Oscar Pistorius - Discussion Thread #63 ~ the appeal~

[GR_Turner]

You clearly don't understand the law of PPD/self defence.

If PPD is accepted it is a complete defence - rendering the killing lawful.

A lawful killing cannot be CH

Did you read the extract from the judge in the Oliveira case 1993 that I quoted earlier? PPD and self-defence are different so you can't just put them together as you seem to be doing.

I repeat it here: (my bold)

In S v De Oliviera 1993 (2) SACR 59 (A) on page 63 h – 64 a, Smalberger JA drew a clear distinction between private defence as a defence excluding unlawfulness, which is judged objectively, and “putative” or “supposed” private defence, which relates to the mental state of the accused when he states as follows:-

“From a juristic point of view the difference between these two defences is significant. A person who acts in private defence acts lawfully, provided his conduct satisfies the requirements laid down for such a defence and does not exceed its limits. The test for private defence is objective – would a reasonable man in the position of the accused have acted in the same way (S v Ntuli 1975 (1) SA 429 (A) at 436E). In putative private defence it is not lawfulness that is in issue but culpability (‘skuld&#8217. If an accused honestly believes his life or property to be in danger, but objectively viewed they are not, the defensive steps he takes cannot constitute private defence. If in those circumstances he kills someone his conduct is unlawful. His erroneous belief that his life or property was in danger may well (depending upon the precise circumstances) exclude dolus in which case liability for the person’s death based on intention will also be excluded; at worst for him he can then be convicted of culpable homicide.”

 

[cottonweaver]

Thanks so much for reminding me of this!

I think Greenland does a great job of showing what goes wrong when you start mixing up facts and theories and inferences.

Here's the other article written by him, in case you you're interested/not read it

http://www.news24.com/MyNews24/The-Problem-with-the-Oscar-Pistorius-Judgment-For-Dummies-20140928

ends with
"Such a finding is not only NOT possibly, reasonably true. It is arbitrary and irrational.
Arbitrary and irrational are to justice as oil is to water."

 

[Marfa Lights]

You clearly don't understand the law of PPD/self defence.

If PPD is accepted it is a complete defence - rendering the killing lawful.

A lawful killing cannot be CH

Forgive me, but my understanding is that only PD (Private Defense or Self Defense is a complete and lawful defense to Murder.

As discussed upthread, I thought it was determined that a PPD (Putative Private Defense) action is considered inherently UNLAWFUL and has to be justified by the accused to determine whether or not "depending on the precise circumstances" dolus can be excluded.

Perhaps someone can explain then how this part of Masipa's judgment (p.3326) misrepresents the law:

If any accused honestly believes his life or property is in danger but objectively viewed they are not, the defensive steps he takes cannot constitute private defence. If, in those circumstances, he kills someone, his conduct is unlawful. His erroneous belief that his life or property was in danger may well (depending on the precise circumstances) exclude dolus in which case the liability for the persons death based on intention will also be excluded.

 

[mrjitty]

Intentions are always inferred.

No Court has direct access to the accused state of mind.

If the police arrive and a black intruder is lying dead on the bathroom floor, none of you are going to be questioning the logical inference that OP meant to shoot the intruder.

 

[mrjitty]

Did you read the extract from the judge in the Oliveira case 1993 that I quoted earlier? PPD and self-defence are different so you can't just put them together as you seem to be doing.

I repeat it here: (my bold)

In S v De Oliviera 1993 (2) SACR 59 (A) on page 63 h – 64 a, Smalberger JA drew a clear distinction between private defence as a defence excluding unlawfulness, which is judged objectively, and “putative” or “supposed” private defence, which relates to the mental state of the accused when he states as follows:-

“From a juristic point of view the difference between these two defences is significant. A person who acts in private defence acts lawfully, provided his conduct satisfies the requirements laid down for such a defence and does not exceed its limits. The test for private defence is objective – would a reasonable man in the position of the accused have acted in the same way (S v Ntuli 1975 (1) SA 429 (A) at 436E). In putative private defence it is not lawfulness that is in issue but culpability (‘skuld&#8217. If an accused honestly believes his life or property to be in danger, but objectively viewed they are not, the defensive steps he takes cannot constitute private defence. If in those circumstances he kills someone his conduct is unlawful. His erroneous belief that his life or property was in danger may well (depending upon the precise circumstances) exclude dolus in which case liability for the person’s death based on intention will also be excluded; at worst for him he can then be convicted of culpable homicide.”

I can only suggest you critique Prof Grant's analysis and point out where he has gone wrong.

I see no inconsistency between Grant's analysis and S v De Oliviera

Per Smalberger JA

If an accused honestly believes his life or property to be in danger, but objectively viewed they are not, the defensive steps he takes cannot constitute private defence. If in those circumstances he kills someone his conduct is unlawful

This is exactly what Masipa found.

