Oscar Pistorius - Discussion Thread #63 ~ the appeal~

[mrjitty]

I think you are right in what you are saying...

The way I see it is that in accepting the PPD claim insofar as accepting that he genuinely believed his life to be in danger, Masipa also accepts that there is no dolus to act unlawfully or to bring about unlawful consequences. He therefore didn't have the criminal intent for DE. However, since in the end his actions were unlawful, even though that hadn't been his intention, he is culpable and on that particular level the PPD claim fails.

(I think what I am trying to say is clear- apologies if it is a bit jumbled)

DE is the form of criminal intent.

The point about PDD is that you act intentionally but with lawful justification - the same as when a policeman shoots at someone.

Masipa found that there was no lawful justification, because OP had other obvious options.

What is bizarre is to claim you were acting in self defence but also to claim you didn't mean to shoot anyone.

 

[GR_Turner]

Not correct

A finding of PPD means the shooting was lawful.

In self defences cases you intentionally employ lethal force. So you either intend to kill (Dolus Directus) or you foresee the possibility of death (Dolus Eventualis).

This is logical because when you shoot someone in self defence, any sentient adult realises the victim might be killed.

What is correct is that if you shoot someone in self defence, but based on an objectively unreasonable mistake - you are guilty of CH

However Masipa did not find that Private Defence was made out.

Specifically she noted that the accused had other options (e.g. go out of the bedroom) - therefore the use of lethal force was not justified.

I probably shouldn't argue with a lawyer about the law, but doesn't the following indicate that in self-defense the action would be lawful but in PPD the action remains unlawful:

"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.[2] In putative private defence it is not lawfulness that is in issue but culpability ("skuld"). 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."

http://www.saflii.org/za/cases/ZANWHC/2005/105.html quoting the Oliveira 1993 judgement.

 

[Marfa Lights]

I probably shouldn't argue with a lawyer about the law, but doesn't the following indicate that in self-defense the action would be lawful but in PPD the action remains unlawful:

"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.[2] In putative private defence it is not lawfulness that is in issue but culpability ("skuld"). 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. [U]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;[/U] at worst for him he can then be convicted of culpable homicide."

http://www.saflii.org/za/cases/ZANWHC/2005/105.html quoting the Oliveira 1993 judgement.

Thanks, G.R. very helpful.

Re: Bit in Bold (Black)
It certainly appears the law provides a lot of room for judicial interpretation of the circumstances surrounding a PPD claim and it does not automatically exclude dolus after all.

Re: Bit in Bold (Blue)
Also, it sounds like from this particular text, that a PPD action is UNLAWFUL to start out with and must be justified by the specific circumstances surrounding the event. (I now recall this has been brought up many times before but I think it keeps slipping out of our consciousness. This little can of worms is probably ripe for further digestion!)

 

[Marfa Lights]

It just occurred to me that if this particular group were on a jury together for this case we might be sequestered a LONG time!

Lots of questions passed to the judge I imagine too!

 

[GR_Turner]

Re: Bit in Bold (Black)
It certainly appears the law provides a lot of room for judicial interpretation of the circumstances surrounding a PPD claim.

Re: Bit in Bold (Blue)
Also, it sounds like from this particular text, that a PPD action is UNLAWFUL to start out with and must be justified by the specific circumstances surrounding the event. (This may open up a legal can of worms for further digestion!)

BIB (black): Yes I've often wondered about that. On the face of it, it seems to be suggesting that in some circumstances, a court might accept that the person did think they were acting in self-defense but that this doesn't exclude dolus. Either I'm misunderstanding it - and it just means that the court must consider the circumstances - or it refers to the case where someone does something so out of proportion to the perceived threat that their belief they were defending themself isn't enough to convince the court that there was no 'dolus'.

BIB (blue) Yes, that's how I read it.

 

[lithgow1]

It just occurred to me that if this particular group were on a jury together for this case we might be sequestered a LONG time!

