An
interesting post by Jeremy99 yesterday on DS, copied in full:
This is why so many legally trained people are confused:
'subjective foresight can be proved by inference. Moreover, common sense dictates that the process of inferential reasoning may start out from the premise that, in accordance with common human experience, the possibility of the consequences that ensued would have been obvious to any person of normal intelligence.'
The process of foresight begins when one buys a gun for self defence and keeps it next to the bed. One knows what a gun does. One visualises possibilities. One imagines what one might have to do, when one choses to employ a gun for self defence.
So you can obviously see that if you have a gun for self defence, and someone breaks in to your house and you shoot them dead, that it is hard to argue you did not foresee this eventuality.
you laid in a lethal weapon, rather than making alternate choices.
The next logical step would then be to ask whether, in the light of all the facts and circumstances of this case, there is any reason to think that the appellant would not have shared this foresight, derived from common human experience, with other members of the general population.'
Yes the circumstances do matter.
If I fire warning shots out the window, I might not actually foresee hitting anyone. If I grab a knife in panic and strike out blindly, i might not ever have turned my mind to outcomes.
However the judge held he did intend to shoot the "intruder"
So how can the subjective foresight not have been inferred?
“The question is 1.) did the accused subjectively foresee that it could be the deceased behind the toilet door; and 2.) notwithstanding the foresight, did he then fire the shots, thereby reconciling himself to the possibility that it could be the deceased in the toilet? The evidence before this court does not support the state’s contention that this could be a case of dolus eventualis. On the contrary, the evidence shows that from the onset, the accused believed that at the time he fired shots into the toilet door, the deceased was in the bedroom while the intruders were in the toilet.”
This is troublesome to say the least, because he intended to shoot whomever was behind the door. What does the identity of the deceased have to do with it?
“He did not subjectively foresee this as a possibility that he would kill the person behind the door, let alone the deceased, as he thought she was in the bedroom at the time.”
and
“The accused cannot be guilty of murder dolus eventualis … on the basis that, from his belief and his conduct, it could not be said that he foresaw that either the deceased or anyone else for that matter, might be killed when he fired the shots at the toilet door. It also cannot be said that he accepted the possibility, or brought that possibility into the bargain.”
but on what basis has this inference be made?
We find this...
“It follows that the accused’s erroneous belief that his life was in danger excludes dolus.”
Puzzling to say the least
Acting in self defence of ones life makes the killing lawful - it does not exclude intention to kill.
There really is nothing about the facts that dispel the obvious inference.
And it really points to the larger issue
People are keeping guns for self defence (or private defence) - but the law is extremely restrictive about when you can shoot people in self defence.
Masipa herself found that the force used was not reasonable - which rules out (Putative) Self Defence.
The judgement makes no sense on its face.
