Oscar Pistorius - Discussion Thread #63 ~ the appeal~

[mrjitty]

Here is a very good post by Prof Grant on the matter

It is worth remembering – because this issue continues to be misunderstood: one may intentionally kill another human being – so long as you are justified (such as in self/private defence) and you know/believe you are justified.
If you are not justified (such as you are not under attack), you are only liable to a murder conviction if you know/believe you were not justified – if you know that you were not under attack. If you know you were not justified, you have intention in South African law. Intention is an entirely subjective enquiry. It turns on what the accused was actually thinking.

http://criminallawza.net/2014/05/04/one-may-intentionally-kill-another-human-being/

OP's mistake only protects him as to the point that there was not really an intruder (and therefore no threat).

Furthermore

The conduct of an accused who uses a firearm will be compared to that of a reasonable firearm owner.

 

[mrjitty]

Further...

A claim that one did not act unlawfully is, of course, a claim to have acted lawfully. One may make such a claim if one raises a ground of justification. Self or private defence is the most well-known ground of justification.

....

The requirements of the defence 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.

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.

And...

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.

However, one is only ultimately liable, if, as required (see overview under ‘Fault&#8217, one’s fault (intention for murder) extends or relates to all the requirements of the unlawful conduct. If one did not intend to act unlawfully, one has a valid defence. Thus – and this is what Pistorius appears to be claiming – if one mistakenly believes that one was acting lawfully, in self/private defence, one has a valid and complete defence. Here is the catch – actually, there are two.

So in summary the question is whether OP's honest mistake excludes his fault (intention to murder).

The problem for OP is that his mistake was only as to identity. i.e. point 1. It does not help him on points 5 & 6

So even allowing for his mistake, his conduct was unjustified because it was excessive. Therefore his intention to murder is not excluded.

Note this is not the same as saying that his mistake was not one a reasonable person would make therefore CH

Masipa did not even address that question.

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

 

[Marfa Lights]

Here is a very good post by Prof Grant on the matter

It is worth remembering – because this issue continues to be misunderstood: one may intentionally kill another human being – so long as you are justified (such as in self/private defence) and you know/believe you are justified.
If you are not justified (such as you are not under attack), you are only liable to a murder conviction if you know/believe you were not justified – if you know that you were not under attack. If you know you were not justified, you have intention in South African law. Intention is an entirely subjective enquiry. It turns on what the accused was actually thinking.

http://criminallawza.net/2014/05/04/one-may-intentionally-kill-another-human-being/

OP's mistake only protects him as to the point that there was not really an intruder (and therefore no threat).

Furthermore

And as Grant goes on to say in the next paragraph:

"If you are not justified, and you did not know that you were not justified (that is, you were mistaken) you cannot be convicted of murder. In this scenario (of mistake) you can still be convicted of culpable homicide, if the mistake you made was not one that the reasonable person, in the circumstances, would make."

http://criminallawza.net/2014/05/04/...r-human-being/

 

[lithgow1]

And as Grant goes on to say in the next paragraph:

"If you are not justified, and you did not know that you were not justified (that is, you were mistaken) you cannot be convicted of murder. In this scenario (of mistake) you can still be convicted of culpable homicide, if the mistake you made was not one that the reasonable person, in the circumstances, would make."

http://criminallawza.net/2014/05/04/...r-human-being/

So am I right in thinking that the potential problem for OP re the appeal is that he knew he was not justified to shoot under his particular circumstances but went ahead and did it anyway?

 

[mrjitty]

Your example provides an interesting reminder that, even looking at the matter from OP's perspective, his reaction was unreasonable. In contrast, despite the putative element, the reaction of the shooter in your example is understandable.

Rereading your comment - this is exactly how I see it.

If the conduct/force was reasonable, given the mistake, you cannot be guilty of murder.

In my example, all the tests for self defence are made out if you assume the gun was real.

 

[mrjitty]

So am I right in thinking that the potential problem for OP re the appeal is that he knew he was not justified to shoot under his particular circumstances but went ahead and did it anyway?

Yes exactly. That's precisely it.

He gets a pass on element 1 of the test (not under attack because it was Reeva) - honest mistake

But he does not get a pass on points 5 & 6 because he knew he had other non lethal options.

Even if there was an intruder, he should have just left via the bedroom door.

 

[aftermath]

I can only presume you have not read any other appeal documents

Lawyers love rhetoric

You're right - i haven't. I would have hoped lawyers wouldn't need to have been so obvious in their use of persuasive rhetoric and emotive vocab to make their point

 

[soozieqtips]

You're right - i haven't. I would have hoped lawyers wouldn't need to have been so obvious in their use of persuasive rhetoric and emotive vocab to make their point

You mean unless it's Roux using the persuasive rhetoric and emotive vocab to get sympathy for his lying client? You say you watched the trial, so you couldn't have missed it. I almost needed a sick bucket myself.

 

[mrjitty]

You're right - i haven't. I would have hoped lawyers wouldn't need to have been so obvious in their use of persuasive rhetoric and emotive vocab to make their point

There are finer points to it

Usually the emotive/OTT language is only directed at the accused's lawyers arguments.

Seldom is so much vitriol directed at the first instance Judge.

Counsel wants to make it clear just how angry the State is about the quality of the decision.

That message will be received loud and clear

As I said before, I know certain judges who would give Masipa a dressing down for such technically poor work.

That doesn't mean State will win - its more about the politics.

Remember Masipa is a relatively inexperienced judge with no big career behind her.

Nel will take some delight in pissing on her before the SC.

