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Donald Henderson
 
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Courting a mistrial

03 June 2013, 07:17

It is hard to imagine South Africa's paralympian gold medallist Oscar Pistorius having anything like a fair trial when he eventually appears in court on charges of murdering his girlfriend.

From the beginning the police bungled the investigation by allowing information to be released through unofficial channels. This including various opinions of what happened in the house that night, each with a different twist. As a result uninformed stories were published or broadcast leading to a trial by media with widespread perceptions of guilt or innocence before any trial date was set. Not a good start.

In the midst of all this the investigating officer, Hilton Botha, was taken off the case to face charges of attempted murder, charges resurrected after being dismissed some years earlier. More speculation, more ill-informed conclusions.

Then there were statements from neighbours living 300 metres from the home of Pistorius claiming that the couple could be heard arguing. That has since been questioned and ridiculed in the media.

Now we have pictures published of the bloodstained toilet and door with presumed bullet holes, allegedly taken before the door was removed as evidence. Police who were on the scene that night were known to have taken pictures using their cellphones with the intention of selling to the highest bidder, according to Botha in an interview with UK's The Guardian. Police here have officially denied knowing how the pictures were released. But they would, wouldn't they!

The Pistorius defence team will now have a field day in court with all this scattering of “evidence” and constant speculation and will in all likelihood will call for a mistrial. What chance would the accused have, whether innocent or guilty, of receiving a fair hearing as he has already been tried and found guilty, they could argue. “It's obvious he did it,” is the general conclusion in the media.

And with Pistorius due to appear in court tomorrow(Tuesday) for a bail hearing, the case is once again highlighted in the media.

Whatever happened to evidence being sub judice? That appears to have been disregarded in the interests of the “right to freedom of expression”. How about “innocent until proven guilty”? That also has been thrown out with the rule book.

Since the jury system in SA was abolished in 1969 it is thought that our judges are above being influenced by anything other than evidence presented in court at the pre-arranged trial. That sounds fair enough, but judges are also human and, with all the publicity given to the Pistorius case it is difficult to imagine that anyone involved in the trial would not be influenced, even unintentionally.

If any conclusions could be drawn from this sad affair, and there will be much from outside the country, it is that anything goes in South Africa in the build up to a major trial, most of it making a mockery of the use of the word “fair”.

This will include British courts when they consider the extradition request for Shrien Dewani to stand trial for the murder of his wife during their honeymoon in Cape Town.

This all calls into question the impartiality of the SA courts in general and paints a poor picture of the system of justice in the country.



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