Oscar Pistorius - Discussion Thread #69 *Appeal Verdict*

[Sherbert]

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!

If we had a window into Pistorius's mind and could see for ourselves that he genuinely believed an attack was starting and that the only way to save himself was to start firing repeatedly, then it wouldn't be murder because he didn't have the mens rea for murder.

However, instead of a window, we have to make do with our powers of inference.

By a process of inferential reasoning, the State has effectively proved beyond reasonable doubt that OP 'intentionally' killed the person behind the door in circumstances where he couldn't possibly have believed he was entitled to kill.

'Intentionally' in the dolus eventualis sense, although, given the number of bullets, it is certainly arguable that he had direct intention to kill the intruder.

 

[Tortoise]

I haven't read his articles properly yet, but, what I do agree with is that Courts must be careful not to mix up the test for negligence with the test for murderous intent. The SCA's use of the adjective 'rational' did set alarm bells ringing a little, as an irrational killer who genuinely believes that he's acting in self defence wouldn't be a murderer.

Obviously, however, irrational behaviour can lead us to infer that an accused isn't being truthful, which, reading between the lines, is what the SCA were saying.

I thought of rational as meaning knowing what is going on and being able to think and act without mental impediment. And I think the evaluation at Weskoppies settled that - they assessed him knowing how his physical disability would have affected his state of mind. IMO.

 

[Sherbert]

I thought of rational as meaning knowing what is going on and being able to think and act without mental impediment. And I think the evaluation at Weskoppies settled that - they assessed him knowing how his physical disability would have affected his state of mind. IMO.

Yes, he was found to be competent. But the problem is that even a sane person can make an irrational mistake.

From memory, I think the SCA mentioned a rational component in terms of PPD, meaning that the perpetrator's conduct should be rational in order to qualify for the defence.

I probably need to go back and look at the wording...

 

[aftermath]

I think "knowledge" of unlawfulness in this legal sense refers to whether or not the accused fired four shots into the toilet door knowing beyond a reasonable doubt that:
1. No attack had commenced or nor was there an imminent threat of bodily harm;
2. It was not necessary in this instance to use lethal force to prevent any attack;
3. He had not even identified who was behind the door much less whether or not they presented a threat.

I see what you're saying, but I don't think the state proved beyond reasonable doubt that Pistorius didn't believe an attack was commencing or that he he didn't believe he was in danger of life threatening imminent harm, or that in his mind at least he hadn't in fact identified the stranger behind the door as an intruder and therefore as a threat.

 

[Sherbert]

I think "knowledge" of unlawfulness in this legal sense refers to whether or not the accused fired four shots into the toilet door knowing beyond a reasonable doubt that:
1. No attack had commenced or nor was there an imminent threat of bodily harm;
2. It was not necessary in this instance to use lethal force to prevent any attack;
3. He had not even identified who was behind the door much less whether or not they presented a threat.

The Court draws inferences as to the perpetrator's intention based on these factors.

For example, the fact that the toilet door was closed is evidence from which the Court can infer that his intention was not to defend himself. It is also evidence from which the Court can infer that he knew he wasn't legally entitled to fire.

 

[aftermath]

The Court draws inferences as to the perpetrator's intention based on these factors.

For example, the fact that the toilet door was closed is evidence from which the Court can infer that his intention was not to defend himself. It is also evidence from which the Court can infer that that he knew he wasn't legally entitled to fire.

Didn't he give evidence that he heard a noise that led him to believe (albeit wrongly), that the door was opening and an attack was beginning, though?

 

[Sherbert]

Didn't he give evidence that he heard a noise that led him to believe (albeit wrongly), that the door was opening and an attack was beginning, though?

Yes, it was his case that the noise was the trigger for his subsequent loss of control.

However, the SCA didn't accept that this trigger was sufficient to justify him firing four bullets into a small space.

Ultimately, I guess it all boils down to the fact that they simply didn't find him to be a credible witness.

 

[Sherbert]

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?

