Oscar Pistorius - Discussion Thread #69 *Appeal Verdict*

[mrjitty]

I think his view throughout is that in the situation where someone thinks they are in danger, as OP was in his mind, the court doesn't take the armchair position and says 'he should have known so did know' but should put themselves in the position of the person to ask 'did he know'? The SCA may have used the right terminology to express this but there is no evidence from the judgement that they made any effort at all to consider the situation he thought he was in and how that might have affected his judgement.

Personally, I think the SA system is foolish to put such an emphasis on such a slight difference to decide between CH and DE given that no judge can really know what the accused was actually thinking - and then it compounds this situation by having minimum sentencing legislation for one crime but not the other.

But this is the same in every murder case and shows you are taking an artificial view

Courts have always asked "what must the accused have known or foreseen"

And that inquiry is based on drawing ordinary and logical conclusions.

It never has been based on trying to delve into the dark recesses of OPs mind

Otherwise no one would ever be convicted

 

[mrjitty]

Kudos for reading them. From memory, I think there were quite a lot of pages to get through!

Whilst I've yet to read the articles myself, I think it might be helpful to think of Steyn's argument in terms of the loss of control defence in the UK - formerly known as provocation.

Loss of control is used where, for a example, a battered wife kills her husband. Obviously, she knows that it's unlawful to kill him, but, as a result of fear and suffering - Roux's slow burn - she snaps and grabs the gun in the heat of the moment, shooting him dead.

OP could have argued that he lost control in the sense that, when he fired, his self-control was hijacked by a mixture of fear of serious injury and sheer outrage that a stranger was in his bathroom.

A successful loss of control argument in the UK would have the effect of reducing a murder conviction to manslaughter and the onus of proof would be on the Prosecution to disprove it. The Defence need only lay a thin factual foundation.

Its a long time since I did Crimes but my half remembered recollection is that the Courts control these kinds of arguments very tightly.

As far as I can see this case is a straight down the middle PPD case?

 

[Marfa Lights]

I agree - Steyn is completely contrived.

First and foremost, DE has never been a three step test.

So right away he is asking for a total departure from long established precedent

Secondly things like foresight, intention etc are legal tests - not an attempt to fathom exactly what was on the accused's mind in a split second.

So in reality, a shooter probably does not conduct a SWOT analysis in the moment of the shooting.

But of course in the seconds leading up to the shooting you are aware that you are wielding a deadly weapon and the responsibilities relating to that.

Yes, it's like Steyn is trying to create some legitimate distinction between the obvious meaning of "factual knowledge" and some kind of quasi-military mindset of "situational awareness."

"MiLady, the accused lacked situational awareness of the legalities of his actions."

 

[Marfa Lights]

Its a long time since I did Crimes but my half remembered recollection is that the Courts control these kinds of arguments very tightly.

As far as I can see this case is a straight down the middle PPD case?

It's pretty hard to argue that hearing your girlfriend go to the toilet in the night would provoke such an extreme over-reaction that he would be incapacitated due to the sudden onset of emotional stress and fear this aroused.

The defense couldn't quite make out that case of PTSD from the putative roadway shooting incident where he could not remember who picked him up afterwards. And all those death threats he claimed to have received? Probably from his band of nightclub bouncer tow truck buddies.

 

[Marfa Lights]

So what does happen in SA if some ignoramus shows up and claims total ignorance of the laws for the crime they have committed-- are they automatically deemed merely negligent?

 

[Tortoise]

I can see where you're coming from, but, as he has been convicted on the basis of Masipa's finding of intent to shoot, in my view, the Court is obliged to examine and to draw inferences as to his state of knowledge at that time. If the court doesn't consider the point at all, and omits to come to the conclusion that he must have known he was behaving unlawfully, then there is a danger that its decision can be appealed on the basis that an essential part of the enquiry into liability has been omitted.

Indeed, the court must consider the issue of knowledge.

In the circumstances of this case, because he said he did not deliberately fire, it would make a complete mockery of the law if the court determined that he thought he acted lawfully.

The way I see it - which I think is the way of the law of South Africa too, knowledge of lawfulness in the case of a killing of a human being is not really or solely connected to having passed the gun licence exam. Say for instance he had never taken a gun test, and he had proceeded to the toilet with an axe and axed through the door killing the person. His entitlement to a lawful defence to murder (PPD) comes not from his knowledge in the moment of what the law says but from him deeming his action a necessity to save his own life. In this case he did not think it was a necessity to act, he said he fired by mistake, not by deliberate choice.

