If extradited, Dewani faces judge not jury

One of the major differences between the South African and British criminal justice systems is the absence of a jury.

In South Africa there is no option, as accused are tried before either a magistrate or a judge. Sometimes, in matters such as murder they may sit with assessors, but that is part of the bench rather than a jury.

As the question of the extradition of Shrien Dewani comes before the British High Court I thought it would be a good time to examine this area of our legal system, particularly in the light of his use of media publicist Max Clifford.

Dewani is accused by South African authorities of masterminding a simulated hijacking which occasioned the death of his wife Anni while on honeymoon.

Shrien vehemently denies this, pointing to a lack of motive and clear evidence of their happiness in a wedding video taken just days before the incident.

For the purposes of this exercise I am assuming that Shrien is extradited, as it becomes academic if he is not.

I spent 11 years as a specialist criminal attorney arguing 95% of my matters in both magistrate and high courts alone and without a leader, which I’m sure would have had the endorsement of Horace Rumpole.

What would not be so well received by the magical creation of the late John Mortimer is having to appear in courts without a jury as his poetry would have been as much wasted on the presiding officers over here as it was before Justice Bullingham.

Which is why the issue of Max Clifford is, to my mind, of particular importance in this debate.

In the case of a jury trial the fact that the accused is a sympathetic figure in the media is vital. While most people claim to be unaffected by what they read in the press, the reality is somewhat different. That is why voire dire or jury selection is considered so important in cases in which the system is used.

As Professor Pierre de Vos says in his article ‘Do we need a jury system?’ : “Imagine a white farmer is charged with murdering a black farm worker and the jury is made up of seven township residents and two white farmers. A good lawyer will play to the possible racist fears and prejudices of the white jurors who might be eager to believe that the farmer acted in self defence. How often would the state be able to secure a conviction (convincing all nine jurors of the guilt of the accused) in such circumstances? Not all white jurors would be swayed by the lawyer’s tactics, but some will.

“A jury system may therefore further pervert the criminal justice system, as rich defendants with clever lawyers will often be able to escape conviction while undefended (mostly poor and black) defendants will more often than not be convicted. Juries therefore seems to me like a quick-fix that will turn in to a “no-fix”.

Now factor in that the members of that jury are exposed to a media bombardment prior to the trial and you have the possibility of a trial by the media rather than your peers.

In the case of a judge without a jury that situation alters dramatically.

By way of an example I would like to use the case of Glenn Agliotti once again.

A judge — in general — is a very dignified and aloof beast whose greatest fear is making a fool out of himself in front of his or her peers — other judges. The way to achieve that is to take the evidence before him and convict an accused where elements of the crime have not been proved.

In the case of Agliotti — despite an enormous press barrage over a sustained period — in likening Agliotti to a Mafia boss, Judge Frans Kgomo examined the evidence on his plate served up by the state prosecutors, and pronounced it inedible. He acquitted Agliotti without even putting him on the defence.

My opinion, which is why I set out my background above, is that it is far better for an innocent accused to appear before a judge and a guilty one before a jury. This is not always the case but a general guideline.

I say this because if the accused is innocent no matter how much the press or prosecution try to influence the decision the judge has to convince the appeal courts, which may follow, that his conviction was based upon the evidence before him which was not only admissible but also proved all the elements of the crime with which the accused was charged.

In the case of the jurors, many factors — one of which is the law — come into play: their opinion of the accused, existing prejudice and of course, the media’s input.

In the case of Shrien, the issues of the CCTV footage, cellphones and all the other evidence, has to be examined for admissibility before the judge decides what evidence is before him. Look at it as a box into which the judge has to reach and pull out the pieces to build the crime. If a piece is missing — no conviction. If he gets it wrong his peers will tell him as much in no uncertain terms.

So no matter how much the press throw at the court they cannot overcome a judge’s dilemma in trying to convict when he’s missing crucial evidence.

In the case of a jury I humbly submit that that is not the case. They look at the evidence but the overriding factor will always be their impression of the accused.

As the judges in the Rumpole stories often pointed out to Horace — while he was waxing lyrical before a non-jury trial — “get on with it Mr Rumpole, you’re not in front of a jury now”. Mortimer was of course a barrister who practiced in those courts and knew exactly what those judges were all about. Those judges are interested in the facts, not the emotional issues surrounding them.

In Agliotti’s case Judge Kgomo slammed not only the prosecutors’ case but the way in which evidence was obtained. This, against a media tsunami claiming that Agliotti was John Gotti reincarnated.

Accordingly, if Shrien is innocent I believe he will receive a fair trial in South Africa because it is in front of a judge not a jury.

There are those who are concerned by Judge John Hlophe because of previous political issues which need not be canvassed here. That said, in a case of this high profile nature — where justice must be seen to be done — an alternative judge should be appointed for the trial.

Even though the issues involved have nothing to do with the case it cannot be in contemplation that controversy surrounding the judge will not cloud the case.

In order to present an opposing view, read Greg Smith and Steven Russell ‘Why Trial by Jury is Usually a Better Choice than a Bench Trial’ and Bertel M. Sparks ‘Trial by Jury vs Trial by Judge’.

As always, I do not claim to be right or wrong but would like to hear what people think of a judge versus jury trial and whether the local system can afford Shrien a fair trial in light thereof.