Indeed. Mute, or maybe wary about making a noise with a potentially dangerous intruder nearby, perhaps.
Do you think a sound can ever be an acceptable basis for a genuinely held belief in an imminent attack?
Oscar Pistorius - Discussion Thread #69 *Appeal Verdict*
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Indeed. Mute, or maybe wary about making a noise with a potentially dangerous intruder nearby, perhaps.
Do you think a sound can ever be an acceptable basis for a genuinely held belief in an imminent attack?
soozieqtips
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I guess that might have been a whole lot easier had it not been for the thieving siblings who felt entitled to remove evidence from a crime scene at which their brother had just murdered a woman.
This is exactly what Dr Roche Steyn referred to in his enca article - that it would :
'be unsound to regard the accuseds testimony as so unreliable that it is tantamount to being absent, but then to select certain statements as valid testimony to use in substantiating the rejection of putative private defence.'
https://www.enca.com/opinion/oscar-pistorius-link’-dolus-eventualis-still-missing-part-4
Sherbert
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RBBM
I’m not sure that I understand you, Tortoise.
The test for PPD helps the Court to assess reasonableness, not rationality. For example, having regard to objective factors such as proportionality, immediacy of threat and so forth, the Court first assesses whether or not the killer's response would have been reasonable, had the circumstances been as he perceived them to be. In cases of PPD, it’s not about lawfulness, but blame.
If the accused fails to satisfy the test for PPD, it doesn't necessarily mean that the verdict will be murder. We know this very well from caselaw.
Since intention is assessed subjectively, the Court will then proceed to examine further evidence as to the perpetrator's state of mind to decide if the verdict should be CH or DE. The question to be asked is whether or not the accused knew that he was exceeding the bounds of private defence.
According to Prof.Burchell, the legal position is that, if, (having considered all the available evidence), the court concludes that the perpetrator genuinely believed that he was acting in lawful self-defence, the verdict should be culpable homicide, not murder, as his erroneous belief will exclude dolus.
At the end of the day, as I have stated previously, the issue of subjective knowledge of unlawfulness will always come down to credibility. Clearly, the SCA didn’t believe that Pistorius genuinely believed that he was acting in lawful private defence.
In short, the imminence/proportionality/other options test for PPD has never been the be-all and end-all when it comes to murder – not unless you examine subjective intent as an integral part of that test.
That’s because the only rational explanation is he fired in a blind rage at someone who provoked his well documented temper.
That’s the truth but not something Oscar ‘I don’t Accept Responsibility for Anything’ Pistorius was going to say was he
I would imagine the 5 judges of the SCA are experienced enough to make up their own mind without taking lessons from a wordy academic who is not even a practicing lawyer.
I might be wrong, but I think prof James Grant was just a ' wordy academic ' when he assisted Nel with the appeal.
You mean like the wordy academic who wasn't a lawyer that supported the prosecution.
Ha, you just beat me to it!
Must have missed that in court. I don't think they allow tittle tattle from the rags and spurned ex-girlfriends, jealous sports rivals, business partners of the family who got into financial trouble and who the Pistorius's wouldn't bail out, alcoholic hacks who got cut out of Olympics stories etc etc etc.....
soozieqtips
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Ah, so you're of the opinion that everyone who had anything negative to say about him in court must have also been a liar. In fact, everyone's a liar except the lying murderer himself? LOL! You couldn't make this up.
Marfa Lights
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A bit more on requirements for reasonable grounds for subjective belief of lawful intent in PPD:
http://www.saflii.org/za/cases/ZANWHC/2005/105.html
[36] With regard to putative self-defence, Snyman in Criminal Law, Fourth Edition on page 101 states the following:-
“No ground of justification can exist in the absence of objective factors, and for this reason X’s conduct remains unlawful if she subjectively thinks that there is a ground for justification whereas in fact there is none. A so-called “putative ground of justification” is therefore in fact no ground of justification.”
[37] Jonathan Burchell in Principles of Criminal Law, Third Edition on page 243 states as follows:-
“A distinction must be drawn between private defence as a defence excluding unlawfulness, which is judged objectively, and ‘putative’ or ‘supposed’ private defence which relates to the mental state of the accused.
