Lying in the Sun

Masipa's Judgement - 4

Masipa's Judgement - 4

In the present case the deceased was killed under very peculiar circumstances.  
There are indeed a number of aspects in the case which do not make sense, such as:

  •  Why the accused did not ascertain from the deceased when he heard the window open, whether she too had heard anything.

  • Why he did not ascertain whether the deceased had heard him  since he did not get a response from the deceased before making his way to the bathroom.

  • Why the deceased was in the toilet and only a few metres away from the accused did not communicate with the accused or phone the police as requested by the accused.

This the deceased could have done irrespective of whether she was in the bedroom or in the toilet as she had her cell phone with her.

It makes no sense to say she did not hear him scream ‘get out’

It was the accused’s version that he screamed on top of his voice when ordering the intruders to get out.

  • Another question - Is why the accused fired not one… not one shot, but four shots before he ran back to the bedroom to try to find the deceased?

These questions shall unfortunately remain a matter of conjecture.

What is not conjecture however is that the accused armed himself with a loaded firearm when on his own version, he expected that an intruder might be coming in through the bathroom window.

He was not truthful when asked about his intentions that morning as he armed himself with a lethal weapon.  The accused was clearly not candid with the Court when he said that he had no intention to shoot at anyone, as he had a loaded firearm in his hand ready to shoot.

However, as stated above, untruthful evidence does not always justify the conclusion that the accused is guilty.   The weight we attach that to must be related to the circumstances of each case.

(Judge Masipa quotes another case)

There is also the question of onus. 

No onus rests on the accused to convince this Court of the truth of any explanation that he gives,   If he gives an explanation, even if that explanation be improbable the Court is not entitled to convict unless it is satisfied  not only that the explanation is improbable but that beyond any reasonable doubt that it is false.

If there is any possibility therefore of his explanation being true then he is entitled to his acquittal

(Judge Masipa quotes another case)

The onus is on the State throughout to prove beyond reasonable doubt that the accused is guilty of the offence with which he has been charged. 

Should the accused’s version or evidence be  found to be reasonably possibly true, he would be entitled to his acquital.

In Count one the accused is charged with pre-meditated murder.

In respect of this charge the evidence is purely circumstantial.  That evidence is in essence about shots about the screams and about sounds of the cricket bat.

The fundamental rule in considering circumstantial evidence is that in order to justify an inference of guilt, a Court must be sure that inculpatory facts are incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis.   The simple explanation from the accused is that shooting the deceased dead was a genuine mistake as he thought he was shooting at an intruder behind the toilet door.   The timelines as set out in the chronology of events tip the scales in favour of the accused’s version in general. 

Viewed in its totality the evidence failed to establish that the accused had the requisite intention to kill the deceased let alone with pre-meditation.  I am here talking about direct intention.

The State clearly has not proved beyond reasonable doubt that the accused is guilty of pre-meditated murder.   There are just not enough facts to support such a finding.

Counsel for the State submitted that even if the Court was to find that the accused shot the deceased thinking that he was firing the shots at an intruder this would not assist him as he had intended to kill a human being.  This was so because all the elements of the crime of murder had been met which was argued.

On the other hand Counsel for the Defence submitted that the State was attempting to re-introduce the concept of transferred malice which was not part of our law.   This brings the question, whether we are really dealing with the question of transferred malice. 

It might be convenient at this stage to say something briefly about two concepts which often are confused, namely:

Aberratio Ictus  and Error in Persona or Error in Objecto (?)

 (apologies if I have terminology wrong)

Court Adjourns for 5 minutes break.
11th September 2014

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