AS IT HAPPENED: Roux - Court applied dolus eventualis correctly

2014-12-09 08:51

Judge Thokozile Masipa was correct in her finding in the judgment of Oscar Pistorius, defence lawyer Barry Roux has told the North Gauteng High Court.

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Last Updated at 18:38
09 Dec 12:37
That's it for today. We'll be back tomorrow when court continues.

09 Dec 12:31

It is up to Judge Thokozile Masipa to grant the State's application for leave to appeal. If she does, the appeal will be heard by a new judge or the full bench of the North Gauteng High Court. 

Criminal law expert William Booth explains why he believes Judge Masipa will grant the State their appeal request. Watch to find out why.

09 Dec 12:18
Court adjourns. Likely to reconvene tomorrow (Wednesday).

09 Dec 12:18
And that's Roux done.

09 Dec 12:17
Roux impassioned about application of dolus eventualis: You absolutely correctly applied it. They just don't like it!

09 Dec 12:13
Roux says the court made a factual finding that it was not Pistorius' intention to kill - as claimed by State

09 Dec 12:11
Roux argues the State doesn't get past step 1 - so question if another court would make another finding doesn't work here.

09 Dec 12:10
Roux: I've referred you to the case law. It's a factual finding. They don't get out of the starting blocks.

09 Dec 12:08
Roux: The law is that you can't appeal against factual findings.

09 Dec 12:05
Roux quoting case law: Seldom in a murder case is there direct evidence relating to the accused's state of mind.

09 Dec 12:01
Roux: A 'proven fact' is not a fact that is before the court. It is a fact that is proven by the court to be true.

09 Dec 11:59
Roux: The state has no right to appeal on an error of fact. Even if it's wrong, and we say it's not.

09 Dec 11:58
Roux: arguing that Nel’s application of Seekoei and the Basson ConCourt finding have been incorrectly interpreted.

09 Dec 11:55
Roux responding now to State's argument on State vs Seekoei and how Nel is wrong on interpretation.

09 Dec 11:52
Roux: It is not for the State to get over the first hurdle. They must first get out of the starting blocks.

09 Dec 11:51
Roux: to appeal the state must show a misdirection.

09 Dec 11:50
Roux says "in every instance" where state claimed judge erred in not taking sentence factors into account, defence showed she had.

09 Dec 11:47
Roux: In every single paragraph where the state alleges a failure by the court, it's not correct.

09 Dec 11:46
Roux (BR) says he's just going to highlight issues and not deal with it in detail

09 Dec 11:46
Nel closes his file, smiles at Masipa and sits. Barry Roux is up.

09 Dec 11:44
OP was acquitted on possession of ammunition because of 'intent'. Nel says possession is sufficient to convict.

09 Dec 11:42
Nel moves onto ammunition charge - says mere possession of illegal ammunition makes OP guilty.

09 Dec 11:40
Nel: We are convinced that in our argument, the points we make are not points of fact but points of law.

09 Dec 11:39
Nel: We feel that there is a reasonable prospect that we may convince the SCA to hear this matter.

09 Dec 11:36
Nel assures court: I am almost done...

09 Dec 11:36
Nel in this case the question of the accused's intent is a legal question and not a factual question.

09 Dec 11:34
Court resumes. Nel back on his feet tying up a few loose ends and then Count Four which is the ammunition charge.

09 Dec 11:27

09 Dec 11:06
Court adjourns. Will return at 11:30.

09 Dec 11:06
Nel says he still has a few points to make.

09 Dec 11:06
Nel: A finding is not a fact. It's a fact that the court made a finding, but doesn't mean it's factual evidence.

09 Dec 11:05
Nel says he's going to ask for an adjournment. He's been speaking for well over an hour. He whispers to a colleague "what's the time now?"

09 Dec 11:04
Nel: If I'm correct...that inference on the facts would open the floodgates for appeals...then clearly it's not well-based.

09 Dec 11:03
Nel: I apologise if it's so clear to me and if I'm wrong...but it's clear what he did...

09 Dec 10:58
Nel:The facts are he walked, shot, door had bullet holes...deceased lying there...circumstantial evidence was not dealt with.

09 Dec 10:56
Nel: the court did not deal with the circumstantial evidence that rendered Pistorius’s version impossible.

09 Dec 10:55
Nel: What the court should have done, is accepted or rejected his version. His version is untrue

09 Dec 10:53
Nel: The court accepted one of a plethora of versions.

09 Dec 10:50

Nel: The court asked the wrong question. Those questions that should have been asked were never asked.

Nel: Questions should have been - did the accused foresee the unlawful killing of the person behind the door?

09 Dec 10:48
Nel: Dolus eventualis "will find it's inconceivable that he had any intention other than to kill that person or accepted that he may".

09 Dec 10:47
And we’re back to the issue of foreseeability and intent. Could negligence be so gross that it becomes intention? Nel asks of OP.

09 Dec 10:44
Nel: court found that the accused had the intention to shoot, but found he never intended to kill. What was his intention?

09 Dec 10:43
Nel again asks how OP could not have foreseen the consequences of his actions - firing 4 rounds into a small bathroom.

09 Dec 10:41
Nel cites J Arthur Brown appeal ruling, which found Brown had criminal intent despite not wanting results of his actions - dolus eventualis.

09 Dec 10:41
Nel reads case law - it is possible that he may in the eye of the law have the intention, even though he does not wish it.

09 Dec 10:38
Nel argues that the finding of negligence is not factual but an application of law.

09 Dec 10:36
Nel argues State's appeal bid "clearly centres on a question of law". Defense says judge finding based on facts, cannot be appealed.

09 Dec 10:35
Nel: If found that the court incorrectly applied the principle of dolus eventualis, the the accused is guilty of murder.

09 Dec 10:32
Nel argues State believes it can persuade Appeal Court to hear OP appeal "even though there was culpable homicide conviction".

09 Dec 10:31
Gerrie Nel's two favourite terms this morning: "With the utmost respect" and "shockingly inappropriate".

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