Oscar Pistorius - Discussion Thread #69 *Appeal Verdict*

[Marfa Lights]

Originally posted by Sherbert
I don't think it was ignored. The SCA made it clear that they considered the that he thought he was acting lawfully, but found it inconceivable that he did.

Why though?

I understood Masipa to have rejected the automatism defense saying she believed he clearly intended to shoot (she then inexplicably stated that she did not believe he intended to kill.) So I assume that effectively ruled out the automatism defense for further review.

Her decision on PPD was too illogical and too vague to be conclusive. I don't see how the SCA could find that he was entitled to believe he was acting in lawful self-defense (PPD). No attack had commenced nor was an attack apparently imminent that could have led him to believe he needed to use lethal force, especially to the extent of firing four rounds at an unidentified person behind a closed door.

 

[Sherbert]

He thought he was imminent danger because he thought there was an intruder in the house and there is a high incidence of violence associated with home invasions in south Africa.

If we accept that he had the intention to defend himself against an attack, then how would that intention be deemed as unlawful? Had there been a real intruder, his response would still have been unlawful because it was put into action too hastily, but the intent behind the action would not automatically have been unlawful.

I think you need to take on board the fact that the SCA simply didn't believe him.

Apart from the fact that he changed his versions, he mistook the identity of the person behind the door, he mistook that he was under attack and he didn't use proportionate force.

Even Masipa found his explanations strange; the problem is that she didn't draw the natural inference that they were strange because they weren't true, as she should have done.

Maybe, he is telling the truth; but, IMO, that is so unlikely as not to be reasonably possibly true.

 

[Belgarion]

BIB Not his evidence at all. Where did you read this?

I would refer you and aftermath to the words of Justice Leach at para 17 of the SCA judgement.

His version varied substantially. At the onset he stated that he had fired four shots ‘before he knew it’ and at the time he was not sure if there was someone in the toilet. This soon changed to a version that he believed whoever was in the toilet was going to come out and attack him. He later changed this to say he had never intended to shoot at all; that he had not fired at the door on purpose and he had not intended to shoot any intruder coming out of the toilet. In the light of these contradictions one does not really know what his explanation was for firing the fatal shots.

Of course I should have guessed…….Justice Leach got it wrong I suppose!!

 

[Marfa Lights]

He thought he was imminent danger because he thought there was an intruder in the house and there is a high incidence of violence associated with home invasions in south Africa.

If we accept that he had the intention to defend himself against an attack, then how would that intention be deemed as unlawful? Had there been a real intruder, his response would still have been unlawful because it was put into action too hastily, but the intent behind the action would not automatically have been unlawful.

I am going to keep trying:

It is reasonably possibly true that he might have thought he could be in a situation where he MIGHT need to defend himself and Reeva. His intentions were fine up to that point.

However, and this is the important part-- no life-threatening event ever materialized. Not even anything that he could have misconstrued as life-threatening. No one ever came at him or threatened him verbally. He never even saw a shadowy figure skulking about.

Nothing happened to him that could legitimately be understood to necessitate or provoke the lawful use of lethal force. Without any justification for acting in self-defense, his original intent to defend himself (PPD) crossed the line and turned into a reckless intent to shoot at a perceived intruder behind a closed door with knowledge that his actions could result in their death (DE).

Simply put, he went from defense to offense.

As we all know, he did end up killing the person behind the door and he was unable to legally justify his actions other than trying to claim he acted out of fear or he did not intend to shoot anyone. Neither defense worked.

Since it is not lawful in SA to kill an intruder unless as a last resort to save your life, he certainly could not justify killing someone behind a closed door in a pre-emptive strike. He executed them.

 

[aftermath]

Re whether Justice Leavh got it wrong when he said:

At the onset he stated that he had fired four shots ‘before he knew it’ and at the time he was not sure if there was someone in the toilet.

Well..yes..it looks like it..as I don't recall him saying he fired before he was sure there was someone in the cubicle. Rather, he said he heard a noise from the cubicle that he interpreted as someone coming out to attack him, and fired.

