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Durban - A man found guilty – and later acquitted – of the murder of his wife on their remote estate at Fort Nottingham is suing the State for R9.4 million for his “malicious arrest, detention and prosecution”.
Hilton Shaw was jailed for 12 years by high court Judge Vivienne Niles-Duner in 2009 for the 2007 murder of his wife, Susan. In 2011 he was acquitted of the murder after an appeal before a full bench of the Pietermaritzburg High Court.
In a summons issued at the Pietermaritzburg High Court, Shaw now claims the KZN director of public prosecutions and the ministers of justice and police are liable to pay him damages of R9 424 800, because he should not have been arrested and prosecuted in the first place.
Shaw alleges the investigation against him was “characterised by shortcomings” and that his prosecution was “malicious” on the basis that there were no eyewitnesses or any other objective forensic evidence pointing to his guilt.
Shaw also claims the investigating officer gave “blatantly perjured evidence” at his 2007 bail application about the merits of the State’s case, as a result of which bail was refused. He was denied bail four times and held six months in custody before being granted bail on appeal to the high court.
Shaw says as a result of his wrongful arrest, detention and trial, his constitutional rights were violated. He endured “pain, loss of amenities of life, shock, extreme humiliation, grave infringement of his dignity, bodily and psychological integrity, health and physical and mental wellbeing”.
Following his conviction in 2009, Shaw lodged a petition with the Supreme Court of Appeal against the judgment. Judges Dhaya Pillay, Graham Lopes and Acting Judge President Chiman Patel granted the appeal and acquitted Shaw, concluding that the most probable explanation was that Susan committed suicide.
The Bench rejected the judgment of trial Judge Niles-Duner, who convicted Shaw on circumstantial evidence.
Judge Niles-Duner had rejected the possibility that Susan had committed suicide or been attacked by an intruder, as was suggested by Shaw’s defence in the trial, and concluded that the only possible inference to be drawn was that Shaw had the direct intention to kill his wife.
Evidence revealed that Susan bled to death from a “contact” bullet wound fired through three layers of clothing directly into the area just above her right armpit.
Shaw initially told the court that he believed his wife had committed suicide, but later conceded it was more likely that an intruder had shot her.
In a lengthy judgment, the appeal judges accepted the suicide theory, and concluded there was reasonable doubt as to Shaw’s guilt, and as a credible witness, his version that he did not shoot his wife must be accepted.
In his evidence at the trial, Shaw had said Susan had been depressed in the days before her death and had attempted suicide on two separate occasions.
Shaw told the court that on the day of her death he had left the house to check his cellphone messages. Cellphone reception could only be obtained 4km away from the house.
He said that when he got back home, he saw his wife lying face down on the veranda. No primer residue was found on Shaw’s hands.
The appeal judges found that Shaw had been a consistent witness, did not contradict himself, and his testimony was corroborated by cellphone records, photographic exhibits and medical evidence.
The judges found the intruder theory was weak, as nothing was missing from the house, not even the firearm used to shoot Susan. Also, there were no signs of a third party having entered the premises.
They concluded Susan had a history of suicide attempts and suffered from depression, serious enough for her to have received medication and professional treatment.The judges found although shooting herself in the right shoulder would have been awkward, it was not impossible.
The State has yet to respond to the summons.