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Desmond Nair Delivers Bail Decision; Interview with Llewelyn Curlewis

Aired February 22, 2013 - 09:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

CHIEF MAGISTRATE DESMOND NAIR, PRETORIA, SOUTH AFRICA: Participation in a robbery must be left to the court hearing the appeal for the purpose of this appeal is not necessarily to go beyond simply stating the evidence. Likewise I consider the outset of the bail application whereby the very nature of things, the investigation is at a very early stage.

This court is left with no option but to place weight on what I have before me. It is, as I've said, practically impossible within a matter of a week for the state to have all the pieces of the puzzle where the applicant is the only person who can tell what happened, and as I sit here I'm indeed handicapped to the extent that, as a court, I have no option but to perhaps look into the future and almost guess the prospects of success of the state case during the trial.

Having said that, I will venture to say and I appreciate that I am not the trial court in as much as the defense has found concessions in the evidence of the investigating officer to their advantage, the improbabilities as highlighted by the investigating officer but more underlined by the senior counsel representing the state, there are some aspects of the version of the accused that are quite pronounced.

I have difficulty in appreciating why the accused did not ascertain the whereabouts of his girlfriend when he got off the bed. I have difficulty also in coming to terms with the fact that the accused did not seek to verify who exactly was in the toilet when he could have asked. I also have difficulty in appreciating why the deceased would not have screamed back from the toilet.

I have difficulty also with understanding why the deceased and the accused would not of like mind in those circumstances, escape through the bedroom door, then -- then venture into the toilet. I have a problem also as to why the accused would further venture into danger knowing full well that the intruder was in the toilet, leaving himself open to be attacked even before he shot, because he heard the noise, left that area, went to fetch the firearm, returned, and to my mind, what if the intruder came out and was waiting for him, and upon sight of him shot him?

I have difficulty in appreciating why the accused would not seek to ascertain who exactly was in the toilet. I have some difficulty with the defense version at this early stage for the part of -- that I play as the presiding officer in the bail application that the accused chose to sleep on that side of the bed on the particular night and yet indicating that the deceased had slept there the night before.

For those reasons and many others, and I'm not the trial court, there are improbabilities which need to be explored and possibly will only be ventilated if the accused gave evidence under oath. And for that reason I'm saying that the defense has failed to show this court that there's a weakness in the strength of the state's case to the point that it can constitute an exceptional circumstance to their benefit.

But equally, against the backdrop of the circumstantial evidence of the state case, to some extent the evidence or the weak evidence on some areas of his testimony by Warrant Officer Hilton Botha, and having regard to the above, I find that whilst it would have been necessary for the applicant to show the weakness of the state's case as an exceptional circumstance, likewise the state, not through its own doing, cannot equally show that the state case is so strong and watertight that the applicant must come to the conclusion that he needs to flee or evade his trial.

With regard to the personal circumstances and the issue more especially Section 64b, read with Section 66, and that turns on the issue of whether the accused will choose to flee not because of the strength of the state's case but because he's not tied in South Africa.

What are the emotional family and community and occupational ties of the accused to the place to which he's to be tried. Mr. Pistorius is an adult male South African citizen, I.D. number 86, 11225246087. He's a professional athletic -- athlete and resides at 286 Silver Wood Estate. He resided in the Republic of South Africa all his life and he frequently travels abroad to participate in international sporting events.

He regards South Africa as his permanent place of abode. He has no intention to relocate to any other country. He admitted that he has friends and family in South Africa, although he has friends abroad. He owns immovable property in South Africa. What are the assets that he had? He owns immovable property in South Africa which consists of the following.

The immovable property where he currently resides at Silver Wood Estates. This property is valued at approximately $5 million and encumbered by a mortgage bond in the amount of $2 million.

There are two further immovable properties within Weeping Willow Estates, Pretoria East, which properties have a combined value of approximately $1.6 million. They are bonded to the value of $1 million. He has a vacant (INAUDIBLE) an estate in Cape which has a value of approximately $1.7 million which is not bonded.

He owns movable assets comprised of household furniture and effects, motor vehicles and jewelry which are valued in excess of half a million. He has cash investments in excess of $1 million at various banks within the country. He has what -- what would be -- what other means and travel documents held by the accused which may enable him to leave the country. He has two South African passports, one in full. He needs the passport to complete overseas -- compete overseas, but is willing to surrender the passports to the investigating officer should it be a condition of bail.

He is not in possession of any other travel documents and undertakes not to apply for such documentation pending the finalization of these proceedings. His professional occupation currently provides him with an income of approximately $5.6 million per annum.

