Nick Longano was convicted and sentenced by Durban High Court Judge Kate Pillay in 2014 for the August 2010 murder of Vinoba Naidoo. File picture: Zanele Zulu Nick Longano was convicted and sentenced by Durban High Court Judge Kate Pillay in 2014 for the August 2010 murder of Vinoba Naidoo. File picture: Zanele Zulu
Durban - Gross irregularities which resulted in a “failure of justice” have seen appeal judges set aside a Durban man’s conviction and 15-year jail sentence for the murder of his former girlfriend.
Nick Longano’s conviction and sentence were set aside by KwaZulu-Natal appeal judges Esther Steyn and Mohini Moodley in a judgment handed down in the Pietermaritzburg High Court on Tuesday.
Longano had been convicted and sentenced by Durban High Court Judge Kate Pillay in 2014 for the August 2010 murder of Vinoba Naidoo.
The State alleged that Naidoo died as a result of suffocation when Longano stepped on her neck.
Longano put up the rare defence of sane automatism, in which a person involuntarily commits an act in an altered state of mind and does not remember what happened.
He told the court that Naidoo had broken off their eight-year relationship a month before her death, and on the day of the murder they argued after they had met at their Glenwood flat to divide up their possessions.
At issue in the appeal was a report from a psychologist prepared at the request of the State about the characteristics of sane automatism.
The defence argued that the report had been irregularly given to the judge before the witness was called to testify. The State did not call the witness to testify and the defence then applied for Judge Pillay to recuse herself because she had had sight of the report.
The defence said the report was not neutral and the judge’s impartiality might have been compromised because she had seen it.
But the judge did not recuse herself and instead called the psychologist to testify.
The appeal judges said the issue was not whether actual bias had been established regarding the trial judge, but whether Longano believed the court could no longer be impartial because the judge had seen the psychologist’s report.
The appeal court also found it had been irregular for the judge not to give her reasons for refusing the recusal application when she had indicated that she would provide them.
“In my view, the integrity of the trial court was compromised when the State admitted evidentiary material (the report) which should not have been given to her (the judge) if the witness was not going to testify.
“The perception was created that the State had an advantage since it shared a document with the judge that is favourable to its case,” said appeal judge Steyn, who penned the judgment.
Judge Steyn also said impartiality protected the integrity of the judicial system and “should never be compromised”.
On Tuesday night, in a statement sent by Max Naidoo, the family said they were devastated by the judgment and the justice system appeared to favour the accused.
“For Vinoba and our family there has been no justice or closure and there is little hope that we will see it in our lifetime.”
The family said the justice system did not consider the rights of the victims and the impact on the grieving family.
Naidoo’s family, particularly her two sisters, attended every day of the trial and on some occasions wore T-shirts that had the message “In loving memory of Vinoba Naidoo” along with a picture of her.
The Mercury