Convicted wife killer Rob Packham's defence team has argued that there is a reasonable prospect that another court might find that he is innocent.
Western Cape High Court Judge Elize Steyn, who sentenced the Constantia businessman to an effective 22 years in jail last week, heard his application for leave to appeal his conviction on Wednesday.
She listened carefully as his advocate, Craig Webster, argued why she had, respectfully, erred in finding 58-year-old Packham guilty of killing his wife Gill last February.
He said the identification of Packham at various points was "deficient".
Paul Gray, a pensioner and volunteer patroller, said he couldn't get a good look while Keanan Thomas stated in his statement that the person he saw in Diep River was a coloured man in his thirties, Webster said.
Webster argued that:
- there was no compelling reason to not do a live line-up;
- the parade was not done at the earliest opportunity;
- it was done after Packham's arrest, not before;
- there was prior and significant media coverage; and
- witnesses had driven together and spoken about the matter.
As for Gray identifying Packham in the dock when testifying, Webster said this carried very little weight.
The cross-examination of Warrant Officer Reece Harvey about cellphone mapping showed that evidence about his movements was neutral, he continued.
"It might place him in places where the State would have him and equally, it might place the accused in the places where he was."
Steyn said the cellphone data and evidence of Lance Govender showed that Packham was not where he said he was on the evening of his wife's disappearance.
She said Packham pretended he went straight home after having dinner at his sister's, but his phone was off for an hour, which was strange for someone desperately hoping for news about their missing wife.
Webster maintained the cellphone evidence was neutral.
"His actions were just bizarre for somebody who just lost a wife," Steyn maintained.
Webster asked if the identification evidence was not reliable and should be disregarded, and if one put the cellphone evidence in a neutral framework, was the circumstantial evidence enough.
"There might be a finger of suspicion that is pointed, but it wouldn't constitute a case beyond reasonable doubt."
One aspect that puzzled Steyn was where and when Packham's alibi of searching for cars on the morning of his wife's disappearance had emerged.
A defence witness would have testified about this if they knew about it, she said.
Prosecutor Susan Galloway said the investigating officer had testified about it, but couldn't remember who told him.
"It wasn't given to him as an alibi... His (Packham's) initial defence was that 'I was at work'. When that didn't hold water, he changed it to 'I was looking for a new vehicle for my wife'."
Galloway maintained that there was no corroboration for his version of where he was at that time.
"The only reasonable inference is that the accused is guilty of these crimes."
Steyn thanked both parties for their submissions.
"I don't want to rush off a judgment," she said.
She would prepare a judgment to hopefully be handed down next week.