Big snip
And incidentally Judge Greenland as an experienced High Court judge has always chimed with this view... the Defence's TimeLine didn't win the case but Roux succeeded in confusing an easily confused court , Nel largely ran this case as he should have etc etc.
( I'm sure everyone has read them by now, but here are the transcripts to the interviews with juror 13 again where he shares concluding thoughts on this trial.
https://juror13lw.wordpress.com/2014/09/27/judge-and-juror-vs-a-miscarriage-of-justice/
Thanks so much for reminding me of this!
I think Greenland does a great job of showing what goes wrong when you start mixing up facts and theories and inferences.
The factual inquiry comes first
Then logical and natural inferences.
So given it is accepted that OP shot Reeva multiple times at close range with no one else present - the logical inference is that he intended to do so. That is a factual inquiry with factual inference. It does not need to be BRD. It's simply what is highly likely.
Against this the defence pleads self defence.
What evidence is there of self defence?
Only OPs testimony
Is the testimony reliable?
No. Held to have lied.
Should the accused testimony be accepted?
No.
What is the logical inference to be drawn form the accused's unreliable testimony?
That the true facts are different than what OP said. Masipa correctly notes that does not prove guilt by itself. But it does prove that his testimony cannot be accepted as it MUST have happened otherwise
The Court should not proceed to then accept the testimony regardless. The Court may not assume that the mistake must have happened some other way. That is speculation.
Yet Masipa did precisely that - even though OP never provided a reliable explanation for how he came to shoot Reeva.
Bizarre!
JG: The question of whether that test was correctly applied or whether the
conclusion was correct is where the irrationality comes in. For instance, I can take this ? to show the absurdity of this
decision by saying that in effect Oscar needn't have given any evidence, in effect the court could have acquitted him in
terms of logic had he said nothing, had he not given evidence. Because by giving evidence, he never improved the denial
that he advanced at the scene when he said "I made a mistake". He never improved the denial that he advanced with his
bail application. And the detailed evidence of the bail application is part of the state's case. So in effect, the court, in
terms of logic, would have acquitted him at the end of the state's case because Oscar did nothing when he gave evidence
and especially on cross-examination to improve his denial of the charge of murder. This shows the absurdity of the
decision.
J13: Yea
JG: Because the court accepted that he was a ? witness. So he never at any stage improved his denial of an intention to
kill.
....
JG: Lisa, I think really I cannot argue because the court failed in two respects. Firstly it failed in its duty as a trier of
fact, to actually settle the fact
JG: All the defenders of this decision and the supporters of the judgement, say well you know, what he was required to
do was to put up a story that quite reasonably possibly be true. Yes, that's the test in law but that does not mean that
the court must just weakly accept whatever story is served up to them. The reality of the decision, and I've just
demonstrated it, is that the story was neither possible, and certainly not reasonable
The key point is the last one.
The version was not actually possible.
The wider point as raised by Nel in his application for leave, is that the job of the State becomes impossible if they must disprove every fantasy, including even versions the accused does not himself present