 

[aftermath]

You mean unless it's Roux using the persuasive rhetoric and emotive vocab to get sympathy for his lying client? You say you watched the trial, so you couldn't have missed it. I almost needed a sick bucket myself.

So now you are talking about the language used during the trial? Do you agree then that the state's appeal document has deliberately emotive language for effect?

 

[Sherbert]

You're right - i haven't. I would have hoped lawyers wouldn't need to have been so obvious in their use of persuasive rhetoric and emotive vocab to make their point

I think it boils down to personal preference.

Personally, I am not keen on the bombastic approach either, as it can be counterproductive.

But I do agree with Mr Jitty that State's Counsel is making it loud and clear how angry the State is about the quality of Masipa's judgement and, in this particular instance, I feel that that anger is justified.

 

[Sherbert]

From the little I have read, it would appear to me that the emotive language is not being used for effect, but simply to convey the State's sense of outrage. In other words, it is sincere.

 

[mrjitty]

Scathing really

"29 The court accepted a version that was not the respondent’s defence. The respondent’s defence is that he never willingly fired the shots. That excludes any acceptance of “why he shot” and “why” at a certain height or why he fired four shots."

This is of greater practical significance than Nel can explicitly spell out - but which he alluded to in X

Roux drafted his pleadings around self defence, anticipating of course that his witness will come up to brief (i.e. testify to self defence)

The fact that OP instead testified to an involuntary action is a disaster because he clearly never briefed that to Roux or they agreed he was not to say it.

I wonder if Masipa just didn't twig to that because she doesn't have the criminal practice experience.

In any event - she should not then go on to find he believed he fired lawfully - it wasn't his case!

 

[mrjitty]

This really is a big bonus for the state....

During sentence the Court expanded on the accepted facts and at page 1757 – 1758
confirmed the following findings:

19.1. The Respondent knew there was a person behind the door when he fired the
shots.
19.2. The Respondent deliberately fired shots into the door with the aim “to shoot
the intruder”.

19.3. The Respondent knew when he fired the shots that: “The toilet was a small
cubicle. An intruder would have had no room to manoeuvre or to escape.”18

19.4. The Respondent was trained in the use of firearms.

If one intends to shoot someone, how can the possibility of death not be foreseen by a trained gun owner?

We argue that the only conceivable finding based on the abovementioned “facts” could at
a minimum be that, In arming himself, walking to the bathroom with the intention to shoot,
whilst knowing that there is a person behind a closed door of a small cubicle and
intentionally firing four shots, should be that he intended to kill the person in the cubicle.
The application of the principles of dolus eventualis to this summary of the accepted facts
can only result in a finding that he acted with, at the very least, dolus eventualis

 

[mrjitty]

IMO this is great

We however submit, that holistically considered, there exists no other reasonable
inference than that the respondent’s evidence can never be found to be reasonably
possible. He did not “wake up” to bring the fans in and the deceased did not, in the
specific period, unbeknown to him, move to the bathroom with her cell phone and lock
herself into the toilet.

I agree.

Give the accused testimony of those moments was clearly false - the Court cannot speculate as to some other manner in which the "honest mistake" occurred - or worse yet - simply skip that part.

 

[Trotterly]

This is of greater practical significance than Nel can explicitly spell out - but which he alluded to in X

Roux drafted his pleadings around self defence, anticipating of course that his witness will come up to brief (i.e. testify to self defence)

The fact that OP instead testified to an involuntary action is a disaster because he clearly never briefed that to Roux or they agreed he was not to say it.

I wonder if Masipa just didn't twig to that because she doesn't have the criminal practice experience.

In any event - she should not then go on to find he believed he fired lawfully - it wasn't his case!

One wonders, if he wanted to claim he fired because of a fright, why he claimed to be so sure that there was someone in the cubicle. After all he only heard the door slam and not lock and the door could have been slammed accidentally.

 

[mrjitty]

This is also important

It is respectfully submitted that in S v Beukes en ‘n Ander, this Honourable Court
pertinently held that since:

“The chances of an accused admitting, or of it appearing from other evidence,
that he had indeed foreseen a remote consequence are very thin”, a Court “draws
an inference concerning an accused’s state of mind from the facts which point to it
being reasonably possible, objectively seen, that the consequence would
eventuate.”
The Court held further that:

“f such a possibility does not exist, it is simply accepted that the actor did not
become conscious of the consequence. If it does exist, it is usually inferred from
the mere fact of his taking action that he took the consequence into account.”

So in other words, because the natural and logical consequence of shooting at someone is the possibility of them being killed - such intent is normally inferred merely because of taking the action

 

[mrjitty]

So it seems clear that the state does not believe this appeal has anything to do with PPD / Self defence

Presumably because Masipa found the conduct excessive and thus the defence cannot rely on it.

Instead the State says that the identity of the "intruder" is irrelevant.

I expect Nel to argue that it would be murder even if it had been a intruder - therefore the fact that it was Reeva does not assist the accused.

The court erroneously applied the principles of dolus eventualis to the
accepted facts by relying on the respondent’s state of mind relating to the fact
that he had shot the deceased. The court elevated his state of mind in relation
to the death of the deceased to an exclusion of intention, discarding the
principles of error in objecto

 

[Interested Bystander]

You're right - i haven't. I would have hoped lawyers wouldn't need to have been so obvious in their use of persuasive rhetoric and emotive vocab to make their point

I think they took lessons from Roux

 

[soozieqtips]

So now you are talking about the language used during the trial? Do you agree then that the state's appeal document has deliberately emotive language for effect?

Do you agree then that you are accusing Nel of using the same 'tactics' that you overlooked when Roux used them?