AJ_DS
Former Member
- Joined
- Jun 18, 2014
- Messages
- 836
- Reaction score
- 0
Thanks to AJ_DS for his kind post on the previous thread: http://www.websleuths.com/forums/showthread.php?249307-Trial-Discussion-Thread-47-14-07-8-Day-38&p=10756852#post10756852 This is my response (sorry for those who must find all this boring!)
Hi AJ, my understanding is:
The court will consider all the evidence, the prosecution case and the defence case, and then come to its own judgement on whether the charge is proven beyond reasonable doubt.
If there is a not guilty verdict on murder, a charge of culpable homicide will then be determined.
Murder requires intent to unlawfully kill - there is no such thing as murder without intent. The weakest form of intent is dolus eventualis, ie you did not want to kill the person but you must have foreseen the possibility that this would happen. The strongest form is dolus directus - you wanted to kill. The mental state of the accused at the time - meaning his perceptions, knowledge, thoughts, foresight and aims - is therefore key in reaching a verdict on murder.
A defence of putative private defence is an absolute defence against the charge of murder, ie it acquits the accused regardless of other evidence or argument. This is because by definition, the accused did not intend to unlawfully kill, they intended to act lawfully but were mistaken. It is not an absolute defence however against culpable homicide, as the accused may still have acted unreasonably.
Your original point is that if a court finds an accused genuinely believed he was acting lawfully in self defence, this is not sufficient to constitute a defence of PPD. You say that in addition a test of reasonableness must be passed - it is necessary for the accused to show his belief he was under attack was reasonable. I say I'm not sure where you get this additional test from - I don't see how it can be in accordance with the law, if you didn't have intent to unlawfully kill, you cannot have murdered. You say this is irrelevant, because PPD is not a defence against the murder charge, it is its own separate case with its own aims to be tried, if and when the murder charge is not proven. This makes no sense to me, and I disagree. You also say it is a test of subjective reasonableness not a test of objective reasonableness, and I'm also not sure what this means.
Please do correct me if I've misunderstood anything you've said
Thanks again for the discussion, pandax
Masipa can't just 'find an accused genuinely believed he was acting lawfully in self defence' directly… Masipa must follow these steps, in this sequence :
1. Address the State's case for Murder… this means exploring and explaining why she does not believe there is sufficient credible and reliable evidence to support the charge of murder beyond a reasonable doubt.
2. Address the Defence's case of PPD… this means exploring and explaining why she believes OP's version and evidence is sufficiently credible and reliable to support the case for PPD.
3. Apply the 3-step assessment to determine whether the death of Reeva was lawful (PPD) or unlawful (culpable homicide)
What you seem to suggest (and I may be misunderstanding) that Masipa can jump ahead to (2.) and dismiss (1.) by using (2.)… I don't believe that is legally possible