#Dewanitrial: Nothing to mop up after Judge #Traverso A-Bomb blasts State' case.

#Dewanitrial:  Nothing to mop up after Judge #Traverso A-Bomb blasts State' case.


I notice that the Mail & Guardian called the Judgment a "shock judgment". The Family of the Deceased say that Dewani ought to have been made to testify and thus justice failed.  These views are not correct.


I also refer to the article which appeared in the UK's Independent two days ago.  


http://www.independent.co.uk/news/uk/crime/shrien-dewani-acquitted-six-reasons-the-case-was-dismissed-9910478.html


Western Cape High Court Cape Town


Two days ago, on 10 December 2014 the Honourable Judge Traverso DJP delivered her judgement on the Defences' application in terms of Section 174  of the Criminal Procedure Act.


Simply put, at the end of the State case, the defence are entitled to apply i.t.o. Sec 174 for the dismissal of a weak state case. This provision saves costs and prevents everyone from wasting their time continuing with a criminal trial where the State's case has, to all intents and purposes, collapsed.


In essence the test is whether the State has adduced sufficient evidence upon which a Court might, but not necessarily would, reasonably convict.


If that threshold is not met, the Accused is entitled to acquittal.


COMMENTS:


In my professional view, Judge Traverso's Judgement was as correct as it was fit for all the purposes it was required to serve.


The learned Judge's judgment summarised each and every problem the state faced.


The State's case was replete with lies and contradictions from people who not only admitted to previously lying under oath, but were also the very criminals who admitted to, or were convicted of the death of the deceased i.e. they were not pillars of society.


During the cross examination of each State witness, the lies only multiplied.


The State's case against Dirwani, conspiracy to murder, was flimsy and relied upon the testimony of one alleged accomplice witness. Not only was that witnesses' version shown up by further lies under cross examination , but his version contradicted the evidence of the actual co-conspirators on various material aspects.


Furthermore, the learned Judge found that the State's version in any event suffered from certain inherent improbabilities.


Her Judgement was a veritable intercontinental nuclear ballistic missile and when it exploded, it demolished the State's case in its entirety, leaving nothing standing, and nothing to mop up.


Under these circumstances, there was no case for Dewani to meet and the Judge correctly dismissed the case.

SHOCK DECISION


The suggestion that the Honourable Judge's decision was in any way surprising or shocking is manifestly incorrect and it reveals how uniformed  some of the public, many of the media, and even some so-called legal experts were.


At the time the 174 application was being argued, I realised that the State's case had problems, but I did not appreciate the seriousness or the extent thereof, as I had not had the time to follow many media reports about the case. Some of articles I did chance upon were not particularly informative.  


From what little I did know at the time, however, I suspected that the State's case was in severe difficulty and I concluded that a 174 Application would be made, and that it was likely to succeed.


Acquittal became more likely due to length of postponement after argument.
When, after argument, the Judge postponed the matter for over a week, I realised that this, of itself, was a strong pointer towards a 174 acquittal.


If the Judge had been of the view that the State's case, although problematic, was sufficient to pass the 174 threshold, then she would have known this prior to the 174 application. A Judgement explaining why the application fell to be dismissed could easily have been cobbled together (mentioning three of four grounds) within hours of argument, if not, immediately after argument.


An Acquittal in this case would always have to be more detailed.  
The fact that the Judge postponed the matter suggested that she was strongly leaning in favour of a section 174 acquittal. If I'm correct, there are two main reasons why the learned Judge required time to prepare her judgment.



The Judge would have been mindful of the high media profile of this case both locally and internationally. In addition, many members of the public had misguidedly concluded that Dewani was probably guilty and that he needed to explain himself.


The learned Judge clearly appreciated that, notwithstanding that the facts of this case cried out for a Section 174 acquittal, the public and the media needed to be informed, chapter and verse, about what the problems in the State case were. This arguably required a methodical more detailed judgment than she might ordinarily have given.


