In Sweden, rape is more widely defined than in the UK or Guyana. In both cases against Assange, he had consensual sex with the women involved. One allegation is that the condom he was wearing split when he had sex with the first woman. She made no complaint the following day. However, later that same day he had consensual sex with the second woman at whose house he went to stay. Her allegation is that during the night he had sex again with her but while she was asleep and without a condom. (See Gwynne Dyer ‘The accusations against Assange’ in Sunday Chronicle December 12).
After extensive arguments on the question of bail Justice Riddle said: “The nature and strength of the evidence is not there, this is normal at this stage in proceedings. What we have here is the serious possible allegations against someone with comparatively weak community ties in this country. He has the means and ability to abscond if he wants to and I am satisfied that there are substantial grounds to believe if I granted him bail he would fail to surrender.” Apparently no credit was given for the fact that Assange was in Sweden, submitted himself to questioning and left only when the investigations were over. Neither was any given to the fact that he was never in hiding, agreed to submit himself to questioning in London and when this was refused, voluntarily submitted himself to arrest.
The contrast between Assange’s treatment by the court and that of Shrien Diwani is instructive.
On November 13, Shrien Diwani, 31, an English businessman of Indian extraction and his bride of two weeks, Anni Diwani, 28, a Swedish engineering graduate also of Indian extraction, were on honeymoon in South Africa. The taxi in which they were travelling was hijacked. The taxi driver was thrown out of the taxi which sped off with the couple. Anni Diwani was shot in the neck and killed. Shrien Diwani was not harmed. The taxi was found the following day with her body inside.
At his trial the taxi driver, Zola Tongo, who pleaded guilty, confessed that Shrien Diwani had paid him to arrange the murder of his wife and that he, Tongo, had arranged the hikacking of the taxi and the murder of Anni Diwani. Two men are in custody awaiting trial for the murder.
The South African authorities requested the extradition of Shrien Diwani. He was arrested and taken before a Judge who granted him bail in the sum of 250,000 pounds. The South African prosecutor appealed but the appeal was dismissed and Diwani is now free on bail until the extradition request is determined. The judge in his ruling in the appeal said that on the evidence before him a trial could eventually proceed. But, he continued, it was “equally clear” that there was a real issue with the case: “In other words, the evidence is such that there is a real possibility that this defendant will be acquitted in due course.” In legal parlance the judge was saying that there was a prima facie case, which is the minimum of evidence needed to make a charge, which could go either way after the evidence is heard. Every charge is made on the same principle, so that the allegation against Diwani is not unique or unusual.
In the Assange case, there was no evidence before the judge to enable him to determine whether there was a prima facie case. The critical issue turned on the possibility of flight by Assange. The fact that his picture is in almost every newspaper and television in the world multiple times over the past weeks did not appear to have merited consideration. Also no consideration was given as to whether he was interested in clearing his name, as in the Diwani case, and whether that would have been an incentive in ensuring that he remains in the UK, pending the extradition hearing.
The judge found that Diwani was well known and would not be able to hide if he escaped from the UK. He did not appear to consider that Diwani had strong links to India, a country with a population of one billion, where he got married and in which Diwani could easily hide. Notwithstanding these facts the judge ruled there was “strong support” for the submission that Dewani would not flee because: “I have concluded that he has a continuing and realistic interest in making sure that he clears his name.” Unlike Assange, who voluntarily remained in Sweden at the risk of prosecution until his name was cleared ?
Subsequent to the preparation of this article Assange was granted bail after spending a week in prison in solitary confinement. But questions concerning judicial hostility to him based not on the evidence but on prejudice arising from the release of the cables remain. (www.conversationtree.gy).