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‘No, Mr Calloway,’ the magistrate interrupted. ‘No, you certainly cannot start handing up statements or notes or potential exhibits. The trial has not begun. The State is dominus and may elect to call or not call whatever evidence it may have at its disposal. If the State wishes to call a witness who has not previously been identified, or whose statement you feel is insufficient, then you may object on grounds of fairness at that stage. But on what authority can you prevent the commencement of the trial altogether? It may be that the State elects not to rely on or to call such witness. Then your problem is solved. Is that not so?’
‘Well, Your Worship, yes and no,’ Richard replied. ‘If the State does not call the witness, then, yes, the unfairness is solved. But what if the State does seek to call the witness, and then Your Worship dismisses our objection? Well, then, the basis upon which we have conducted the trial – namely that calling that witness would be unfair – would be undermined and my client may be prejudiced by that. It is prejudice we believe that we suffer at the outset, rather than at the time the State decides to call the witness.’ Richard felt his point was well made, but Abrahams was shaking her head in disagreement.
‘Mr Calloway, are you suggesting – before we have so much as had the first shot fired in anger in this matter – that I am likely to make an unfair decision at some point further on in the proceedings, and therefore the matter ought not to proceed at all?’
Richard blanched. His submission suddenly seemed tenuous. But Abrahams was not finished. ‘In fact,’ she proceeded, with a cold smile on her lips, ‘your argument is that if I make an unfair finding at a particular point in this trial, that would be prejudicial to your client, and therefore the trial should not start in the first place. If I were to accept that argument, then I doubt that any trial would ever get off the ground.’
‘But, with respect, Your Worship,’ Richard replied, trying to resurrect the argument, ‘my client has the right conferred by the Constitution and as expanded in State versus Mentoor to receive full particularity of the evidence to be brought against him. The statement produced by the State falls hopelessly short of the mark in this regard.’
‘No, Mr Calloway, you of all people know not to overstate the impact of the Mentoor case. Mentoor says that your client is entitled to see the evidence that the State has collected. He cannot complain if the evidence is poor or scanty; indeed, he should be delighted at seeing the weaknesses in the State’s evidence. If, however, he feels that the calling of some witness has caught him unawares, or that evidence adduced by the State prejudices him because he was insufficiently aware of such evidence, then the time for objection must surely be when the evidence is sought to be presented. I can see no basis for the objection at this stage, Mr Calloway. Your application – if indeed that is what it was – is dismissed.’
‘As the Court pleases,’ Richard said softly, dropping back into his seat. The magistrate’s last comment seemed unnecessarily churlish. He turned to Svritsky sitting in the dock behind him and noted the colour of his eyes starting to deepen. Further behind him, he noticed the investigating officer, Captain Riedwaan Faizal, folding his arms and curling his lips into an almost imperceptible smile. Faizal’s tough-cop image meant that he seldom displayed emotion, apart from seething aggression. It had been a long time since he and Richard had seen each other, but none of the animosity had cooled.
‘Mr Dumbela, the charges please.’ Abrahams clicked her pen in anticipation. Richard rose again, tapping the edge of the dock to motion to Svritsky to stand. The Russian lumbered to his feet, sighing theatrically. Abrahams looked up sharply, her eyes narrowing as she stared at him.
Dumbela read out the
‘No, Mr Calloway,’ the magistrate interrupted. ‘No, you certainly cannot start handing up statements or notes or potential exhibits. The trial has not begun. The State is dominus and may elect to call or not call whatever evidence it may have at its disposal. If the State wishes to call a witness who has not previously been identified, or whose statement you feel is insufficient, then you may object on grounds of fairness at that stage. But on what authority can you prevent the commencement of the trial altogether? It may be that the State elects not to rely on or to call such witness. Then your problem is solved. Is that not so?’
‘Well, Your Worship, yes and no,’ Richard replied. ‘If the State does not call the witness, then, yes, the unfairness is solved. But what if the State does seek to call the witness, and then Your Worship dismisses our objection? Well, then, the basis upon which we have conducted the trial – namely that calling that witness would be unfair – would be undermined and my client may be prejudiced by that. It is prejudice we believe that we suffer at the outset, rather than at the time the State decides to call the witness.’ Richard felt his point was well made, but Abrahams was shaking her head in disagreement.
‘Mr Calloway, are you suggesting – before we have so much as had the first shot fired in anger in this matter – that I am likely to make an unfair decision at some point further on in the proceedings, and therefore the matter ought not to proceed at all?’
Richard blanched. His submission suddenly seemed tenuous. But Abrahams was not finished. ‘In fact,’ she proceeded, with a cold smile on her lips, ‘your argument is that if I make an unfair finding at a particular point in this trial, that would be prejudicial to your client, and therefore the trial should not start in the first place. If I were to accept that argument, then I doubt that any trial would ever get off the ground.’
‘But, with respect, Your Worship,’ Richard replied, trying to resurrect the argument, ‘my client has the right conferred by the Constitution and as expanded in State versus Mentoor to receive full particularity of the evidence to be brought against him. The statement produced by the State falls hopelessly short of the mark in this regard.’
‘No, Mr Calloway, you of all people know not to overstate the impact of the Mentoor case. Mentoor says that your client is entitled to see the evidence that the State has collected. He cannot complain if the evidence is poor or scanty; indeed, he should be delighted at seeing the weaknesses in the State’s evidence. If, however, he feels that the calling of some witness has caught him unawares, or that evidence adduced by the State prejudices him because he was insufficiently aware of such evidence, then the time for objection must surely be when the evidence is sought to be presented. I can see no basis for the objection at this stage, Mr Calloway. Your application – if indeed that is what it was – is dismissed.’
‘As the Court pleases,’ Richard said softly, dropping back into his seat. The magistrate’s last comment seemed unnecessarily churlish. He turned to Svritsky sitting in the dock behind him and noted the colour of his eyes starting to deepen. Further behind him, he noticed the investigating officer, Captain Riedwaan Faizal, folding his arms and curling his lips into an almost imperceptible smile. Faizal’s tough-cop image meant that he seldom displayed emotion, apart from seething aggression. It had been a long time since he and Richard had seen each other, but none of the animosity had cooled.
‘Mr Dumbela, the charges please.’ Abrahams clicked her pen in anticipation. Richard rose again, tapping the edge of the dock to motion to Svritsky to stand. The Russian lumbered to his feet, sighing theatrically. Abrahams looked up sharply, her eyes narrowing as she stared at him.
Dumbela read out the
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