Dewani case: Court to rule on 'confession'
2012-09-25 21:16
Cape Town - The Western Cape High Court will rule on Wednesday on whether to admit as evidence a "confession" and pointing out of crime scenes in Anni Dewani's murder.
Judge Robert Henney said on Tuesday he would make a short ruling and give an explanation only at a later stage.
Xolile Mngeni's trial would resume on 8 October, after a court recess.
Mngeni has pleaded not guilty to hijacking, robbing and killing Dewani in Gugulethu on 13 November 2010. She was on honeymoon with her husband Shrien at the time.
The court heard closing arguments in the trial-within-a-trial on Tuesday.
The State said it had proved beyond reasonable doubt that Mngeni, 25, was not forced or assaulted into making his "confession" on 16 November 2010, or doing the pointing out the following day.
"There is simply no evidence to support the accused's allegations of assault, torture and undue influence, or that he was told what to tell and show the statement taker," said deputy director for public prosecutions Adrian Mopp.
He said the court should also dismiss the allegation that Mngeni was not given the chance to exercise his constitutional rights to a legal representative on the day he gave the statement.
"The accused was unequivocal that he wanted to proceed and that he would 'take a lawyer at court'."
The State said Henney would have to rely on the credible testimony of nine police officers who took the stand, because Mngeni had elected not to testify in his defence.
The court could not make any inferences into his thoughts or intentions, Mopp said.
It was the defence's submission that the statement and pointing out should be excluded because they were made under duress and done unconstitutionally.
Qalisile Dayimani, for Mngeni, said his client was assaulted between 05:20 and 07:30 on 16 November 2010, before giving a statement.
He said the court should be mindful that the State could not account for what happened from his client's arrest at 04:17 to the time he was detained in Bellville at noon.
He said another mystery was the booking out of his client from 01:20 to 04:30 on18 November 2010.
The State objected to the assertions.
"He knows it's on record. He's trying to put a ruse before the court... We know what happened that morning. The cellphone [Mngeni allegedly tried to sell] was recovered that morning," Mopp said.
Henney asked the defence what evidence it had to prove the assault.
"We have a barrage of policemen saying he did not get assaulted," he said.
Dayimani hinted at a possible conspiracy to cover up the assault by the nine police officers who testified, thus making evidence hard to pin down.
The judge said it was hard to believe the officers would go to all the trouble of making a video of the statement being taken and then present the evidence in court.
"[If that is true,] they must be very clever to think they could get away with it," Henney said.
The defence criticised the manner in which Captain Adolf Jonker took the statement.
Firstly, he did not check Mngeni's whole body for any injuries.
"Jonker could only look the upper body of the accused. The assertion was that the accused was assaulted on his lower parts," Dayimani said.
Secondly, the policeman did not allow Mngeni to exercise his constitutional right to a lawyer.
Henney said he would have to decide whether the law made it the duty of a police officer to arrange legal representation for an accused or whether it was simply to explain their rights.
"If they know the suspect was walking into a minefield, is there a duty to stop him from detonating that minefield?"
- SAPA
