A legal opinion Written by Pierre De Vos on February 22, 2013 at 15:15 pm
http://constitutionallyspeaking.co.za/oscar-pistorius-criminal-law-101/
"Error in objecto can never be a valid defence on a count of murder, provided that it stands firm that the accused’s error was only as far as the identity of the victim is concerned. In other words, the accused inttends to kill Y (a suspected intruder in casu), but, inadvertently kills Z (Reeva in casu) – error in objecto cannot be a valid defence. In such a case it does not matter whether the accused did not have the subjective foresight that he might be killing Z instead of Y – and it does not matter that Z’s details are mentioned in the charge (and not that of Y). … On the other hand, I think that error in objecto might be a valid defence if the accused subjectively erred by thinking that he is shooting an animal, and not a human being, under circumstances where he would have been lawfully permitted to kill an animal (e.g., a hunting dog or a wild animal out in fields where a farmer’s sheep are; or baboons suspected of stealing mealies; etc.) … It will all depend on whether the trial court (and / or the appeal courts) believes the accused’s version of the events.
In this case, however, it appears from the outset that Oscar (on his version) only erred in as far as the identity of the person is concerned – he did not think that he was shooting at something else than a real person. So the defence of error in objecto will not constitute a valid defence.
Most of what you said above is correct, but I think that more detail should be given as part of your 101 so that other readers may understand – I see one person asks what the possible sentence would be if Oscar is in the end convicted of culpable homicide instead of murder.
Murder is defined as the unlawful and intentional killing of another human being. The elements that the state will have to prove is
(1) willful conduct – either an omissio or commissio [no problem in this case - Oscar was, on his own version, perfectly in his sound and sober senses and he clearly and willfully wanted to discharge some shots from his fire arm, which he did];
(2) unlawfulness of the conduct [again no prolem in this case - conceded by Barry Roux - as obectively judged, Oscar's life and limb or property were not in danger at all, therefore, not entitled by law to act in private defence]; a consequence of the conduct (which is causally linked to the conduct) – in this case, the death of another person – Reeva [again no problem in this case as consequence – death of a person – and causal link between the conduct – shooting – and the consequence stands beyond any doubt whatsoever). All that remains is to determine whether Oscar was at fault and can therefore be blamed in terms of the criminal law for his unlawful killing of another human being.
Murder requires intent as the form of mental blameworthiness (mens rea if you will) – as opposed to culpable homicide where negligence (sometimes called culpa or criminal negligence if you wish) is enoght to establish culpability. The test for intent (as youn rightly observe) is subjective – in other words, the state (through evidence and other objective facts) must establish that the accused (in his own subjective mind) legally intended the killing of another person. Again, as you rightly observe, there are more than one form of intent that is recognized here – dolus directus (or direct intention) where the accused intends killing the other person (regardless of the identity of that person – I might add); dolus indirectus (or indirect intention – where the accused shoots at an object but realises that, in order to hit that object, he will necessarily have to hit and kill a person); and dolus eventualis (subjective forseeable intent – where the accused person foresees that his conduct might kill another person – e.g.’the motorvehicle accident cases resulting in convictions of murder). Again, in this case, I do not think that, even on Oscar’s own version, can he escape the ultimate conclusion that he intended killing another person. He shot at what he perceived to be another person – on the state’s version, Reeva, on his version, a suspected intruder, and a court will have to be naive to hold that he did not intend killing that person (firing four shots, in close grouping, through a closed door on the hieght of the toilet). I do not think that the court will even be required to test for negligence, since intention, probably direct intention, to kill another person would easily be established by the objectively ascertainable facts in this case. (However, if negligence must in the end be tested for – as suggested by Gerrie Nel the best possible scenario for Oscar – the test will be objective, not subjective.
In other words, the court will have to determine whether the reasonable person in Oscar’s position would have foreseen that he might kill another human being.
In such a case – the crime to be considered would be culpable homicide.) I do not think it will come to that though –
we have enough facts disclosed at the bail hearing to conclude otherwise, namely that Oscar intended killing another human being. At the most, there can be a difference of opinion whether he directly intended killing another person, or whether he can only be blamed on grounds of dolus eventualis.
