Dave Middleton trial: more evidence of naked photos of children and mother runs out of court

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By Johan Pretorius

The mother of a second child involved in the charges against Dave Middleton, continued with her testimony into yesterday afternoon, and  told the court Middleton had apologised to her after she had complained about photographs he had taken of her without informing her, the mother.  Middleton has pleaded not guilty  to 34 charges ranging from rape, sexual assault, sexual grooming of a child, display and exposure of child pornography and intimidation.

The mother said after she had returned from a trip to Potchefstroom, she heard her daughter talking on her cellphone.  The conversation was very terse and cryptic, and her daughter said only ‘yes’ or ‘no’ , and at one stage ‘no, I won ‘t, I swear on my mother’s life’.  ‘I confronted my daughter, I asked her what was going on, and who she had been speaking to. She replied: ‘Dave’.  Her daughter told her that Middleton had asked her not to reveal that the nude photos had been taken by the mother of the other child involved in the trial, but by the son of the second mother’s late sister.  The mother told the court at that stage she was extremely stressed, and tried to phone the mother of the first child, but her phone was on voice mail. She tried to call Middleton, but he was not answering his phone.

When she spoke to her daughter again, the child told her Dave had said the photos were in the hands of the police, and that she should not speak to anyone.  The mother urged the child not to involve her nephew in the matter.  Confused, stressed and exhausted after her trip, the mother then dozed off.  She was awoken by a knock on her door.  When she opened it, Investigating Officer Cele was standing there, and informed her he wanted to talk to her about the photographs.  Cele asked her child to tell the truth, and her daughter said Middleton had taken the nude photos but asked her not to say so.

The mother told the court during cross examination she she never hand any reason to distrust Middleton, and was shocked when her daughter told her what had happened.

Later in the afternoon the mother of the first child ran out of court crying during her testimony. She had just been shown the photographs on Middleton’s phone.  Magistrate Bester then adjourned the trial until Friday morning.

APOLOGY: DUE TO A MAJOR COMPUTER MALFUNCTION, WE LOST PART OF THE ABOVE REPORT OVERNIGHT.  WE WILL UPDATE LATER TODAY.

EARLIER REPORT:

A second mother told the Port Shepstone Regional Court on Thursday about nude photos taken of her daughter, allegedly by ex-HCM Senior Superintendent Dave Middleton.   The mother began testifying after a delay in the proceedings while the prosecuting and defence teams had planning sessions, followed by an adjournment for earlier evidence to be copied from documents. This evidence was given earlier in the ‘trial-within-a-trial’ on the admissibility of photographs on a pornography charge, and Judge Johan Bester ruled that instead of the same evidence be given again in the main trial, which in effect only began today, it could be copied and regarded as read into the court records.

The mother, who preferred to give her evidence in Zulu, sketched the background of her child’s relationship with Middleton.  Because her sister had died last year, she was also looking after her child, and these two were students at Middleton’s karate dojo in Ramsgate. She mentioned two functions last year, which her daughter and niece wanted to attend, one a prize giving at the dojo and the other a competition in Gauteng.  She initially said no to the karate club function because there was a Sunday school function at the same time, and she did not have the money to may for the cost of the trip to Gauteng. On both occasions, she said, Middleton convinced her to change her mind, because he said the two had been such diligent and talented students, and that the club would pay for the trip to Gauteng.  Middleton told her her daughter would most probably win gold at the competition.

Subsequently, Middleton told her that her daughter would be good at photographic modelling, for she had a beautiful body  She did not take much notice, because people had always said that about her daughter, and she was not comfortable with the thought of her daughter walking around nude or modelling clothes.

Then one day, in about mid-July, she heard that her daughter had gone on a photo shoot.  She was furious, and asked Middleton how he could do this without informing her.

She had just started telling the court about a subsequent incident during which she found out that nude photographs had been taken of her daughter, when the court adjourned for lunch.

In August last year, the mother had to go to Gauteng on a course, and Middleton convinced her to leave the children with him while she was away.  He took her to inspect his house, and she was convinced they would be well looked after.

EARLIER REPORT ON THURSDAY 13 NOVEMBER:

The child pornography trial of ex-HCM Senior Superintendent Dave Middleton begins in all earnest today.  Magistrate Johan Bester refused him bail for the fifth time in the Port Shepstone Regional Court on 24 October: this decision came after a ‘trial-within-a-trial’, and Magistrate Bester’s ruling that photos submitted by the State could be used as evidence on a child pornography charge.  Middleton’s defence counsel objected on the grounds that it grossly infringed on his and his partner’s human rights and privacy, and this process alone took many months to conclude.