Now we have debated the issue including the discussion on the heads of argument, and I as a court, having an inquisitorial power, inquired from the investigating officer whether he thought it probable that a person who is of international stature would not only risk losing his career but seek to be a fugitive in any part of the world, more especially, as we discussed today, being a person who has to use prosthesis and whilst Advocate Knell has argued but why, in the same vain, would the accused get involved in a fight at Melrose Arch, or discharge a firearm under the table?

I think what we are seeking to establish is the ends to one -- to which one would go to save himself, and in Advocate Knell's scenario I don't think that falls so much for consideration. The issue before me is whether this accused, being who he is, and with the assets that he has in the country, would possibly want to seek to duck and dive all over the world when, even by the state's own concession, he may at worst-case scenario, face culpable homicide.

I even pointed out that in as much as the minimum sentence legislation may be applicable there is of course provision for exceptional circumstances or substantial and compelling circumstances which would cause the trial judge to deviate if necessarily. So it may not necessarily be the case that he is now committed to face 15 years imprisonment or life in prison.

I cannot find that the accused or I cannot find that it has been established that the accused is a flight risk or that that ground has been established that seeks -- that is needed to be established. Turning to the issue of whether the ground in Section 64a, Section 65, has been established where there's a likelihood that the accused if released on bail will endanger the safety of the public or any person who committed to say you have one offense.

I have regard to what has been placed before me, indeed so they are separate incidents and I indeed raised the -- and caused the investigating officer to explain the circumstances of the charge that was withdrawn against the accused by a complainant called Sam.

Now the accused has shown tendencies of aggression. I think it's quite clear because it's not in dispute that he used foul language, threatening to conduct himself in a violent manner. It's not in dispute that he threatened to break somebody's legs. It's not in dispute further that the accused caused his friend to try to manipulate a complainant into not taking the matter further, but I think one should differentiate between individuals who have outstanding cases against them, individuals against whom they are reported matters, individuals who have previous convictions and individuals who I have had -- individuals with regard to whom the state has placed evidence under oath before me that have a propensity to commit violence. Now in this particular instance, Warrant Officer Hilton Botha initially responded saying, I have an objection to bail because the accused is a flight risk. He will not stand trial, it's a serious charge.

Now I've gone into the seriousness and the strength of the case and the weaknesses thereof. I do not think that Warrant Officer Botha spent as much time as he ought to have if he wanted to show that the accused has a propensity to commit violence. If you need to do that, there is ample room and ample time for to you do that by looking at the background of the accused. One could be ingenious and even try to get any kind of medical report that can show that the accused is not of stable mind.

That was not done. I do not have the dates of the incidents. I have a verbal threats. Another verbal threat. A discharge of a firearm passed under the table.

Is that enough to show that he has a propensity to commit violence? I appreciate that a person is dead but I do not think that's enough, more especially when investigating officer merely touches on these three incidents. That ground has not been established.

And in coming to my conclusion I have regard to Supreme Court of Appeal decision of "State versus Rudolph 2010, (1) SCAR-262," where in that particular matter the accused past behavior included among others the fact that he had an interdict against him of relating to domestic violence and that he was out on bail on charges of rape and attempted murder.

Now that is the type of predisposition to violence that would find the establishment of the ground that would vitiate against the accused taking bail.

Now the Honorable Judge (INAUDIBLE) in the matter of "State versus Devi and Others 2012 (2) SACR-492" indicated and I quote, "An applicant in a bail application is given a broad scope to establish the requisite circumstances whether they relate to the nature of the crime, personal circumstances of the applicant or the accused or anything else that is particularly cogent."

Judge (INAUDIBLE) was seized with the matter which required the accused to show exceptional circumstances exist to justify his release. Judge (INAUDIBLE) referred to the matter of "(INAUDIBLE) and Others, (INAUDIBLE)," to which I have referred, and he also referred to "Rudolph 2010, (1) SCAR 262" to Supreme Court of Appeal, where it was found that personal circumstances to an exceptional degree may lead to a finding that the release on bail is justified.

He goes on in the judgment to say, "In the -- in the context of Section 60.11a the exceptionality of the circumstances must be such as to persuade a court that it would be in the interests of justice to order the release of the person of the accused, a certain measure of flexibility in the judicial approach to the question is required." And he referred to "S. versus Mohammed, 1992, (2) SCAR 507c," It goes on to add, "It would be futile to attempt to provide a list of possibilities which will constitute such exceptional circumstances, to incarcerate an innocent person for an offense which he did not commit could also be viewed as exceptional.

Excuse me.

It could not have been the intention of the legislature in section 64A of the act to legitimize at random the incarceration of persons who are suspected of having committed schedule six offenses who after all must be regarded as innocent until proven guilty, and S versus Jonas (ph) 1998, 677 SE, the real case, he goes on to add, argued before me on behalf of the state, the respondents, is that there say strong case against the appellants and this could encourage the appellant not to stand trial if released on bail of fear of imprisonment.

