THE BLOG

Shrien Dewani - Why There Was No Case to Answer

09/12/2014 13:08 GMT | Updated 08/02/2015 10:59 GMT

Lawyers are often asked: How can you represent someone you know is guilty? The truth is you don't know if anyone is guilty unless, perhaps you were a witness to events and then you wouldn't be the lawyer. The correct answer is that a lawyer has to act based on instructions given by the client. If your son or brother or father or other relative were accused of a serious crime, you would expect them to have independent legal representation not an advocate who assumes he is guilty. Shrien Dewani denied charges that he paid hit men to kill his wife while the couple were on honeymoon in South Africa. Evidence that he was bi-sexual was excluded by the judge. Logically, the fact that someone is bi-sexual or unhappy in an arranged marriage does not make them a conspirator to murder. The legal issue is only whether it can be proved on available evidence that he led a conspiracy to kill his new wife in circumstances where he was almost bound to be exposed.

It seems there was a prima facie case on paper to enable his extradition but, at trial, the case collapsed on the basis that the alleged co-conspirators were dishonest witnesses who had negotiated plea bargains by implicating Dewani. This has something to do with cross examination by defence lawyers but more to do with the risks that the prosecution take when calling dishonest witnesses. Just as with an acquittal after a false allegation, a criminal conviction will be unsafe where there has been significant dishonesty by crucial witnesses.

In South Africa, as in the UK, a submission of no case to answer can be made at the close of the prosecution case. If the judge is satisfied there is no evidence, beyond a reasonable doubt, that the defendant committed the crime or that that there is some evidence against the defendant but it is so tenuous or inconsistent that a court cannot reliably or properly convict any individual, s/he will stop the case. The case against Shrien Dewani is no exception and, the real question is whether there was ever any reliable case against him when those who admitted the murder had so little credibility. This is small comfort for the family of the deceased, Anni Dewani, although it must be borne in mind that they have some justice in the conviction of those who admitted the killing.

There is almost bound to be an inquiry into the investigative procedures in South Africa and what could have been done either to ensure that someone like Dewani is never put on trial again on tenuous evidence or to make sure that reliable evidence is properly collected and adduced in evidence so that the South African people can be more confident in their criminal justice system. In any event, the opportunity to make a submission of no case to answer is a vital mechanism to make sure that weak cases do not lead to guilty verdicts. It applies to weak husbands just as much as alleged killers and, as individuals, we should be grateful that judges are brave enough to make tough decisions based on long established principles of law.

When the inevitable civil proceedings follow, Shrien Dewani can be sued by his wife's family on a lower standard of proof - the decision as to whether he is responsible for her death will be based on a balance of probabilities, it is a different test and we may have to wait and see if it brings a different result but, the difference is important as it relates to money, not liberty and whilst there are dishonest witnesses there will always be criminal allegations that people should not have to answer.