Oscar Pistorius - Discussion Thread #69 *Appeal Verdict*

[mrjitty]

However there is no legal precedent for this claim, as the courts have never used this approach

Exactly

Basically they need the ConCourt to decide that the SCs approach to DE has been wrong all these decades!

 

[mrjitty]

The PPD enquiry deals with knowledge of unlawfulness in terms of the reasonable man. For example, a reasonable man would consider other options and would not not use excessive force. This is an objective assessment.

If the test is not satisfied, IMO, this constitutes prima facie proof that a rational perpetrator knew he was behaving unlawfully. (Rational meaning a person not suffering from a mental disorder).

However, the court must then proceed to examine whether or not there is any evidence to rebut this prima facie proof.

Here is how I think about it.

From the objectively proven facts, the Court must infer what knowledge the accused had.

This a subjective test - what must the accused have known?

However in asking what the accused must have known, the Court MUST draw obvious and logical inferences.

So if OP has had firearms training, then prima facie he MUST know when he can lawfully shoot - because any rational person would know that.

If the door is not seen to be opening, then OP MUST know no attack has commenced

etc

To rebut these obvious and logical inferences - the onus is on the defence.


I think what went wrong in this case in general is all the "begging the question" from Masipa

Like the duvets and the fans.

Instead of drawing the obvious and logical inferences - she just throws her hands up in the air and claims we can't know what happened!

 

[Tortoise]

:goodpost: Thank you!

Re: BIB above-- Is it accurate to say that the courts require the accused to give evidence to establish a factual basis why they (subjectively) believed they were acting lawfully?

I think there is still a presumption that an accused is entitled to their belief they were acting lawfully without any need to justify their rationale for thinking so.

If you mean, does the accused have to testify then the answer is no.

I'm not sure what you mean about justification - do you mean presumption of innocence? I think I'm correct in thinking that if PPD is claimed, it needs to be backed up by a factual account to stand a chance, unless there are witnesses I suppose. In cases of actual self-defence I don't think there would be a prosecution unless there was doubt about the circumstances - more force used than necessary say.

Perhaps someone else can clarify.

 

[mrjitty]

:goodpost: Thank you!

Re: BIB above-- Is it accurate to say that the courts require the accused to give evidence to establish a factual basis why they (subjectively) believed they were acting lawfully?

I think there is still a presumption that an accused is entitled to their belief they were acting lawfully without any need to justify their rationale for thinking so.

Yes.

It's judged not on what the accused claims but on what inferences can be drawn from the facts.

Testimony from the accused only becomes fact where aspects of it are found to be fact by the trial court.

So for example all of the stuff about the wood sound etc - none of that was found to establish a commenced attack.

 

[Marfa Lights]

Let me see if I have this right... (Note: I am going to ignore the accused's vacillating accounts of whether they acted in putative self-defense or whether they reacted in an uncontrolled reflexive response to a "trigger" or auditory stimulus.)

1. You attempt to justify an unlawful killing by saying you acted with lawful intent in putative self-defense, but

2. You are unable to justify your rationale under the circumstance for believing you would have been acting with lawful intent, then

3. It is determined that your subjective belief that you were acting with lawful intent has no factual basis, and

4. Without providing a rationale for your belief you were acting with lawful intent, it cannot be said that you have a legitimate claim to even putative self-defense (PPD), therefore

5. Your unsubstantiated claims or assertion of your personal belief that you were acting with lawful intentions are unfounded and cannot serve to justify an otherwise unlawful action, so

6. Unable to establish a basis for your belief in your own lawful intentions you have no justifiable defense;

7. Without a justifiable defense to homicide; it is murder.

 

[Tortoise]

Its not there in the evidence which is what really matters though right?

You've changed your tune. You're usually arguing that his evidence doesn't matter and that the finding replaces it. Which is wrong of course.

 

[mrjitty]

If you mean, does the accused have to testify then the answer is no.

I'm not sure what you mean about justification - do you mean presumption of innocence? I think I'm correct in thinking that if PPD is claimed, it needs to be backed up by a factual account to stand a chance, unless there are witnesses I suppose. In cases of actual self-defence I don't think there would be a prosecution unless there was doubt about the circumstances - more force used than necessary say.

Perhaps someone else can clarify.

Self defence and other active defences have always been restricted to stop every defendant simply claiming it.

The defence has to establish an evidential foundation for self defence - only then is the prosecution required to disprove it.

