptional circumstances there's a likelihood that the release of the accused will disturb the public order or undermine the peace of public security.

When one is looking at 60 subsection 4, subsection A, one would have to take into account the following factors, mindful of the fact that if any of these grounds are established, then the interests of justice do not permit the release of the applicant in this matter. In looking at the ground in section 64A, I would have to take into account the degree of violence towards others implicit in the charge against the accused, any theater violence which the accused may have made to any person, any resentment the accuser is alleged to harbor against any person, any disposition to violence on the part of the accused as is evident from his or her conduct, any disposition of the accused to commit offenses referred to in schedule one as is evidence from his or her past conduct.

The prevalence of a particular type of offense, any evidence that the accused previously committed an offense referred to in schedule one while released on bail, or any other factor which in the opinion of the court should be taken into account. Now, when you look at section 64 subsection B, being where there's a likelihood that the accused if he or she were released on bail will attempt to evade his trial the factors that I would have to look at in determining whether that ground has been established are, A, the emotional family community occupational ties of the accused to the place to which he or she is to be tried, the assets held by the accused and where such assets are situated, the means and travel documents held by the accused, which may enable him or her to leave the country, the extent, if any, to which the accused can afford to forfeit the amount of bail which may be set.

The question whether the extradition of the accused could readily be effected should he or she flee across the borders of the republic in an attempt to evade his or her trial. The nature and the gravity of the charge on which the accused is to be tried, g, the strength of the case against the accused, and the incentive that he or she may in consequence have to attempt to evade his or her trial.

The nature and the gravity of the punishment which is likely to be imposed, should the accused be convicted of the charges against him or her the binding effect and enforceability of bail conditions which may be imposed and the ease with which such conditions would be breached or any other factor which in the opinions of the court should be taken into account.

I do not think it necessary at this point in time to go into the factors that need to be established for the invocation of section 64c, d and e. If I were to look at the strength of the state's case which falls under the categories that I've mentioned now, on the score also of whether there's a likelihood that the accused, if he or she were released on bail, I would read the same with the nature and gravity of the charge in which the accused will be tried.

Now, if I have regard to the evidence of warrant officer Hilton Botha and the strength or weakness of the state's case and working from the point of departure, that if the defense had succeeded in showing the state's case to be weak, then I hold the view that that is a ground that falls for application as an exceptional circumstance. If on the other hand the state in seeking to establish that its case is so strong that the accused, that the applicant will be a flight risk or cause harm to others, it is for the state to establish that by virtue of the strength of its case before that particular provision can be evoked.

Now having regard to the evidence of warrant officer Hilton Botha let me start there on the strength of the state case on the issue of a flight risk, on the issue of propensity to violence. Warrant officer Hilton Botha indeed made several errors and concessions during cross- examinations and these are, among others, he didn't bother to ask for the other cell phones that may have been present, nor did he go and check on the cell phone number given by the defense in court.

I'm alert (ph) to the fact that he testified that he found cell phones, but he is the one, he is the very one who indicated that there were no calls made from those cell phones. Now, when the defense in court at an early stage of these proceedings indicates that the accused had a cell phone and this is the number, at no point thereafter does he investigate that further.

He does not verify the cell phone information of the deceased. If it was the deceased's cell phone that was on the floor, it is highly important and of crucial importance rather to show or not show that there were calls or SMSs incidences that may have been made up to 2:00 in the morning and that would have been an important part of the puzzle.

Following procedure is another issue to talk about he may well have contaminated the crime scene by not wearing protective gear on his shoes. I do think, however, at the time that he entered the premises, much of the investigation would have been concluded. He agreed with the probability of the defense's version to the extent that if shots were fired from the entrance of the bathroom that they would travel in the direction of the toilet. I feel that he could have done more to establish if this applicant had other incidence or a tendency or reported cases where in violence was involved.

He conceded to the court on the court's questioning that his language of choice on certain questions was indeed even Afrikaans. Yet he even pursuant to my asking him he elected to testify in English. He blundered on the exact description of the substance and needles that were on the scene, initially saying that it was testosterone but very quickly retracting in the face of the version that it was testocomposudium (ph). He then agrees there second urine sample taken. What happened to the first? Did he write the name testosterone in his pocket book? He says no, I had a clipboard. Did you write it in the clipboard? No, there were others who were also taking information. He didn't call (inaudible) to negate the call by the accused.

He wants to oppose bail. In the face of being told there's a memory stick with account numbers, offshore accounts, him being the policeman on the scene, did not deem it necessary to seize with the might of the law behind him such evidence as is necessary to prove that the accused has got offshore accounts, which was a material factor that I would consider when it comes to his likelihood to be a flight risk.