I think it is that simple - the knowledge of unlawfulness comes from an absence of belief in lawfulness, an absence of genuine perceived necessity.

Basically if PPD is made out, then there is knowledge of lawfulness (the law protecting a person who genuinely thinks there is threat to life) if it's not made out, then there is criminal intent to kill.

The onus was on Pistorius, not the state, to explain why he shot lawfully, and he didn't. His explanation was that he wasn't thinking, aiming or intending to fire - by anyone's reckoning therefore, including his own, not an armchair viewing but a subjective viewing of what was in his mind, he cannot have been shooting to save his own life. He hasn't justified the shooting to this day.

 

[Tortoise]

I will be very very surprised if the con court allows this appeal to be heard.

The law doesn't need fixing - it works. Therefore the issues raised in the appeal are only pertinent to Pistorius' case, there is no wider public interest.

 

[soozieqtips]

I will be very very surprised if the con court allows this appeal to be heard.

The law doesn't need fixing - it works. Therefore the issues raised in the appeal are only pertinent to Pistorius' case, there is no wider public interest.

OP is so special that he thinks laws should be invented just to protect him. I will also be surprised if the appeal gets heard. I think the whole thing is being deliberately dragged out to give himself more time in the luxury mansion! And to think he hasn't even had to demean himself and do any community service since he was convicted as a common murderer.

 

[Marfa Lights]

Indeed, the court must consider the issue of knowledge.

In the circumstances of this case, because he said he did not deliberately fire, it would make a complete mockery of the law if the court determined that he thought he acted lawfully.

The way I see it - which I think is the way of the law of South Africa too, knowledge of lawfulness in the case of a killing of a human being is not really or solely connected to having passed the gun licence exam. Say for instance he had never taken a gun test, and he had proceeded to the toilet with an axe and axed through the door killing the person. His entitlement to a lawful defence to murder (PPD) comes not from his knowledge in the moment of what the law says but from him deeming his action a necessity to save his own life. In this case he did not think it was a necessity to act, he said he fired by mistake, not by deliberate choice.

I think it is that simple - the knowledge of unlawfulness comes from an absence of belief in lawfulness, an absence of genuine perceived necessity.

Basically if PPD is made out, then there is knowledge of lawfulness (the law protecting a person who genuinely thinks there is threat to life) if it's not made out, then there is criminal intent to kill.

The onus was on Pistorius, not the state, to explain why he shot lawfully, and he didn't. His explanation was that he wasn't thinking, aiming or intending to fire - by anyone's reckoning therefore, including his own, not an armchair viewing but a subjective viewing of what was in his mind, he cannot have been shooting to save his own life. He hasn't justified the shooting to this day.

Thanks, Tortoise. That sheds a very different light on the "knowledge of lawfulness" issue. So many ways to phrase the matter that it can really change the interpretation and intent of the law. I often suspect the dual use of English/Afrikaans in SA creates some real clarity problems.

It was getting to be a chicken or the egg question for me, and now as you explain it, the question of knowledge of lawfulness appears to be intrinsic to a legitimate response in self-defense.

So then it seems like this question of lawfulness relates first of all to the consideration of PPD and the determination of criminal liability. (If PPD or PD is made out or legitimate, then there is no criminal liability.)

But when a PPD or PD claim is not held to be legally valid, the question of knowledge of lawfulness (as demonstrated by whether the accused could legitimately justify the reasons for their actions) will therefore already have been dealt with and it would not remain open to be a component or 3rd question in evaluating whether a wrongful act results from negligence or criminal intent (DE or DD).

I am going to dumb this down for myself-- let me know if I go astray.

Step 1: The court must determine fault or if criminal liability is present (i.e. determine lawfulness). In OP's situation, there was a prima facie case of an unlawful homicide which he attempted to justify as acting in self-defense (PPD).

Step 2. The court had to evaluate the legitimacy of his putative self-defense claim. It was determined that he had no reason to believe he was justified in responding with lethal force under the circumstances, and therefore he was not entitled to "believe" he was acting lawfully.

