State could have tough time if Louka dies

2015-04-07 12:05
George Louka (File)

George Louka (File)

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Johannesburg - If George Louka dies in the near future the State could have a hard time securing a conviction in the murder trial of Teazers boss Lolly Jackson.

"In cases like this where you have a person who dies before they able to give testimony it creates the problem in that evidence that they would give becomes hearsay," law expert James Grant, who is doing his pupillage at the Johannesburg Bar, said speaking in the abstract on Tuesday.

"The difficulty with hearsay... [is that] the persuasive value of that evidence would depend on the person producing this in court. It depends on the credibility of somebody else."

Another law expert from the University of Cape Town, Kelly Phelps said an affidavit was a sworn statement and would maintain its stature if the person died but it could impact the trial.

"Evidence needs to be evaluated in a trial according to reliability," she said.

"One way of testing the reliability is to examine and cross-examine a witness. Now if he passes away there's not going to be an opportunity to do that."

Dying declaration

This did not mean that the evidence could not be used. There were examples of people who did not testify in court but gave statements, she said.

During the bail application for paralympian Oscar Pistorius seven affidavits were filed but the people were not called to testify, however, the affidavits did form part of the court’s evidence which the judge used to make a decision.

"[However], the more central the witness is the more critical it is that they testify."

The court would have to decide how much weight the evidence holds, Phelps said.

Grant said a dying declaration could be made.

"If somebody was on their death bed and said it was James who poisoned me... that then would be exceptionally admitted," he said using an example.

"There are specific rules around the dying declaration. The person has to be at death’s door with no prospect of recovery. The thinking is courts allow this type of exception because no one facing death would lie, which is nonsense," Grant said.

These sorts of exceptions existed throughout the world and used to exist in South Africa until the law changed from common law to a statutory position in 1988.

Stage four lung cancer

The Law of Evidence Act of 1988, section three provided that hearsay evidence was inadmissible, however, it could be admitted in the interest of justice.

"The position in our law currently is that if Louka died, a statement that he had made may be admitted as evidence under the exception, if a court is convinced that it is in the interest of justice," Grant said.

According to reports Louka has been diagnosed with inoperable stage four lung cancer and has been hospitalised with severe breathing problems.

His lawyer Owen Blumberg told eNCA that he was going to approach the courts to have his client released from jail if co-operation was not forthcoming from correctional service authorities so that Louka could spend his last days with his family.

On Sunday, it was reported that Louka, made claims in five affidavits, that Czech businessman Radovan Krejcir shot Jackson during a fight over R740 000.

He reportedly claimed Krejcir kicked Jackson after firing the first shot and screamed: "You want to know who I am, I will show you who I am, you fucking cockroach."

At death’s door

He said Jackson begged for his life but Krejcir pumped several more shots into his body.

Louka was extradited to South Africa from Cyprus to stand trial for Jackson's murder.

He appeared in court in February last year on charges of murder and possession of stolen property.

The case was postponed this year after it was revealed that he was dying of lung cancer and was being treated in a secret prison hospital.

Grant said a dying declaration could only be made if the person was about to die.

"Only then would a court say you wouldn't lie. I don't think he [Louka] is virtually about to take his last breath."

He said the court could consider that he might only have a month to live so there would be no reason for him to lie.

However, the court would be looking at whether it is in the interest of justice to admit any statements he makes as evidence.

Read more on:    radovan krejcir  |  lolly jackson  |  george louka  |  judiciary  |  crime

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