Knox, Murray, Dewani and Nazi justice

On Monday night I watched the trial of Dr Conrad Murray, who is charged with the involuntary manslaughter of pop icon Michael Jackson, and the decision on the appeals of Amanda Knox and Raffaele Sollecito against their 2009 convictions for the murder of British university exchange student Meredith Kercher.

In the case of the former, being heard in Los Angeles, the conduct complained of is that the doctor is allegedly responsible for the unlawful killing of another human being without malice aforethought. This is similar to South Africa’s culpable homicide being the negligent killing of another human being, as opposed to murder where there is intention in the form of one of the types of dolus.

The state is alleging that the acts and omissions of Dr Murray both in the lead up to and on the day of Jackson’s demise led to his death. The defence is alleging that Jackson initially took eight anti-anxiety lorazepam pills and, when the accused stepped out of the room, Jackson self-administered a dose of propofol, the combination of which proved fatal.

In Italy last night the murder convictions of both Knox and Sollecito were overturned and they were immediately released. The primary basis for the finding made by the appeals court being the fact that the investigation undertaken by the Italian authorities at the time of the murder was so tainted that the convictions could not be sustained. The judge, who had been assisted by a number of individuals who were not per se legally qualified, went a step further and said that the pair did not commit the crime.

In England the Home Secretary Theresa May has confirmed the decision of a UK court that Shrien Dewani, the Bristol businessman who is alleged to have murdered his wife Anni while on honeymoon in Cape Town during 2010, can be extradited. The Dewani legal team has confirmed that they will be appealing the decisions to the supreme court. If that fails there is another last resort in appealing to the European courts.

From England to the United States, and from Italy to South Africa if you are reading the newspapers or listening to the views of the public at large on television then many people seem to think that these cases are easy and that the legal systems are a simply a waste of time confusing the issues so that criminals can walk free if they can afford top lawyers.

Along the lines of Dr Murray is a negligent crook who only cared about the money he was making off Jackson, Knox and Sollecito are as guilty as sin and only got off because their lawyers created a technical dust cloud to discredit the forensic evidence and Dewani must be guilty because he refuses to be extradited when the state has confirmed that they have a very strong case.

The fact that these countries have systems which require that evidence be collected in a specific fashion in order to ensure that it can be accepted by their courts as valid, that charges have to be proved beyond a reasonable doubt in order to ensure that people’s liberty is not taken away on a whim, that criminal procedure acts and rules are implemented to create systems that need to be followed to try and achieve true justice and that these are underpinned by case law which tempers the harsh effect of the legislation concerned, is considered by many to be just so much mumbo jumbo which stands in the way of real justice being served.

To them it is simple — Knox, Dr Murray and Dewani must be guilty because they’ve read enough newspapers and watched enough television to know the truth.

That, in my humble opinion, is the view of the vast majority of people in most countries around the world.

The South African Supreme Court of Appeal in Shane Gilbert versus the State reaffirmed the manner in which a court must assess and evaluate evidence in a murder trial. In this case how the courts should deal with the version of an accused.

The court restated the principle set out in S v Shackell 2001 (4) SA 1 (SCA) :

“It is a trite principle that in criminal proceedings the prosecution must prove its case beyond reasonable doubt and that a mere preponderance of probabilities is not enough. Equally trite is the observation that, in view of this standard of proof in a criminal case, a court does not have to be convinced that every detail of an accused’s version is true. If the accused’s version is reasonably possibly true in substance, the court must decide the matter on the acceptance of that version. Of course it is permissible to test the accused’s version against the inherent probabilities. But it cannot be rejected merely because it is improbable; it can only be rejected on the basis of inherent probabilities if it can be said to be so improbable that it cannot reasonably possibly be true.”

If laymen and women read through the case then more often than not they will conclude that Gilbert has to be guilty and that the application of the approach that is required by our courts in respect of the version of an accused is merely interfering with justice.

They will ignore the fact that the versions given by the state witnesses should have raised alarm bells in the trial court and the initial appeal court. The fact that these versions were highly contradictory and clearly aimed at concealing any wrongdoing on their part is overlooked.

The fact of the matter is that many legal systems have evolved over hundreds and hundreds of years. While at times they do appear to be overly concerned with people’s rights — and thereby result in a good deal of uncertainty where technical defences confuse the public — they are, presently, the best means of ensuring justice for an accused.

One week of kangaroo courts or anarchy would convince even the most sceptical observer of the value of a sophisticated legal system and an independent judiciary, an issue that recently grabbed everyone’s attention as debate raged over the appointment of a chief justice.

Recently I have been reading through the Nuremberg Military Tribunal hearings on what is known as the Justice Case, because all of the defendants held positions in the Reich system of justice, as officials of the Reich ministry of justice or as judges or prosecutors of the special courts and the people’s courts.

The link contains more than 1 200 pages related to this part of the Nuremburg trials which ran from 1946 to 1949.

Those who are interested may want to flick through certain parts of the link which is indexed.

In context it will help people to understand that just as dangerous as anarchy is allowing politicians to interfere with the independence and operation of the judiciary.

In my recent article dealing with McBride, shoot the boer and the Bees Roux cases it became clear, from the comments, that many people believe that the courts don’t understand how things are on the ground and that we need to abandon our Constitution to rectify all the ills of South Africa; replace constitutional supremacy with parliamentary supremacy.

Most people see justice in black and white (not a racial reference) and look for certainty from their judiciary. In frustration at what they perceive to be injustice they abdicate responsibility to politicians who they believe share their intolerance of crime and injustice and — heaven forbid — call for them to be given more say in the judiciary.

In this regard we have seen time and again the ANC suggesting that it is their function to legislate and the judiciary should not be allowed to interfere in that.

Nuremberg showed that where politicians are allowed to dictate the laws which the judiciary are required to blindly follow, the people are left without any protection against unscrupulous leaders and those governing become emboldened until only a meltdown brings matters to a head.

Zimbabwe is as good an example as Nazi Germany of what happens when politicians are able to control their judiciary.

In Germany — for those who read the link — you will learn how the entire criminal justice system was instructed to look to party interests before questions of law in making decisions. Enemies of the state had to be punished. This led to cases where 17-year-old boys were hanged for distributing a pamphlet at university. Even the Berlin Gestapo appealed for clemency on that one and was rejected.

The judges claimed to be under orders to act which brought into question the Hitler decrees, the enabling act of 1934 and most importantly the question of what is required of a judge when state law breaches international law. Does he enforce the legislation of the state when it means carrying out laws that are repugnant to the global community or refuse to do so and — most likely in this case — get a bullet to the brain?

In 1933 and 1934 we see the judiciary questioning the decisions of the executive and legislature, but by 1944 they had totally abandoned any pretence of being anything but a party puppet and people were being hanged for things like encouraging defeatism.

This refers to your average German not the millions that were slaughtered by a regime that went totally unchecked.

Though people will have different views on Knox, Dr Murray, Dewani, Roux, McBride and shoot the boer the job of an independent judiciary is to apply the law of that country. In South Africa just as importantly the judiciary tests whether the law complies with the Constitution or returns it to Parliament.

When a decision in an individual case appears to you to be unjust try to research the case as a whole and see whether the decision makes sense in light of having gone through the matter in detail.

Regardless, understand that even where you might disagree with a decision that must not be confused with the need for a balanced system of law, applied by an independent judiciary which is vital to the protection of your rights and those of your fellow citizens.