Masipa: ... in other words he raised the defence of PPD
Leach: Well no he didn't. That doesn't follow. That's a misdirection right there. Or are you saying it does follow?
Roux: No it doesn't
In other words, the trial Court misdirected itself as to PPD
It's part of a brilliant quick fire exchange isn't it.
I tried to type it as I watched it live but ended up with gobbley-gook
I can't see them releasing the transcript unfortunately..... here's a sample of ..never edited it though.
Roux: mentions SCA case precedent, Singh(?) cases ( aka Canadian case) Arguments about what is a Q of Law and thus today the SCA cannot view elements as Q of law. A guilty intention ...question of fact
..not of law.
Leech: That's trite. Inferences about subjective intention, factual inference
Roux: Important bit I couldn't catch about how inferences are drawn on facts. Yes tehre was a vacillation in OP's intent,
Leech : I'm not finished with R vs B, you may be! Mixed law and facts. Soundness of conclusions are Q of Law, eg in misdirections. A Q of Law ...when a trial judge misdirects himself on evidence.... failure to properly direct himself to all evidence on relevant issues.... so if not a proper legal appln its' a Q of law. This case further elaborates about culpability, absence of appreciation of relevant evidence, it is a Q of law if there is an absence. It becomes a reviewable Q of law as it stops Masipa being able to correctly apply the law.
Roux : No that does not present me with difficulty
leech lets look at masipa's take on DD & importantly DE, quoted. Incorrect application of law re DE. It's very important to me
Roux: No, she spilled over.... ( missing sentence)
Leech: Masipa is not interpreting dolus e, and this is where error in objecto comes in, it's a misdirection Roux to herself, believed.... the deceased was in the bedroom but OP can be convicted of DE at the shooting on whoever was in toilet- I need some explanation from you, its not correct
Roux: No, Masipa rejected DD first, 2 crucial fact findings he genuinely believed he was in danger
Leech : I'm not sure if that is so
Roux; He genuinely believed he was in danger , 2nd crucial fact finding reeva was in the
bedroom. In context of this when she considered DE it can't be isolated in the state of mind of OP.....if I shoot someone thinking A is going to attack me........ it doesn't matter, I understand error in objecto
Leech- so its worse, her 2 pages , whole case turns on them, she never deals with anything effectively because he did not know it was she behind the door.
Roux: No , let me find it ( looks through her judgement )
Leech- her analysis of DE is wrong. It's that he knew someone was behind the door
Roux: Its not the issue
Leech :that is the issue
Roux let me go back
Leech no, forget PPD, its to do with intent and foreseeability( Crucial bit here I lost )
R he was genuinely in danger
L let's not get sidetracked, he genuinely believed there was so behind the door
R I believe I was in danger ( reading from OP version but get's cut off by Leech )
L yes, but that's about culpability, we are dealing with what is foreseen , did he foresee it was reeva.
R (flustered ) Substantial ingredient he believed he was acting lawfully, and that was judges approach and her judgement must be read with that in mind as it's a factual finding. So when she turns to DE based on absence to act unlawfully.... so it does not really matter who was behind the door, he quotes Masipa part foresee and reconcile that it might not be an intruder, it might be the deceased. Masipa already found absence one part of dolus, even accepting he lacked intent for murder did he not foresee it was Reeva in toilet and reconcile this. ( Worst part, hard to catch)
L interrupts. If u wanna go PPD, it's a q of culp and it would n't matter if it was DD or DE. So what u say Roux doesn't matter, just read the judgement and what it says
R I cant isolate that, look at whole judgement. Did he not perhaps entertain it could have been Reeva and thats what Masipa is doing there, so I cannot find it was DE in the sense because my fact finding is that when he fired shots he genuinely bona fide believed the deceased was in the bedroom