Step 3: The court has now determined that without the justification of legitimate self-defense, the accused is criminally liable for his unlawful act. The court then has to determine the form of criminal liability: negligence (CH) or intent (DD or DE or DI). The accused's knowledge of lawfulness is not relevant at this point of the inquiry.

 

[Tortoise]

Thanks, Tortoise. That sheds a very different light on the "knowledge of lawfulness" issue. So many ways to phrase the matter that it can really change the interpretation and intent of the law. I often suspect the dual use of English/Afrikaans in SA creates some real clarity problems.

It was getting to be a chicken or the egg question for me, and now as you explain it, the question of knowledge of lawfulness appears to be intrinsic to a legitimate response in self-defense.

So then it seems like this question of lawfulness relates first of all to the consideration of PPD and the determination of criminal liability. (If PPD or PD is made out or legitimate, then there is no criminal liability.)

But when a PPD or PD claim is not held to be legally valid, the question of knowledge of lawfulness (as demonstrated by whether the accused could legitimately justify the reasons for their actions) will therefore already have been dealt with and it would not remain open to be a component or 3rd question in evaluating whether a wrongful act results from negligence or criminal intent (DE or DD).

I am going to dumb this down for myself-- let me know if I go astray.

Step 1: The court must determine fault or if criminal liability is present (i.e. determine lawfulness). In OP's situation, there was a prima facie case of an unlawful homicide which he attempted to justify as acting in self-defense (PPD).

Step 2. The court had to evaluate the legitimacy of his putative self-defense claim. It was determined that he had no reason to believe he was justified in responding with lethal force under the circumstances, and therefore he was not entitled to "believe" he was acting lawfully.

Step 3: The court has now determined that without the justification of legitimate self-defense, the accused is criminally liable for his unlawful act. The court then has to determine the form of criminal liability: negligence (CH) or intent (DD or DE or DI). The accused's knowledge of lawfulness is not relevant at this point of the inquiry.

I think that sounds about right.

I think another way of looking at it is that every person would presume to know the law of self-defence and putative self-defence because it is a matter of self-preservation. It doesn't just apply to gun owners, but extra measures are put in place for gun ownership because of the increased risk and opportunity of causing fatal injury. That's how I see it.

I think the defence is trying to play a game here in this respect, by making the knowledge of lawfulness issue more complex. It just does not apply to the primary factual findings of Pistorius' case. He would know that it was unlawful to do what he did because he knew he wasn't under attack, and that is probably why he tried to claim he had no control over what he did and he wasn't aiming at whoever was behind the door.

 

[Ochre Blue]

To me it appears that his defence is to say that he's Pistorius, therefore so special that he's above and beyond the law that applies to the rest of us mere mortals. Hence trying to complicate the lawfulness etc. 'As if anybody so special who'd had firearms training ' etc etc etc 'could be expected to know that what he did in shooting Reeva was unlawful' I.e murder! (there's no font for deep scepticism).

 

[Marfa Lights]

I went on to finish parts 4 & 5 of Steyn's articles. It's quite a word salad at times, but definitely worth reading all five parts. He seems to alternately support both the defense and the state's legal approach, which preserves some appearance of objectivity.

Like many, I got hung up early on with his insistence that the SCA erred in not considering Oscar's "deep cognitive" state of mind at the time he fired and that evaluating this moment of subjective lawful awareness constitutes a third test of DE.

However, as all of our WS legal team have pointed out-- in cases of self-defense, the proper place to consider "knowledge" of lawfulness is in the tests for PPD or PD, as the case may be.

When PPD is not found to be a legitimate defense, and it has been determined that the accused would have known that they were not acting in lawful (putative) self-defense, or could not have reasonably possibly believed they were legally entitled to use lethal force under the circumstances, then the question of their subjective lawfulness ends there. There is no need to consider it as a third test of intent when PPD is not satisfactorily made out.

So now, I am no longer hung up on the factual knowledge of lawfulness Oscar held as a result of passing the firearms exam.

Instead I see that "knowledge" of lawfulness could mean whether or not the accused could reasonably possibly believe or would have known that their actions were lawful-- in other words, did they know or have knowledge:

1. That an attack was in process or imminent?
2. That their response was proportionate to the attack?
3. That the use of lethal force was necessary to prevent the loss of life of one's self or others?

