Page 1 of 4

!"# %&'()*+ ,-./-.0+ &, ,1%)2

- "The accuseu was not tiuthful to the couit when askeu about his intentions that moining"
(pSS21, lines S-4)
- "The accuseu was cleaily not canuiu with the couit when he saiu that he hau no intention
to shoot at anyone" (pSS21, lines S-6)
- "Be cleaily wanteu to use the fiieaim to shoot at the peiceiveu uangei" (pSS17, lines 17-
18)
- "it cannot be saiu that the accuseu uiu not enteitain a genuine belief that theie was an
intiuuei in the toilet, who poseu a thieat to him" (pSS47, lines 22-2S)
- "the blow was meant foi the peison behinu the toilet uooi, who the accuseu believeu was
an intiuuei" (pSS2S, lines 4-S)
- "Be hau intention to shoot at the peison in the toilet" (pSS2S, line 11)
- The measuies he took weie "to ueal with what he consiueieu a thieat to his life" (pSS21,
line 24)

Bowevei:

"Be was competent in the use of fiieaims as he hau unueigone some tiaining." (pSS24 line
2S to pSS2S line 1)
"this couit is satisfieu that at the ielevant time, the accuseu coulu uistinguish between iight
anu wiong anu that he coulu act in accoiuance with that uistinction" (pSS14 line 2S to
pSS1S line 2)

- 34"5 )"# 1%%'+#/ ,-(#/ .&) &.# +"&) 6') ,&'( +"&)+7 /&#+ .&) 3819# +#.+#7 (pSS2u,
line 9 anu line 2S).

!"#$ &'$( )*(+#, ("+( (") -.'/( -.',0 *.( /)+$.*+1,2 3#*0 .* (") )4#0)*-) (") 5.$$#1#,#(2 ("+(
") 1),#)4)0 ") 6+$ )*(#(,)0 (. 3#/) $".($ 78 9 +*0 :

- A ieasonable peison with the accuseu's uisabilities in the same ciicumstances:
- woulu not have fiieu 4 shots as this was excessive foice.
- woulu have foieseen this extent of foice may unlawfully kill whoevei was behinu the uooi
- (pSSSS line 1S to pSSS4 line 16, pSS29 line 17-2u)

:&88&. %1'+# ,1%)+ &( )"# 1%%'+#/*+ &4. #;-/#.%#2

The accuseu: is not of ieuuceu intellect; was not intoxicateu; knew the toilet was a small space; was
a gun enthusiast with tiaining; knew the weapon anu ammunition he was using was high-calibie,
black-talon anu lethal; hau featuieu in a viueo wheie he shot anu obseiveu the effect of bullets;
piioi to shooting was thinking in uetail about the possibilities of a thieat anu his steps in ielation
to it; foiesaw the possibility of a iicochet fiom a waining shot in the bathioom hitting anu injuiing
himself.


Page 2 of 4

!"# %&((#%) <(-.%-<=# &, =14 &. 8'(/#( /&='+ #;#.)'1=-+ 1./ #((&( -. &6>#%)&

The question is: uiu the accuseu foiesee anu accept the possibility of unlawfully killing 6".)4)/
he thought was behinu the uooi.

!"#$ #$ *.( ;'$( +* #&5./(+*( ,)<+, 5/#*-#5,)8 #( #$ +* #&5./(+*( &./+, 5/#*-#5,) +,$.=

