Lying in the Sun

Masipa's Judgement - 3

Masipa's Judgement - 3

Judge Masipa continues to read from her Judgement:

The second possible Defence Putative Private Defence.

Counsel for the Defence submitted that the accused intentionally discharged the shots in the belief that the intruder or intruders was or were coming out of the toilet to attack him, and the deceased.  In this regard he referred to the accused's testimony, which testimony was contradictory in my view.

These are just some of the relevant extracts.

I quote and (I leave out something)

  • “That split moment I believed somebody was coming out to attack me that is what made me fire out of fear. I did not have time to think.”

Later the accused testified:

  • I fired my firearm as I believed that someone was coming out of the toilet to attack me. I do not know how to put it in a different way.”  Close quote

Later still he said, I quote:

  • “I thought somebody was coming out to attack me”   close quote.

In the same breath the accused stated:

I quote:

  • “I never intended to shoot anyone I got a fright from a noise”   close quote

Open quote:

  • "I did not shoot at anyone I did not intend to shoot at someone.  I shot out    of fear "  close quote.

I quote:

  • "I did not intend to shoot into, or I did not intend to shoot at anyone."

He was asked – You never purposefully fired into the door?

The answer was:

“No M’Lady I did not”

The question:

So you never wanted to shoot at robbers, intruders coming out of the toilet?

The answer was:

“That is correct”   close quote.

The essence of the accused's defence is that he had no intention to shoot at anyone but  if it was found that there was such an intention then he shot at what he, I quote “perceived as an intruder coming out to attack me.”    Close quote.

Counsel for the State correctly, in my view submitted, that if the accused never intended to shoot anyone he cannot rely on a Defence of Putative Self Defence.  
As stated above in a putative defence the Court will apply a subjective test as opposed to an objective test which is used in determining self defence.

In the present case the accused version is that he had no intention to shoot at anyone let alone the deceased.  Yet on his own version, the accused armed himself with a loaded firearm and approached what he thought was danger with the firearm ready to shoot.   It would be absurd for instance to infer from the accused’s conduct that he was going to hit the intruder over the head with it as he could easily have used a cricket bat for that purpose.

This strange conduct of the accused was explained by Professsor Derman as  a fight as opposed to the flight response.  

This Court accepts that the accused is a fight rather than a flight reaction person as Professor Derman testified.  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.  I hasten to add however that the accused is not unique in this respect.  Women, children the elderly and all those with disability would fall under the same category.  But would it be reasonable if without further ado they armed themselves with a firearm when threatened with danger?   I do not think so as every case would depend on its own merits.

The accused clearly wanted to use the firearm and the only way he could have used it was to shoot at the perceived danger. 

The intention to shoot however does not necessarily include the intention to kill.  Depending on the circumstances of each case an accused may be found guilty of dolus eventualis or culpable homicide. 

 In this case there is only one essential point of dispute and it is this:

Did the accused have the required mens rea to kill the deceased when he pulled the trigger?

In other words was there intention?

The essential question is whether on the basis of all the evidence presented there is a reasonable doubt concerning the accused’s guilt.   The onus of proof in a criminal case is discharged by the State.  If the evidence establishes the guilt of the accused beyond reasonable doubt.  The (?) is that he or she is entitled to be acquitted that is the accused, if it is reasonably possible that he or she might be innocent – in brackets ( Masipa quotes from another case)

In the same case… the Court warned against the danger of examining the version of the accused in isolation for purposes of either convicting or acquitting.   The Court emphasising the importance of looking at the evidence as a whole and not piecemeal and then proceeded.

The process of reasoning which is appropriate to the application of the proper test in any particular case will depend on the nature of the evidence which the Court hears before it.  What must be borne in mind however is that, the conclusion which is reached whether it be to convict or to acquit must account for all the evidence.   Some of it might be found to be false.  Some of it might be found to be unreliable.  And some of it might be found to be only possibly false or unreliable but none of it may simply be ignored.

The accused as a witness.

The accused was a very poor witness.  Whilst during Evidence in Chief he seemed composed and logical with the result that his evidence flowed and made sense.  While giving his version  under cross examination he lost his composure.   Counsel for the Defence sought to explain the accused performance on the witness stand thus:

The accused was suffering from enormous emotional stress had been traumatised by the incident of 14th February 2014 and was under medication when he gave his evidence.

This argument does not make sense in my view.  I say this for the following reasons:

The accused performance during examination in chief could not be faulted.   It was only under cross examination that he contradicted himself and visibly felt uncomfortable.   In any event this Court was not (?) of the fact that the factors mentioned above might interfere with the accused’s ability to give evidence.  It does not assist to mention them now when the trial is over. 

It is so, that most witnesses do find giving evidence an uncomfortable experience especially when they give evidence for the first time.   It follows therefore that someone in the position of the accused would find giving evidence a harrowing experience as he relives the incident.

However, what we are dealing with here is the fact that the accused was amongst other things an evasive witness.   In my view there are several reasons for this.

  • He failed to listen properly to questions put to him under cross examination giving an impression that he was more worried by the impact his answers might cause rather than the questions asked.

Often a question requiring a straightforward answer turned into a point of debate about what another witness did or said. 

When contradictions were pointed out to him or when he was asked why certain propositions were not put to State witnesses he often blamed his legal team for the oversight. 

Although the untruthful evidence of an accused is of importance when a Court determines the guilt or otherwise of an accused, caution must be exercised, and Courts must avoid attaching too much weight to such untruthfulness.

The conclusion, that because an accused is untruthful, he is therefore probably guilty, must be guided against, as a false statement does not always justify the most extreme conclusion.
11th September 2014

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