Kilian’s original bail bid was denied in March when Bellville regional court magistrate Nonkosi Saba ruled that the defence failed to prove exceptional circumstances for his release.
Kilian’s advocate, Marius Botha, contested the decision in the Western Cape high court on Friday.
During proceedings, Botha asserted that Saba based her decision solely on the evidence provided by the state, despite there being incidents where his client and the state version of the state witness conflicted.
Binns-Ward responded by saying the magistrate was left to deal with the evidence provided to her on paper as neither the defence, nor the state, clarified any conflicting evidence by means of cross-examination of the accused or the state witness.
“If the facts are to be determined on paper, the state’s version must be accepted where there is a conflict, unless the version appears improbable,” said Binns-Ward.
Botha further told the court that Saba had made 15 “material errors” during her evaluation of the available evidence used to decide bail.
Binns-Ward conceded that “the magistrate misconstrued the evidence in certain regards and made some findings that were unjustified”.
In this regard, he referred to Saba’s decision that Kilian’s release on bail would incite public disorder, and his inability to provide convincing evidence concerning his child’s disability.
“However, the identified misdirections do not mean that the appeal against the magistrate’s refusal of bail can succeed,” said the judge, adding that “the appeal can succeed only if this court comes to the conclusion that the magistrate’s decision to refuse the application was wrong”.
The judge said he found the appellant’s evidence “riddled with improbabilities and untruths” and that the defence failed to prove any exceptional circumstances that would allow bail under schedule six charges.
Considering the serious nature of the charges Kilian faces and the potential negative effect his release might have on the ongoing investigation and prosecution thereof, the bail appeal was dismissed.
Kilian was initially charged with murder, conspiracy to commit murder and the unlawful interception of communications relating to the murder of Western Cape anti-gang unit member Lieutenant-Colonel Charl Kinnear in September 2020.
Additional charges, spurred by a Hawks investigation, were later added. These included fraud and conspiracy to commit murder, relating to the attempted murder on 9 April 2020 of Cape Town lawyer William Booth.
These charges have been consolidated alongside Kilian’s recently arrested co-accused, Nafiz Modack.
The matter is currently running in the Blue Downs regional court. On Monday the case was postponed to Friday, to allow the state to respond to defence requests for “sufficient information” on the charges and warrants of arrest.
This is despite the state’s 52-page indictment that it handed to the court on 14 May.