Shrien Dewani - Honeymoon murder

[anglolawyer]

I very strongly suspect that the SA authorities have already give firm assurances that Dewani will be adequately protected while in custody in SA, and that he will be segregated if they or he feel that to be necessary. While the sorts of incidents you describe above may well be common (endemic, even) in SA prisons, it is not difficult to ensure, if required, that they categorically do not and cannot happen to any specific person in custody.

I don't think that this issue has a cat in hell's chance of constituting a reasonable defence against extradition for Dewani.

It has already been rejected as a reason LJ. That was not my point. That does not mean it does not operate on his mind as a reason not to want to be extradited. If innocent, would you be happy about spending months in a SA jail awaiting trial - even if protected? I was addressing this:

By contrast, Dewani - if he believes that he can offer a good defence - should be feeling obliged to allow the SA courts to test the case judicially.

I see no reason why he should not use all means available to resist extradition especially since, if innocent, it is very likely he is being framed by the police. That is to say these police.

That random link popped up when I was looking for the story about there being hundreds of convicted felons, including rapists and murderers, serving in the SA police, many of them in senior positions.

 

[katy_did]

And the "getting framed" part is unfortunately a risk he has to take. It categorically does not fall under the ECHR's Rule 39 Order conditions.

I confidently predict that if Dewani does try to apply to the ECHR to avoid/postpone extradition, his application will be swiftly thrown out.

If he does apply, my guess would be that it will revolve around whether extraditing someone who both sides agree is mentally ill and currently unfit to stand trial (the disagreement is about his prognosis) is against his human rights. I'm not sure if the ECHR has dealt with that sort of claim before or what the outcome was if so.

 

[LondonJohn]

If he does apply, my guess would be that it will revolve around whether extraditing someone who both sides agree is mentally ill and currently unfit to stand trial (the disagreement is about his prognosis) is against his human rights. I'm not sure if the ECHR has dealt with that sort of claim before or what the outcome was if so.

Are you sure about this part?

IIRC, one of the preconditions for the UK courts agreeing to extradition was that the SA authorities could give assurances - which they gave - that Dewani would not spend a long time in custody in SA prior to his trial.

I believe that the SA authorities have long believed that Dewani is mentally fit enough to stand trial. I believe that the UK courts now agree with this.

Therefore, I believe that any application from Dewani to the ECHR would have to be on the grounds that the assessment of the UK courts (and the SA courts) about his mental health is fundamentally wrong, and that in fact he would be in imminent danger of self-harm were he to be extradited to SA any time soon.

I strongly suspect that it would take extraordinary evidence for the ECHR to adjudge that the UK courts had got this badly wrong, and that Dewani really did face the threat of serious self-harm. In addition of course, there's the in-principle issue of people defending themselves against extradition by saying "If you extradite me, I'll kill myself. Therefore you will be breaching my human rights by extraditing me, and therefore you can't".

 

[katy_did]

Are you sure about this part?

IIRC, one of the preconditions for the UK courts agreeing to extradition was that the SA authorities could give assurances - which they gave - that Dewani would not spend a long time in custody in SA prior to his trial.

I believe that the SA authorities have long believed that Dewani is mentally fit enough to stand trial. I believe that the UK courts now agree with this.

Therefore, I believe that any application from Dewani to the ECHR would have to be on the grounds that the assessment of the UK courts (and the SA courts) about his mental health is fundamentally wrong, and that in fact he would be in imminent danger of self-harm were he to be extradited to SA any time soon.

I strongly suspect that it would take extraordinary evidence for the ECHR to adjudge that the UK courts had got this badly wrong, and that Dewani really did face the threat of serious self-harm. In addition of course, there's the in-principle issue of people defending themselves against extradition by saying "If you extradite me, I'll kill myself. Therefore you will be breaching my human rights by extraditing me, and therefore you can't".

Pretty sure. My understanding is that psychiatrists for both sides have always agreed that Dewani is mentally ill and unfit for trial, but that during the most recent proceedings the psychiatrist representing the S.A. government said essentially that there was little point in delaying any further, and that he could be held in mental health facilities in South Africa. The agreement from the S.A. government was that Dewani wouldn't be held for longer than a year before being tried, in other words if he's still unfit for trial in a year he would presumably be returned to the U.K.

As I said (assuming the above is correct) I don't know whether the ECHR have ruled on anything like this before, but I'd hesitate to say he has absolutely no chance of success - definitely seems like a bit of a grey area.

 

[anglolawyer]

A reference to the most recent judgment might assist. It refers to:

s.91 of the Extradition Act 2003 (the 2003 Act). That section provides:
Physical or mental condition
(1) This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied.
(2) The condition is that the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him.
(3) The judge must—
(a) order the person's discharge, or
(b) adjourn the extradition hearing until it appears to him that the condition in subsection (2) is no longer satisfied.