Even with the mistaken belief, the defensive steps were excessive.

Therefore PPD was not made out.

PPD does include an extra question - namely was the honest belief reasonable?

Masipa did not need to answer that question

 

[Colin de France]

Intentions are always inferred.

No Court has direct access to the accused state of mind.

If the police arrive and a black intruder is lying dead on the bathroom floor, none of you are going to be questioning the logical inference that OP meant to shoot the intruder.

.........you're an expert in law if i'm right.......how can an intention be inferred and straight after "the court has no direct access to the accused state of mind"........that is a contrediction..........who has the monopoly on reason which enables them to know what was intentional from a myriad infinite of possibilities.......whatever is being inferred to is being done so from a certain perspective, a certain bias or as in this case retrospectively................

 

[mrjitty]

.........you're an expert in law if i'm right.......how can an intention be inferred and straight after "the court has no direct access to the accused state of mind"........that is a contrediction..........who has the monopoly on reason which enables them to know what was intentional from a myriad infinite of possibilities.......whatever is being inferred to is being done so from a certain perspective, a certain bias or retrospectively......

So if OP instead punches Reeva in the face and the police arrive and find her with a black eye and OP has a broken hand - we can't infer he intended to punch her unless he admits it?

 

[Colin de France]

So if OP instead punches Reeva in the face and the police arrive and find her with a black eye and OP has a broken hand - we can't infer he intended to punch her unless he admits it?

....progress........so there is also an element of time involved between the intention and the act.........and it's just there the problem, when the court said he went for his gun with the intention of shooting her.......does that not pose a problem for you, because it does for me........he may very well of gone for his gun but that does not count as proof (mosaic of proof) that he intended to shoot at her, he may as i have stated before of gone to shoot at the door having not been able to achieve success with the bat.......and in the process of shooting at the door, shot her...........

 

[mrjitty]

Forgive me, but my understanding is that only PD (Private Defense or Self Defense is a complete and lawful defense to Murder.

As discussed upthread, I thought it was determined that a PPD (Putative Private Defense) action is considered inherently UNLAWFUL and has to be justified by the accused to determine whether or not "depending on the precise circumstances" dolus can be excluded.

Perhaps someone can explain then how this part of Masipa's judgment (p.3326) misrepresents the law:

If any accused honestly believes his life or property is in danger but objectively viewed they are not, the defensive steps he takes cannot constitute private defence. If, in those circumstances, he kills someone, his conduct is unlawful. His erroneous belief that his life or property was in danger may well (depending on the precise circumstances) exclude dolus in which case the liability for the persons death based on intention will also be excluded.

PPD is also a complete defence to murder.

Of course shooting Reeva is objectively unlawful because she was not an intruder.

1. Instead we first ask did OP act honestly under a mistaken belief (i.e. subjective) that she was an intruder?

2. If yes, then we ask, given the facts as OP mistakenly believed them to be, were the defensive actions reasonable or excessive? This is effectively the same test as for PD (self defence)

3. If they were reasonable, we further ask, was OP's mistake objectively reasonable?

In this case Masipa found at point 2 that the actions were excessive. Therefore PPD does not apply.

As far as Masipa's statement goes - I think we all agree its confusing, because as grant rightly states - she doesn't state the legal question correctly.

PD/PPD don't exclude Dolus.

They provide lawful justification.

 

[mrjitty]

In the end - if OP did not foresee killing anyone, why is he pleading self defence?

It's mutually exclusive because self defence by shooting someone is all about intentionally deploying lethal force against a threat.

If you didn't intentionally act against the threat then you didn't act in self defence.

I could understand it better if Reeva had been hit by a ricochet as then you could logically argue you fired a warning shot (reasonable) but the stray bullet hit her. Negligent perhaps, but not actually foreseen.

 

[aftermath]

PPD is also a complete defence to murder.

Of course shooting Reeva is objectively unlawful because she was not an intruder.

1. Instead we first ask did OP act honestly under a mistaken belief (i.e. subjective) that she was an intruder?

2. If yes, then we ask, given the facts as OP mistakenly believed them to be, were the defensive actions reasonable or excessive? This is effectively the same test as for PD (self defence)

3. If they were reasonable, we further ask, was OP's mistake objectively reasonable?

In this case Masipa found at point 2 that the actions were excessive. Therefore PPD does not apply.

As far as Masipa's statement goes - I think we all agree its confusing, because as grant rightly states - she doesn't state the legal question correctly.

PD/PPD don't exclude Dolus.

They provide lawful justification.

Is dolus not linked to the concept of unlawfulness?

 

[aftermath]

In the end - if you did not foresee killing anyone, why are you pleading self defence?

