It was interesting to read the review by Judge Davis. He has a number of issues with “Behind the Door”:
• “The book begins like a crime novel”.
• The authors failed to give much guidance to the reader regarding two key issues at the bail hearing: 1) the unusual ploy by an accused of providing a full account of the event, which could be used in the trial and which made the state’s case much easier, and 2) chief magistrate Desmond Nair’s finding of numerous improbabilities in OP’s version of events.
• Sweeping claims such as this: “While the law is a hybrid and the Roman Dutch system is the bedrock, broadly speaking the law governing criminal acts follows the English model.” Presumably, the authors think that courts need only apply English law to determine the meaning of dolus eventualis”.
• In their haste to get the book published, the authors didn’t distil the essence of the evidence and help to develop the understanding of a lay reader. Instead, the book provides lengthy and uninterrogated summaries of the court record, as well as significant extracts from it.
• The way the authors engage with criminal law by making use of both Prof Grant (who he says does a good job) and Kelly Phelps, and in fact most of his vitriol is directed towards Kelly Phelps.
(a) What she says “borders on the incomprehensible”.
(b) Her analysis of OP’s testimony “which any lawyer would see was hugely unimpressive (as is evident from the findings of Judge Thokozile Masipa)”. Phelps suggests, “No person will endure the kind of aggressive cross-examination that he endured and emerged unscathed. Nor does a court expect a perfect performance. It will be a question of balance – taking all of these times on the stand into account, does the Bench think that the fundamental aspects of his story are true?” Judge Davis says "This is truly banal".
He says there’s confusion in Phelps’s analysis of dolus eventualis, which she describes as “such a technical part of the law”. Judge Davis says “any lawyer who has read Justice Fritz Brand’s luminous exposition of dolus eventualis in State vs Humphreys (2013) would be able to guide a lay reader as to its meaning and scope”.
IMO it's about time somebody took Kelly Phelps to task. The one thing I'm surprised Judge Davis didn't mention here was her complete and utter bias.
http://mg.co.za/article/2014-11-06-breathless-oscar-book-muddles-law