 

[Belgarion]

I think you need to take on board the fact that the SCA simply didn't believe him.

Apart from the fact that he changed his versions, he mistook the identity of the person behind the door, he mistook that he was under attack and he didn't use proportionate force.

Even Masipa found his explanations strange; the problem is that she didn't draw the natural inference that they were strange because they weren't true, as she should have done.

Maybe, he is telling the truth; but, IMO, that is so unlikely as not to be reasonably possibly true.

Besides not drawing the natural inferences she should have done she also managed quite inexplicably to commit several errors in law as well.

One wonders what the outcome would have been had there been a more astute trial judge and experienced assessors.

 

[aftermath]

I am going to keep trying:

It is reasonably possibly true that he might have thought he could be in a situation where he MIGHT need to defend himself and Reeva. His intentions were fine up to that point.

However, and this is the important part-- no life-threatening event ever materialized. Not even anything that he could have misconstrued as life-threatening. No one ever came at him or threatened him verbally. He never even saw a shadowy figure skulking about.

Nothing happened to him that could legitimately be understood to necessitate or provoke the lawful use of lethal force. Without any justification for acting in self-defense, his original intent to defend himself (PPD) crossed the line and turned into a reckless intent to shoot at a perceived intruder behind a closed door with knowledge that his actions could result in their death (DE).

Simply put, he went from defense to offense.

As we all know, he did end up killing the person behind the door and he was unable to legally justify his actions other than trying to claim he acted out of fear or he did not intend to shoot anyone. Neither defense worked.

Since it is not lawful in SA to kill an intruder unless as a last resort to save your life, he certainly could not justify killing someone behind a closed door in a pre-emptive strike.

Ifollow what you are saying, but I don't see why -when the line was crossed - it became DE and not CH. He may not have seen a shadowy figure skulking about but he believed that he heard one. He acted too hastily and excessively, so even if there had been an armed intruder his response would have been unlawful, but if he held the genuine belief that he was under attack (arrived at by the cumulative effect of the noise of what he thought was the door opening, the previous slamming noise confirming a stranger in the house at 3an, the open window confirming what he had heard -that there was an intruder in close proximity, knowledge of the high rate of violent house invasions, awareness of increased risk due to his heightened vulnerability given his disability, etc), then it is reasonably possible -imo - that he did not believe his actions to be unlawful at that moment in time... And therefore lacked dolus for DE but those actions were still unlawful, hence CH.

 

[Trotterly]

I would refer you and aftermath to the words of Justice Leach at para 17 of the SCA judgement.

His version varied substantially. At the onset he stated that he had fired four shots ‘before he knew it’ and at the time he was not sure if there was someone in the toilet. This soon changed to a version that he believed whoever was in the toilet was going to come out and attack him. He later changed this to say he had never intended to shoot at all; that he had not fired at the door on purpose and he had not intended to shoot any intruder coming out of the toilet. In the light of these contradictions one does not really know what his explanation was for firing the fatal shots.

Of course I should have guessed…….Justice Leach got it wrong I suppose!!

His evidence was never consistent with firing and not being sure there was someone in the toilet.

 

[Marfa Lights]

Ifollow what you are saying, but I don't see why -when the line was crossed - it became DE and not CH. He may not have seen a shadowy figure skulking about but he believed that he heard one. He acted too hastily and excessively, so even if there had been an armed intruder his response would have been unlawful, but if he held the genuine belief that he was under attack (arrived at by the cumulative effect of the noise of what he thought was the door opening, the previous slamming noise confirming a stranger in the house at 3an, the open window confirming what he had heard -that there was an intruder in close proximity, knowledge of the high rate of violent house invasions, awareness of increased risk due to his heightened vulnerability given his disability, etc), then it is reasonably possible -imo - that he did not believe his actions to be unlawful at that moment in time... And therefore lacked dolus for DE but those actions were still unlawful, hence CH.

