Of course murder is unlawful.
In the absence of a lawful intent to kill (PPD) there is dolus.
You don't even need firearms training to know that.
Eh! ?
Of course murder is unlawful.
In the absence of a lawful intent to kill (PPD) there is dolus.
You don't even need firearms training to know that.
Eh! ?
Let me see if I can help...
Oscar hears a series of noises and wrongly assumes it is an intruder inside his bathroom. He then takes his gun and supposedly acting out of fear, shoots through a closed door before identifying his target or determining if there is indeed an actual threat. He assumes the person behind the door represents a potential threat.
As I understand the law in South Africa it is unlawful to shoot an intruder even if inside your own home, unless they are commencing to attack you or other members of the household. If you shoot them in a pre-emptive strike, you are essentially attacking them. If you kill them it is murder since there was no threat or direct attack and there was no need for any defensive action.
Oscar over-stepped the bounds of lawful self defense and regardless of his fears, anxieties or vulnerabilities, this was not a justifiable homicide. He may have been mistaken in his belief that an intruder entered through his bathroom window, but this is still not a license to kill and does not make his actions justifiable as a lawful self defense.
Sean Rens testified and gave evidence that Oscar had knowledge of the legal responsibilities for a licensed gun owner acting in self defense. Therefore it is not reasonable to believe he would have thought he was acting lawfully and consequently his actions rise to level of murder in the form of Dolus eventualis.
IMO the appropriate place to consider any vulnerabilities and anxieties related to his disability will be as mitigating factors at sentencing.
If I may:
BIB
"On Snymans definition, there are two requirements for existence of dolus eventualis:
that the accused should subjectively foresee the possibility that, in striving towards his main aim, the unlawful act or result may ensue; and
that he should reconcile himself to this possibility, or at least be reckless as to the possibility."
Please note the unlawful element.
BIB
Grant did the same thing when he joined the PT but I'm sure he would describe it as being pleased to help. Why can the same thing not be said of someone assisting the defence?
Thanks for the confirmation.
Out of interest what do you make of the ‘missing link’ articles by Dr Roché Steyn. I am very suspicious from the timing and content these were written directly maybe even commissioned to support the Pistorius approach to the ConCourt
The author almost says as much as he can’t seem to resist ‘blowing his own trumpet’ with the following comment in the final article.
My article of 2 December 2015 sought to clarify the essential ‘missing link’ in this case, and central parts of the article were subsequently used in the first arguments for grounds to appeal to the Constitutional Court presented in the Pistorius affidavit on 8 December 2015.
That is referring to an unlawful act not knowledge of unlawfulness.
In this case, the unlawful act was the shooting of Reeva - there is no dispute about that.
Clearly the shooting of Reeva was unlawful
The question about whether OP knew it was unlawful is a question of PPD, not a question of DE
It is referring to an unlawful act which OP had to be fully aware of at the time he was firing.
Some interesting stuff here from Burchell about knowledge of unlawfulness:
https://books.google.co.uk/books?id=tM_BSGfDPG0C&pg=PA464&lpg=PA464&dq=self+defence+knowledge+of+unlawfulness&source=bl&ots=iFejTYcWBM&sig=v0Rv6_cEHz9Mu0P8bOHW-_aQ_Rw&hl=en&sa=X&ved=0ahUKEwiDhq6yu9TKAhUCGB4KHQf7CcAQ6AEIMDAD#v=onepage&q=self%20defence%20knowledge%20of%20unlawfulness&f=false
I was referring to the determination of DE including an appreciation of lawfulness but your explanation is of self defence and you have confused private defence and putative private defence. For example in almost every example of mistaken identity the strike will be pre-emptive as there will be no "strike".
Re: BIB-- No, I don't think so. Unless I am mistaken, I believe the legal standards for a lawful self-defensive response to a threat are the same whether it was an actual threat or a misperception, i.e. "Putative."
Oscar may have mistaken Reeva for an intruder, but regardless he was not entitled to shoot and kill ANYONE who was not threatening him or attacking him. Pre-emptive strikes are clearly unlawful as a form of self-defense and mistaken identity is irrelevant.
While the court had to accept that it could be reasonably possibly true that Oscar held a genuine but mistaken belief that an intruder had entered his house, the court was not automatically required to accept that it was reasonable for him to have (subjectively) thought he was acting lawfully in killing someone who had not yet attacked or directly threatened him. Instead, the court would have to make the obvious inference that as a licensed firearms owner, he knew and accepted the responsibilities that go along with the use of lethal force.
It's not just about what Oscar thought or believed that night-- it's not even about WHY he did what he did--- it's also WHAT he did and HOW he responded to a perceived threat (real or imagined) and whether or not it his actions conform to the laws of self-defense.
Or perhaps you believe it is lawful to shoot and kill an intruder inside your house if you surprise them in your living room? Is that why you continue to believe his actions were justifiable? Or, is it that in the heat of the moment anything goes?? And maybe there are exceptions to the laws of self-defense for disabled people? Or perhaps just especially jittery and anxious people with itchy fingers?
BIB Can I imagine being so scared for my life that I might fire ? Yes I think so.
I understand, but if I had a loaded weapon in hand and I did not see a weapon in their hands, I hope I would hold fire until I could better assess the threat.
Nice thing about having a smart dog inside with you, you can see how they are reacting to a sound at night or send them to "go see." I know Oscar claimed his dogs were too friendly to have barked, but if they were loose in the backyard as I believe they were, it's hard to imagine he would not have instinctively factored in whether they had barked or not the minute he suspected an intruder was coming in the bathroom window.
The part that remains unclear (due to Oscar’s “vacillating and untruthful” evidence, as the Court expressed) is what exactly happened in Oscar’s mind just before and while pulling the trigger. This is where the Court must draw objectively reasonable inferences about the accused’s (potentially unreasonable) subjective state of mind. As that paradoxical formulation reflects, this can be a ticklish task.
Moreover, further elements of an objective ‘negligence-type’ evaluation were inappropriately injected into what must be a purely subjective test for intent.
Maybe we are just different in that my only priority on hearing an intruder inside my house, just in the next room would be my safety rather than ruminating on how they got in.
If a car is coming towards me on the wrong side of the road I'm concentrating on avoiding them rather than on how they came to be there. How about you?
Hearing and seeing, two different things.
Upon hearing a noise in another room, most people's first response would be to wonder if it could be a family member before firing shots through a door knowing they would kill whoever was behind it, and even if they thought their partner was awake and in bed, to actually check they hadn't left the room while you had your back turned, especially if they didn't make a sound when you spoke to them.