This is to stop precisely what OP is trying to do.

i.e. claiming a noise he heard in the toilet meant he perceived the beginning of a deadly attack.

The prosecution does not have to disprove such a contention

The accused does not have to testify - but realistically, a claim like this will struggle if the accused does not testify, as there is no other way to get these points into evidence (noise in toilet, feeling of fear)

I saw a YouTube security video of a shooting in self defence.

That might be a case where the shooter need not testify. i.e. the video and circumstances create an evidential foundation (dark, big intruder, small female shooter, only a few metres away)

 

[aftermath]

Yes.

It's judged not on what the accused claims but on what inferences can be drawn from the facts.

Testimony from the accused only becomes fact where aspects of it are found to be fact by the trial court.

So for example all of the stuff about the wood sound etc - none of that was found to establish a commenced attack.

Do you think the wood noise would have been enough to establish a basis for believing in a commenced attack if the person firing was blind?

 

[soozieqtips]

Do you think the wood noise would have been enough to establish a basis for believing in a commenced attack if the person firing was blind?

Why are you introducing circumstances completely unrelated to OP's situation?

 

[Tortoise]

Do you think the wood noise would have been enough to establish a basis for believing in a commenced attack if the person firing was blind?

Would a blind person legally own a gun in your example?

 

[aftermath]

Why are you introducing circumstances completely unrelated to OP's situation?

Not totally unrelated, but a good few steps away, yes.

I am wondering if there would ever be any circumstances where a sound rather than an actual sighting would provide an acceptable basis upon which a genuine belief that an attack had commenced could be established

 

[Trotterly]

Do you think the wood noise would have been enough to establish a basis for believing in a commenced attack if the person firing was blind?

I'd be careful, a hypothetical is seen as a crime in itself in here.

 

[Marfa Lights]

If you mean, does the accused have to testify then the answer is no.

I'm not sure what you mean about justification - do you mean presumption of innocence? I think I'm correct in thinking that if PPD is claimed, it needs to be backed up by a factual account to stand a chance, unless there are witnesses I suppose. In cases of actual self-defence I don't think there would be a prosecution unless there was doubt about the circumstances - more force used than necessary say.

Perhaps someone else can clarify.

Sorry, I did not state that well. I did not mean that the accused can be compelled to testify. Although we know from the Oliveira case that it can be to their detriment not to testify on their own behalf.

Instead of saying "give evidence" I should have said something like the defense needs to "substantiate" or "validate" the reasons under the specific circumstances why the accused felt entitled to their belief they were acting with lawful intent.

And I was referring to the presumption that some posters seem to have that if the accused claims to have thought they were acting with lawful intent, then that subjective belief is unassailable and sufficient to justify a putative self-defense claim or counter any attempt by the prosecution to prove unlawful intent.

 

[Belgarion]

Do you think the wood noise would have been enough to establish a basis for believing in a commenced attack if the person firing was blind?

Why are you asking totally unrelated hypothetical questions is it some sort of diversionary tactic?

Pistorius was not blind and he was not even firing blindly he knew his target unfortunately it was Reeva.

 

[aftermath]

Would a blind person legally own a gun in your example?

Yes...

 

[Belgarion]

Sorry, I did not state that well. I did not mean that the accused can be compelled to testify. Although we know from the Oliveira case that it can be to their detriment not to testify on their own behalf.

Instead of saying "give evidence" I should have said something like the defense needs to "substantiate" or "validate" the reasons under the specific circumstances why the accused felt entitled to their belief they were acting with lawful intent.

And I was referring to the presumption that some posters seem to have that if the accused claims to have thought they were acting with lawful intent, then that subjective belief is unassailable and sufficient to justify a putative self-defense claim or counter any attempt by the prosecution to prove unlawful intent.

If that were to be the case it would save a lot of court time as no one would ever be prosecuted for murder!

 

[Tortoise]

Yes...

:giggle:

 

[soozieqtips]

I'd be careful, a hypothetical is seen as a crime in itself in here.

Not as big a crime as having the audacity to question the murderer's fairytale.

 

[Tortoise]

If that were to be the case it would save a lot of court time as no one would ever be prosecuted for murder!

Precisely.

Milady, he says he believed he was going to be killed at any moment by a dangerous armed man hiding in his toilet. Well why is he here then? Stop wasting court time, let him go home..

Next...

 

[Trotterly]

Not as big a crime as having the audacity to question the murderer's fairytale.

I've no problem with a fair and civilised enquiry.