The Senior District Judge heard further evidence from Professor Nigel Eastman (who was instructed on behalf of the appellant) and Dr Ian Cumming (who was instructed on behalf of the Government of South Africa).
They were agreed that the appellant continued to suffer from PTSD (Professor Eastman regarding it as severe and Dr Cumming regarding it as moderate/severe) and from a moderate to severe depressive illness; that there was a real risk of self-harm and suicide, but it was not immediate; that he was unfit to plead under English law; if extradited at that time, it was highly likely that there would be the need for a fitness to plead process in South Africa. Neither expected a full recovery from his disorders; any improvement was likely to be extremely slow and the end point was uncertain. Extradition would worsen his symptoms, but this could be managed during travel and in South Africa.

You can read on from the link.

 

[lionking]

I'd like to see evidence that both sides consider him mentally ill. The reports linked to earlier in this thread suggest he is a rich fugitive doing his best to avoid justice.

 

[LondonJohn]

Don't have the time currently to look into the actual transcripts etc on this matter (and it's not top of my list of interesting subjects anyhow...), but this BBC article from a couple of weeks ago may be of interest (if reliable and accurate):

In January, the High Court ruled it would not be "unjust and oppressive" to extradite Mr Dewani providing that assurances were received from South Africa about the length of time he would be kept in the country without trial.

Those assurances have been given.

http://www.bbc.co.uk/news/uk-england-bristol-26424159


This certainly seems to imply that the SA authorities intend to bring Dewani to trial fairly soon after his arrival in SA, and that this was an important factor in the UK courts' decision to extradite. It's unclear as to whether there is some side agreement (or even unspoken assumption) that a) Dewani is - as of right now - unfit to stand trial, but that the the SA govt (and presumably the UK courts as well) believe that he ought to imminently be fit enough to stand trial; or b) if (a) is true, then if within a certain period of time Dewani is still not fit to stand trial, he might be returned to the UK.

My provisional belief is that the SA authorities believe that Dewani is pretty much ready to stand trial, and that this is their aim. And I think that this is the basis upon which extradition has been agreed. Nobody is in dispute that Dewani has mental health issues - the important factor is whether or not those issues are sufficiently serious to make it likely that he will either not get a fair trial or that he will harm himself.

 

[lionking]

Nobody is in dispute that Dewani has mental health issues - the important factor is whether or not those issues are sufficiently serious to make it likely that he will either not get a fair trial or that he will harm himself.

Really? Well I'm in dispute.

 

[anglolawyer]

Really? Well I'm in dispute.

Then please refer to the highlighted text in my post above concerning the latest opinions of the parties' experts:

They were agreed that the appellant continued to suffer from PTSD (Professor Eastman regarding it as severe and Dr Cumming regarding it as moderate/severe) and from a moderate to severe depressive illness; that there was a real risk of self-harm and suicide, but it was not immediate; that he was unfit to plead under English law

What basis have you for disagreeing?

 

[katy_did]

This certainly seems to imply that the SA authorities intend to bring Dewani to trial fairly soon after his arrival in SA, and that this was an important factor in the UK courts' decision to extradite. It's unclear as to whether there is some side agreement (or even unspoken assumption) that a) Dewani is - as of right now - unfit to stand trial, but that the the SA govt (and presumably the UK courts as well) believe that he ought to imminently be fit enough to stand trial; or b) if (a) is true, then if within a certain period of time Dewani is still not fit to stand trial, he might be returned to the UK.

I think it's more to do with the fact they had no choice but to agree to that condition, because the court considered it would be "unjust and oppressive" to extradite Dewani without it. This is from a Guardian report on the recent ruling:

Lord Thomas said: "It might be unjust and oppressive to order the return of a person who was agreed to be currently unfit and where there was a prospect that he might remain permanently unfit without considering whether an undertaking should be required from the requesting state."

He added: "The circumstances of this case are such that we consider, on the findings made by the district judge, it would be unjust and oppressive to return him without such an undertaking."

The effect of the undertaking would be that "in the event of the appellant [Dewani] being found unfit to be tried, he will be free to return to the UK, unless there is found to be a realistic prospect of his being tried within a year – or other stated reasonable period – of that finding and the trial takes place within the period".

Thomas continued: "In any event the appellant must be free to return in the event a court in South Africa, having found him unfit to be tried, embarked on the process of determining under the Criminal Procedure Act 1977 whether he did the act."

He concluded: "If such an undertaking was given, then it would not be oppressive or unjust."

It's not so much that there's an 'unspoken assumption' that Dewani is currently unfit, so much as that it's an established fact accepted by both sides. That point was not in dispute at all in the most recent ruling.

 

[Octavo]

As far as I'm aware, RSA has bent over backwards to assure the UK that Dewani will be protected in custody (i.e. not be forced to share a cell in pollsmoor with a bunch of 27's), that his mental conditions will be treated and that psychological monitoring will be in place and that his trial will take place in a speedy and fair manner.

