atthelake
Former Member
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- Apr 18, 2011
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Yes!
Also in reply to cottonweaver above.
Justice Leach has seized upon an important point with the application of legal tests to facts.
The critical question is - did Pistorius mistakenly believe he was acting with lawful justification?
Much discussion centred on the mistake - but Masipa really made a mess of the justification part.
The starting point is that Shooting people is not allowed. Self defense is an exception to that.
Having dealt with the factual nature of the mistake the Judge should have done 2 things.
1. Outline the tests for lawfulness given the mistake
2. Reviewed the proven facts which showed that the test for lawfulness was met.
If the test was not met - it must, logically be murder.
So the main questions were
1. Did he use lethal force against an imminent threat?
2. Was the force not excessive?
3. Was the course of action reasonable? (e.g. did he have obvious non-lethal options)
Per Justice Leach the next point is the evidential onus is on the defence to prove facts which bring SD into play.
And as Leach has identified - here is where the shabby judgement really kicks in
1. Imminent threat? Where is the finding on this?
2. Force not excessive. Ditto???
3. Course of action reasonable? Masipa seems to find the opposite???!!??
These are clear legal errors on the face. So PDD really has not been found.
So then you are left with the obvious problem that OP does not have any other defence.
So many :goodpost: this morning and the reason is because everything was so understandable in THIS court.
Today, within just 3 hours, everything has been clarified so well as it is now " intuitively obvious to the most casual observer"