I'm saying this because the state did not seriously seek to argue that the appellant is a flight risk.

To ignore the personal factors of an applicant under section 1611, he goes on to add, in his view would have the effect of denying an applicant a reasonable opportunity to produce evidence to satisfy the court of the existence of exceptional circumstances but most importantly it would be difficult, if not impossible to establish such exceptional circumstances.

(INAUDIBLE) versus Fortin (ph) and others case which I have referred Acting Judge Vince (ph) wrote said on page 58 that and I quote, the issue which took the balance in appellant one's favor in respect of deciding that he had discharged the onus of proving exceptional circumstances was the evidence of the investigating officer that appellant one was not regarded as a flight risk, not he was not considered likely to interfere with state witnesses, all the further investigation of the case, and the further concession that there was no reason to regard the release of appellant one on bail as likely to constitute a threat to the public.

So what the investigating officer in that particular matter did was merely confirm that the grounds that need to be established before bail may be refused in the interest of justice existed, and I turn to look at the facts of this particular matter as Mr. Pistorius be able through his own evidence and that of his witnesses after their statements and that of the evidence of the state case, that the grounds that need to be established in the interests of justice before he is released on bail have indeed been established.

I want to just turn quickly before I deal with that on the score of public outrage and the presentation of evidence to establish the grounds in section 64A to E. If this case, this particular matter evoked public outrage in any way my view is that the state, in opposing bail, ought to have placed before me exactly where this outrage lay.

I have some difficulty also with the fact that even though there may have been individuals in the court and outside the court who took umbrage at the violent nature of the deceased's death, before I can find it established as a ground that there will be a shock and outrage in this particular matter if I release the accused on bail. I cannot certainly do so on my own and in isolation.

I would need to be, I would need to have evidence before me in that regard and if that is the ground on which or the ground that the state wishes to show has been established which prevent the accused's release on bail, then there are factors that would convince me to do that. Whether the shock or outrage of the community might lead to public disorder if the accused is released is one of them. Whether the sense and security among members of the public will be undermined or jeopardized by the release of the accused.

Now, I must highlight whilst bail is inquisitorial and whilst bail -- the standard in bail is not that in terms of the law -- the applicability of the law of evidence. That notwithstanding, I cannot flagrantly disregard the fact that there needs to be a proper basis laid before the establishment of grounds in the criminal procedure act.

I do also wish to indicate that it is an area of concern that where this state is in position of information, albeit in a magazine, that the accused, for instance, has property in Italy, that the state machinery sound and solid as it is, did not contact for instance Interpol or any other international police agency to help determine whether the accused indeed has a property registered in his name in Italy and whether or not he is allowed to use it. And had that been done, then the accused would as a matter of course not mentioned in this affidavit and that would have certainly counted against him.

Having regard to the fact that the accused is not a flight risk, because is he not a flight risk and the accused does not show a propensity to commit violence -- the accused, there is no evidence before me, will interfere with state witnesses, and there isn't proper evidence before me relating to the public perception of the matter.

And having regard to the totality of the evidence before me against the factors that need to be established before the accused may be denied bail, I find that the very non-establishment of those factors set out in section 64A to E, together with the fact that the accused has in this instance offered a version under oath at a very early stage and I do not attach any weight to the investigating officer's concessions with regard to the defense version, but the fact remains ordinarily, one gets flimsy affidavits merely saying I deny the allegations, I will not flee.

But in this instance, the accused has reached out to try to meet the state's case, of course, against the background of those improbabilities that I have seen and mentioned. That fact, that reaching out in the affidavit the way he did, placing it before the court, together with the fact that none of the factors that need to be established have been established, I come to the conclusion that the accused has made a case to be released on bail.

UNIDENTIFIED MALE: Yes!

UNIDENTIFIED MALE: These are (INAUDIBLE) the conditions of bail are concerned and the need (INAUDIBLE) --

NAIR: All right. Could I just need five minutes, please? Excuse myself.

(END LIVE FEED)

SOLEDAD O'BRIEN, CNN ANCHOR: OK. So they've broken away again and you just heard what the chief magistrate Desmond Nair said, which was this, "I've come to the conclusion that the accused has made a case to be released on bail". This wraps up going on close to two hours of walking through not only the last four days of this case but also literally going through the history of jurisprudence in South Africa and bail hearings, et cetera, et cetera.

Let's begin with Robyn Curnow outside the courtroom.

So, Robyn, I know you've got an attorney with you, an expert in South Africa law. Is he surprised and what does he make of this ruling?

ROBYN CURNOW, CNN INTERNATIONAL CORRESPONDENT: OK, I'm just going to bring him in, in two minutes' time if you just could hold on while I get a microphone handed to me. I mean, according to this entire process, many legal experts have felt this is an exceptional way that this is being handled that this kind of long ruling, this sort of experience that we've just endured the last two hours is unusual.

