‘Second trial’ for man who contested conviction
A man whose conviction and 17-year sentence for murder was overturned on a “technicality” must stand trial again, a Pietermaritzburg high court judge has ruled.
Phoenix businessman Naeem Essop stood trial in the Verulam magistrate’s court and was convicted of the murder of Rikesh Narain in October 2013.
Though Essop admitted shooting Narain, he said he was acting in self-defence because Narain had pulled a gun on him first.
However, the magistrate rejected his version and in April 2016 he was sentenced to serve 15 years for murder and two years for pointing a firearm.
Essop took the matter on appeal to the high court and succeeded in arguing that the trial magistrate had not complied with the Magistrate’s Court Act by failing to appoint two assessors to assist her.
The high court set aside his conviction and sentence.
The senior public prosecutor at Verulam, in spite of representations by Essop, decided to prosecute him again, from scratch, at a “second trial”.
It was Essop’s challenge to this decision that came before judge Piet Koen recently, with Essop arguing that a second trial would be fundamentally prejudicial to him and asking for a permanent stay of prosecution.
He said he had already been exposed to a lengthy trial that had cost him more than R1m in legal fees; the magistrate had been biased towards him; the evidence he gave at the previous trial would now be admissible against him, denying him the right to remain silent; and a key witness, who favoured his version, had since died.
Broadly, Koen held that aside from exceptional circumstances, issues of trial prejudice should be considered by the trial court during the trial and every case should be decided on its own facts.
“If circumstances arise during the second trial pointing to irredeemable significant prejudice, then appropriate relief can be pursued whether before the trial court, or if required, application to the high court,” he said.
“It is best left for determination when the actual unfairness manifests itself.”
Koen said the matter of the behaviour of the magistrate during the first trial was academic and moot and “Essop has the assurance that he will not be subjected to dealings with the previous magistrate again”.
Essop’s claims that his right to silence had been lost were “hypothetical prejudice”, and his evidence in the previous trial would not be admissible against him unless he testified, and then only to the extent that it deviated from his first version.
“Pre-trial applications for permanent stays of prosecutions should generally be discouraged. That the trial court should make [any determinations regarding the fairness of proceedings] makes good sense. It will be steeped in the atmosphere of the trial, will be best able to assess whether any prejudice has been unreasonable, and will be best placed to determine what order, if any, it should issue,” he said, dismissing the application.
The judge made no order as to costs, saying that accused people should not be discouraged from raising constitutional issues on pain of incurring adverse cost orders when they do not succeed.
Also, he said, the state should not be discouraged from opposing applications that have a dubious prospect of success and which should be opposed in the greater interests of the administration of justice.
A legal source, who cannot be named, said though many matters had been overturned over the years on the same technicality, it was rare for prosecuting authorities to order a retrial, usually because of the length of time that had passed, especially if the person had already served some of his or her sentence.
However, he said, the Criminal Procedure Act allowed for a “second trial” if the conviction and sentence were overturned on a technicality and not on the merits.
In these cases, the double jeopardy rule — whereby no-one can be brought to trial more than once on the same facts after they have previously been found not guilty — did not apply.