IOW: We promise to treat this special little snowflake with exactly as much care as the UK requires. At least until he's convicted, at which point: Pappa wag vir jou!

 

[Suffolk Skeptic]

man marries and kills wife to hide sexuality

Here is an interesting case for those of us who struggle to accept the motive that Dewani might have married Anni in order to hide his sexuality and then killed her to enjoy a life unencumbered by pressure to marry.

This couple also enjoyed a lavish ceremony in India just a few months before he killed her.

 

[anglolawyer]

man marries and kills wife to hide sexuality

Here is an interesting case for those of us who struggle to accept the motive that Dewani might have married Anni in order to hide his sexuality and then killed her to enjoy a life unencumbered by pressure to marry.

This couple also enjoyed a lavish ceremony in India just a few months before he killed her.

Gadzooks! What a find.

 

[Suffolk Skeptic]

snippety snip snip - and then there's the further problem of what the heck he was doing marrying her in the first place. All kinds of complicated theories about Indian culture and other nonsense have been offered supposedly to explain why a mature adult, already in his thirties, would feel so pressured by his culture or family as to marry someone so much against his own free will that he had to resort to murder to extricate himself.

I don't buy it.

So I get that you have 2 main areas of incredulity

First, motive

Second, mechanics of plan.

I responded to the above post with general agreement about not knowing the culture blah blah blah but that homosexuals still faced hostility in every culture and that people within this culture had spoken of inate problems. I do not generally like comparing cases but is your position regarding the possible motive the same as your earlier post (quoted above)? Or do you at least accept that the motive as put forward by SA is a reasonable possibilty?

 

[Charlie Wilkes]

man marries and kills wife to hide sexuality

Here is an interesting case for those of us who struggle to accept the motive that Dewani might have married Anni in order to hide his sexuality and then killed her to enjoy a life unencumbered by pressure to marry.

This couple also enjoyed a lavish ceremony in India just a few months before he killed her.

Heh.

Maybe Dewani had the same idea. It's possible.

But I am looking at the evidence. I don't see that any credible evidence exists.

This started with an accusation made by criminals in exchange for a reduced sentence. The authorities then reconstructed Dewani's activities and flagged everything that might fit. None of it proves anything, and certain details do not fit at all.

But the burden of proof has shifted. Dewani must now prove that every detail means something other than what the authorities claim. He can't possibly do that.

Gaps or problems with the prosecution case will be waved away with the maxim that the authorities are not the ones on trial here.

The media, seeing what is afoot, has stoked the bonfire and is busy selling trinkets.

Conviction is a foregone conclusion, once they get their hands on Dewani, and after the charade of a "fair trial."

This is a predictable formula... Lindy Chamberlain, Amanda Knox, Shrien Dewani. It is a public spectacle, entertainment for the mob. It is not justice.

 

[anglolawyer]

So I get that you have 2 main areas of incredulity

First, motive

Second, mechanics of plan.

I responded to the above post with general agreement about not knowing the culture blah blah blah but that homosexuals still faced hostility in every culture and that people within this culture had spoken of inate problems. I do not generally like comparing cases but is your position regarding the possible motive the same as your earlier post (quoted above)? Or do you at least accept that the motive as put forward by SA is a reasonable possibilty?

Well, the goalposts have moved on motive. That comparable case couldn't be better for the pro-guilt mob. And I think it's well attested that they did not have sex before marriage (or after?), which does make me wonder. If he's guilty I prefer his plan to the other guy's.

 

[lane99]

Heaven help us

man marries and kills wife to hide sexuality...

Absolutely horrifying. May that poor young woman rest in peace.

Looks like another example of a ghastly crime that would have never happened if not for the strain of denialism about homosexuality that infects some currents of Indian culture.
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[trialwatcher]

I am anxious to see the outcome of this, it just seems to have been going on for so long. Does anyone know what has caused the latest delay? I thought SA would have taken action as soon as they got court approval?

There is an ebook about the case on Amazon ('Killed on her honeymoon' or similar) with a good summary of the appeals to date but what it didn't explain is the exact trial process that SD will face AFTER he arrives in SA? I am keen to see what happens next!

 

[lionking]

I am anxious to see the outcome of this, it just seems to have been going on for so long. Does anyone know what has caused the latest delay? I thought SA would have taken action as soon as they got court approval?

There is an ebook about the case on Amazon ('Killed on her honeymoon' or similar) with a good summary of the appeals to date but what it didn't explain is the exact trial process that SD will face AFTER he arrives in SA? I am keen to see what happens next!

Welcome to the forum trialwatcher. There are quite a few threads about ongoing trials. Look forward to your contribution.

 

[lane99]

Start packing, Shrien

Shrien Dewani is scheduled to be extradited to South Africa on April 7 according to a statement released by the South African government.
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