Oscar Pistorius - Discussion Thread #69 *Appeal Verdict*

[aftermath]

But my understanding of your posts is that fear is the determining factor, not reasonableness.

If the person in the wheelchair were genuinely afraid, then, according to your case, he lacked the mens rea for murder.

If he acted without the knowledge that he was acting unlawfully or that his actions could have unlawful consequences, then he wouldn't have had the criminal intent.

 

[Tortoise]

If he acted without the knowledge that he was acting unlawfully or that his actions could have unlawful consequences, then he wouldn't have had the criminal intent.

Are you saying that 5 SCA judges lacked the ability to assess his evidence?

 

[Marfa Lights]

Knowing right from wrong isn't quite the same thing as knowing that you are acting unlawfully though

Different tests--
1) JUSTIFICATION OF UNLAWFUL HOMICIDE: Oscar's defense team presented (one) defense claiming PPD. To justify this claim, the law requires the accused to have had knowledge of any legitimate reasons or some basis for thinking they needed to act in self-defense, i.e. what knowledge did the accused have that led them to believe an attack had commenced or was imminent and was the force used necessary to stop the attack.

2) INTENT: For the court to establish whether or not the accused had the necessary mens rea to act with intention, it is important to first ask if they were in possession of their mental capacities and knew right from wrong.

Once this is established, the court simply asks if the accused was acting with knowledge or awareness that their actions may cause the death of someone and proceeding anyway, with reckless disregard for the outcome = DE

NOTE: The consideration of lawfulness belongs with the justification for the homicide-- in this case they claimed both automatism and PPD. Both attempts to justify the unlawful killing were ultimately not successful.

 

[Marfa Lights]

What they meant was that they were entitled to treat him as a rational person and a rational person would have known that he was not entitled to shoot.

And a rational person would have known that firing four rounds into that confined space could likely cause death.

 

[aftermath]

Are you saying that 5 SCA judges lacked the ability to assess his evidence?

I was still referring to the wheelchair analogy. But no - i am not saying the SCA lacked the ability to assess Pistorius's evidence. I guess what I am saying is that I agree with Dr Steyn that the issue of knowledge of unlawfulness wasn't ironed out enough.

 

[LemonMousse]

I don't know - is that what you believe Reeva did?

In the context of the comparison, the locked door and the tone/pitch of pistorius's screams are irrelevant.

The point was - if an intruder had been found behind the door and Reeva had in fact been in the bedroom, would people have been so ready to call murder and demand a long jail sentence? I don't think there would have been the same weight of support for a DE finding, which leads me to ask whether, for some, the call for DE and a long sentence is in fact just a 'next best thing ' for those who believe it was DD of Reeva.

Does anyone posting on here actually believe the intruder version AND believe that the verdict should be DE?

You are making no sense whatsoever.

Is that what I believe Reeva did? No. Reeva was not an armed intruder...she was a young woman, hiding in a toilet as her boyfriend approached HER with a gun.

You are trying to compare what Reeva did (or what you have chosen to believe she did) with what we might reasonably expect an ARMED INTRUDER to have done in the same situation?!

The facts of the case are the facts of the case. No armed intruder, just Reeva. Asking us to explain our thoughts if the case had been 100% different assists your argument about this one how?

There was no intruder...and much more importantly, no reason for Pistorius to believe there was.

 

[LemonMousse]

If justice really has been done, there is no need to apologise for it.

The wheelchair analogy is flawed as it takes all context out of the picture and it is the context that helps to determine and shape a person's response :

Eg South Africa- crime statistics
Regular media reports of violent home invasions
Guns culture- where guns are legally allowed as home self defence
The 'intruder' was not simply walking down a street- for the analogy to work, the intruder needs to have broken into the disabled person's house at three in the morning and to be only metres away from that disabled person. That might reasonably indicate to the disabled person that he was now in danger.
I can't see anyone agreeing that the actions of the disabled person in your wheelchair example would be okay.

The context you keep telling us is that Pistorius was vulnerable and scared....just like the person in the wheelchair. So yes, the analogy works.

"The intruder was not walking down the street...." There was no intruder, Aftermath. And your attempt at an analogy has an "intruder" breaking into a house at 3am which, er, isn't actually an analogy.

The point I was making is that "I was scared because I thought xyz" is not a defence if you cannot justify why you thought xyz in the first place.

Pistorius had no reason to believe that a) there was an intruder and b) that he was in mortal danger.

I could totally accept the thought crossing his mind when he heard a window opening (which never happened but as per his fictitious version), "Eek, is that a burglar?". But to arm himself, walk past his girlfriend twice and head down the corridor with his gun cocked and pointed in front of him without once seeking reassurance that, phew, it might just be Reeva all along......?