Magistrate Bester set aside today and tomorrow ( Friday ) for the continuation of the trial, and had difficulty in finding these two days, which only became available because a civil case had been settled out of court.   Unless there is a major development to speed up proceedings, the chances of the trial finishing before the weekend are very slim indeed, which means that it would in all probability be continued in the new year.  Middleton has pleaded not guilty to 32 charges of pornography, sexual assault, rape, sexual grooming of children, and creating, possessing and distributing child pornography.

When he appeared in court last month, Middleton looked tired and gaunt, and it is obvious that he has lost a lot of weight over the past year.  He has maintained his innocence throughout, and he told the court on various occasions that he had been ruined financially because he was not granted bail. He could not manage his businesses, and had lost all of them.

REPORT ON 24 OCTOBER:

Ex-HCM Senior Superintendent Dave Middleton has been refused bail for the fifth time.  Magistrate Johan Bester gave his ruling in the Port Shepstone Regional court on Friday.  The fresh application was lodged by his defence on Tuesday after the so-called ‘trial-within-a trial’ was concluded with the magistrate’s ruling that the photos submitted by the State, could be used as evidence on the child pornography charge.   His defence counsel objected on the grounds that it would be a gross infringement of his democratic rights and privacy.

When he gave his ruling on the bail application, Magistrate Bester referred to the length of time already spent on the matter, and stated that South African courts were not able to handle all the cases brought before them expeditiously, despite denials by the authorities.  It was extremely difficult to find dates in the near future for cases such as these. His own court was already fully booked right up to June 2015.  However, there is a strong possibility that a civil case scheduled for 13 and 14 November could be settled out of court, and he has earmarked these two dates for the proper trial to begin.

Magistrate Bester said he understood the position of the accused in the light of the above, and the time he had had to spend in jail.  He also took note of the defence argument that Middleton had already lost a huge amount of money because of his incarceration, that he would not interfere with State witnesses, and that he would not abscond or buy his way out of the country.  Attorney Xolile Ntshulana had also brought it to his attention that it was very difficult to consult with his client because of the distance to Westville prison in Durban, where Middleton was being held.  The magistrate pointed out that bail was very seldomly granted to people accused of raping a child and it would only be done when the defence could prove exceptional circumstances.  The defence had not done this. In addition, he wanted to take note of the evidence to be given by the children involved, which he now could do on the November trial dates.

Middleton has pleaded not guilty to 32 charges of rape, sexual assault, sexual grooming of children, and creating, possessing and distributing child pornography.

EARLIER REPORT:

Magistrate Johan Bester has ruled in the Port Shepstone Regional Court that the photos, allegedly transferred from his phone to that of the mother on one of the children involved, and given by her to the police, could be admitted as evidence in the trial of ex-HCM Senior Superintendent Dave Middleton.  Middleton has pleaded not guilty to 32 charges of rape, sexual assault, sexual grooming of children, creating, possessing and distributing of child pornography.  This ruling has brought to an end the ‘mini trial within a trial’ which has taken several months, about the admissibility of the photographs.   Advocate Jimmy Howse, for Middleton, objected to the introduction of the photographs as real evidence in the case, on the grounds that the pornography charges arose from the unlawful and surreptitious interception of the photographs, which, inter alia, infringed on the accused’s human rights.  Howse argued that the downloading of private photos of Middleton’s partner was a serious violation of privacy.

Magistrate Bester said the decision to allow the photos as evidence should be understood in the context of what the State wanted to prove in the trial.  The fact that the photos were indeed real evidence had played a role in the decision of the court, despite the possible constitutional breach.  The magistrate found that the search warrant, which the defence maintained was unlawfully issued, was in fact lawful.

After the ruling, Attorney Xolile Ntshulana requested bail for his client.  The State opposed bail, and investigating officer lieutenant Mandla Cele said he feared Middleton  would abscond as he realised he would face a life in jail if found guilty.  There was also the possibility of Middleton interfering with the young witnesses, who would feel intimidated, and he could even pay his way out of the country.  In the witness box, Middleton emphatically denied he would do this.

Magistrate Bester will announce his bail decision on Friday. This is Middleton’s fifth attempt at bail.

EARLIER REPORTS:

Judgement in the ‘trial within a trial’ in the Dave Middleton court case, will be given on 21 October.   The State’s arguments why the photos taken from his cell phone should be allowed as evidence supporting the child pornography charges against him, and those of the defence why not, were concluded in the Port Shepstone Regional Court yesterday (Wednesday ).   Middleton, an ex-HCM Protection Services Superintendent,  has pleaded not guilty to 34 charges of child sexual abuse, rape, sexual assault, sexual grooming of a child, displaying child pornography and intimidation.

