Morning folks!
Hi AJ_DS, I am enjoying our friendly discussion. I agree - I think it's interesting, and also important given what's left to come in the trial.
I think it's time to draw breath and take stock and go over where our different understanding lies. I'm gonna suggest that the confusion all stems from something simple. Let's imagine a murder case where the defence argues PPD:
- You say that putative private defence (PPD) is not a defence against a murder charge. I disagree. I suggest this is the source of all confusion.
- You therefore say that PPD cannot and will not be considered by the judge in reaching a verdict on the murder charge. I disagree.
- You therefore say that the mental state of the accused at the time can be ignored in reaching a judgement on the murder charge. I disagree.
- You therefore say that PPD only comes into play if a not guilty verdict on the murder charge is determined. I disagree.
- You therefore say that PPD must always pass a test of reasonableness of the mistake as it can only be a defence against culpable homicide. I disagree - while necessary to defend a culpable homicide charge, it is not necessary to pass this test to defend a murder charge.
I am trying to understand and simplify where our disagreement lies. I've numbered the points so we can refer to them easily. Once we know what our 'positions' are, only then can we discuss any rights and wrongs in understanding.
Would you say that I've understood your view correctly? Do you have any Qs about my view?
(I hope this is coming across the right way, just being friendly and respectful and trying to learn and understand. Im always scared of tone coming across wrong on the internet!)
Good idea… no worries, I'm very much enjoying this debate… keep it coming
1. Agreed… PPT is a (valid) Defence against a murder charge… no question about it.
2. Yes and No… perhaps that where some of the confusion lies… Masipa will consider and address the PPD but she must FIRST address the State's charge of murder and the State's evidence (witnesses, experts, etc…
… Basically Nel's contention is that OP's version of events is a complete fabrication designed specifically to claim a false PPD scenario that would refute the murder charge. Masipa cannot test the State's version by confronting it against OP's story… it's the other way round… Masipa will test OP's version against the State's version and evidence… so in some ways PPD will be considered : OP's version (PPD) will be tested by the State's evidence.
3. I believe the 'mental state' is causing the confusion here… In the Murder charge, if it can be inferred from the evidence that OP knew he was shooting at Reeva, then the mental state as in '
perceptions, knowledge, thoughts, foresight and aims' are not necessary because intent and unlawfulness are sufficient… determining whether OP was furious, jealous, embarrassed, wanted to quiet Reeva, etc… is not relevant… when OP drew his gun, removed the safety, pointed at a screaming Reeva behind the toilet door and discharged 4 bullets... OP had the unlawful intent to kill Reeva.
Now in the PPD case… the mental state as in '
perceptions, knowledge, thoughts, foresight and aims' is the crux of the subjective (but mistaken) perception of a life-threatning situation and it must be used to determine if that perception was subjectively reasonable or unreasonable i.e. would a reasonable person in those circumstances have perceived their life was being threatened ?… but for this analysis to even occur, the Judge must FIRST address and reject the murder case… because the murder case implies that those circumstances never occurred, they are a fabrication.
4. Yes, Masipa has to address the murder charge first… As stated above, the State's contention is that OP is lying… Masipa must first decide that OP has not fabricated his version before analyzing the particulars of his PPD Defence. There is also a legal procedure to be followed… First, the State has laid a charge of murder against OP… Secondly, the State has presented evidence in support of the murder case against OP… Thridly, the Defence has presented evidence in support of the PPD case… The Judge must follow this sequence… she cannot skip ahead to the PPD, say she believes OP, and therefore discard the murder charge on that basis… she will have to first analyze the State's case and evidence (including Defence cross-examination and rebuttal evidence) and come to a decision on the Murder charge.
To illustrate this point : why would Masipa entertain the evidence of OP's vulnerability and limited mobility in the scenario where OP terrorized Reeva with a cricket bat, where Reeva was screaming for her life and where OP shot her ?… the same goes for many other statements made by OP : how does the blue LED and the pair of jeans fit into the State's domestic violence scenario ?… it is only relevant and probative in the Defence's PPD case.
5. We are somewhat in agreement… but I suspect not for the same reason, lol
The 3-step test must be passed to avoid culpable homicide… however the 3-step test will not be 'administered' until the murder charge is dealt with and rejected… no sense in administering the test if you determine the circumstances being tested are a fabrication.
The cases are
diametrically opposed and
mutually exclusive…
A. Masipa must decide first if murder is proven beyond a reasonable doubt.
B. If the answer is YES, then there is no point in analyzing the PDD.
C. If the answer is NO, then she must determine whether it is PPD or culpable homicide.
D. The 3-step test is administered.
E. The 3-step test is failed, it's culpable homicide.
F. The 3-step test is passed, it's PPD.
Masipa cannot look at both cases simultaneously and decide which one is 'more convincing' and discard the other for that reason.