Jaap Cilliers SC, counsel for Jackie Selebi, confirmed at the conclusion of the evidence given by former intelligence coordinator Barry Gilder that the accused’s legal team intends bringing an application for his discharge at the close of the state’s case.
The state thereafter closed their case after reading certain evidence, which has been agreed between the parties, into the record.
The trial which was postponed shortly thereafter is set to resume on April 7.
Selebi’s attorney, Wynanda Coetzee, confirmed that the heads of argument relating to the application have now been served on the judge, Meyer Joffe, and the state prosecutors.
Heads of argument are filed by both parties in order to assist the court in highlighting the main issues before the court. They are usually filed a few days before the court sits.
The basis for the application is that the defence believe that the state has failed to set out a prima facie case which the accused has to answer and as a result call upon the judge to discharge him. In essence that the evidence presented by the state failed to prove the allegations on the charge sheet.
If the application is granted it is equivalent to an acquittal.
The burden of showing a prima facie case is a far easier onus for the prosecution to overcome than the one that they will have to discharge at the conclusion of the case if the matter gets passed this stage.
Here they need merely set out that the evidence before the judge is enough to convict Selebi on the crimes he has been charged with and nothing else. The weight or value of the evidence concerned is not in issue. The defence will say that the evidence before the court as it now stands is not sufficient to prove the charges and accordingly there is no crime for which the accused has to answer.
The judge then has to decide whether he believes that there is a prima facie case for the accused to answer, in which case Selebi will begin his defence, or that it does not exist in which case he will discharge Selebi.
That as indicated is an acquittal to all intents and purposes.
The judge will be aware of an appellate division decision which says that if the only way that the accused can be convicted is if he takes the stand and gives evidence then that accused should mero motu be discharged. If not, it will constitute an infringement of his constitutional rights and if convicted it would be set aside on appeal.
That leads to the next step : If Selebi is put on the defence does his legal team call him to give evidence?
As indicated the onus at the close of the case is that the state has to prove beyond a reasonable doubt that the accused committed the crimes for which he has been charged.
Far more difficult than simply showing that a prima facie case exists.
Is the evidence of such a nature that the judge can come to no other conclusion but that Selebi is guilty of these charges?
This is the question that will be running through the minds of the Selebi legal team.
Discharge might not succeed but there the onus was far lighter on the state. Would they be able to discharge the heavier onus if we simply close our case now or do we run the risk of putting the client in the box?
Sounds simple — it isn’t.
Sometimes counsel believe that it would be wise to answer the state case but the accused — who might or might not be innocent — is a shocker. He knows everything about life and can’t wait to dazzle the court.
All the way to prison.
Sometimes counsel have no choice and are expecting disaster as they put their accused in the box only to find that the genius they are expecting to implode comes across as sincere and credible.
So it is not only the issue of whether legally counsel believe that the accused should or should not testify but the reading of the legal team on how good or bad the accused might be when he gives evidence.
Many innocent men have convinced our judges that they are indeed guilty as charged and vice versa.
Selebi is facing a charge of corruption and defeating the ends of justice.
Hopefully with a better understanding you might want to pop down and watch the trial or at least you will now know what they are talking about when the decisions are made known to you.
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