A witness for the defence, Ellen Constable of Ramsgate, told the Court and Chief Magistrate Johan Bester that she had met the mother of one of the children involved in the case at Middleton’s karate Mojo where their children were both enrolled.   The mother contacted her in September last year before Middleton’s arrest and said she would like to talk to her about something.   At the mojo the mother approached her in the driveway and asked her ‘what would you do when your friend’s husband was stuffing you around?’   The mother then showed her photos, the photos presented by the State in court as evidence,  of naked and semi-naked bodies, one of a young black girl.   One of the photos was of an obviously young hand holding a man’s penis.  ‘The mother told me she was extremely concerned, and suspected that the hand in the photo was that of her young daughter.’  Constable said she got the impression that she was being confided in, and she was shocked at what she saw. ‘The photos were disturbing.’   She new Middleton well, and did not expect that of him.  When questioned by the defence, the witness said some of the naked photos won’t offensive per se,  but the problem was where they allegedly came from.  She decided not to become involved.

State Prosecutor Muziwoduma Muzi said when a decision about the admissability of the photos was taken, it should not only be fair to the defendant, it should also be fair to the public in general and those who are involved in children protection programmes.  The constitutional right to privacy should not be used to shield criminal activities.   He used the example of somebody who goes to a neighbour’s house unannounced, and finds the neighbour for instance raping a child.  He invaded the neighbour’s privacy, but it would be his duty to report the misdeed.

Adcovate Jimmy Howes, for Middleton, stated that this was a classic case of a serious violation of privacy.    The photos were illegally obtained by the mother off Middleton’s phone, and transferred to her phone.   She then gave this to the police, who then raided Middleton’s house and confiscated personal items on the basis of a search warrant which had been illegally obtained.   During the afternoon session Howes gave a thorough motivation of the above, inter alia with reference to comparable legal precedents, after which Magistrate Bester adjourned the case to consider his judgement.

 

EARLIER REPORT:

Ex-HCM Protection Services Superintendent Dave Middleton and his common-law wife Cherie Petersen gave evidence after the resumption of his trial in the Port Shepstone Regional Court on Tuesday. He has pleaded not guilty to 34 charges of child sexual abuse, rape, sexual assault, sexual grooming of a child, displaying child pornography and intimidation.  Chief Magistrate Johan Bester is on the bench,  the State Prosecutor is Muziwoduma Miza, and Middleton’s defence counsel is attorney Xolile Ntshulana and advocate Jimmy Howse.  Middleton has lodged four failed applications for bail, and has spent the past 14 months in jail.

The case revolves around photos, according to earlier testimony by the mother of one of the children involved, that she discovered on Middleton’s cellphone while answering it with his permission.  The mother helped with Middleton’s karate school, and her daughter took karate lessons. The mother testified she realised some of the pornographic photos were of her child and another child that she knew.   Middleton’s defence counsel has objected to the use of the photos in the trial on the grounds that it was illegal, and infringed on his constitutional rights.  Up till now it has been ‘a trial within a trial’, and Magistrate Bester has to decide whether the photos should be allowed as evidence or not.  If the decision is yes, the trial proper will commence. If not, the charges against Middleton will most probably fall away.

Some time was spent yesterday to identify the different phones in Middleton and his partner’s possession.  Middleton denied that the photos in question had been taken by him.  “Those photos are not mine.” He said he had a serious problem with the mother transferring photos to her phone, and then handing them to the police. “She had no right to do that. She could have come to me and discussed it, and I would have explained the situation.”   As a result of her giving it to the police, his house was raided and several of his possessions confiscated. Some of these had not been returned. He only got his car back.

Middleton said he and his family had only been good to the mother and her daughter.  He had always welcomed them to his home, but the mother had the tendency to become overbearing and intrusive.   In her evidence, Middleton’s partner echoed this sentiment.   Petersen said although the mother was indeed a problem sometimes, she regarded her as a friend, and because she was struggling financially,  she helped her whenever possible.  This despite the fact that they had been warned against her.  The mother’s daughter could come and go in their house as she pleased, and adored Middleton.  ‘She was sometimes all over him’

She testified that she and Middleton had been together for 14 years in a common-law relationship, and that she had managed the Avis car rental agency at Margate airport. “This was taken away from me because of Mr. Middleton’s arrest.’   She told the court about her shock when she heard the news about the arrest and the charges. ‘I then realised that our lives would never be the same.’   Petersen said she had been humiliated as a person, because amongst the photos confiscated by the police, were naked shots of her.   Another photo was of a naked Mr. Middleton, which the mother claimed he had sent to her.  “She had no right to take those photos. Its a criminal offence’

The case will be resumed today.

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