(The argument by Barry Roux during the bail hearing that the state charged Oscar with the intention to kill Reeva and not with the intention to kill a suspected intruder, and that he can therefore never be held guilty of the crime charged – is laughable to say the least because, as we have established, any error in objecto will not assist Oscar in escaping conviction. If a bomber boms a place, he will be charged and convicted of the murder and attempted murder of every victim by name, even though the accused did not know their identity.)
However, and again you are right – intention does not only require that the accused person intends (in law) to kill another person – be it with direct, indirect or foreseebale intent; but, also that the accused subjectively knew or, at least, foresaw, that his conduct will also be legally inexcusable or unlawful.
This is where putative private defence comes into play as in the De Oliveira case you cite. If one subjectively thinks (or, in the case of negligence, if the reasonable person in the same circumstances would have thought) that one’s conduct is lawful – that one is entitled to act in private defence, then intent (or negligence) in the unlawful killing would not have been established. Again, the question will be – who does the court believe?
The SCA spelt it out in the De Oliveira matter that a court will not easily come to a decision favourable as to the accused’s state of mind if he does not testify so that his version can be tested through cross examination. However, if an accused person does testify in such circumstances, and his version is not believed to be reasonably possibly true when weighed against the state’s case (evidence and other objectively ascertained facts), and where the court finds that the state’s case had to be believd instead – in other words that there was no error on the legal position, the accused will still be convicted of murder. (By the way – putative private defence also arises in culpable homicide or negligent killing cases – in such cases the court will have to determinne whether the reasonable person in the position of the accused would have known or, at least, foreseen, that his conduct is unlawful.)
It is in this regard that I have argued elsewhere that Oscar’s version of putative private defence (that he thought he shot at suspected intruders) – on the probabilities alone, sounds less convincing than the version of the state, that he intended killing Reeva.
I am also of the opinion that, even should his own version be accepted (which is the most improbable of the two postulations), the trial court will in the end find that he indeed erred in law, in other words that he indeed thought that he is entitled to shoot and kill an intruder without first warning and challenging and without establishing that a killing of the person is required.
Even if he testifies at his own trial, I do not think he will escape conviction on this defence. If, on the other hand, the state’s case is accepted, which I think more probable at the moment, the court will outright reject his version and find that there was no case of error.
OK. I am not going into the onus of proof thing – and I know that criminal cases are usualy not settled only by ascertaining the inherent probabilities and improbabilities (the onus is proof beyond reasonable doubt, not proof on a preponderance of probabilities as in civil matters).
But, on the facts as they stand, I think one can argue that Oscar’s chances of escaping a conviction at his ultimate trial is less than favourable (or slightly less than average as someone else would have said).
Now – the question of sentence. The issue of planning or premeditation to murder is only relevant as far as sentence is concerned (and to determine whether the charge is a schedule 6 or a scedule 5 one at a bail hearing).
If premeditated or planned – the minimum sentence would be life imprisonment in terms of section 51(1) of the Criminal law Amenment Act 105 of 1997; or, if not premeditated – the minimum sentence would be 15 years imprisonment in terms of section 51(2)(a)(i) of the same Act, except if the court could find that there are substantial and compelling circumstances justifyaing a lesser sentence.
In the case of culpable homicide, there is no minimum sentence – but in cases of gross negligence (and I think IF a court finds that intent has not been proven, only negligence, the court will be hell-bent to find that there was only minor negligence, not gross negligence on his part), courts will almost invariably impose a term of gaol.
Oscar’s chances are therefore not good – but, as far as the possibility of bail is concerned, I have remarked elsewhere that, even if the state’s case is strong, which I think it is, he will be granted bail. I do not know what Desmond Nair is thinking – as I am not listening to his judgment right now – but, I think that there is a reasonable possibility of him being granted bail nonetheless. One should however still bear in mind that the magsitrate’s findings at the bail hearing are not binding on the trial court – and two different findings may indeed be possible, depending on the evidence eventually presented to the trial court.
:floorlaugh: 