That's the kind of "knowledge" he would have needed to use to act lawfully, and you are right-- you don't need to have passed an exam to know these kinds of things.

So actually this kind of "situational" knowledge or awareness is more applicable so I was wrong to have criticized Steyn's approach in this regard. I just don't buy into his defense of Oscar that extends his initial thought that he might need to act in (lawful) self-defense after thinking he may have heard an intruder all the way through to the point in the bathroom where IMO he CLEARLY had an opportunity to re-evaluate the perceived threat before taking the actions he did.

Thanks to everyone for being patient with me and letting me think this through. I realize it's plain as dirt to many of you!

 

[Tortoise]

I went on to finish parts 4 & 5 of Steyn's articles. It's quite a word salad at times, but definitely worth reading all five parts. He seems to alternately support both the defense and the state's legal approach, which preserves some appearance of objectivity.

Like many, I got hung up early on with his insistence that the SCA erred in not considering Oscar's "deep cognitive" state of mind at the time he fired and that evaluating this moment of subjective lawful awareness constitutes a third test of DE.

However, as all of our WS legal team have pointed out-- in cases of self-defense, the proper place to consider "knowledge" of lawfulness is in the tests for PPD or PD, as the case may be.

When PPD is not found to be a legitimate defense, and it has been determined that the accused would have known that they were not acting in lawful (putative) self-defense, or could not have reasonably possibly believed they were legally entitled to use lethal force under the circumstances, then the question of their subjective lawfulness ends there. There is no need to consider it as a third test of intent when PPD is not satisfactorily made out.

So now, I am no longer hung up on the factual knowledge of lawfulness Oscar held as a result of passing the firearms exam.

Instead I see that "knowledge" of lawfulness could mean whether or not the accused could reasonably possibly believe or would have known that their actions were lawful-- in other words, did they know or have knowledge:

1. That an attack was in process or imminent?
2. That their response was proportionate to the attack?
3. That the use of lethal force was necessary to prevent the loss of life of one's self or others?

That's the kind of "knowledge" he would have needed to use to act lawfully, and you are right-- you don't need to have passed an exam to know these kinds of things.

So actually this kind of "situational" knowledge or awareness is more applicable so I was wrong to have criticized Steyn's approach in this regard. I just don't buy into his defense of Oscar that extends his initial thought that he might need to act in (lawful) self-defense after thinking he may have heard an intruder all the way through to the point in the bathroom where he CLEARLY had an opportunity to re-evaluate the perceived threat before taking the actions he did.

Thanks to everyone for being patient with me and letting me think this through. I realize it's plain as dirt to many of you!

:goodpost:

You got it, PPD or PD must be bona fide.

Quite why a judge of the High Court did not ask the questions to establish this is unfathomable.

 

[JudgeJudi]

Another toilet door case

In a case that shares more than a few similarities with the trial of OP, a woman found guilty of shooting her lover through a bathroom door is planning on asking for a suspended sentence or correctional supervision.

She claimed her husband had charged at her with a broken glass, head-butted her and spat on her before she fired the shot that pierced his arm and chest, killing him. But she was unable to explain to the court the bullet hole in the bathroom door that the State alleged Tomislav had been behind when he died.

The theory that Tomislav was in fact in the bathroom and not in the middle of an attack when he was killed was corroborated by Chris Mangena who pointed out that there was no other explanation for the injuries Tomislav sustained and the bullet hole’s location.

While she was found guilty of the murder, she was acquitted on two other charges of possession of an illegal firearm and possession of illegal ammunition.

http://www.iol.co.za/news/crime-courts/toilet-door-murder-like-oscars-case-1981723

 

[Tortoise]

Actually I think I can answer my own question.

I believe Masipa lost her way with Pistorius, she was sucked in by his poor-me performance and could not find it in her heart to deal with him coolly and dispassionately. What is it that judges instruct juries to do? Not to let sentiment, fear or favour etc get in the way of looking at the evidence? Something like that. I think she knew that if she applied the law she would have to find him guilty of murder, so she had to botch up her legal analysis and judgement of the facts before her to let him off murder. Ultimately however, she recognised this and could not disallow the State's appeal.

I think it is to do with Pistorius way of manipulating people, his sociopathic personality, and Masipa fell victim to the whole charade that he played out.