The fact that the Judgment was clearly intended to be understood by various local and international audiences, and not just lawyers, is not a case of the Court bowing to public opinion. Instead, it shows how our Courts are willing to embrace the added interest by the public and others in our system of justice, and that the Court considers it to be its duty to ensure that the reasoning behind its judgments are clear to all and understood by all. This is to be applauded.


The second reason why the Judge would have required a week and a half would no doubt be to allow for the possibility, however remote, that whilst actually drafting a judgment favouring acquittal, the learned Judge might experience difficulties in the flow of the judgment. This would be cause to revisit her decision again and possibly, even change it. Having a preconceived notion of what one intends to rule is one thing, drafting it might well reveal flaws of logic which could change the picture entirely. This would accord with in the best traditions of our Judges.


And it explains the advantages of the South African criminal justice system which demands the production of a written, reasoned, judgment.


Towards the end of her judgment, the learned Judge dealt with the public's concerns and those of the family.


The Judge indicated that she understood that the acquittal would be unpopular amongst certain sections of the public. (Not that there were any rational reasons for such concern, mind you.) However, she pointed out that our Courts are Courts of Law.  In this respect she pointed out that no civilised Court can be influenced by public opinion in delivering a just judgment.


The Judge was quite correct. You can have mob-rule or justice. The fact is, justice cannot be delivered by having a head count of people who, for the most part, have no idea what the evidence in the case is all about, and have no concept about how to deal with contradictory evidence. 


(see my article on this blog about why protestors should not be allowed near Courts!)  
http://siegfriedwalther.blogspot.com/2014/01/why-protestors-have-no-place-near-courts.html




DEWANI LYING UNDER OATH WAS UNLIKELY TO RESCUE STATE'S CASE IN ANY EVENT


The Judge also pointed out that even if Dewani had been forced to mount a defence, and even if he had lied in his evidence, the Court would still be left with the abundant lies of several self-confessed perjurers on the States' side, and also that of a lying accused.


Juries might convict in such a case, but no decent Judge applying the Beyond reasonable doubt test could convict the Accused in such an event (see other articles on this blog explaining why I regard jury trials as bordering on the barbaric)
http://siegfriedwalther.blogspot.com/2014/10/does-oscartrial-show-southafrica-must.html


The concerns of the family
The learned judge recognised that the family had an interest in hearing the accused's version.


But ultimately, the Judge pointed out that she was obliged to apply the law and that she would not put the accused on his defence (in response to a shambolic state case) simply to satisfy the family's desire for the truth.


Having acknowledged and then properly dismissed the family's and the public's concerns as factors she could properly consider, the learned Judge concluded by arriving at her conclusion in accordance with the law, and did so without fear or favour.


The comprehensive Judgement is a masterpiece. The analysis of the problems in the State's case was intended to show the public and the media, both local and international, that the State's case was in tatters and I dare say it largely succeeded, if one has regard to most media reports. See the Independent's summary (link above).


Another victory for SA HIGH COURT JUSTICE


The judgement represents another victory for Justice in the South African High Courts.  As I have argued elsewhere on this blog, our Judges, unlike Juries, deliver carefully considered rational Judgements. Juries only say guilty or not-guilty. (This seems both primitive and highly unsatisfactory..)
http://siegfriedwalther.blogspot.com/2014/10/does-oscartrial-show-southafrica-must.html




Nobody who has considered the Court's judgement could possibly fail to understand why the Court ruled as it did, and no rational person could afterwards argue that the Judge was not correct in ruling as she did.  


At least, anyone overseas who has witnessed our High Courts in action, and who has considered the detailed Judgments delivered, ought to realise that visitors to this country are likely to receive a fair trial here in our High Courts if they happen to find themselves accused of a crime.


I now turn to respond to media and public comments:


+Sky News   Alex Crawford's inane comments


At the outset, I should point out that I normally enjoy Alex Crawford's reports and I must also confess to being a regular Sky news viewer. Thus, it gives me no pleasure to say what I do hereunder, and trust it will be received as constructive criticism.


"Judge wont' want to buck the trend in this high profile case."