It's mutually exclusive because self defence is all about intentionally deploying lethal force against a threat.

If you didn't intentionally act against the threat then you didn't act in self defence.

What if you intentionally acted against a threat but did not intend to kill the threat?

 

[mrjitty]

What if you intentionally acted against a threat but did not intend to kill the threat?

Well exactly.

e.g. if you tried to shoot them in the foot, and never actually thought it might kill them.

But this wasn't pleaded.

ETA Sorry All - i have gone on too much about this aspect

 

[Colin de France]

Well exactly.

e.g. if you tried to shoot them in the foot, and never actually thought it might kill them.

But this wasn't pleaded.

ETA Sorry All - i have gone on too much about this aspect

.....are we restrained in this discussion to what was pleaded ......?

 

[mrjitty]

.....are we restrained in this discussion to what was pleaded ......?

No but seeing as Masipa did not make that kind of finding, its not relevant to the case.

Grant actually covered this kind of argument.

 

[Marfa Lights]

<RSBM>
This is exactly what Masipa found.

Even with the mistaken belief, the defensive steps were excessive.

Therefore PPD was not made out.

PPD does include an extra question - namely was the honest belief reasonable?

Masipa did not need to answer that question

Just to clarify the BIB above-- when you say "PPD was not made out" are you saying this from your own legal perspective and as it might pose possibilities for the appeal?

Because my reading of her judgment is that she clearly accepted his claim of Putative Private Defense:

His version was that he genuinely, though erroneously, believed that his life and that of the deceased was in danger.
There is nothing in the evidence to suggest that this belief was not honestly entertained (p.3326) ....There is no doubt that when the accused fired shots through the toilet door, he acted unlawfully (p.3327).... It follows that the accused&#8217;s erroneous belief that his life was in danger excludes dolus. The accused therefore cannot be found guilty of murder dolus eventualis. That however, is not the end of the matter, as culpable homicide is a competent verdict. (p.3329)


My understanding was that she bought the PPD claim "hook, line and sinker" excluding dolus and then found the excessive force to apply to the CH verdict.

Not trying to be argumentative, just a little confused by your use of the phrase "not made out."

 

[Colin de France]

No but seeing as Masipa did not make that kind of finding, its not relevant to the case.

Grant actually covered this kind of argument.

......maybe...but Grants not here.............relevance, is that a distant cousin of inference ?

 

[JudgeJudi]

For those who are interested, here is the curricula vitae for all current serving members of the SCA as at 22 May 2015.

http://www.justice.gov.za/sca/judges_cv.html

 

[mrjitty]

Just to clarify the BIB above-- when you say "PPD was not made out" are you saying this from your own legal perspective and as it might pose possibilities for the appeal?

Because my reading of her judgment is that she clearly accepted his claim of Putative Private Defense:

His version was that he genuinely, though erroneously, believed that his life and that of the deceased was in danger.
There is nothing in the evidence to suggest that this belief was not honestly entertained (p.3326) ....There is no doubt that when the accused fired shots through the toilet door, he acted unlawfully (p.3327).... It follows that the accused&#8217;s erroneous belief that his life was in danger excludes dolus. The accused therefore cannot be found guilty of murder dolus eventualis. That however, is not the end of the matter, as culpable homicide is a competent verdict. (p.3329)


My understanding was that she bought the PPD claim "hook, line and sinker" excluding dolus and then found the excessive force to apply to the CH verdict.

Not trying to be argumentative, just a little confused by your use of the phrase "not made out."

Re the Masipa quote

This is the whole point of the appeal, and Grant's original critique.

The State submits that Masipa is 100% wrong on that.

Think of it this way.

OP opens the bathroom door. There really is an intruder in there. Masipa finds the defensive actions were excessive. Self defence is ruled out. That's murder.

Things don't get better for OP when he opens the door and finds Reeva in there.

Grant's whole point is that Masipa mixes up PPD and DE issues - when they have nothing to do with each other.

The state is chasing DE, so they can safely ignore the whole self defence issue.

 

[Sherbert]

You clearly don't understand the law of PPD/self defence.

If PPD is accepted it is a complete defence - rendering the killing lawful.

A lawful killing cannot be CH

A killing in PPD can never be a lawful killing.

Masipa's argument appears to be that OP's belief that he was under attack from an intruder excludes the intention to kill unlawfully.

However, this does not tie in with her apparent acceptance that the force used was excessive.

When she states that he intended to shoot, but not to kill, I believe that she may actually have meant to say that he did not intend to kill unlawfully, not that he did not intend to kill at all.

IMO, she is saying that he lacked the dolus necessary for dolus eventualis because, despite the fact that he panicked and used excessive force, his intention was to act lawfully in self defence.