Fascinating discussion. My quandary here is that I think Pistorius being convicted of murder is the just outcome, but I'm not sure that it is legally correct, so far as the SCA (as opposed to Masipa) is concerned. Or, at the very least, I think it is being selectively applied.
IMO, Pistorius should have been convicted of DD at the original trial. His "intruder" story was a fairy tale. He had no rational basis for believing that the person in the bathroom was anyone other than the other person in his home. If the court is obliged to accept "well, I thought the other person living here was still in bed -- my bad!" as a valid defense for shooting people in the dark, it would be almost impossible to convict anyone for crime of passion killings with no witnesses.
However, if the SCA was obliged by Masipa's ruling to accept that OP believed an intruder was present, the verdict of murder seems inappropriate to me.
I am a woman who lives alone. No one else but my landlord has a key to my apartment. If tonight I were to wake up at 4AM to find an unknown person in my bathroom, I can be pretty darn sure that person is not in there for any good reason. I would be scared out of my mind, and the last thing I would be doing is considering whether or not my actions met lawful standards of self-defense. My apartment is small, and the most natural thing to do would be to exit as quickly as possible. But if for some reason I couldn't -- like, perhaps, being hampered by not having legs, or (if I actually HAD gone to sleep with someone next to me in bed) worrying about another person I couldn't wake without tipping off the intruder - and had a firearm, well, I'm far from sure I wouldn't use it.
I strongly suspect that were this to happen in SA, and I wound up killing an actual intruder in my home (armed or not), I would not be facing a 15 year murder sentence.
Again, no pity for OP, because I think he is actually guilty of DD. But I agree with those who think the Court is using DE as a consolation prize because the law doesn't allow them to retry DD at this point. If OP had killed a burglar in his home that night, we wouldn't be having the same kind of discussion.
I think this is a very well stated and interesting post.
I think there is a mistake in this way of thinking though - of thinking the case as you have done - of whether you too when faced with this situation, might have shot a perceived intruder to death through a closed toilet door, and whether you should be found guilty of murder if you had done so. Where that line of thinking falls down, in my view, is that it is entirely imagined, it is your take on imagining that you had no other option than to kill the intruder because if you gave them a few seconds more you might end up dead yourself. What that imaginary scenario doesn't do is to take account of Pistorius' case, his evidence/testimony, the step by step account in his words of how it happened, and the proven facts and findings.
Each case is different in every respect - and the available evidence must be tested rigorously to decide the case. I'm sure you would agree that if there is even the remotest possibility that this person has invented this story to cover up murdering his spouse, the courts have a duty to establish that - in the interests of justice for the victim and for the protection of society in general from this person with a lethal weapon at his disposal. It cannot be treated lightly, and every reported case of an imagined intruder taken at face value, so the case demands a high attention to detail.
I apologise if this sounds condescending - that is not my intention but it helps me to clarify my point of view.
In Pistorius' case, there was much to give the court and the police concern -
He was unable to keep his version straight from what happened in the bedroom to what happened in the bathroom. It changed after bail, and then morphed significantly during the trial, where not least significant was his changed defence. He said he did not fire at the intruder (thus to save his life) but he fired before any thought and without conscious choice.
Nevertheless, the judge did accept that while he was untruthful, there was no evidence to disprove his claim that he thought Reeva was in bed and an intruder was in the closed toilet. That is where it ends though, with her acceptance that he was mistaken as to who he was shooting. She did not examine, in her written judgement at least, his actions towards the intruder. Why he fired his gun 4 times, deliberately, with no sight of any danger or sight of movement while his awareness was not compromised in any way by his mobility problems.
His reason for firing, at the moment of firing, apart from a belief from the moment he went into action that morning that his life could be in danger, was given zero attention. Her findings of the events during the shooting were missing and her application of the law regarding his intentions towards the intruder missing also.
Very importantly however, she rejected the notion that he was compromised by his disability and therefore excused for his actions, or that he lost control of his trigger finger. So linking that back to the imagined scenario, where he could not escape - his vulnerability and mobility problems held no weight in her determination, he was thinking rationally throughout, observant and in control. He had other options.
Then we get to the SCA because of the unquestionable legal errors in the judgement. Whether that was due to poor drafting or actual mistaken knowledge and application of the law is not clear to anyone, but suffice to say the judge herself agreed when she gave leave to appeal, that another court may have decided differently. They cannot review the finding that he thought an intruder was behind the door, but since they do determine that the law was not applied properly, the duty has now passed to them to deliver justice. They act within their rights and powers to assess the whole of the evidence when they apply the law, and they are entitled to their determination that the accused has not testified truthfully, because that much was a finding of the judge at trial.
So linking back again to the imagined scenario, we now have a vulnerable and disabled accused person who cannot rely on that to excuse his shooting, and an accused who has not been truthful because he has given conflicting versions that cancel each other out. In your scenario you are no longer able to imagine that you shot and killed because you were vulnerable, as opposed to being a seven foot heavyweight boxing champion say, you are no longer able to imagine that you shot to protect and defend yourself - because you fired by impulse rather than choice, and you are not in a position to defend your actions any longer because you haven't given one consistent honest account of what happened. So my point is, the imagined scenario crumbles away, the one where posters like to imagine that they would not be convicted of murder if they genuinely mistook a spouse for an intruder in the dark - the facts are just not the same as Pistorius'.
In this respect I don't think DE is a consolation prize at all, it is the correct verdict on the evidence, with the disregarded evidence of DD, because the evidence establishes that he did not act in PPD. We don't have to think of it as - what if it had been a real intruder - because if it had been, his version would have been genuine (as opposed to invoking disbelief) and unwavering.
