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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Government of South Africa v Dewani [2010] EWHC 3398 (Admin) (10 December 2010)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/3398.html
Cite as: [2010] EWHC 3398 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
||
B e f o r e :
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| GOVERNMENT OF SOUTH AFRICA | Appellant | |
| v | ||
| SHRIEN PRAKASH DEWANI | Respondent |
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Ms Clare Montgomery QC (instructed by Hickman & Rose) appeared on behalf of the Respondent
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- MR JUSTICE OUSELEY: This is a prosecutor's appeal against the decision of Senior District Judge Riddle to grant conditional bail to Mr Dewani, who has been arrested on a provisional warrant with a view ultimately to his extradition to South Africa, if the extradition process runs its full course, to face a charge of conspiracy to murder.
- The District Judge directed himself correctly as to the basis upon which he had to consider bail. He said that the requesting State, South Africa, had to satisfy him that there were substantial grounds for believing that Mr Dewani would fail to attend when required to attend extradition hearings and that no conditions could meet those objections. That is the basis upon which the prosecutor appeals, contending that there are such substantial grounds.
- This is not a case, notwithstanding a brief point raised in relation to CCTV footage, in which it can be said that interference with witnesses or evidence gathering will occur; nor is it a case in which it is said further offences would occur. It is a question of whether there are substantial grounds for believing that Mr Dewani would not attend the hearings.
- The Senior District Judge was also right to say that the factual difference between the two parties was stark: either Mr Dewani plotted the murder of his wife, or he was one of the tragic victims of this incident. It is no part of this court's task to consider guilt or innocence, but the strength or otherwise of the case may be of some assistance in judging the likelihood of someone attending the relevant hearings, notwithstanding, as I accept, that it is not incumbent upon South Africa to show a prima facie case in order for extradition to be ordered.
- The District Judge concluded that there was evidence upon which a trial could proceed, but there was also, at the very least, a real triable issue; that is to say, there was a chance the defendant would be acquitted at any trial. The position might change.
- In challenging the District Judge's decision, Mr Watson for the requesting State has said that the case against Mr Dewani has strengthened since the hearing before the District Judge. He has identified a number of features in the evidence where, he says, further material -- video footage, other independent evidence, billing records, evidence in relation to the exchange of money in a black market currency shop -- has come to light and supports what is said by Mr Tongo, the driver, who is the primary witness against Mr Dewani.
- To those points Ms Montgomery, on Mr Dewani's behalf, has responded. It is my judgment that the new evidence and the new responses do not alter the balance which must have been in the District Judge's mind. There is some further evidence and there are some further explanations. I do not propose to go further into them.
- The question then is whether I am satisfied that there are proper grounds for believing that Mr Dewani will not attend. There are some important features that I bear in mind: first of all, the level of co-operation with the South African police. There is no basis for suggesting that he has at any time failed to co-operate with the investigation. His departure from South Africa was agreed and assisted, albeit at a time when the South African authorities' investigation was not as advanced as it is. He assisted by providing the password to his Blackberry, which was stolen. There are indications that it was recovered. Mr Dewani has, until his arrest, said that he would be prepared to return to South Africa to assist with an identification parade -- not of him, but of other witnesses or participants. He had arranged for lawyers in South Africa to maintain contact between him and the police, and in the United Kingdom too. So that is, in my judgment, firstly a strong support for Ms Montgomery's submission that he genuinely hopes that the investigation will clear him, and that he intends, as a young man, to see himself cleared of this charge, which, if wrong, must be a very distressing wrong indeed.
- Second, he has, and this is not disputed, strong local ties to Bristol. This is the place where he was born, brought up and where the family business is undertaken, the business in which he is engaged. His family is based there, by which I mean his parents and his brothers. He has no ties to other countries. He is a man without conviction for any criminal offence. He is an intelligent, professionally qualified man, and his family is of high standing in the local community and they would have no obvious interest in assisting him to abscond.
- Thirdly, were he to abscond, quite apart from the implications which absconding would have were he to be arrested for his trial at a future date where such actions can be used as an admission of guilt against him, the tragic and terrible circumstances of the murder of his wife has meant that his face is a very well-known face, and it would be difficult for him were he to seek to depart the United Kingdom or go underground in it successfully to maintain his location in hiding.
- He does of course face the prospect of serious charges, of extradition, trial, and ultimately conviction with a long sentence, but there are a number of hurdles in this case which have to be overcome by the prosecutor before he is in such a position. Mr Dewani may be able to face with some optimism the prospect even of extradition and facing trial.
- I have concluded that he has a genuine and realistic interest in making sure that he clears his name. I have considered the conditions that were imposed by the Senior District Judge. It is my judgment that when coupled with the factors to which I have referred, those stringent conditions (subject to two minor amendments) mean that it is not possible to say that there are sound substantial grounds for believing that he would not attend the hearings that he is required to attend. Of course, given the gravity of the offence which may be alleged against him, I have given this careful consideration, aware of circumstances in other cases where there have been serious consequences to an erroneous judicial judgment.
- I regard as important the fact that there is no allegation that he would interfere with witnesses or evidence gathering in any credible way, and there is no suggestion that a man of his character would commit any further offences connected with or unconnected with this allegation. I am satisfied that the conditions which were put forward by the District Judge (subject to minor amendment) will suffice to procure his attendance as and when required.
- Accordingly, I will dismiss this appeal, save to the extent that it is necessary to make this change to condition 5: condition 5 requires Mr Dewani to be indoors at his home address between 10am and 2pm and between 10pm and 2am every day. That will be extended to 10pm and 6am every day.
- MS MONTGOMERY: My Lord, could I just raise one matter then, because if your Lordship is minded to dismiss the appeal, Mr Watson has indicated that he would consent to a further term to permit Mr Dewani to come up to London without breaching --
- MR JUSTICE OUSELEY: Yes.
- MS MONTGOMERY: So it would be a term of the bail, the conditions requiring Mr Dewani's presence in his house from 10am to 2pm, and to report to South Mead Police Station between 6 and 8pm will apply on days when he is required to attend at the City of Westminster Magistrates' Court, or his lawyers in London, such dates to be notified 48 hours in advance to South Mead Police Station. I can let your Lordship have that in writing.
- MR JUSTICE OUSELEY: Indeed. But the essential conditions are that his passport is to be retained by the police, and he is not to apply for international travel documents, which includes permits and tickets. A cash security of £250,000 must be deposited before release. After release, he is to live, as I understand it, the District Judge decided at his parents' address.
- MS MONTGOMERY: Yes, and that is recorded on the court file.
- MR JUSTICE OUSELEY: At his parents' address in Bristol. He is to be confined by electronic tag. He is to be indoors at the times I have indicated. He is to report to his local police station every day between 6pm and 8pm. Those last two conditions are subject to permitting him to attend at his lawyers' offices and at Westminster Magistrates' Court provided those appointments are notified to the police station 48 hours in advance.
- Subject therefore to compliance with those conditions once they are fully drawn up, Mr Dewani may be released on bail.
- Where is the form containing all those? This will all be dealt with at Westminster?
- MS MONTGOMERY: Yes, it will all be dealt with at Westminster.
- MR JUSTICE OUSELEY: Do you need to draw up a further form for me to approve, a further list of conditions?
- MS MONTGOMERY: I will send one down.
- MR JUSTICE OUSELEY: Would you send one through to me, and I will sign it so those can be taken to the District Judge.
- MS MONTGOMERY: Yes.