No. Never happened. It's too ridiculous to be true. Couple that with Reeva staying silent while he was screaming at her to phone the police, not bothering to even attempt to dial them, and remaining mute while she was shot in the hip and you have a version that is impossible.

Did not happen. We know it and he knows we know it. Prison or not, the man's life is effectively over - and I am glad.

 

[Marfa Lights]

If he acted without the knowledge that he was acting unlawfully or that his actions could have unlawful consequences, then he wouldn't have had the criminal intent.

Wrong questions still-- It's not sufficient to just claim to have "thought" you were acting lawfully. Especially when you have killed someone. The court wants to know what led you to believe that you were acting lawfully under the circumstances of the killing. You have to JUSTIFY your actions.

I am going to keep trying to re-phrase this:
In a prima facie case of unlawful homicide, the onus was on the accused to justify the killing.

He tried to justify it as both automatism and PPD. Masipa ruled out automatism so that was not up for consideration by the SCA.

Masipa erred in her review of his PPD claim with vague and illogical conclusions, so it was up to the SCA to review. To justify the PPD claim, Oscar needed to provide some factual basis for why he believed that an attack had commenced or his life was threatened by an imminent attack. He also needed to have substantiated the use of lethal force as proportionate to the threat of attack against him.

He was not able to satisfy the SCA with his rationale for believing he was under attack-- they found he offered no legitimate basis for thinking he was being attacked. (Sounds of a houseguest using the toilet in the middle of the night did not qualify as "knowledge" of an imminent attack on his life.)

What he claimed to have "thought" is not as legally significant as what factual basis he used to justify an unlawful killing. What would the accused have "known" at the time he killed someone--

1. He thought there was an intruder and there were potentially corroborating "facts" as Masipa tried to point out. Yes, the window was open. Was this sufficient basis for "knowing" his life was in imminent danger to justify killing someone in purported self-defense?

But the poor lad was vulnerable and AFRAID! Does that justify his homicide as self-defense-- not according to the law.

But he fired out of panic and fear! Is Oscar justified in confronting a presumed intruder and executing them in a panic before even establishing their identity and if they represent a threat?

Poor boy. He was so afraid. How could he have been expected to know that no attack was underway or that an intruder MIGHT not come out to get him?

Better act quickly, Oscar. Kill them before they have a chance to get you. BTW-- as far as DE goes, how could he NOT foresee his actions could kill someone behind the door?

Oops, guess he should have followed the laws for self-defense.

 

[aftermath]

You are making no sense whatsoever.

Is that what I believe Reeva did? No. Reeva was not an armed intruder...she was a young woman, hiding in a toilet as her boyfriend approached HER with a gun.

You are trying to compare what Reeva did (or what you have chosen to believe she did) with what we might reasonably expect an ARMED INTRUDER to have done in the same situation?!

The facts of the case are the facts of the case. No armed intruder, just Reeva. Asking us to explain our thoughts if the case had been 100% different assists your argument about this one how?

There was no intruder...and much more importantly, no reason for Pistorius to believe there was.

It's not about assisting my argument at all. I take it you believe it was DD of Reeva. I would just be interested to know if there have been any posters who accept the intruder version but also believe the verdict to be DE. I have seen only one such poster on a different forum. From what I can see, posters who accept that the intruder version could reasonably possibly be true also believe that the CH verdict was correct.

I don't agree that I am making no sense.

 

[Belgarion]

You are making no sense whatsoever.

Is that what I believe Reeva did? No. Reeva was not an armed intruder...she was a young woman, hiding in a toilet as her boyfriend approached HER with a gun.

You are trying to compare what Reeva did (or what you have chosen to believe she did) with what we might reasonably expect an ARMED INTRUDER to have done in the same situation?!

The facts of the case are the facts of the case. No armed intruder, just Reeva. Asking us to explain our thoughts if the case had been 100% different assists your argument about this one how?

There was no intruder...and much more importantly, no reason for Pistorius to believe there was.

Exactly

All we have is the word of person who it has been shown has the ability to lie outrageously and more importantly had an extremely good reason to lie about the supposed ‘intruder’

If the outcome wasn’t so tragic his ‘story’ lacks so much substance it’s laughable, all we have is…..

The window was open. Proves nothing, even if it was in all likelihood it was opened earlier to improve air circulation on a hot night when as we know his air conditioning was faulty or Pistorius could have opened it himself later as he ‘developed’ his intruder story.

He heard a door slam. Probably correct except he got that idea from Reeva slamming the door to get away from him.

He heard ‘wood movement.’ The only possibility was that came from the movement of the magazine rack a fact later disproved by one of the Defence’s own expert witnesses.

That’s it.