I should really stop giving legal opinions without a license, but from what I understand the difference between intent and negligence has to do with foreseeability-- for DE this would require determination that the accused would have foreseen the possible consequences of his reckless actions and proceeded anyway. Therefore he accepted the possible result which constitutes intent in the form of DE.

For CH the accused should have foreseen the likely consequences of their actions, and so they are still held liable for the unintended consequences of their actions.

This is why Masipa found Oscar guilty of CH because she only considered his intentions toward Reeva and failed to consider Error in Objecto and correctly apply the tests for DE to his intentions toward the intruder or whoever was behind the door.

So, you have to ask yourself, would Oscar have foreseen the possibility of killing the person behind the door by firing four rounds into that tiny space? And did he proceed with reckless disregard for that possible result?

He could not very well claim it was an unintended consequence of firing a warning shot. I can't think of any other plausible excuses, but apparently neither could he. (With Masipa he didn't need to.)

Here's an explanation of the difference between DE and CH taken from some attorney's LinkedIn site-- it was the most concise explanation I could find quickly.

https://www.linkedin.com/pulse/2014...fference-between-culpable-homicide-and-murder

 

[aftermath]

I should really stop giving legal opinions without a license, but from what I understand the difference between intent and negligence has to do with foreseeability-- for DE this would require determination that the accused would have foreseen the possible consequences of his reckless actions and proceeded anyway. Therefore he accepted the possible result which constitutes intent in the form of DE.

For CH the accused should have foreseen the likely consequences of their actions, and so they are still held liable for the unintended consequences of their actions.

This is why Masipa found Oscar guilty of CH because she only considered his intentions toward Reeva and failed to consider Error in Objecto and correctly apply the tests for DE to his intentions toward the intruder or whoever was behind the door.

So, you have to ask yourself, would Oscar have foreseen the possibility of killing the person behind the door by firing four rounds into that tiny space? And did he proceed with reckless disregard for that possible result?

He could not very well claim it was an unintended consequence of firing a warning shot. I can't think of any other plausible excuses, but apparently neither could he. (With Masipa he didn't need to.)

Here's an explanation of the difference between DE and CH taken from some attorney's LinkedIn site-- it was the most concise explanation I could find quickly.

https://www.linkedin.com/pulse/2014...fference-between-culpable-homicide-and-murder

This, for me, is where the issue of perceived lawfulness is key: my understanding is that it's DE if the person foresaw that their actions or the results of their actions could be unlawful. Without that acceptance of unlawfulness or possible unlawfulness, where is the dolus?

 

[Belgarion]

His evidence was never consistent with firing and not being sure there was someone in the toilet.

Really?

Well in that case I’m surprised Roux didn’t mention in his leave to appeal that Justice Leach erred in misquoting evidence his judgement.

 

[Marfa Lights]

This, for me, is where the issue of perceived lawfulness is key: my understanding is that it's DE if the person foresaw that their actions or the results of their actions could be unlawful. Without that acceptance of unlawfulness or possible unlawfulness, where is the dolus?

Killing is inherently unlawful unless justified by self-defense. As previously pointed out, Oscar may have thought there was an intruder in his bathroom, but he could not have thought under the circumstances (no attack commenced or imminent) that the only way to save his own life was to fire four rounds into a closed door.

It was determined that Oscar would have known the possible consequences of his actions and proceeded anyway (establishing intent) and based on the circumstances of his crime, it was also determined that he was not entitled to his stated belief that he was acting with lawful intent.

There is no way to verify what a killer says they thought at the time they committed a crime, so the court has to make inferences based on the evidence and circumstances of the crime.

In this situation, it no longer matters what Oscar says he thought. He was not able to justify how he could have reasonably possibly thought he was acting lawfully when shooting four rounds into a closed door.

 

[soozieqtips]

I can't believe it's been 3 years today since OP murdered Reeva. The anniversary of her death must be a particularly hard day for her family, especially knowing her murderer is still free.

 

[mhiforme]

Besides not drawing the natural inferences she should have done she also managed quite inexplicably to commit several errors in law as well.

