Oscar Pistorius - Discussion Thread #69 *Appeal Verdict*

[Sherbert]

Thanks.

What is artificial about discussion in this forum is that it is never of fact to the law!

In laws 101 you learn the process of analysis.

1. What does the law say?
2. Apply the facts to the law

Unfortunately but not surprisingly in these discussions stage 1 gets skilled over.

But the first thing you do as a real lawyer is go and look up what the law actually says, and how it has been applied in other cases.

“No ground of justification can exist in the absence of objective factors, and for this reason X’s conduct remains unlawful if she subjectively thinks that there is a ground for justification whereas in fact there is none. A so-called “putative ground of justification” is therefore in fact no ground of justification.”

So as you have so incisively shown above, Snyman clearly explains that what the accused claimed to have believed is insufficient.

The belief must be based on objective factors.

So as Leach so clearly explained - OP did not establish the evidential foundation for PPD.

Mr Jitty, that quote deals with lawfulness - it relates to self defence, not PPD!

I do agree, though, that the Defendant must lay an evidential foundation and that credibility is assessed by reference to objective factors.

 

[Sherbert]

Why do we have to keep repeating this. He said he fired because he thought he was being attacked. Whatever he said was in his mind prior to that moment he had armed himself for a possible confrontation and when he got the fright he fired to defend himself. It really is that simple.

For me, the simple bit is that he was found to lack credibility.

When it comes down to it, that is what really matters.

 

[Tortoise]

[/B]

RBBM

I’m not sure that I understand you, Tortoise.

The test for PPD helps the Court to assess reasonableness, not rationality. For example, having regard to objective factors such as proportionality, immediacy of threat and so forth, the Court first assesses whether or not the killer's response would have been reasonable, had the circumstances been as he perceived them to be. In cases of PPD, it’s not about lawfulness, but blame.

If the accused fails to satisfy the test for PPD, it doesn't necessarily mean that the verdict will be murder. We know this very well from caselaw.

Since intention is assessed subjectively, the Court will then proceed to examine further evidence as to the perpetrator's state of mind to decide if the verdict should be CH or DE. The question to be asked is whether or not the accused knew that he was exceeding the bounds of private defence.

According to Prof.Burchell, the legal position is that, if, (having considered all the available evidence), the court concludes that the perpetrator genuinely believed that he was acting in lawful self-defence, the verdict should be culpable homicide, not murder, as his erroneous belief will exclude dolus.

At the end of the day, as I have stated previously, the issue of subjective knowledge of unlawfulness will always come down to credibility. Clearly, the SCA didn’t believe that Pistorius genuinely believed that he was acting in lawful private defence.

In short, the imminence/proportionality/other options test for PPD has never been the be-all and end-all when it comes to murder – not unless you examine subjective intent as an integral part of that test.

I think I may be in over my head with some of this, by which I mean I don't really know any more where we are agreeing or disagreeing! :crazy: :silly:

It is perhaps beyond me to answer some of your points.

Having said that, I am sure I have learned that PPD is a rational defence - even though the person made a mistake - the person is regarded as rational. Where I am not so clear is to what extent reasonableness enters into the assessment of the rational man. That would rather seem to suggest an objective stance, rather than subjective.

Having looked at the State's reply to the appeal, these parts stood out -

"97. The SCA did not evaluate and assess the version of the Applicant against that of a reasonable person standard, but by referring to the "rational person" suggested the view that the Applicant's version as testified to was so preposterous or "inconceivable" that it could not be accepted."

and

"95. ...the defence of putative private defence is a rational defence - one in which the accused asserts that he was mistaken but rational. Rational in this context connotes goal directed conduct.


I agree with you about credibility.

If you have made a point about proving knowledge of unlawfulness as a second leg to DE somewhere in your post it has been lost on me however.

 

[Trotterly]

I'd like to know who helped Roux formulate his now infamous "slow burn" defense he introduced late in the first trial... That was the low point for me.

As if Oscar had been repeatedly subjected to humiliating and degrading threats and invasions by this same intruder over and over again prior to February 14th, 2013 until he finally just snapped at the sound of wood moving.

It was Derman wasn't it?

I don't think it has to be the "same intruder".

If you've been beating your partner regularly for years and I come round for a cup of tea and they spill it in my lap, they will be cowering because you have been hitting them not because I have.

 

[Sherbert]

I think I may be in over my head with some of this, by which I mean I don't really know any more where we are agreeing or disagreeing! :crazy: :silly:

It is perhaps beyond me to answer some of your points.

Having said that, I am sure I have learned that PPD is a rational defence - even though the person made a mistake - the person is regarded as rational. Where I am not so clear is to what extent reasonableness enters into the assessment of the rational man. That would rather seem to suggest an objective stance, rather than subjective.

Having looked at the State's reply to the appeal, these parts stood out -

"97. The SCA did not evaluate and assess the version of the Applicant against that of a reasonable person standard, but by referring to the "rational person" suggested the view that the Applicant's version as testified to was so preposterous or "inconceivable" that it could not be accepted."

and

"95. ...the defence of putative private defence is a rational defence - one in which the accused asserts that he was mistaken but rational. Rational in this context connotes goal directed conduct.


I agree with you about credibility.

If you have made a point about proving knowledge of unlawfulness as a second leg to DE somewhere in your post it has been lost on me however.

Hi Tortoise!

My interpretation of the material you have quoted is that the State is simply stating for the benefit of the CC that Pistorius's conduct was found by the SCA to be so off the scale that it veered beyond unreasonableness into irrationality and that, moreover, his claim to have fired without thinking did not qualify him for PPD, as it wasn't goal directed.

