An analysis of pre-trial publicity and the accused's right to a fair trial : a deconstruction of the Krion case

Abstract

The title of this thesis is: An analysis of pre-trial publicity and the accused’s right to a fair trial: A deconstruction of the Krion case. Based on the so-called Krion pre-trial motion for a permanent stay of prosecution (Pelser v Director of Public Prosecutions 2009 2 SACR 25 (T)), which constitutes the case study in this thesis and which application was handled by the candidate on behalf of the State (as First Respondent), this thesis principally seeks to examine the following two main questions: • Firstly, whether the right of an accused to be presumed innocent would be violated by the prior reporting in law reports of adverse findings made against such accused in other judicial proceedings stemming from the same facts as the pending criminal matter, and whether the judicial officer required to preside over the criminal trial would not be impartial in the adjudication of the case by virtue of having prior knowledge of such findings. • Secondly, whether by analogy, and indeed by extension of such theme, there would generally be a real and substantial risk that adverse pre-trial media publicity concerning a pending criminal case in South Africa would violate the accused’s right to be presumed innocent and the accused’s right to be tried before an impartial court comprised of a judge or magistrate sitting alone or with assessors duly appointed, thereby infringing the right of the accused to a fair trial which is entrenched in section 35(3) of the Constitution of the Republic of South Africa, 1996. Essentially, this thesis explores the question whether in general, in South Africa’s legal system, prejudicial pre-trial publicity relating to a criminal case is likely to have an adverse effect on the fairness of the accused’s trial or to have a biasing effect on the outcome of the trial, when weighed against the backdrop of the developed system of the South African accusatory trial, procedural safeguards and judicial mechanisms that have evolved to prevent just such a contingency. In this respect, this thesis also examines the constitutional right to freedom of expression and the media appertaining investigative journalism and the pre-trial reporting of a criminal case, and the balancing of such right with the accused’s right to a fair trial. This includes an examination of the sub judice rule, the crime of contempt of court ex facie curiae, pre-trial publication bans, and the test for the granting of a stay of prosecution predicated on adverse pre-trial publicity.