Lots of questions passed to the judge I imagine too!

Ha ha - that is true. Do you think it would be a 8 - 3 - 1 split?

 

[GR_Turner]

It just occurred to me that if this particular group were on a jury together for this case we might be sequestered a LONG time!

Lots of questions passed to the judge I imagine too!

If we were a jury, I'd hope all the key questions we needed to answer to determine guilt would have been clearly laid out by the judge. But, yes, you are probably right .

 

[Marfa Lights]

Ha ha - that is true. Do you think it would be a 8 - 3 - 1 split?

That sounds about right! No doubt a hung jury.

 

[Colin de France]

....no matter what happens at the appeal is there room for Pistorius to appeal again after ? ....technically he could be found exempt of any crime whatsoever, doesn't the appeal work both ways ...?

 

[Interested Bystander]

http://www.telegraph.co.uk/news/wor...-in-luxury-when-he-is-released-this-week.html

“Oscar Pistorius will live in luxury when he is released this week.
Athlete nicknamed "Blade Runner" eligible for parole after 10 months of five-year sentence but will find himself a pariah to much of South Africa. “

 

[Marfa Lights]

....no matter what happens at the appeal is there room for Pistorius to appeal again after ? ....technically he could be found exempt of any crime whatsoever, doesn't the appeal work both ways ...?

The Defense did not lodge any appeal to overturn the CH conviction so I don't think the CSA would revisit that as an indirect result of the State's appeal on Masipa's misapplication of DE. I think the defense was probably pretty satisfied with the CH verdict and the sentence of 5 years with 10 months in prison (now served already) and the remainder under mansion arrest.

Looking forward to reading the State's HOA that are scheduled to be released today.

 

[Marfa Lights]

Colin-- you might find this worth reading if you have not already.

http://www.pod702.co.za/Eyewitnessnews/docs/141017DefenceHeads.pdf

 

[cottonweaver]

....no matter what happens at the appeal is there room for Pistorius to appeal again after ? ....technically he could be found exempt of any crime whatsoever, doesn't the appeal work both ways ...?

The link I posted a couple of months ago quotes fanous SA defence lawyer Mannie Witz describing the likely scenario where Oscar appeals an SCA upgrade to murder.

""I see this thing landing up in the Constitutional Court...

"Let's assume the SCA converts his conviction to dolus eventualis then 15 years can be given... he will appeal and if he does... he is entitled to ask for bail.

"He will bring a bail application together with the appeal application. I don't see Oscar taking 10 years and not challenging it."

Witz said if he did not appeal or get bail, Pistorius would have 48 hours to put his affairs in order and return to prison."

http://www.news24.com/SouthAfrica/News/Will-Oscars-house-arrest-be-a-walk-in-the-park-20150609

 

[mrjitty]

I probably shouldn't argue with a lawyer about the law, but doesn't the following indicate that in self-defense the action would be lawful but in PPD the action remains unlawful:

"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.[2] In putative private defence it is not lawfulness that is in issue but culpability ("skuld"). 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."

http://www.saflii.org/za/cases/ZANWHC/2005/105.html quoting the Oliveira 1993 judgement.

Here's a tip.

Perform a two stage inquiry

In stage 1 - assume that there really was an intruder. Would it have been self defence if it had turned out that OP had shot an intruder?

Not according to Masipa.

Even if there was an intruder - OP should have taken the non-lethal option of leaving via the bedroom door.

So we don't have to proceed to stage 2. But if Masipa had found that it did amount to self defence, then the next question would have been whether the mistake was objectively reasonable. if not then its CH.

 

[cottonweaver]

Looking forward to reading the State's HOA that are scheduled to be released today.

I just assumed from JJ's link they were simply being filed with SCA today. When will they actually be available online?

 

[Colin de France]

The link I posted a couple of months ago quotes fanous SA defence lawyer Mannie Witz describing the likely scenario where Oscar appeals an SCA upgrade to murder.

""I see this thing landing up in the Constitutional Court...

