Masipa found that he was in fear for his life, the SCA did not take this seriously.
Oscar Pistorius - Discussion Thread #69 *Appeal Verdict*
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Masipa found that he was in fear for his life, the SCA did not take this seriously.
So how did he say OP's disability would affect his response to the perceived danger?
This is really how i feel about Steyn - his articles lack reality in terms of an appeal
No one understands this better than a full bench
Especially you can't come crying to the SCA if you've been an evasive & deceptive little weasel on the stand.
Sorry I would have thought you would have known that without me having to tell you, suggest you read it up from the transcript
Marfa Lights
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Maybe because hearing your girlfriend go to the toilet in the middle of the night does not warrant going on a reckless rampage and blowing four holes in the toilet door without checking to see who is in there??
I know, you think that was merely negligent...
Tortoise
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Masipa disagreed with Derman's theory of the reflex startle response. Are you trying to raise it from the dead?
I think you are getting a little confused. Grant was an Advocate of the High Court during the appeal, ie a practicing lawyer. Steyn has never been as such
I already know. I'm saying you don't and if you don't tell me then we'll know you don't and I will suggest had no intention of knowing.
I agree but in this case OPs "mistake" is only as to identity
There is no mistake about the woody sound
Perhaps I am going too tangential here but I feel OP is seeking to manufacture objective grounds where none exist - the law does not allow this.
Tortoise
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Not at the critical moment of pulling the trigger she didn't. The SCA didn't disturb this - they took into account his fear and anxiety.
Yes, during the appeal. Not before. You referred to a "practising lawyer". He was only a practising lawyer after the first time he had been in court for the appeal.
It's a false equivalence in any event.
Prof Grant is a recognised criminal law expert and official member of the prosecution team.
Steyn wrote some blogs about the case which are not authoritative.
Good luck to Roux if he can make something of those submissions - but as we saw with the SCA - they don't take kindly to being referred to lightweight articles.
But I do know and like Masipa have dismissed Derman’s reflex startle response theory apart from that I have no intention of playing silly games
Prof Grant was fully qualified long ago.
When and where he was admitted to the bar is irrelevant to the case and the conduct of the appeal.
I am admitted - it means nothing - I have only appeared in the High Court once!
They paid lip service to it because they failed to take a subjective view.
Oh I see. So I go to see my newly appoint GP to find out that only after he has treated me does he becomes a practicing doctor
Now that is really weird
Are you serious?
The use of the term was to suggest greater experience in practice and that was not the case.
Tortoise
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You are still getting this wrong and I'll explain why.
Intention to shoot does not account for reason for shooting. It can be shooting to murder or shooting in self-defence.
Masipa did not establish in her judgement that when he shot he shot in PPD.
So no one is with you on this - not even Masipa! - not Roux, the DT, the PT, or the bench of judges at the SCA.
That is why :-
Roux asked at the SCA - so why did he shoot? He knows PPD was not established by the trial court.
The DT tucks in a couple of paragraphs at the end of the appeal saying - the finding that he intended to shoot MUST be considered in view of the finding that he believed his life was in danger. There's a clue in there somewhere (if you look hard enough) that it just wasn't an explicit finding of the trial court.
Yet you persist in regularly asserting that his evidence of not shooting in PPD is supplanted by Masipa's finding of intention to shoot.
If you have an argument as to why you are right, not just that you are right, then state it. Otherwise it looks as if you are maintaining a view without justification, that you are not open to considering the real merits of the case.
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Sometimes I wonder if the differences in opinion on this forum could partially result from the different laws around homicide in our respective countries-- I know we all try to interpret things using SA law, but I think we are often framing things from a slightly different legal perspective, particularly with standards or requirements for reasonableness.
This might be of interest:
http://matterscriminal.blogspot.com/2015/12/dolus-eventualis-and-pistorius-case.html
What is more problematic, in the Pistorius case, is that the accused alleged that he thought he was being confronted by a human being who is posing a threat to his life. This raises the question of "putative private defence". In South African law, putative private defence relates to cases where the accused makes a mistake about the need to use force to avert an unjustified threat. If the accused honestly believes that his life is in danger, but is wrong, he has still acted unlawfully. The belief that he was acting lawfully can nevertheless exclude dolus. The assessment of whether the accused is then convicted of culpable homicide or completely acquitted is dependent on the circumstances of the individual case, and whether the accused was negligent (possessed an alternative form of fault to dolus, known as culpa) as to the causing of the death. It was concluded at trial that such negligence existed, hence Pistorius's original conviction for culpable homicide. The appellate court found that Pistorius was outside the ambit of the defence of putative private defence because he did not know that the person in the toilet was a threat to him. In short, Pistorius's evidence was not convincing enough to make the court think that he might have held an honest belief that he needed to use defensive force. He thus could not rely on putative private defence.
(For comparison, in England and Wales, an honest (even if unreasonable) belief that force is necessary to avoid a threat can justify the use of proportionate force (including lethal force, if that is proportionate). A defendant should be acquitted outright if he honestly believed that force was necessary, and he used proportionate force to respond to the threat that he honestly believed to exist. In Scotland, the accused must not only have an honest belief about the necessity of force - that belief must also be reasonable. Quite how different these two tests are in high-pressure situations is debatable. But, in theory, the Scottish approach is far less forgiving, and arguably accords greater value to the sanctity of life.)
This might be of interest:
http://matterscriminal.blogspot.com/2015/12/dolus-eventualis-and-pistorius-case.html
What is more problematic, in the Pistorius case, is that the accused alleged that he thought he was being confronted by a human being who is posing a threat to his life. This raises the question of "putative private defence". In South African law, putative private defence relates to cases where the accused makes a mistake about the need to use force to avert an unjustified threat. If the accused honestly believes that his life is in danger, but is wrong, he has still acted unlawfully. The belief that he was acting lawfully can nevertheless exclude dolus. The assessment of whether the accused is then convicted of culpable homicide or completely acquitted is dependent on the circumstances of the individual case, and whether the accused was negligent (possessed an alternative form of fault to dolus, known as culpa) as to the causing of the death. It was concluded at trial that such negligence existed, hence Pistorius's original conviction for culpable homicide. The appellate court found that Pistorius was outside the ambit of the defence of putative private defence because he did not know that the person in the toilet was a threat to him. In short, Pistorius's evidence was not convincing enough to make the court think that he might have held an honest belief that he needed to use defensive force. He thus could not rely on putative private defence.
(For comparison, in England and Wales, an honest (even if unreasonable) belief that force is necessary to avoid a threat can justify the use of proportionate force (including lethal force, if that is proportionate). A defendant should be acquitted outright if he honestly believed that force was necessary, and he used proportionate force to respond to the threat that he honestly believed to exist. In Scotland, the accused must not only have an honest belief about the necessity of force - that belief must also be reasonable. Quite how different these two tests are in high-pressure situations is debatable. But, in theory, the Scottish approach is far less forgiving, and arguably accords greater value to the sanctity of life.)
Tortoise
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Rubbish. They didn't believe his reasons for shooting or that he even gave a coherent reason for shooting - it wasn't reasonably possibly true that he thought he was lawfully entitled to shoot according to the evidence. He didn't consciously discharge his firearm according to his counsel.
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