 

[Marfa Lights]

Another toilet door case

In a case that shares more than a few similarities with the trial of OP, a woman found guilty of shooting her lover through a bathroom door is planning on asking for a suspended sentence or correctional supervision.

She claimed her husband had charged at her with a broken glass, head-butted her and spat on her before she fired the shot that pierced his arm and chest, killing him. But she was unable to explain to the court the bullet hole in the bathroom door that the State alleged Tomislav had been behind when he died.

The theory that Tomislav was in fact in the bathroom and not in the middle of an attack when he was killed was corroborated by Chris Mangena who pointed out that there was no other explanation for the injuries Tomislav sustained and the bullet hole’s location.

While she was found guilty of the murder, she was acquitted on two other charges of possession of an illegal firearm and possession of illegal ammunition.

http://www.iol.co.za/news/crime-courts/toilet-door-murder-like-oscars-case-1981723

Oh, my... She killed him with just one shot.

Without any details of how she was acquitted on the illegal firearms and ammo charges, one can only wonder if she lacked the animus to possess.

Be interesting to see how sentencing plays out in March.

 

[Tortoise]

Another toilet door case

In a case that shares more than a few similarities with the trial of OP, a woman found guilty of shooting her lover through a bathroom door is planning on asking for a suspended sentence or correctional supervision.

She claimed her husband had charged at her with a broken glass, head-butted her and spat on her before she fired the shot that pierced his arm and chest, killing him. But she was unable to explain to the court the bullet hole in the bathroom door that the State alleged Tomislav had been behind when he died.

The theory that Tomislav was in fact in the bathroom and not in the middle of an attack when he was killed was corroborated by Chris Mangena who pointed out that there was no other explanation for the injuries Tomislav sustained and the bullet hole’s location.

While she was found guilty of the murder, she was acquitted on two other charges of possession of an illegal firearm and possession of illegal ammunition.

http://www.iol.co.za/news/crime-courts/toilet-door-murder-like-oscars-case-1981723

Exactly as it should be, if it wasn't self-defence it was murder and the time for putting forward mitigating circumstances is at sentencing.

 

[Tortoise]

Oh, my... She killed him with just one shot.

Without any details of how she was acquitted on the illegal firearms and ammo charges, one can only wonder if she lacked the animus to possess.

Be interesting to see how this plays out in March.

I think anyone can get off illegal possession of firearms and ammunition since Masipa's judgement. She should be in retirement if she isn't already.

 

[Marfa Lights]

Actually I think I can answer my own question.

I believe Masipa lost her way with Pistorius, she was sucked in by his poor-me performance and could not find it in her heart to deal with him coolly and dispassionately. What is it that judges instruct juries to do? Not to let sentiment, fear or favour etc get in the way of looking at the evidence? Something like that. I think she knew that if she applied the law she would have to find him guilty of murder, so she had to botch up her legal analysis and judgement of the facts before her to let him off murder. Ultimately however, she recognised this and could not disallow the State's appeal.

I think it is to do with Pistorius way of manipulating people, his sociopathic personality, and Masipa fell victim to the whole charade that he played out.

I think Masipa probably wanted to mentor the assessors and may have let Janet Henzen-du Toit write most of the decision. Think she got a surprise when reading it, perhaps for the first time in full, in court that first day.

I think Henzen-du Toit may have had a very pro-disability agenda and certainly was an advocate or specialized in "holistic" sentencing.

But ya, they bent over backwards for Oscar.

 

[Tortoise]

I think Masipa probably wanted to mentor the assessors and may have let Janet Henzen-du Toit write most of the decision. Think she got a surprise when reading it, perhaps for the first time in full, in court that first day.

I think Henzen-du Toit may have had a very pro-disability agenda and certainly was an advocate or specialized in "holistic" sentencing.

But ya, they bent over backwards for Oscar.

A defence advocate through and through so it would seem. But not so wily when it came to disguising a biased agenda.

I like to think of it as a blessing in disguise for Reeva's family. Had the court found him guilty of murder there is no doubt he would have taken it to the SCA and worked to get it reduced saying it was an unfair trial and challenging factual findings etc. This way, the state were able to take it to the SCA and get an unappealable judgement. I don't believe the ConCourt will give Pistorius a hearing, I believe his fate is now well and truly sealed. Even if he gets a light sentence he will be forever defined as a murderer and there is justice in that.