Middleton defence wants 32 sex charges dropped
The senior magistrate will hand down his ruling on the application next month.
AT the close of the case for the prosecution last Friday, Dave Middleton‘s legal representative, Advocate Jimmy Howse, made application for the court to discharge his client on all 32 charges.
These range from rape, sexual assault, sexual grooming of a child, display and exposure of child pornography to intimidation and defeating the ends of justice.
The former Hibiscus Coast Municipality senior traffic officer appeared in the Port Shepstone Regional Court on Thursday and Friday last week. After hearing evidence, the case was postponed to late October by Regional Magistrate Johann Bester for his ruling on the application for discharge.
Mr Middleton was arrested in 2013 by detectives of the Margate FCS unit and was detained in custody for about 18 months before he was released on R30 000 bail.
Advocate Howse argued that the evidence of the children was of such poor quality that it could not be said that a reasonable court might find him guilty of any of the charges.
Furthermore, he argued that the whole of the State’s case was built on the four photos which a 10-year-old’s mother had testified that she found on Middleton’s phone and transferred to her own cellphone on August 8, 2013.
However, Advocate Howse pointed out that, according to the evidence of an MTN official (heard the previous day in court), not a single SMS had been sent from Middleton’s phone to the mother’s phone on that day.
“The MTN records of Middleton’s work cellphone are solid as a rock and stand as objective proof… this is a hard fact,” he said “and it contradicts (the mother’s) evidence.”
Another indication of the unreliability of the evidence was testimony from a police forensic expert, Lieutenant-Colonel Aubrey Mayimela.
State-of-the-art software – known as XRY – used to download information from Middleton’s and the mother’s mobile devices only indicated that three photographs came onto the mother’s phone on August 8.
Advocate Howse said that the fourth photo had arrived to the mother’s cellphone on August 30. Another coincidence was that this was the same day she made an official complaint at the police station.
This increases the suspicion and creates an unexplained phenomenon as it indicates that the images didn’t come from Middleton’s work phone on August 8, 2013, – Adv Jimmy Howse
He also referred to the strange sequence of events which unfolded when Middleton arrived at the station to make his cellphone available to the police.
His phone was ‘accidentally’ taken by his brother and his wife while on the desk of the investigating officer and was out of the hands of the police for a period of several hours.
The brother later returned it to the investigating officer.
“It’s up to the State to prove the authenticity, originality and reliability of what was on the cellphone and what happened to it when it was with the accused’s brother. And the State did not lead any evidence about it.”
Advocate Howse drew attention to the objective evidence that the last digit of the IMEI or ‘International Mobile Equipment Identity’ of an Apple phone defaults to zero in the MTN and XRY records and as such does not identify the last digit of Middleton’s phone. This left the possibility open that the data referred to any of nine Apple phones.
State Prosecutor Muziwoduma Muzi opposed and challenged the submissions made by Advocate Howse.
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