NOTGUILTY South Africa - Anni Dewani, 28, shot to death, Gugulethu, 13 Nov 2010 #5

Britlaws · Nov 17, 2014

another week!

Estelle · Nov 17, 2014

Britlaws said:
Well, if the defence make a s174 application this morning and its refused, then that will tell the defence that the judge thinks much more of the state's case than they do. As the alleged co conspirators have been seen to be liars during the investigation and on the stand (and not just in this trial) seriously affecting their credibility, then that might indicate that the judge isn't happy with all the other anomolies, inconsistencies and stuff that doesn't seem to make sense - some of which can only be explained by Dewani, so the defence may have no choice but to put him up despite the risk.

If he does testify, I would like to know what happens if he is walked through his evidence in chief by his advocate (who is experienced and will make the most of it) and then 3 or 4 questions into the prosecutions cross examination he buckles and it is claimed that further XE would be detrimental to his mental health.

If there is a s174 Appn, I wonder if the Judge will be ready with her answer? She must be expecting it as a distinct possibility and she is giving all the signals that she wants this over already, so will be reluctant to delay matters with her decision making.

So how do you now read the Judge as she is delaying her decision for a week.

zwiebel · Nov 17, 2014

Thanks for the tweets, I was at the dog doc's today. What a disappointment that the judge will need a week to make a decision. I just don't understand why it should take so long.

Besides the emotional strain, attending the trial must be a huge financial burden for Anni's family.

Britlaws · Nov 17, 2014

Estelle said:
So how do you now read the Judge as she is delaying her decision for a week.

We don't know when her decision will be. AFAIK the defence must have their submissions in by close of play Wednesday. Then both sides will present their arguments to the judge on Monday - like Roux and Nel did but in much shorter time (thank the lord!).

My guess is that the Judge will be using her time productively for the remainder of this week to review the case so far, so it will ultimately take her less time to come to a decision. If she agrees that the trial should proceed the decision should be quite quick - if this is what she is thinking now, then in her head she will have dealt with much that the defence will argue already and will be ready for them. However, if she throws it out, she is going to have to put together a meaty judgement document explaining why, to appease the baying mob of South African tax payers if nothing else. Nobody is going to forgive her for taking a bit of time over that.

What I am not quite sure of is , if the defence argue for the case to be thrown out strictly on what the prosecution's evidence is, whether the parts of SD's plea statement or in fact any of the content of his statements that are not in common agreement will be allowed to be considered. This application is supposed to decide whether a reasonable person would convict based on the prosecution's case and the parts of SD's statements that aren't agreed form the defence case, which has yet to be heard. That's why they went through all the evidence that is agreed before adjournment.

Its a mess that's for sure.

It remains to be seen (or not lol) whether the Judge is as hard on the defence as she has been with the prosecution but she does give the impression (as far as we can tell with just tweets!) that she is sick of having to be the arbiter over shoddy police investigations where police are too quick to jump to plea bargains with a bunch of crooks who will happily throw anyone under a bus to make their own situation better. Look on the internet, case after case of SA hitmen/women where plea bargains have implicated others, with scant additional evidence.

Mngeni obviously deserved a long sentence but I am convinced he was stitched up by Quabe. I think Quabe only shared the £4000 with him, keeping the 10k for himself and then asserted that Mngeni fired the shot. Initially Mngeni said there was only £4k before he decided he wasn't even there. If you look at Mngeni's judgement, he was found guilty of being the shot merely on Quabe's testimony and some other crook who said Mngeni had mentioned he'd killed a woman in the park. Now it has transpired that Quabe's gloves have residue all over them and he could have been the one who actually killed Anni. Of course poor blacks can't pay for the sort of defence lawyers that SD has.

I feel for the Judge, I think she's good and wants to make good decisions but she can only work with what she is given and it is that she seems to find frustrating.

okay, rant over!

Britlaws · Nov 17, 2014

Further to the above, re s174 see http://www.saflii.org/za/cases/ZAWCHC/2011/329.html

This was an interesting s174 case where there were multiple co accused which restated guidance on the application of s174...

[11] Eventually the Supreme Court of Appeal gave guidance as to how a trial court should approach the thorny issue. In S v Lubaxa 2001 (2) SACR 703 (SCA) Nugent AJA (as he then was) said the following at p706 a:
"[11] If, in the opinion of the trial court, there is evidence upon which the accused might reasonably be convicted, its duty is straightforward - the accused may not be discharged and the trial must continue to its end. It is when the trial court is of the opinion that there is no evidence upon which the accused might reasonably be convicted that the difficulty arises. The section purports then to give the trial court a discretion - it may return a verdict of not guilty and discharge the accused there and then: or it may refuse to discharge the accused thereby placing him on his defence."

BUT!

[12] The learned judge observed that the manner in which that discretion is to be exercised has been the subject of some controversy. After an examination of the relevant case law Nugent AJA said that it was advisable to draw a distinction between cases where there was a single accused who might be obliged to enter the witness box and then incriminate himself, and cases where there were multiple accused who might incriminate their fellow accused. In the latter case, the Court held, the trial would not necessarily be unfair if the application for discharge were refused on the basis that the State's evidence may be supplemented by the evidence of a co-accused.

[13] In paragraph 19 of his judgment Nugent AJA noted the following:
"The prosecution is ordinarily entitled to rely upon the evidence of an accomplice and it is not self-evident why it should necessarily be precluded from doing so merely because it has chosen to prosecute more than one person jointly. While it is true that the caution that is required to be exercised when evaluating the evidence of an accomplice might at times render it futile to continue such a trial, that need not always be the case."

[14] As I understand the position then, Lubaxa's case seeks to draw a distinction between a case where an accused (usually one charged alone) may feel compelled to go into the witness box and run the risk of self-incrimination thereby violating his fundamental rights protected under the Constitution, and one in which there are multiple accused and where there is the prospect of one or more accused incriminating the others. In the latter circumstances the accused goes into the witness box not for the purposes of self-incrimination but to defend himself against the recriminations of a potential accomplice.

In this case they were all charged together. Bit muddy as to how this applies where the co accused's trials have been and gone (or they got off scott free with immunity!). No easy answers it seems.

PrimeSuspect · Nov 17, 2014