Obviously, Roux would have known from the outset that PPD was going to be tricky, especially in the light of the closed door, the four bullets and Sean Rens' evidence. So, it seems to me that he decided to focus on mens rea, scrabbling around to borrow bits from diminished responsibility and provocation in the hope that something would stick and reduce the impact of Pistorius's knowledge of the gun laws. Diminished responsibility probably depended upon GAD being upheld by the Weskoppies panel, whilst he couldn't use provocation alone, since, as you rightly state, loss of control type Defences are not welcomed by the Courts. In fact, it seems to be the position in S Africa that, unless we are looking at mitigation, loss of control will only work in cases of automatism. I noticed that Roux kept emphasising at the SCA that Pistorius was 'really afraid', possibly because he was aware that the Courts distinguish between loss of control and loss of temper and was being careful to steer clear of any suggestion that OP fired four times out of fury.

I provided the battered woman analogy primarily to illustrate that knowledge of the law is not always the be-all and end-all when it comes to murder and intent.

 

[aftermath]

Yes, it was his case that the noise was the trigger for his subsequent loss of control.

However, the SCA didn't accept that this trigger was sufficient to justify him firing four bullets into a small space.

Ultimately, I guess it all boils down to the fact that they simply didn't find him to be a credible witness.

It wasn't sufficient to justify it - that's clear from the safety of Steyn's metaphorical 'armchair'- but I don't see that the state proved beyond reasonable doubt that pistorius knew it was definitely not justified at that moment of firing.

 

[Sherbert]

It wasn't sufficient to justify it - that's clear from the safety of Steyn's metaphorical 'armchair'- but I don't see that the state proved beyond reasonable doubt that pistorius knew it was definitely not justified at that moment of firing.

IMO, the State proved it beyond a reasonable doubt.

closed door
four bullets
confined space
change of trajectory
compos mentis

All the above point to intention to kill. I don't see what more the State could have done.

IMO, Pistorius acted just as if he were absolutely determined to kill the intruder.

 

[aftermath]

IMO, the State proved it beyond a reasonable doubt.

closed door
four bullets
confined space
change of trajectory
compos mentis

All the above point to intention to kill. I don't see what more the State could have done.

IMO, Pistorius acted just as if he were absolutely determined to kill the intruder.

Which of those prove that he knew he was acting unlawfully?

 

[Sherbert]

Which of those prove that he knew he was acting unlawfully?

They all prove it. All of them prove that he knew he'd kill the person behind the door.

Not only was he not entitled to kill the person behind the door, but he produced no evidence that he was unaware of this. For example, he produced no evidence to rebut Sean Rens' evidence and he was unable to establish that he was suffering from diminished responsibility or automatism.

 

[Marfa Lights]

Which of those prove that he knew he was acting unlawfully?

Unless he could prove that he was incapacitated (or suffering from some form of diminished capacity) it would be beyond reasonable doubt that he knew he was not under direct attack (commenced or imminent) when he approached a closed toilet door. He would have also known it was not necessary or lawful to fire four rounds at someone without knowing who they were or if they even presented a threat.

 

[Marfa Lights]

I see what you're saying, but I don't think the state proved beyond reasonable doubt that Pistorius didn't believe an attack was commencing or that he he didn't believe he was in danger of life threatening imminent harm, or that in his mind at least he hadn't in fact identified the stranger behind the door as an intruder and therefore as a threat.

Under the circumstances, was it reasonably possible for him to have believed he was actually under direct attack or even threat of imminent bodily harm?

I wonder if you are perhaps granting too much leeway with regard to the concept of "imminent." If the attack had commenced, he would obviously be in the throes of physically defending himself.

However, for an attack to be so imminent as to justify the use of lethal force, you would IMO need to at least see the attack coming at you. Not merely presuppose that it might be about to happen (if your assumptions about the identity of the presumed attacker are correct.)

He didn't just suppose he was under attack... he presupposed it (P-PPD).

 

[Trotterly]

Yes, it was his case that the noise was the trigger for his subsequent loss of control.