Where the accused raises the defence of private defence, the judicial inquiry commences with an examination of the unlawfulness or the lawfulness of the accused’s conduct. If the conduct is lawful, then an acquittal results. If the conduct is unlawful then the inquiry might not end there. Provided a foundation is laid for ‘putative’ private defence, then the court proceeds to examine whether the accused genuinely, albeit mistakenly, believed that he or she was acting in lawful private defence (where the charge requires intention to be proved) or whether this belief was also held on reasonable grounds (where negligence is sufficient for liability).”
http://www.csvr.org.za/wits/papers/papluds2.htm
The court must consider reasonableness based on what the accused knows and sees.55 For self-defence the court must establish that the accused believed she was acting lawfully, a subjective element, and that the circumstances justify that belief, an objective element. In determining the reasonableness of the accused's behaviour:56
Honest Belief
The most important requirement of putative private defence is that the accused honestly believed s/he was acting in private defence. An accused who is aware that s/he is acting unlawfully, or foresees that s/he could be acting unlawfully, including by being aware or foreseeing that s/he may be exceeding the bounds of private defence, cannot meet the elements of this defence and can be convicted of murder.109
The test for determining whether an accused held an honest belief s/he was acting in private defence is subjective.110 According to the criminal law experts, however, in testing the credibility of the accused, and therefore his/her honest belief, the court will consider whether a reasonable person would have held that belief. The more unreasonable the accused's claimed honest belief, the less likely the court will consider him/her to be credible.
http://www.saflii.org/za/cases/ZANWHC/2005/105.html
[36] With regard to putative self-defence, Snyman in Criminal Law, Fourth Edition on page 101 states the following:-
“No ground of justification can exist in the absence of objective factors, and for this reason X’s conduct remains unlawful if she subjectively thinks that there is a ground for justification whereas in fact there is none. A so-called “putative ground of justification” is therefore in fact no ground of justification.”
[37] Jonathan Burchell in Principles of Criminal Law, Third Edition on page 243 states as follows:-
“A distinction must be drawn between private defence as a defence excluding unlawfulness, which is judged objectively, and ‘putative’ or ‘supposed’ private defence which relates to the mental state of the accused.
Where the accused raises the defence of private defence, the judicial inquiry commences with an examination of the unlawfulness or the lawfulness of the accused’s conduct. If the conduct is lawful, then an acquittal results. If the conduct is unlawful then the inquiry might not end there. Provided a foundation is laid for ‘putative’ private defence, then the court proceeds to examine whether the accused genuinely, albeit mistakenly, believed that he or she was acting in lawful private defence (where the charge requires intention to be proved) or whether this belief was also held on reasonable grounds (where negligence is sufficient for liability).”
http://www.csvr.org.za/wits/papers/papluds2.htm
The court must consider reasonableness based on what the accused knows and sees.55 For self-defence the court must establish that the accused believed she was acting lawfully, a subjective element, and that the circumstances justify that belief, an objective element. In determining the reasonableness of the accused's behaviour:56
Honest Belief
The most important requirement of putative private defence is that the accused honestly believed s/he was acting in private defence. An accused who is aware that s/he is acting unlawfully, or foresees that s/he could be acting unlawfully, including by being aware or foreseeing that s/he may be exceeding the bounds of private defence, cannot meet the elements of this defence and can be convicted of murder.109
The test for determining whether an accused held an honest belief s/he was acting in private defence is subjective.110 According to the criminal law experts, however, in testing the credibility of the accused, and therefore his/her honest belief, the court will consider whether a reasonable person would have held that belief. The more unreasonable the accused's claimed honest belief, the less likely the court will consider him/her to be credible.
Err no. I was pointing out that a "well documented temper" was no such thing. It never featured in court.
Remember it's real evidence I'm talking about not tabloid evidence and the bias that followed the river of bile that poured OP's way before the trial even began.
Also remember Masipa found only that he was untruthful about his intent to shoot which ironically supports a PPD.
Just because a few loud mouths keep shouting liar still doesn't make it so.
Marfa Lights
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How so? Oscar repeatedly denied responsibility for intending to shoot (except when Nel confronted him with his own words in his original bail affidavit).
How could this support a PPD defense claim where one would logically have shot with deliberate intent while acting in self-defense? Instead Masipa had to reject his own testimony and provide him with the necssary intent to shoot.
hearsay, the PT didn't feel compelled to prosecute the siblings and I'm sure they would not have hesitated if they could.
Murder or negligent killing pending the CC, be patient.
BIB, with due respect, you sound a bit bitter towards Aftermath. You can't say with any certainty that this verdict won't change again. You may have an opinion that it won't but again you can't say with certainty that it will not.
I have a feeling the CC will hear this case due to Oscar's disability and this could be reduced to a CH charge with time served. That was the right verdict.
BIB, it's not that black and white. Perhaps Stipp had nothing to gain but whose to say his recollection is 100% correct.
Oh dear aftermath, you are wrong. You should check before rushing to find any reason to excuse a murderer. Besides his academic career James Grant is an Advocate of the High Court of South Africa
Did you not notice the lawyers apparel he was wearing when he appeared in court? What do you think he got that at a fancy dress shop
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