Just belatedly picking up on some points made by Interested Bystander and Cottonweaver on the previous thread - IMO, it's a little disappointing that there doesn't seem to be any reference in the State's Heads to Masipa's incorrect reliance on GAD or to her misleading statement that it was agreed that OP was suffering from it.
Masipa clearly relied on Merryll Vorster's evidence that OP was suffering from GAD, despite the fact that Weskoppies, which was effectively the Court-appointed joint expert, did not support this diagnosis:
"This court also accepts that a person with an anxiety disorder as described by Dr Vorster, would get anxious very easily, especially when he is faced with danger. It is also understandable, that a person with a disability such as that of the accused would certainly feel vulnerable, when faced with danger".
Arguably, her election to prefer Vorster's somewhat discredited evidence to that of the joint expert is an error of law, but, in any case, it is well established that a finding of fact can be, and, indeed, should be, reversed by the Appellate Court if it is 'plainly wrong'.
And, moreover, Masipa's mistake goes right to the crux of her judgement: it enables her to be lenient by finding that it is reasonably possibly true that OP overreacted to the noises he heard, reasonably possibly true that he jumped to the conclusion that there was an intruder, and reasonably possibly true that he shot in panic and not from an intention to kill/kill unlawfully. It also adds legitimacy to her finding that he did not foresee the possibility of killing the person behind the door, whereas a person not suffering from an anxiety disorder obviously would have done.
I'm not sure why the State hasn't made more of this mistake, as, once it can be demonstrated that the trial judge has made a clear and significant error in her understanding of the evidence, the interests of justice demand that the Appellate Court correct this.
In my opinion, it may be a dangerous strategy to focus on error of law in the application of the principles of DE to the agreed facts, to the exclusion of challenging a glaring error central to the Trial judge's assessment of the killer's state of mind. What if the Appellate Court plays it safe and rules that it doesn't have jurisdiction on the basis that the State is seeking to challenge findings of fact by dressing them up as errors of law?
In any case, it wouldn't have hurt to bring up an obvious misunderstanding on the part of the Trial Judge, as this reflects on her general level of competence and on the integrity of her verdict, making it harder for the Supreme Court to take the safe option.
Fingers crossed that the SCA is on the ball.
