Evidence 'palpably unreliable', Packham charges in Supreme Court appeal application

2019-08-02 17:10
Rob Packham murdered his wife Gill Packham, (Gallo Images/Getty Images)

Rob Packham murdered his wife Gill Packham, (Gallo Images/Getty Images)

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Convicted wife killer Rob Packham has based his Supreme Court application to appeal his conviction on the police's "manifestly unjust" national photo identification system, which he charges is "startling in its application".

Taking aim at the evidence of State witnesses Paul Gray and Keanan Thomas, who testified they had seen Packham on the day he was found to have murdered his wife Gill, he argued in court papers this was one of the many instances in which evidence "palpably unreliable or in conflict with the authoritative prescripts of the law" was found to have probative value in the case against him.

Gray, a 76-year-old neighbourhood watch member, told the court he had seen Packham in a green BMW in Lucius Way, Constantia, on February 22 last year. Packham had appeared anxious and had banged his hands on the steering wheel, he said.

Thomas had seen Packham behind the wheel of a white Audi SUV as it drove away from Diep River train station as Gill's car went up in flames.

The man in the Audi had appeared angry, Thomas said.

Gray and Thomas had identified Packham during a photo ID parade.

Packham, in his papers, argued the process was "significantly flawed" and characterised by a number of material irregularities.

READ MORE: 5 times others were to blame, according to Rob Packham

Case law recognised such parades' significant shortcomings and stated a live line-up was preferred, he pointed out.

"No compelling reason was furnished by the investigating officer, Detective Warrant Officer Sonnenberg, as to why a live line-up was not held. His evidence was that it had not been convenient to find people who matched my description."

Packham also took issue that the parade was not held at the earliest possible opportunity and there was a significant delay of some seven weeks before it was held.

Widespread publication of photos of him after his arrest and before the photo ID parade could also have undermined the reliability of the process, he argued.

The two witnesses had also travelled together to the Hout Bay police station for the parade and had been in each other's company and discussed the matter, which he said constituted a "significant irregularity".

According to the parade's paperwork, it took Gray 22 minutes to identify Packham.

During his testimony, Gray vehemently denied this, insisting it had taken seconds or a few minutes as there had been "no hesitation on my side".

He conceded he did not have a clear view of the man inside the car as his windows had been rolled up when he glanced at him that afternoon.

READ MORE: Witness says he saw 'anxious' Packham in missing wife's car

When asked by prosecutor Susan Galloway to point out the man he had seen that day, Gray walked through the courtroom before eventually placing his hand on the accused's shoulder.

He commented that another man, sitting in the gallery, looked similar.

"I understand that the process of dock identification has been likened by the authorities to asking a leading question and is deemed to have no probative value. Even in these unchallenging circumstances, Gray demonstrated his confusion and uncertainty in regard to the person he wished to point out," Packham said.

Thomas, Packham pointed out, had in an affidavit - the day after Gill's death - described the man he saw as a "coloured male, light of complexion, approximately 30 to 35 years of age".

ALSO READ: Witness says he saw Packham parked near wife's burning car at Diep River train station

"I am a white male and my age at the time was 57. It follows that serious questions must already arise as to the reliability of his alleged identification of me as the driver of the vehicle by virtue alone of the description he gave under oath to the police of the driver shortly after the event."

Packham dug into the police's national photo identification system, which sees a photo of a suspect fed into a computer that then delivers images of people of similar descriptions, which goes into a template of 12 photos.

"I was the youngest person in the photo line-up at 57 years of age. The remainder was made up of 11 people, the majority of whom were in their 60s - 60, 61, 62, 63, 65 (x3), 66 and 67 (x2) - and the oldest was a man of 71. Every person depicted in the photos was a white male."

The photos used did not fit the description given by Thomas, Packham said.

"This significantly calls into question the methodology of the so-called photo identification by means of the NPIS system.

The process is self-fulfilling and is, with respect, farcical. It is certainly not objective nor conducive to a fair identification process.

"It is all the more astonishing that the court finds this methodology in conducting the photo identification parade to be 'objective and procedurally fair' and 'not unfair to the accused'."

The Constantia businessman was sentenced to an effective 22 years in prison for killing Gill in February 2018, and trying to defeat the ends of justice by setting her car and body alight.

Judge Elize Steyn imposed 20 years for the murder charge and four years for the second charge, of which two years were suspended. Last month, she dismissed his bid to appeal his conviction, saying there were no reasonable prospects of success.

Western Cape National Prosecuting Authority spokesperson Eric Ntabazalila said the State would oppose Packham's Supreme Court application.

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Read more on:    rob packham  |  supreme court of appeal  |  murder
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