!"# %&((#%) <(-.%-<=# &, =14 )& /#)#(8-.# +'6>#%)-;# -.)#.)-&.2

>?*) $".',0 +,$. +4.#0 (") 3,+6)0 5/.-)$$ .3 0)0'-(#4) /)+$.*#*< ("+(8 1)-+'$) (") +55),,+*(
$".',0 "+4) 3./)$))* (") -.*$)@')*-)$8 #( -+* 1) -.*-,'0)0 ("+( ") 0#0= !"+( 6.',0 -.*3,+() (")
0#33)/)*( ()$($ 3./ 0.,'$ +*0 *)<,#<)*-)= ?* (") .(")/ "+*08 ,#A) +*2 .(")/ 3+-(8 $'1;)-(#4) 3./)$#<"(
-+* 1) 5/.4)0 12 #*3)/)*-)= B./).4)/8 -.&&.* $)*$) 0#-(+()$ ("+( (") 5/.-)$$ .3 #*3)/)*(#+,
/)+$.*#*< &+2 $(+/( .'( 3/.& (") 5/)&#$) ("+(8 #* +--./0+*-) 6#(" -.&&.* "'&+* )C5)/#)*-)8 (")
5.$$#1#,#(2 .3 (") -.*$)@')*-)$ ("+( )*$')0 6.',0 "+4) 1))* .14#.'$ (. +*2 5)/$.* .3 *./&+,
#*(),,#<)*-)= !") *)C( ,.<#-+, $()5 6.',0 (")* 1) (. +$A 6")(")/8 #* (") ,#<"( .3 +,, (") 3+-($ +*0
-#/-'&$(+*-)$ .3 ("#$ -+$)8 (")/) #$ +*2 /)+$.* (. ("#*A ("+( (") +55),,+*( 6.',0 *.( "+4) $"+/)0
("#$ 3./)$#<"(8 0)/#4)0 3/.& -.&&.* "'&+* )C5)/#)*-)8 6#(" .(")/ &)&1)/$ .3 (") <)*)/+,
5.5',+(#.*=D SCA in Bumphieys v The State (2u1S)

>>?*) 6.',0 *./&+,,2 #&5'() (. + 5)/$.* #* (") 5.$#(#.* .3 (") +55),,+*( E#* (") +1$)*-) .3 +*2
)4#0)*-) 12 $'-" 5)/$.* +$ (. "#$ $(+() .3 &#*0 +( (") /),)4+*( (#&)F + $(+() .3 &#*0 +A#* (. ("+( .3 +
/)+$.*+1,) &+*= G* + <#4)* -+$)8 ".6)4)/8 5/.4)0 3+-( ./ -#/-'&$(+*-)$ &+2 )C#$( 6"#-" 6.',0
;'$(#32 + 0#33)/)*( -.*-,'$#.*=D SCA in S v Be 0liveiia (199S)

The couit founu the accuseu uiu not testify cieuibly on his intentions, anu iejecteu his common
explanation foi why he uiu not have intention to eithei shoot oi kill. Neithei he oi his uefence
counsel evei leu eviuence oi aigueu that he intenueu to shoot without foieseeing the possibility
of killing whoevei was behinu the uooi. Theie is theiefoie no uiiect testimony oi even aigument
on which such a finuing coulu be baseu.


!"# %&'() -, -) 1<<=-#/ )"# <(-.%-<=#+ &, =14 %&((#%)=5 )& -)+ &4. ,-./-.0+ &, ,1%)
+"&'=/ "1;#2

- iuentifieu the iequisite intention foi muiuei uolus eventualis as foieseeing anu
accepting the possibility of unlawfully killing 6".)4)/ he thought was behinu the
uooi
ueteimineu subjective intention on the staiting piemise that one has a state of minu
akin to a ieasonable man '*,)$$ (")/) #$ )4#0)*-) (. /)+$.*+1,2 0.'1( .(")/6#$)

- )"#(#,&(# ,&'./ )"1) )"# 1%%'+#/ "1/ -.)#.)-&. )& '.=14,'==5 ,-(# +"&)+ ?@ A 1./
B 1%%#<)-.0 "# 815 9-== 4"&#;#( "# )"&'0") 41+ 6#"-./ )"# /&&( 1+ 1
%&.+#C'#.%#D

E'-=)5 &, 8'(/#( /&='+ #;#.)'1=-+@ 8-.-8'8 +#.)#.%# FG5(+D



Page S of 4

H ,-./-.0 &, ,1%) )"1) %1..&) +)1./ -. =14

If the couit maue a finuing that the accuseu ieasonably anu possibly uiu not foiesee anu accept the
possibility of killing the peison who he mistakenly thought was behinu the uooi, then this fact
cannot stanu in law oi on the piinciples of justice. s146 (b) of the Ciiminal Pioceuuie Act:

>H ;'0<) 5/)$#0#*< +( + -/#&#*+, (/#+, #* + $'5)/#./ -.'/( $"+,,I 6")(")/ ") $#($ 6#(" ./ 6#(".'(
+$$)$$./$8 <#4) (") /)+$.*$ 3./ (") 0)-#$#.* ./ 3#*0#*< .3 (") -.'/( '5.* +*2 @')$(#.* .3 3+-(D
The couit ignoieu its own uiiection anu foi uolus eventualis only conceineu itself with the
question of foieseeing the possibility of killing the ueceaseu, As a iesult it is cleai that it only
offeieu an explanation to answei this question. It uiu not offei an )C5,+*+(#.* foi whethei he
foiesaw the possibility of killing the peison he mistakenly thought was behinu the uooi, so this -
finuing of fact theiefoie cannot stanu in law.

