Shrien Dewani Q&A: Witness accounts just did not stand up in court of law
An appeal by the defence against this careful and meticulous judgement is very unlikely, says lawyer Joy Merrian
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Was it right to extradite Shrien Dewani?
The test for extradition is usually a prima facie case; this means evidence, if all correct, could form the basis of a conviction. The point about a prima facie case is that the evidence is unchallenged and no account is taken of the possible defence case. As there were three witnesses who had made statements accusing Dewani then it is difficult to criticise that decision.
If the evidence was strong enough to extradite Dewani, why did the judge condemn it so strongly?
Because the evidence was tested in court. Judge Jeanette Traverso said the oral evidence was riddled with contradictions and she commented that it was difficult to know where the truth and lies started and ended. It is much easier to give a written statement than to answer questions in oral evidence; this testing of evidence through examination is obviously at the heart of any accusatorial court system. The test the judge applied sounds similar to the one in English law – namely is there evidence on which a court can safely convict (again this is a test on the prosecution case alone without hearing the defence)? In this case the judge ruled there was not and thus had to stop the case. This appeared to be largely based on her assessment of the witnesses.
Will the prosecution be able to appeal?
In England if a defendant is discharged as opposed to being acquitted after a full trial then if there is new evidence the prosecution can be mounted again. In this case the judge has said: “The accused is found not guilty of this charge.” The prosecution has indicated it won’t appeal. An appeal against the judge’s decision would be difficult as much depended on her assessment of the evidence and her judicial discretion. They would need to show she was wrong in law and from what I have seen of her judgement it appears careful and meticulous.
Is it normal or good practice to base a case on the evidence of witnesses who are convicted of the same crime?
Such evidence must always be treated with caution as the judge highlighted here. Usually you would expect some corroboration as there is clearly an incentive for the witness to be untruthful if a lesser sentence has been awarded in exchange for co-operation, as in the case of one of the chief prosecution witnesses, cab driver Zola Tongo.
Have the prosecution wasted everyone’s time – or was it worth trying to bring the conviction on whatever evidence they had?
I think due to the high profile of this case and the obvious and heartfelt desire of the deceased’s family to discover the truth they had no option but to proceed following Tongo’s confession which accused Dewani.
Joy Merriam is a solicitor advocate with McCormacks Law and Law Society Council Member for criminal defence