I'm going to try to bring in Llewllyn Curlewis, I want to warn you and your viewers we are in a tight closed environment so if the shot is messy and the camera man is worried about seeing the lights, please don't worry, though.

This is more important. What we want to know from you is what is your reading of this, and how different is it to other cases?

LLEWLLYN CURLEWIS, SOUTH AFRICAN LAW EXPERT: Well, first of all this was a well-balanced, well-reasoned, well-researched judgment. All in all, it boiled down to a lecture in -- academic lecture in both proceedings and basically summarization of the legal positions in South Africa with regard to both proceedings. So --

CURNOW: Which must have been tough for people in the U.S. or around the world listening.

CURLEWIS: Of course.

CURNOW: Tough for us even here.

CURLEWIS: Of course, to summarize whatever has to be said as far as bail is concerned, there's no easy task. But I think the chief magistrate Nair did so decently. I think it was a well-balanced argument.

And all in all, I think it was fair.

CURNOW: You said all along that Oscar Pistorius would get bail. Was it necessary to drag this on in such a way?

CURLEWIS: I don't think so. Ultimately, I stand by my initial comments to say the ultimate question before court was whether he will be able to stand trial ultimately? (INAUDIBLE) and that's precisely what the magistrate determined, that he's not a flight risk, he's not going to run away anywhere in the world, and ultimately, he will see his day in court.

CURNOW: So, has all this been theater or just been thorough?

CURLEWIS: No, I think it was a thorough judgment. I think also the magistrate made sure that, from an international perspective, everybody would be familiarize themselves with the nitty-gritty and detail in South Africa law with regard to these offenses once and for all.

CURNOW: And he doesn't want someone to come back to him at the end of the trial and cast doubt over his judgment.

CURLEWIS: Exactly. And to answer your follow-up question which I presume will you ask me next is whether the state will be inclined to bring in, appeal against the judgment of the magistrate -- I don't think so. I think this is the end of the road for now.

Obviously, what will follow is a mountain for both sides to climb on the one side to do the investigation. On the other side, to prepare for a proper defense and in six months to a year's time from now, we will know what the outcome will be.

CURNOW: When a trial takes place.

CURLEWIS: Exactly.

CURNOW: Just give me some sense of what happens now. I mean, does Oscar walk out of the court building behind us?

CURLEWIS: What will happen is he will be taken down to the prisoner's bench, which is part of the court. He must pay the amount of bail to be set soon. Obviously, bail receipts and a bit of (INAUDIBLE) will take place and then he's entitled to his freedom and he will be released immediately.

Now, whether that will happen outside the building, it's already past court hours or whether he will be transferred back to the police station first remains to be seen. But there's no reason why he can't walk out scot-free right now after this --

CURNOW: Literally from this gate behind us, because we're positioned by the gate he's been coming in and out of. So, I mean, we might see him coming out in the next half an hour, I have heard there is a process that might take half an hour.

CURLEWIS: Yes.

CURNOW: Just give me some sense of what happens now. Obviously the state goes back and builds their case around Oscar Pistorius' affidavit.

CURLEWIS: Exactly.

CURNOW: He gave them the evidence, essentially their best piece of evidence.

CURLEWIS: Precisely. The thing is Oscar must stand with his current defense before court. He can't alter his version at a later stage because that will have an influence on his credibility ultimately.

So, yes, in a nutshell, the state has six months to a year to prepare around the defense placed by Oscar and, obviously, it's no easy task. But make no mistake: Oscar also faces a difficult path ahead. He must make sure that those things that were mentioned by the magistrate regarding the suspicions raised by the court must also be adhered to and those are difficult questions that he will have to answer. And he will do so under oath.

CURNOW: He's hired a lot of experts, a lot of, you know, additional people to help him build his case that is already sort of half on the table. Someone described the case as building -- like building a house, this is just the foundations.

I mean, have they got a strong case because it appears this magistrate poked holes in both the state and the defense's conduct or legal arguments this week?

CURLEWIS: That's why I've seen from the outset it's a well-balanced argument and judgment that was raised. You must also be mindful of the fact, ultimately, Oscar will not only stand trial on murder. There's a competent included in the charge of murder, culpable homicide and the minutest negligence on the side of Oscar will amount to a conviction on that count alone.

So we call it the one percentage rule and that's not an easy task to perform.

CURNOW: You're saying, in the best case scenario, he still faces jail term.

CURLEWIS: He still faces a long road ahead. I don't necessarily say it will culminate in a jail term, but make sure -- make no mistake: a person still died and the courts are reluctantly going to look at it, frown upon it and say, but listen, a person must walk out scot-free for committing a killing of some sort.