FORMER senior traffic officer, Dave Middleton (59), who has been in jail awaiting trial for more than a year, will hear tomorrow (Friday) whether he is to be released on bail or not.
Middleton, who appeared in the Port Shepstone Regional Court on Tuesday this week, has pleaded not guilty to 32 charges ranging from rape, sexual assault, sexual grooming of children, creating, possession of and distribution of child pornography, to the use of children for and exposure of children to pornography.
Bail was requested by Middleton’s defence attorney, Xolile Ntshulana, shortly after regional magistrate Johann Bester had ruled that the photographs, allegedly transferred from Middleton’s phone to that of the mother of one of the complainants, were admissible in evidence.
Magistrate Bester said in his ruling that Middleton’s advocate, Jimmy Howse, had advised the court from the outset that the defence would object to the introduction of the real evidence in the matter.
He had objected on the grounds that the charges arose from the unlawful and surreptitious interception of photographs, which were allegedly on Middelton’s cellphone, by a witness who is the mother of one of the children whom Middleton was instructing in martial arts.
She then transferred certain photos to her own phone, as well as to that of another woman. By doing this the witness violated Middleton’s constitutional rights to privacy as well as that of his partner.
Such infringement required the court to exclude the photographic images recovered by the witness from the evidential material which could serve before the court.
The downloading by the police of photographic images showing intimate acts between Middleton and his partner was not pursuant to the search warrant and amounted to a serious violation of privacy, advocate Howse had argued.
Magistate Bester said state prosecutor, Muziwoduma Miza, had told the court that he intended using the photographic images as real evidence in the trial.
“The insistence of the state to make use of the photographic images must be understood in context of what the state hoped to prove in the trial,” said Magistrate Bester.
The fact that the evidence sought to be admitted was real evidence, also played a role in the decision to admit it in evidence.
“This is because real evidence inevitably exists irrespective of the constitutional breach. Even if the complainant had reported the discovery of the photographs to the police without first sending it to her own cellular phone, they would inevitably have been discovered,” he said.
“As regards the search warrant, I find that it had been lawfully issued and that all the photos have in the light of the investigation into sexual grooming, been properly downloaded,” he said.
State prosecutor Bonga Vika called the investigating officer, Lieutenant Mandla Cele from Margate FCS, to testify in opposition to the granting of bail. Lieutenant Cele said that he feared that Middleton may abscond to evade trial as he was aware that he would be facing a life sentence if found guilty.
He pointed out that Middleton had tried to evade arrest at the shopping mall and that there was a possibility of him interfering with the state witnesses, who are young and would feel intimidated if he was released.
He added that Middleton could easily pay his way out of the country. “Anything is possible in South Africa, as long as you have money to bribe someone.” he said.
Attorney Ntshulana argued that the case could drag on for a lengthy period of time, and the defence had to call expert witnesses.
Middleton took to the witness box and sternly said he had ‘no reason to interfere with any of the witnesses or to abscond’.
He stated that the case was costing him a small fortune and since he was not getting paid, he had resigned and was using his pension benefits to pay off his house bond.
He said he nearly lost his home and had been turning to friends and family for help.
Middleton said that if released on bail he would stay at an alternative address with his friend, either in Cape Town, or with his brother in Johannesburg.
He said when he learnt on the Friday that the police were looking for him, he contacted his attorney, who had then called Lt Cele, and arranged to hand himself over at the Margate police station on the Monday.
Middleton said he could afford between R5000 and R10 000 for bail.
The court will also set down the trial dates for November tomorrow.
