Durban — The defence for the pensioner on trial for murder over a road rage incident intended to interpose proceedings with a mini-trial within a trial.
This was indicated by Anthony Ball’s lawyer, advocate Gideon Scheltema SC, in the Pinetown Magistrate’s Court as the day ended on Thursday and the cross-examination of a State witness had to be postponed to a later date.
Scheltema had been cross-examining Timm Wegmann, who was at the Everton Road turn-off from the M13 in Kloof when Dean Charnley was shot and killed, allegedly by Ball, last year.
“I'm ethically and duty-bound to ask the court to warn this witness in terms of the Criminal Procedure Act that he has a right to not answer the questions I am about to ask, that he is entitled to legal representation and that if there's prosecution this evidence or his answers could be used against him.
“He has the right not to answer the following questions as they might incriminate him in the following offences: 1, Defeating the ends of justice; 2, common law perjury – making a false statement in the cause of litigation; and 3, statutory perjury – a witness who made a statement to police but that evidence clashes with what is testified in court. We do intend to interpose proceedings by way of a mini-trial within a trial in terms of this witness's statement. We request the attendance of the officer who took down his statement,” said Scheltema.
During the cross-examination, the defence had pointed out that while Wegmann had testified in court that after the first gunshot went off, the deceased approached the driver's door of the Subaru and the accused started opening his door – this was not in his statement.
“Not a word of this was in that statement – in your statement, you say you saw the deceased holding the door. This evidence of yours that the deceased was pushing the door is a recent fabrication. You never mentioned it before to the police, it was only after speaking to the prosecutor that you did mention it… I put it to you the second shot didn't go off while the deceased was pushing the door… the door was being pulled by deceased,” said Scheltema.
However, Wegmann stood by his testimony, saying that he had told the officer taking his statement this and it was he who did not write it down.
Scheltema also highlighted that both the accused and the deceased’s son who testified stated that Charnley had hit the roof of the accused’s Subaru and that after the second shot, he stumbled and fell forward against the Subaru’s door.
According to Wegmann’s testimony, Charnley fell to his knees, the Subaru drove off, then he fell and landed on his right side and rolled over on to his back.
“So they both lied? I suggest to you the deceased fell against the driver's door. You give a graphic description of how the deceased passed on. I suggest that you are what is called a witness of convenience to claim things you did not witness.”
In Wegmann’s version of events, the Subaru drove off after the incident and did not have to reverse. However, the defence brought to his attention that both the accused and the deceased’s son, who was at the scene, have said that Ball had to reverse before driving away from the scene.
Wegmann said he could not comment on what Charnley’s son had testified and that he had told the court what he saw on that day.
“So you are saying that the version of the son and accused are wrong and you are right. Your version, the son’s version and the accused’s version are miles apart. You emphatically told the court that the Subaru did not reverse,” said Scheltema.
The trial resumes on Monday, but Wegmann’s cross-examination will continue in September.
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