Did he try to establish whether the number given by the defense was the accused's cell phone number? He did, however, I must, to his benefit, add defend the position that the three of the cartridges that were found in the bathroom itself added more weight to the state case that the shots were fired from where the ballistic expert thought it was.

I must add that in assessing his evidence and answers, I really feel that it wasn't just through the persistence of the questioning of advocate rules that he conceded eventually that on the defense scenario, the trajectory could be the same. He considered that there was a cartridge outside in the passage which he omitted in the evidence in chief.

He also considered that at this stage the witness who heard the voices and the arguing could not see where they were coming from and not indicate that they originated from the applicant's home. What was astounding, of course, was his perception of distance, indicating that the statements of those witnesses and his recollection of the distances of their homes from the applicant's home was initially 600 meters. On questioning by the court and the defense, he then changed to 300 meters, and then went even less.

I do, however, want to also indicate that his concession that indeed if the deceased's bladder was empty it would be in line with the defense version that she was in the toilet. Indeed so, there may be other reasons for her bladder having been empty, and I do not think he was expert to answer that.

He was criticized for not testing the version in the affidavit that he wanted to get the firearm in that time that the deceased could have gone to the toilet. Why didn't he go and check it out? He conceded to advocate rule that the deceased would have locked herself in the toilet if the applicant had screamed to the intruder, "Get out Reeva, call the police."

But it's equally possible as the advocate now pointed out during the address to the court that the deceased if she was on the toilet could equally have asked what's going on, open the toilet door and nervously come out.

I was indeed satisfied on the score of his answer with regards to the contention that the accused being so vulnerable would want to seek to protect himself and his girlfriend. Advocate, or rather, warrant officer Hilton Botha responded quite confidently but why would the applicant charge into the danger without his prosthesis when there were so many other options available to him?

Now of course it is an area of concern that the defense found has spent bullets and now the warrant officer says he heard about it, but being the case even if there was a spent bullet in the toilet bowl, whose fault is it really?

But I think what is the primary importance to me is that while there were concessions made by Warrant Officer Botha, Warrant Officer Botha is not the state case. Warrant Officer Botha is a police official that was first on the scene. He is not necessarily the most senior police official who may be tasked with the investigation.

It is of course desirable, and I will indicate why, that when there's a crime of this magnitude in terms of the public interest in terms of who the applicant is or the accused is, it is of vital importance that the South African Police Service at the very outset also as soon as they learn about the profile of the matter allocate a very senior and experienced detective to take control of the crime scene with a view to testifying in court as a matter of course if bail is opposed.

Now Warrant Officer Hilton Botha conceded that there were aspects of the defense version with which he agreed and those -- and that were consistent with the defense's version of the applicant or the accused being in the passage insofar as the trajectory of the shots, but Warrant Officer Botha's concessions by no way mean that he agreed with the defense's version. A version was put to him.

He also had the state version that there were three cartridges in the bathroom and ballistics indicated that the shots were fired from 1.5 meters way. Equally, he on more than one occasion repeated that he considered it improbable, he even went so far as to repeat as I've said that there were three cartridges in the bathroom.

I want to highlight it can never be said that Warrant Officer Hilton Botha is the state's case. It's his evidence that may have been to an extent tarnished by cross-examination, not the state case. He is not the state case. The state case comprises of experts who will put together pieces of circumstantial evidence, I would imagine.

I cannot agree with the contention that concessions and the credibility of a detective who is on the level of a warrant officer and who on the main agreed with the assertions made by the defense on their version necessarily means that the state's case is not strong.

We are dealing with circumstantial evidence. What would one expect? There are no other witnesses. The only person who knows what happened there is the accused. Therefore it is as a matter of cause that when you are dealing with circumstantial evidence, pieces of the puzzle need to be put together and those pieces of the puzzle may not yet all be before me and of course the state obviously in the normal sequence of events would by the time that the state is ready or trial ready have more pieces of the puzzle and when that happens and assuming the matter reaches the stage where evidence is led in the trial itself, and at the close of the state case for example, if all the pieces of the puzzle leave the court with an inference as the only reasonable inference to the exclusion of all others, that it was the deceased who knew it was, that it was the applicant who knew that it was the deceased in the toilet, fired from the distance as indicated by the state, then of course, the accused may have a case to answer.

In considering the state case and the strength of the state case I'm also mindful of the decision of S. Versus Brankees, 2003 2SSCR page 575, Supreme Court of Appeals, handed down by the Honorable Acting Justice of Appeals Shongwe we have page 578 he goes on to indicate and this is an application for bail pending appeal by the way and I quote, "Whether the sum of the circumstantial evidence is sufficient to establish that felon's complicity in the planning of participation in a robbery must be led to the court during the appeal for the purpose of this appeal is not necessarily to go beyond simply stating the evidence. Likewise I consider the outset of the bail application whereby the very nature of things, the investigation is at a very early stage.