However, the SCA didn't accept that this trigger was sufficient to justify him firing four bullets into a small space.

Ultimately, I guess it all boils down to the fact that they simply didn't find him to be a credible witness.

If you ignore OP's testimony then to prove murder you have to ask.

Could a SAfrican reasonably believe that an intruder could be in their house?

Could they reasonably think the worst that they were armed and dangerous?

Could they reasonably believe that, being unable to flee, they needed to shoot to defend themselves from an imagined attack?

 

[Belgarion]

If you ignore OP's testimony then to prove murder you have to ask.

Could a SAfrican reasonably believe that an intruder could be in their house?

Could they reasonably think the worst that they were armed and dangerous?

Could they reasonably believe that, being unable to flee, they needed to shoot to defend themselves from an imagined attack?

In the world of the hypothetical anything can be imagined.

In such a world guns mysteriously discharge themselves and men scream like women and women remain mute whatever their situation. Indeed, in such a world intruders can be so incompetent they slam windows on entering a house and then proceed to search the toilet first after slamming the door.

Whilst overhead a squadron of pigs fly by.

 

[JudgeJudi]

The following is OP’s current standing at the ConCourt:

There are 14 applications for leave to appeal listed ahead of OP’s.

8 matters have been listed for hearing, the latest being 10 March.

It would appear that we’ll be waiting a while yet before we know anything further.

 

[Tortoise]

If you ignore OP's testimony then to prove murder you have to ask.

Could a SAfrican reasonably believe that an intruder could be in their house?

Could they reasonably think the worst that they were armed and dangerous?

Could they reasonably believe that, being unable to flee, they needed to shoot to defend themselves from an imagined attack?

I can't believe what I have just read!! You can't ignore testimony of the accused, that would be to never convict anyone of murder because you can imagine a scenario that would justify it!

As for your last question the answer has to be no anyway because he never aimed at the intruder, so the inference has to be he had no genuine need or intent to defend himself.

And why unable to flee? If you're able to get there you are able to get away as well. He wasn't exposed to danger being next to a wall in the entrance way that would shield him and he was armed and ready to shoot, so he had cover to assess the situation and the need to fire. He wasn't in the middle of the bathroom.

 

[Sherbert]

If you ignore OP's testimony then to prove murder you have to ask.

Could a SAfrican reasonably believe that an intruder could be in their house?

Could they reasonably think the worst that they were armed and dangerous?

Could they reasonably believe that, being unable to flee, they needed to shoot to defend themselves from an imagined attack?

It isn't quite so simple as ignoring his evidence. If we ignore his evidence, we'd conclude that he deliberately shot Reeva.

And it was never OP's position that he shot to defend himself or that he thought he was entitled to shoot. As we know, his case was that he was startled and shot out of fear, before he had time to think. The only case the State was obliged to disprove was the one he actually brought.

The problem for Pistorius was that Masipa found intent to shoot in circumstances where he denied intent. This enabled the SCA to find intent to kill, but not to analyse his reasons for firing.

Moreover, in order for PPD to succeed, he would have needed to show that, at the time of firing, he believed that his actions were proportionate and that shooting was necessary to save his life. However, this was not his evidence.

You could say that, as he didn't intend to shoot, he didn't intend to act unlawfully. However, you're stuck with the fact that Masipa found intention to shoot. In fact, she probably had no choice but to find intention, given that he wasn't suffering from automatism or GAD.

 

[Belgarion]

The following is OP’s current standing at the ConCourt:

There are 14 applications for leave to appeal listed ahead of OP’s.

8 matters have been listed for hearing, the latest being 10 March.

It would appear that we’ll be waiting a while yet before we know anything further.

Unless of course Uncle Arnie produces his check book and demands Oscar be prioritised and fast tracked but somehow I can’t see happening!

I would think the April court appearance will be just ‘bail extended’ and carry on as usual.

The worry is how many psychiatric assessments can be ‘bought’ in the meanwhile to allow Pistorius to escape incarceration on mental grounds when he finally gets to sentencing