"Let's assume the SCA converts his conviction to dolus eventualis then 15 years can be given... he will appeal and if he does... he is entitled to ask for bail.

"He will bring a bail application together with the appeal application. I don't see Oscar taking 10 years and not challenging it."

Witz said if he did not appeal or get bail, Pistorius would have 48 hours to put his affairs in order and return to prison."

http://www.news24.com/SouthAfrica/News/Will-Oscars-house-arrest-be-a-walk-in-the-park-20150609

......i can see a lot of potential things possibly happening here......one being that if he gets murder he may well turn around and say "Colin de France is right i only meant to put a hole in the door and i didn't mean to kill her, can we start all over again please" ...............this could well end up going on forever.......

 

[Colin de France]

Here's a tip.

Perform a two stage inquiry

In stage 1 - assume that there really was an intruder. Would it have been self defence if it had turned out that OP had shot an intruder?

Not according to Masipa.

Even if there was an intruder - OP should have taken the non-lethal option of leaving via the bedroom door.

So we don't have to proceed to stage 2. But if Masipa had found that it did amount to self defence, then the next question would have been whether the mistake was objectively reasonable. if not then its CH.

.....what is ultimately disturbing here is that we are sentencing someone without really knowing the truth.........whichever version you take ...

 

[mrjitty]

For anyone seriously wanting to wrap their heads around PPD


http://criminallawza.net/2014/03/03/the-pistorius-defence/

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.

If one satisfies these requirements, one’s conduct is lawful and one escapes liability. If one does not satisfy all of these requirements one’s conduct is unlawful. This is, of course, the position for Pistorius – who has conceded as much. There was no unlawful attack upon him or Reeva.

Especially points 5 & 6 were not met.

Now re PPD

Firstly, Pistorius will have to convince a court that he genuinely believed that he was acting in self/private defence.

In this aspect of PPD, OP was successful. Masipa found he believed there was an intruder.

The second catch is that even if Pistorius succeeds in his defence (of mistake as to unlawfulness) against the murder charge, the next automatic question will be whether this mistake was a reasonable one. This is the question of culpable homicide. It is judged objectively – whereas intention is judged subjectively.

This question Masipa did not need to answer as in any event the extent of the force was not reasonable.

OP could simply have left via the bedroom door.

I would also argue there was no imminent attack.

 

[GR_Turner]

Here's a tip.

Perform a two stage inquiry

In stage 1 - assume that there really was an intruder. Would it have been self defence if it had turned out that OP had shot an intruder?

Not according to Masipa.

Even if there was an intruder - OP should have taken the non-lethal option of leaving via the bedroom door.

So we don't have to proceed to stage 2. But if Masipa had found that it did amount to self defence, then the next question would have been whether the mistake was objectively reasonable. if not then its CH.

I see you haven't addressed my point however. I wasn't arguing the issue about whether it was PPD or not, but rather if it was whether the shooting was illegal.

 

[mrjitty]

I see you haven't addressed my point however. I wasn't arguing the issue about whether it was PPD or not, but rather if it was whether the shooting was illegal.

The action was unlawful on any basis

For Pistorius, this means that, having conceded that he acted unlawfully, if the state can show that he foresaw the possibility (and reconciled himself to the risk) that he was not under attack, that any supposed attack had not actually commenced and was not imminent, or that no legally protected interest was truly under threat, he may be regarded as having intended to act unlawfully and can be convicted of murder. Alternatively, even if Pistorius was genuinely mistaken in respect of all of the requirements of the attack, he may also be convicted of murder if he foresaw the possibility that one of the requirements of the response may not have been satisfied.

Think of it this way.

You can't be in a better position than normal because you made a mistake.

1. So first you have to show you really were mistaken.

2. Then you have to show it was self defence assuming the genuine mistake

3. Then you have to show the mistake was objectively reasonable.

OP fell down at point 2. Therefore the shooting was unlawful, even if the mistake was reasonable.