Well except we are expected to believe that Pistorius was unlucky enough to get one of the noisiest intruders in SA who not only slams windows open but was in such a hurry to get to the toilet they slammed the toilet door shut as well!!!

Give me strength!!!

 

[Tortoise]

I'm going to attempt to put the way I understand Steyn's argument into layman's terms, ignoring for the moment Pistorius' case.

The present system used by the courts to determine criminal intent (dolus) -

1. If a person is acting in self-defence or believes they are, there is no criminal intent - there is lawful intent.
2. If a person does not make out a case for acting in self-defence or such a belief, there is criminal intent - the absence of lawful intent creates unlawful intent.

The system proposed by Steyn to be legally correct but not used by courts (no case law) -

1. Ignore because there is lawful intent and acquittal for dolus.
2. If a person does not make out a case for acting in self-defence, or such a belief, there is an absence of lawful intent but additionally unlawful intent remains unproven.
3. Prove there was unlawful intent apart from reliance on absence of lawful intent.


My problem with Steyn's argument is that if the evidence establishes that a person has no lawful justification or reason for their actions, the argument supposes that there is a void of intent, until it is proven that what was in the mind of the accused was a desire for an unlawful action or result. It would never be possible to establish that, whereas it is possible to establish the corresponding lack of lawfulness, and further, it suggests you would have to establish a motive in the case of a dishonest accused, where the truth has not been disclosed. Courts must be able to draw an inference from the evidence and the established facts. The argument is not workable.

It is the same as the argument for illegal possession of ammunition - can the prosecutor prove animus to possess? These arguments speak against the application of logic in my view.

 

[aftermath]

The context you keep telling us is that Pistorius was vulnerable and scared....just like the person in the wheelchair. So yes, the analogy works.

No. The context is more than simply that he was scared. The context of the situation he believed himself to be in is linked (amongst other things) to the details mentioned in my post

"The intruder was not walking down the street...." There was no intruder, Aftermath. And your attempt at an analogy has an "intruder" breaking into a house at 3am which, er, isn't actually an analogy.

I know there was no intruder. Everyone knows that - so why point it out? Is it really necessary to constantly use the premodifier 'perceived'? Surely the reason for its usage is is pretty clear... Exploring why /how it might be DE of an intruder, (ignoring the mistaken identity for a moment) is useful to people on both sides of the opinion-chasm. In your wheelchair example, was the person in the wheelchair legally allowed to have and use a gun in the street for self defence? In pistorius's perceived scenario, he was legally entitled to have and use a gun in self defence. Was the street gated at one end with the 'dodgy looking person' at the other, making escape for the person in the wheelchair more challenging? Was the street empty? Was there a nationally high rate of unprovoked street attacks? These contextual factors help to explain whether they're was a basis for the wheelchair person's fear.

The point I was making is that "I was scared because I thought xyz" is not a defence if you cannot justify why you thought xyz in the first place.

I think I agree with this. or at least, i agree that it's not going to be a defence that enjoys much success (unless you can prove that you were mentally compromised at the time

Pistorius had no reason to believe that a) there was an intruder and b) that he was in mortal danger.

I disagree-and have explained why in this and earlier posts

I could totally accept the thought crossing his mind when he heard a window opening (which never happened but as per his fictitious version), "Eek, is that a burglar?". But to arm himself, walk past his girlfriend twice and head down the corridor with his gun cocked and pointed in front of him without once seeking reassurance that, phew, it might just be Reeva all along......?

I don't think it can be said with absolute certainty that every individual would automatically seek reassurance about something that they were already certain about

No. Never happened. It's too ridiculous to be true.

It's far fetched. IMO, and a horrible mess of coincidence, but not impossible (again, IMO) so I don't have your certainty that it never happened at all )

Couple that with Reeva staying silent while he was screaming at her to phone the police, not bothering to even attempt to dial them, and remaining mute while she was shot in the hip and you have a version that is impossible.

again - i don't agree it is impossible -and have explained why she might have stayed quiet in other posts

Did not happen. We know it and he knows we know it. Prison or not, the man's life is effectively over - and I am glad.

Have tried to respond to your points in bold and italics above

 

[Marfa Lights]

<RSBM>
From what I can see, posters who accept that the intruder version could reasonably possibly be true also believe that the CH verdict was correct.
<RSBM>

Not by me. It's not hard to accept his intruder story as reasonably possibly true, that is to the extent of his belief that an intruder might have entered his bathroom.

From there, I cannot find any reasonable basis for him to have thought he was under attack or that there was any threat of an imminent harm that would justify using lethal force in putative self-defense.

