The court in its judgment did find OP intentionally shot in putative self defence.
It didn't make a finding as to whether his mistaken beliefs were reasonable, but it did make a finding that he took steps in response to his mistaken beliefs which the reasonable man would not have done as he would have foreseen the possibility of unlawfully killing the person behind the door as a consequence.
This properly constitutes culpable homicide, and was not contradicted in the sentencing judgment.
(Please be assured I'm not picking on you mrjitty, I do always reply when I feel something significant is not quite right)
No that is fine.
I worked as a barrister and solicitor so I am more than used to some issue based rough and tumble.
At least I understand your argument now.
So in summary I would have expected the result you articulate as the only way the judge could find CH
Namely Self Defence + Unreasonable Mistake
However I find no evidence she found self defence applied - in fact she fails to work through the test in any coherent fashion and even states the law incorrectly.
The accused had intention to shoot at the person in the toilet but
states that he never intended to kill that person. In other words he
raised the defence of putative private defence.
As pointed out by Prof Grant - with self defence you intend to kill (direct or eventualis)
lawfully
In particular we would have expected her to work through the test for self defence and make factual findings as to each element.
If you are also a lawyer then I am teaching you to suck eggs here, but the Appeal Court should not have to guess what findings the Court is making and what legal tests are being considered.
I don't think we can just assume she found self defence.
In particular the force was not reasonable in the circumstances and there was no imminent threat - therefore self defence could not apply.
Furthermore OP ruled out self defence in his own testimony.
So no - I don't think that explains it at all.
You can actually see in her judgement that she begins to consider self defence but then instead of working through the law of self defence, she proceeds to consider entirely different matters.
The Court cannot simply assume self defence applied without considering the tests. And certainly if the judge has failed to work through the tests for self defence, the Appeal Court cannot assume that the Judge so held.
Indeed as you can see in the judgement - she only makes a specific finding on the "putative" mistake part - and not on the self defence part.
Indeed the findings she goes on to make about the options open to the accused demonstrate that the force deployed was not reasonable in the circumstances.
From Prof Grants blog:
To succeed with a claim of self or private defence, one must satisfy a number of specific requirements. These requirements can be divided into those which relate to the attack, and those that relate to the response. The requirements of the attack are as follows:
1) One must be under an unlawful attack;
2) Which has commenced or is imminent;
3) Against a legally protected interest – such as life, bodily integrity, or property (of significant value), or the life, bodily integrity, or property of another.
The requirements of the defence are as follows:
4) Force used in response must be directed at the attacker (and no-one else);
5) Force must be necessary;
6) The extent of force must be necessary and reasonable.
So the judge made finding against points 5 and 6, and furthermore, point 2 does not apply.
But you know - a Court has to run through this list and put the facts to it.
You can't just assume SD applied, and no Appeal Court would either.
. From Greenlands words I took it that they have to show need for support towards OP. Assuming if they got financial support from another source it may have compromised their claim.
