Lying in the Sun

Curlewis on Masipa/Dolus

Curlewis on Masipa/Dolus



Jeremy Thomson - Sky

Papers here full of the talk of the Oscar trial and the decision not to find him guilty of murder yesterday by the Judge, and there's plenty of controversy.   Llewelyn (Curlewis) is here as always to guide us through it.

Thomson:


You've brought your law book in to point out actually just how difficult it is to make that decision because the Judge went one way, she interpreted the law one way, and a lot of people, a lot of lawyers today in the papers saying she may have got it wrong.  What's your take on it?

Curlewis:

Its not a very easy answer Jeremy.  I've showed you this morning just how confusing it might be.

Thomson (referring to the law book Curlewis is holding)

Which is the passage from here...this is about the section on dolus eventualis?

Curlewis:

Correct! - Which is about a form of intention which is applicable in our law.   And what is interesting is the definition of dolus eventualis is very interesting it goes towards the subjectivity and the foresee-ability of a persons action.  And obviously then your reconciliation with such an approach.

But the interesting part...I think that's where the confusion came in...is where the Judge and all those that criticise her confuses it with conscious negligence.

It is a purely subjective test, the test for dolus eventualis.


And even if a person foresees the possibility but decides not to follow that approach and its an unreasonable reconciliation then he will get the benefit of the doubt, if the Judge finds that  from a purely subjective test, he should not be held accountable,   And that is exactly what Judge Masipa did in this instance.

So therefore its not as straightforward as everybody might think.

Thomson:

So you are saying that it IS open to interpretation.   She has come... she has seen it, and interpreted it one way, another judge might have seen it differently?

Curlewis:


Sure!   And remember also she is the Presiding Officer she has the sole discretion at the end of the day and one must be careful to over-emphasise the text book approach, I mean there are other circumstances and factors that she could also take into consideration.

I do not say by that the State do not have something to go on if an appeal should follow.   Definitely they will, they will go for it if that opportunity...

Thomson:


So the door has been left open in a way by this interpretation?

Curlewis:


Exactly!    And that will probably be the part which the State might or might not take on appeal later to the Supreme Court of Appeal if anything.


END



l-azzeri-lies-in-the-sun.com
12th September 2014
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