There was no legal justification for him killing the supposed intruder without first identifying who was behind the door and if they actually represented a threat. His actions were not even self-defensive strictly speaking-- he went on the offensive and killed with reckless disregard for the human he knew was behind the door.

No one jumped out at him or even approached him-- not in the bedroom and not in the bathroom. From his initial moment of fear in the bedroom, he had several opportunities to assess the threat. Instead, he assassinated the person hiding behind a door..

He knew there was no attack upon him or sufficiently imminent to warrant the use of lethal force. Consequently he knew he acted unlawfully in those circumstances.

Did he care? No. For whatever reasons not fully explained, he felt entitled to shoot.

Did he care if he shot four rounds at an unidentified person hiding behind a door and in all likelihood, they could be killed? Apparently not.

 

[aftermath]

Not by me. It's not hard to accept his intruder story as reasonably possibly true, that is to the extent of his belief that an intruder might have entered his bathroom.

From there, I cannot find any reasonable basis for him to have thought he was under attack or that there was any threat of an imminent harm that would justify using lethal force in putative self-defense.

There was no legal justification for him killing the supposed intruder without first identifying who was behind the door and if they actually represented a threat. His actions were not even self-defensive strictly speaking-- he went on the offensive and killed with reckless disregard for the human he knew was behind the door.

No one jumped out at him or even approached him-- not in the bedroom and not in the bathroom. From his initial moment of fear in the bedroom, he had several opportunities to assess the threat. Instead, he assassinated the person hiding behind a door..

He knew there was no attack upon him or sufficiently imminent to warrant the use of lethal force. Consequently he knew he acted unlawfully in those circumstances.

Did he care? No. For whatever reasons not fully explained, he felt entitled to shoot.

Did he care if he shot four rounds at an unidentified person hiding behind a door and in all likelihood, they could be killed? Apparently not.

Thank you.x
I find it harder to believe that- on believing there was an intruder -Pistorius (or anyone) would then decide essentially to execute that intruder through a door, knowing full well that he was acting completely unlawfully. Why jeopardise his future/life/career /reputation?

 

[Tortoise]

I was still referring to the wheelchair analogy. But no - i am not saying the SCA lacked the ability to assess Pistorius's evidence. I guess what I am saying is that I agree with Dr Steyn that the issue of knowledge of unlawfulness wasn't ironed out enough.

Well if you agree with Dr Steyn, knowing that the SCA established no lawful intent to defend himself, how do you propose that unlawful intent ever be proven?

 

[aftermath]

Well if you agree with Dr Steyn, knowing that the SCA established no lawful intent to defend himself, how do you propose that unlawful intent ever be proven?

Based on what was presented in court, I don't think unlawful intent could be confidently established in a complex case like pistorius's, hence why I think CH is the right verdict .

 

[Marfa Lights]

Thank you.x
I find it harder to believe that- on believing there was an intruder -Pistorius (or anyone) would then decide essentially to execute that intruder through a door, knowing full well that he was acting completely unlawfully. Why jeopardise his future/life/career /reputation?

As he said, he wasn't thinking.

I honestly think he shot Reeva in a rage, but it would be equally possible to imagine Oscar so enraged at the sheer audacity of an intruder to enter his house and that given his own sense of self-importance, he might feel entitled to shoot to kill with impunity.

 

[Belgarion]

Thank you.x
I find it harder to believe that- on believing there was an intruder -Pistorius (or anyone) would then decide essentially to execute that intruder through a door, knowing full well that he was acting completely unlawfully. Why jeopardise his future/life/career /reputation?

Of course it&#8217;s hard to actually believe that.

But the good news is - you don&#8217;t have to struggle

Why?

Because there was no intruder, Pistorius made it all up, but don&#8217;t tell everyone

What really happened is gun fanatic Pistorius lost his well-known temper and in a moment of blind rage shot Reeva because she defied him for some reason forgetting it was not her but ego obsessed Pistorius was the one who called the shots (literally)

Now, that makes much more sense than some ridiculous noisy intruder story doesn&#8217;t it

 

[Tortoise]

Thank you.x
I find it harder to believe that- on believing there was an intruder -Pistorius (or anyone) would then decide essentially to execute that intruder through a door, knowing full well that he was acting completely unlawfully. Why jeopardise his future/life/career /reputation?

What would it mean to you to disbelieve him?

You know his curtains were wide open. His balcony light was on. His fan was off and still in the open doorway. It's possible that a policeman moved something, but for a policeman to move every single thing that was crucial to his story being true? He agreed the photo was correct. Honestly, why do you want to believe that he says he thought Reeva was an intruder?

 

[Tortoise]

Based on what was presented in court, I don't think unlawful intent could be confidently established in a complex case like pistorius's, hence why I think CH is the right verdict .

That isn't answering my question.