On the morning of,  and prior to the Verdict, +Alex Crawford @AlexCrawfordSky
correctly mentioned that in SA Courts, over ninety per cent of 174 applications are refused. Amazingly, however, she went on to say that she could not imagine that the Judge in such a high profile case would "buck the trend".


This showed a remarkable lack of understanding on her part of the proper functioning of any Court. Judges ought to apply the law without fear or favour. The fact that this case was a high profile one is without relevance.


Furthermore, it suggests that her legal advisors' had no knowledge of Judge Traverso as a person. Judge Traverso is known to be a no-nonsense Judge who will not allow any "perceptions of popularity" to influence how she carries out her judicial duties. 


"174 Acquittal would suggest case should never have been brought."
The second remarkable statement from Alex was that if the 174 application was granted, it would mean that the State ought never to have brought the case in the first place. That is only one of many conclusions one could draw from a 174 acquittal. Equally, a 174 acquittal will be granted where the State's case initially appears to be strong, but where it disintegrates piece by piece under cross examination.


It is not for me to say this case should never have been brought. Despite the risks of accomplice evidence, and the reasonable possibility that accomplice evidence could collapse during the trial due to past lies told being exposed etc., the State can't be blamed for chancing their arm if they believe that enough of the Accomplice's evidence will nonetheless survive cross examination intact to force the Accused into the witness box.


This case failed mainly because, under the pressure of cross-examination, further versions were advanced and the explanations for these inconsistent versions became increasingly incoherent and implausible. That happens when people are lying. That is a good thing.


Had the trial not occurred, these lies, and the improbabilities of the State's case, to which I shall return below, may never have come to light. The fact is we can now conclude that this collapse occurred mainly because there may indeed be no truth at all in the accusations against Dewani.


"SA Police and prosecuting authorities reputations damaged further."
To be fair, Alex Crawford did manage to point out one obvious fact on which everyone is agreed. Like in the Oscar Trial, the South African Police and to a lesser extent, some decision makers amongst the SA prosecuting authorities have been shown to be seriously wanting.


We all agree on that and I hope that the Statements by Senior officials that an investigation into these failings will be launched so that lessons can be learned and can be put into practice. As things stand, the South African Police Service, in particular, have emerged from these trials looking quite incompetent at times, and certainly below par when judged by international standards.


It's easy to hire a killer in SA
The Judge found the Taxi driver's evidence - that within half an hour of Dewani's landing / arrival in Cape Town, Dewani, (having just met that driver) felt comfortable enough to raise the issue of whether that Driver could arrange for a hit on someone to be highly improbable.


Whilst that version is of course possible, I agree with the Court that it is highly improbable. I am not going to explain the obvious in detail.


But if Dewani seriously wanted to arrange to kill his wife, he would surely have wanted to make sure that the person he was going to approach could be trusted and would also be likely to co-operate. After all, the last thing he would need was for the Driver to say no. That would have ended his plans, if he were intelligent. Why?


Driver would be able to tell the police of that request at once, or if his wife were to subsequently die in a later plot, he could tell the police of Dewani's approach any time in the future.  I could go on and on as to the other common sense reasons why this version is highly improbable, but you can work them out for yourself, if you stop to put yourself in Dewani's shoes and to plan the event yourself.


Alex misquoted the Judgement, saying that the Judge was wrong in her alleged view that one couldn't find a hired killer so quickly in South Africa, she then engaged in gutter journalism. She went out with her crew to "Ganglands", interviewed, some masked criminals who may or may not have been playing up to the cameras for effect, and who said they would easily kill someone for R15 000 or so, and had in fact, done so. Alex suggested that she found these killers easily, and thus attempted to pour contempt on the Court's finding.


First of all, I don't imagine, for one minute, that it took Alex half an hour to find and interview these criminals. If she did, it was because she made enquiries at the Courts from people attending at criminal trials. People who had criminal connections. Most South Africans I know wouldn't know where to start finding such people.