It woulu be nonsensical foi uefence counsel to tiy anu aigue that the finuing is explaineu in pSS28
lines 18-2u (anu theiefoie must stanu on appeal, making a muiuei conviction impossible, as it is
tiite that an objection to the ieasoning in a juugment is not a question of law). Such aigument
woulu be little moie than an attempt at a tiick of stiict giammatical inteipietation that flies in the
face of any common sense. The sentence in question is:

"Cleaily he uiu not subjectively foiesee this as a possibility that he woulu kill the peison behinu the
uooi, let alone the ueceaseu, as he thought she was in the beuioom at the time." (pSS28, lines 18-
2u)
Without going into a long excuision into giammatical iules, seveial points neeu to be boine in
minu:
- This juugment was ieau into the iecoiu, the commas weie not ieau out, so the piesence of
commas anu theiefoie the iesultant giammai is ueteimineu by the tiansciibei.
- The use of 'she' can only ieasonably iefei to the ueceaseu, anu it cannot possibly
ieasonably be helu that the sentence sought to say 'he uiu not foiesee killing the peison he
thought was behinu the uooi as he thought she was in the beuioom'
- This in itself ieveals a funuamental giammatical mistake in the stiuctuie of the sentence, as
paientheses shoulu be such that when omitteu fiom a sentence the sentence is still
coheient anu the meaning holus.
- It is theiefoie possible, if not piobable, that the piesence of the seconu comma anu the
iesultant paienthesis is simply a mistake
- Without the seconu comma, the sentence ieaus: "Cleaily he uiu not subjectively foiesee this
as a possibility that he woulu kill the peison behinu the uooi, let alone the ueceaseu as he
thought she was in the beuioom at the time."
- This makes peifect sense, as the explanation in the seconu clause of the sentence only
applies to the seconu clause not the fiist clause, anu the meaning is completely logical on
the facts.




Page 4 of 4

Befence counsel may tiy anu holu the sentence to account on stiict giammai anu claim that it must
mean 'he uiu not foiesee killing the peison he thought was behinu the uooi as he thought the
ueceaseu was in the beuioom'. But this ignoies the following:
- eveiy woiu may well be intentional anu caiefully chosen in a legal juugment, but this uoes
not mean mistakes cannot be maue
- in ieauing the juugment, seveial mistakes uiu in fact have to be coiiecteu by the juuge
- not eveiy mistake was caught anu coiiecteu, as is obvious fiom the following: "Theie is no
uoubt that when the accuseu fiieu shots thiough the toilet uooi, he acteu unlawfully. Theie
was no intiuuei. In fact, the peison behinu the uooi was the ueceaseu anu she was ueau."
(pSS27, lines 1u-12, my emphasis)
- common sense shoulu apply to ieau the piopei meaning into the above, anu so it shoulu to
the sentence unuei uiscussion heie.
- The meaning claimeu woulu be so absuiuly illlogical on the facts, let alone 'cleaily' so, that
one must iathei concluue it is a simple mistake in giammai, tiansciibing giammai oi
ambiguous English at play
- if one insists on holuing the sentence so stiictly to account then the aigument collapses in
any case. This is so because the aigument must be consistent anu holu that 'the peison
behinu the uooi' was the ueceaseu anu not 'the peison the accuseu (".'<"( was behinu the
uooi'. The sentence theiefoie must be helu to ieau "Cleaily he uiu not subjectively foiesee
this as a possibility that he woulu kill the ueceaseu, let alone the ueceaseu, as he thought
she was in the beuioom at the time."
Similaily, uefence counsel cannot succesfully aigue that the finuing is explaineu by his behavioi
anu ieaction aftei the shooting. The couit explicitly states that the ielevant ieaction only came
aftei he iealizeu he hau shot the 0)-)+$)0, (pSS28 lines 21-2S) anu explicitly states that is
answeiing the question of foieseeing the possibility of killing the 0)-)+$)0 (pSS28 lines 17-18);
fuitheimoie common sense anu logic uictate the explanation can only be ielevant to intention to
kill the ueceaseu specifically.