Roux (10:19) My lady, that’s not what the law says. It says there must be a mental defect AND that the defence is that it influences the capacity or lacks the capacity in accordance with right or wrong. That’s not the evidence. It’s not just the disorder, it’s a combination of the two, and I can read it to the court, I have section 78 here, if I may just read it, it says ‘a person who commits an act or makes a omission, which constitutes an offence and who at the time of such commission or omission suffers from a mental illness, or a mental defect which makes him or her incapable of appreciating the wrongfulness of his or her act or of acting in accordance with an appreciation of the wrongfulness of his or her act shall not be criminally responsible’. That’s 78 1, and 1b says ‘whenever the criminal responsibility of an accused’ that’s one of the two factors, ‘with reference to the commission of an act or an omission that constitutes and offence in issue, the burden of proof of the party which says shall be on him,’ then importance sub one two, ‘if it’s alleged at criminal proceedings that the accused is, by reason of mental illness or mental defect, or any other reason not criminally responsible for the offence charged, or if it appears to the court at criminal proceedings that the accused might for such a reason might not be so responsible, the court shall in the case of an allegation, or appearance of mental illness or mental defect, or may in other cases direct the matter to be reported on.’ So it gives you the two legs, it gives you the mental disorder or a mental defect and that MUST make the person incapable of appreciating the wrongfulness of his act, or incapable of acting in accordance with such appreciation. Those are the two legs, and that’s not the case presented. So when it’s put on her evidence that it must be refered, that the court has no choice, that’s not what section 78 says, My Lady. Definitely not.
(Brief argument on the law)
Nel (12:55) I don’t agree, because when I asked her to go through the evidence, we started, I asked Doctor Foster, as somebody that’s been at Xxxx for years, having dealt with 77, 78 and 79 for years, has vast experience, one should read into ‘act in accordance’ one should read ‘diminished responsibility’, because that should be read in. Now if that is diminished, it’s not incapable only, it’s also diminished, then a person should be referred. But, My Lady, it goes further, it says if it appears to the court tht the accused might for such reason be so responsible… if it ‘appears’ the court ‘shall’. And the case law, I’ll get to it when I deal with the application, My Lady. What I did is, I asked the doctor, if PTSD people get refered, she said yes. I asked if PTSD and GAD… (phone ringing embarrassment) If I can carry on with my argument, I then linked PTSD with GAD, PTSD people get referred, GAD is the same kind of disorder,
Judge (14:50) She said it’s related, I think.
(Argument about the letter of the law wherein Roux says that ‘diminished’ is only taken into account for sentencing purposes.)
Judge (16:58) So what you’re saying is there must be an allegation.
Roux (17:02) Absolutely, My Lady.
Judge (17:02) There must be an allegation first.
Roux (17:04) Absolutely, My Lady. That’s why I object.
Judge (17:06) Thank you.
Nel (17:08) If I may respond to, it’s more than an allegation. It’s calling a psychiatrist to say ‘I’ve made a finding. It’s more than an allegation, My Lady. If there’s a psychiatrist giving evidence that the psychiatrist made a finding, a diagnosis of GAD, and, in evidence, the psychiatrist indicates that it’s relevant to the accused’s defence, and could have played a role, and should be taken into account by the court, it’s way more, with the utmost respect, than an allegation. It’s evidence that’s been led. I know that Mr Roux would say ‘please don’t take it so serious, we never meant it to be this serious’, but it’s a factor; it’s before this court. We have a psychiatrist that made a finding, a diagnosis, otherwise, my lady, with the utmost respect, why was this placed before you? It cannot be placed before you to say take something into account. What? It’s a psychiatrist. She makes findings on mental defects, and the defence decided to lead it.
Judge (18:30) So you are saying this GAD falls under mental defect.
Nel (18:37) Yes, My Lady.
Judge () Is that what the evidence is?
Nel (18:40) Yes, that’s what I’m saying.
Judge (18:41) Because if that is the evidence, then you have every right to put it to the witness.
Nel (18:46) Yes. Thank you, My lady.
Judge (18:49) But is that the evidence?
Nel (18:50) Yes. That’s what I’m saying. (Discussion of ‘disorder’ v ‘mental illness’ v ‘defect’)
Nel (20:55) My lady, it’s a mental disorder if it affects his capacity to act in accordance with is understanding of right and wrong. It should be listed.
Judge (21:06) But that is, that is not the allegation. That’s not the evidence of the witness, unless I misunderstood her.
Nel – My lady, if that’s not the evidence, that’s how… I think that’s the evidence. Doctor Foster said, it could have. It could have affected his ability to act in accordance with his understanding of wrongfulness. I asked her before the break; she said that. She said, if that is so, if we get that answer then, with the utmost respect, My Lady, if we get that answer, that this disorder would have affected his ability to act in accordance with his understanding of right and wrong, that would then be the end of it. And I think that’s the answer I had.
(Conversation on what the answer was and who made the notes, and God-dammit, does anyone even remember the question anymore? Discussion of what was said and what was meant and all sorts of stuff that’s mostly just white noise at this point. Roux says Nel’s welcome to ask questions to get clarity)