One wonders what the outcome would have been had there been a more astute trial judge and experienced assessors.

And yet, at the start of this trial, people were falling all over themselves with what an incredible stroke of luck it was that Masipa would be the presiding judge in this trial. It's only after people disagreed with her verdict did their opinion of her change, yet many in SA legal circles still believe that she gave the right verdict.

Time will tell what the CC will do and that will finally be the end of this trial

 

[L2L]

Oscar/Reeva movie to start shooting soon...hopeful of interviewing Pistorius and the Steenkamp family!

http://www.iol.co.za/news/crime-courts/oscar-reeva-movie-shooting-to-start-soon-1984178http://www.screendaily.com/festival...ius-documentary-in-the-blocks/5100097.article

 

[Belgarion]

And yet, at the start of this trial, people were falling all over themselves with what an incredible stroke of luck it was that Masipa would be the presiding judge in this trial. It's only after people disagreed with her verdict did their opinion of her change, yet many in SA legal circles still believe that she gave the right verdict.

Time will tell what the CC will do and that will finally be the end of this trial

I would imagine that has reduced to a very small number since the SCA has clearly ruled that Masipa twice erred in law. Especially as the vast majority of legal persons disagreed with her immediately after the trial verdict.

I would suggest it not a good legal career enhancing move to disagree with the unanimous judgement of the SCA unless of course one is being paid well to do so.

As you say we await the ConCourt decision although I fully expect it to disallow the appeal. To do otherwise would require the setting of new precedents and case law which is an anathema to lawyers especially as the appeal in this case is based on the most filmiest of pretexts

 

[mrjitty]

It's only after people disagreed with her verdict did their opinion of her change, yet many in SA legal circles still believe that she gave the right verdict.

This is where those who have no legal experience give themselves away

Many legal analysts disagreed with her verdict because it contained legal errors on its face and was poorly drafted.

This analysis is a typical process that takes place every day in the legal community. But usually about cases the public does not care about.

I am yet to read an abundance of scholarly criticism of Justice Leach - precisely because Leach delivered a balanced and well reasoned judgement

... unlike Masipa

 

[mrjitty]

Killing is inherently unlawful unless justified by self-defense.

It's seems crazy that you have to point this out - but yes precisely.

Everyone knows you are not allowed to shoot people.

 

[mrjitty]

This, for me, is where the issue of perceived lawfulness is key: my understanding is that it's DE if the person foresaw that their actions or the results of their actions could be unlawful. Without that acceptance of unlawfulness or possible unlawfulness, where is the dolus?

You can quickly see that your argument does not take you anywhere by examining an actual self defence hypothetical.

Let's say there really is an intruder in the toilet. An unarmed boy who has climbed in the window to try and steal something.

Pistorius shoots 4 times - breaks open the toilet and finds the boy.

OP has foreseen the potential death of the intruder but persisted nonetheless (DE), or could even be argued to have intentionally killed the boy DD

So the only question at trial will be whether the test for self defence is met (justification)

We don't ask whether OP intended to act unlawfully. He did in fact intend to shoot the boy. The question is whether he was justified.

when you turn to PPD the question is really still the same - did OP believe he was justified?

The question is not "did OP give himself a free pass to shoot"

 

[mrjitty]

I think you need to take on board the fact that the SCA simply didn't believe him.

This

I would refer you and aftermath to the words of Justice Leach at para 17 of the SCA judgement.

His version varied substantially. At the onset he stated that he had fired four shots ‘before he knew it’ and at the time he was not sure if there was someone in the toilet. This soon changed to a version that he believed whoever was in the toilet was going to come out and attack him. He later changed this to say he had never intended to shoot at all; that he had not fired at the door on purpose and he had not intended to shoot any intruder coming out of the toilet. In the light of these contradictions one does not really know what his explanation was for firing the fatal shots.

and This.

The SCA couldn't find any evidential foundation for PPD in OP's evidence.

And because Masipa forgot to set out her detailed findings on PPD, the SCA was more than entitled to review the accused own explanation