There are indeed many poor people in South Africa, and some are or may be willing to kill for a shockingly low reward, but the suggestion that these people are all over the place and easily found, or that they are just waiting to be found, is overstated. Its gutter journalism of the worst sort. What makes it worse is that prior to the insert, she deliberately misquoted the judge. The judge did not say that it was not easy to find a hired killer in South Africa in a reasonably short time. She did say that it was unlikely that a foreigner who wanted to hire one, would rush to ask the first available person they encountered within an hour of their arrival in the country. The Judge was of course, quite right.


Here is what the Judge actually said:


23.1.103.1 The accused met Mr. Tongo at the airport when he was looking for a taxi to take him and his wife to the Cape Grace Hotel. Mr. Tongo was a shuttle operator, he was neatly dressed and his car was in a good condition. It was never suggested that the meeting between the accused and Mr. Tongo was pre-arranged. In other words, the accused simply approached Mr. Tongo because he was the first taxi driver he came across as he walked out of the airport.
23.1.103.2 On their way to the Cape Grace Hotel Mr. Tongo attempted to sell his services as a guide to the accused and his wife, offering to show them around Cape Town. There could have been no indication to the accused that Mr. Tongo was anything other than a law abiding shuttle operator and a guide. Can this court, without some credible corroboration, for one moment accept that the accused, after he had been in Mr. Tongo's company for approximately 30 minutes, would without more approach him with a request that he find somebody to kill his "business partner".
23.1.103.3 It is even more improbable that Mr. Tongo, who says he has never been involved in any criminal activity, would virtually immediately agree to contact his friend Mr. Mbolombo to obtain the services of a hitman. Even if one accepts that he was offered R5 000,00 at this stage, it must be kept in mind that Mr. Tongo testified that in a good month he earned between R30 000,00 and R40 000,00 per month. Again the question arises: would such a person risk his vehicle, his income, his future and his freedom for a mere R5 000,00? It is equally strange that Mr. Tongo immediately approaches Mr. Mbolombo, who is a hotel receptionist, who on his own evidence, has the wherewithal to contact people telephonically because he works as a receptionist in a hotel. It is even stranger that Mr. Mbolombo, without any promise of financial gain, almost immediately agrees to assist by phoning Mr. Qwabe.




Any person, who wants to arrange for a hit, would surely wish to get away with it, and also not wish to end up dead in the process themselves. This would require pre-planning prior to arriving in SA or it would require taking some time to survey the lay of the land upon arriving in SA. Only a fool would rush into hiring someone to do a hit. I deal further with this Alex Crawford aspect in a separate article. "English Gutter Journalism"






http://siegfriedwalther.blogspot.com/2014/12/alex-crawford-skynews-english-gutter.html


The Deceased's family's view that Justice was not served


The Deceased's family have announced their view that Justice was not served in that Dewani was not forced to testify at the trial.


I do sympathise with the family of the Deceased and I understand their need to have answers regarding what actually took place. Hence their wish to have had Dewani testify.


It should be said however, that insofar as this is a criticism of Judge Traverso's decision or her Ladyship's handling of the case, such criticism is unjustified, misplaced and highly unfortunate. The Court had a decision to make. In doing so, it had to apply the law in an even handed manner as far as both the State and the Accused was concerned.  This involves sparing an accused from having to defend himself in response to a chaotic case, or in a case which is one where, as the Judge put it, it became impossible to distinguish where the lies ended and the truth (what little of it there might have been) started.


The irony is that the South African authorities' decision to prosecute despite knowing the risks of using accomplice evidence, and despite the risks of failure of case during cross examination, has probably given the family the answer they seek, although it might not have been the one they wanted.


The public often love to believe that clever lawyers can use cross examination to confuse state witnesses, particularly less educated or intelligent state witnesses and thus muddy the truth.


The fact is however, that whether one is less intelligent or highly intelligent, if one is telling the truth, despite the rigours of cross-examination, and despite any contradictions on some points, a basic core version mostly remains....and remains unshaken.


Experienced Judges, most of whom are former practitioners, are alive to the tricks and techniques of defence counsel, and they also make certain allowances for less intelligent witnesses. This may even involve upholding an objection to an unfair question which is misleading. (i.e.. shielding that witness from being badgered etc.)


The Courts take the evidence of the witnesses, the witnesses demeanour, the corroboration if any by objective or forensic evidence or by other witnesses into account in a holistic fashion in assessing the credibility or weight to be attached to particular portions of a witnesses' evidence. That evidence is also considered against probabilities arsing from human experience.


The fact is that the Court concluded that the accomplices who gave evidence for the State were intelligent. Intelligent witnesses who are lying, however, fold under cross examination as easily as does anyone else. They often try to second guess where the cross examiner is going to their own detriment. Their heightened appreciation of the mounting contradictions, when they are caught out, often results in attempts to explain or to justify which, more often than not, results in further contradictions.


In this case, the only witness whose evidence was supposed to implicate Dewani in the alleged conspiracy, ended up with several contradictory versions. More often than not, this shows that his evidence was false. In particular he had a self-confessed role in the crime and he was a self-confessed liar. His version was also at odds with those of other accomplices in several material respects.


These factors increase the probability that the State's version that Dewani was involved was a fabricated one.


This likelihood finds support if one considers the inherent improbabilities mentioned by the learned Judge in her judgment. I have dealt with one such improbability already. Another is that a taxi driver, who said he earned around R20 000 + a month from his operation would agree to set up a murder for a paltry R5000.00 and that he would risk his car ( worth many times the amount he was to be paid) being destroyed or confiscated as evidence to boot.


The most likely truth is that this was a botched kidnapping for ransom attempt in which Dirwani was probably not involved.


When murder charges against those involved seemed likely, the willingness to implicate a mastermind in exchange for leniency could have proved too much.




The public's outrage


Almost from the outset, many members of the public regarded the unannounced but unproven allegations from the authorities or the media as fact.


Of course, Dewani's attempts to avoid extradition only served to reinforce the beliefs of those who considered him guilty. In addition his perceived delaying tactics also swelled the number of his accusers.


The problem is that the public often fail to recognise that the allegations which the State make against an accused often forms part of a theory the police or prosecutors have distilled from the known "facts" at the time. In high profile cases, the pressure to solve the case can lead to rushed conclusions or theories, and worse, to a failure to test such a theory by the elimination of other suspects or contrary theories.


In high profile cases, this can lead to the temptation by someone, often a superior of the actual investigators, to prematurely call a news conference to announce that they have a so-called watertight case. Needless to say, after such an announcement, if any contrary theory is raised by a subordinate, the pressure to prevent embarrassment to senior officers or officials often trumps any search for an alternate truth.


There are numerous local and international examples of police or prosecutors refusing to budge from their initial theories of a case, resulting in failed prosecutions, or worse, (particularly with jury trials) incorrect convictions which are only set aside years later or not at all.


There remains speculation whether Dewani's problems started when someone high up in the State felt that it would be less harmful to South Africa's image as a tourist destination if it turned out that the Deceased's death occurred at the instance of foreigner (the husband) instead of being a hijacking by locals only.


Of course, such a view, if it existed, was foolish because it suggests that South Africa is the place for tourists to come to if one wishes to arrange quick, cheap hits on one's spouse. This is equally if not more damaging to the country's image than a murder /  hijacking by locals.


However foolish or ill-thought out any such view may have been, if it was indeed held by someone senior enough, it may have caused or resulted in suggestions to the persons first arrested that if they identified the ringleader or master-mind, and gave evidence against him, it might assist in reduced sentences.  Who knows?




Whilst the public may have cause to be unhappy with aspects of the police's investigation of the case, they have no cause to quibble with the Judge's verdict or her handling of the case.


On this score, the accused's sexual history, once admitted by the Defence, was then correctly, in my view, excluded by the learned Judge. The basis of this exclusion is that such evidence was irrelevant and would have ultimately been inconclusive. The rules applicable to such evidence are fairly universal and an English or US Court may well have ruled similarly.


But, the point is, even if such "character" evidence were to have been admitted it would not have been conclusive, and certainly, would have made no difference to the 174 application's outcome. The admission of such evidence would not have rescued or resuscitated the State's so-called case.


So the same result would have occurred. Acquittal.


Siegfried Walther 10 December 2014