I don't see the knowledge of unlawfulness bit as being a separate leg to consider - I would regard it as part and parcel of the consideration of mens rea.

However, had it been dealt with as an extra leg, I don't think this would have impacted significantly on the outcome.

As I have mentioned previously, I feel that the issue of unlawful intent was dealt with adequately by the SCA and that they concluded that he was not honest.

 

[mrjitty]

Mr Jitty, that quote deals with lawfulness - it relates to self defence, not PPD!

I do agree, though, that the Defendant must lay an evidential foundation and that credibility is assessed by reference to objective factors.

I believe the point is directly related?

It was further contended on behalf of the Appellant that he:-

“Was entitled to his acquittal, either because of the fact that he was not acting unlawfully, but in self-defence or because it is a case of putative self-defence and that he because he had at the relevant time no knowledge of the unlawfulness of his conduct lacked the required intention of dolus.”

At para 36, having disposed with self defence the Court turns to PPD

[36] With regard to putative self-defence, Snyman in Criminal Law, Fourth Edition on page 101 states the following:-

“No ground of justification can exist in the absence of objective factors, and for this reason X’s conduct remains unlawful if she subjectively thinks that there is a ground for justification whereas in fact there is none. A so-called “putative ground of justification” is therefore in fact no ground of justification.”

For me the "woody sound" falls more into the realm of "putative ground of justification" than evidence establishing PPD.

i.e. not recognised by the law

You can test this by two stage analysis.

Place a real intruder in the toilet to convert it to a real self defence case.

Is the woody sound justification?

Clearly not.

 

[Colin de France]

he was found to lack credibility.

.....what's lacking is proof of any kind.......

 

[Belgarion]

No one is besmirching prof grant!
To suggest as much is disingenuous

Of course Prof Grant is being besmirched

When a poster makes a ridiculous assertion that ‘You could stick Steyn in court dress and it would be the same’ as Prof Grant is disingenuous in the extreme.

Steyn appears to be an unknown blogger who doesn’t even work in the field of criminal law whereas Grant is well known for his publications in academic journals.

To suggest the making of an advocate is merely the acquisition of the correct clothing then to turn up at court really smacks of desperation

 

[Sherbert]

I believe the point is directly related?



At para 36, having disposed with self defence the Court turns to PPD



For me the "woody sound" falls more into the realm of "putative ground of justification" than evidence establishing PPD.

i.e. not recognised by the law

You can test this by two stage analysis.

Place a real intruder in the toilet to convert it to a real self defence case.

Is the woody sound justification?

Clearly not.

I think he's talking about unlawfulness rather than intent.

One of the problems, of course, is that the caselaw is so often inconsistent.

You may remember the Mkhize case that I posted some months ago where a policeman shot and killed a real attacker in circumstances where he should have known that he was exceeding the bounds of self defence. The verdict in that case was CH, although, on the evidence, it could so easily have been DE.

 

[Trotterly]

Of course Prof Grant is being besmirched

When a poster makes a ridiculous assertion that ‘You could stick Steyn in court dress and it would be the same’ as Prof Grant is disingenuous in the extreme.

Steyn appears to be an unknown blogger who doesn’t even work in the field of criminal law whereas Grant is well known for his publications in academic journals.

To suggest the making of an advocate is merely the acquisition of the correct clothing then to turn up at court really smacks of desperation

You were the one claiming that you had to be a "practising lawyer" to be able to pass meaningful judgement. Grant was no more a practising lawyer than Steyn.

It seems that qualification in your eyes is whether the proponent happens to agree with your point of view.

 

[mrjitty]

I think I may be in over my head with some of this, by which I mean I don't really know any more where we are agreeing or disagreeing! :crazy: :silly:

It is perhaps beyond me to answer some of your points.

Having said that, I am sure I have learned that PPD is a rational defence - even though the person made a mistake - the person is regarded as rational. Where I am not so clear is to what extent reasonableness enters into the assessment of the rational man. That would rather seem to suggest an objective stance, rather than subjective.

Having looked at the State's reply to the appeal, these parts stood out -

"97. The SCA did not evaluate and assess the version of the Applicant against that of a reasonable person standard, but by referring to the "rational person" suggested the view that the Applicant's version as testified to was so preposterous or "inconceivable" that it could not be accepted."

and

"95. ...the defence of putative private defence is a rational defence - one in which the accused asserts that he was mistaken but rational. Rational in this context connotes goal directed conduct.


I agree with you about credibility.

If you have made a point about proving knowledge of unlawfulness as a second leg to DE somewhere in your post it has been lost on me however.

The point about rationality and goal oriented conduct is really the same approach we saw with inferring DE

It is subjective, so the Court has to ask what must a person in OPs situation have known?

However when you pump 4 bullets into a small space obviously even a 10 year old would realise a person can be shot and killed. So therefore OP must have realised it as well.

In the end the Court is always going to examine what a sentient adult would perceive, and make the logical inference, unless there is good reason not to.

This is also why Leach referred to this as the Prima facie finding.

The defence would need to prove that OP did not in fact perceive it that way - despite what you would expect.

 

[Sherbert]

.....what's lacking is proof of any kind.......

Proof of what?

 

[mrjitty]

I think he's talking about unlawfulness rather than intent.

One of the problems, of course, is that the caselaw is so often inconsistent.

You may remember the Mkhize case that I posted some months ago where a policeman shot and killed a real attacker in circumstances where he should have known that he was exceeding the bounds of self defence. The verdict in that case was CH, although, on the evidence, it could so easily have been DE.

Well as you know its a semantic inquiry and the details matter ;-)

Had OP shot a real intruder in exactly the same circumstances then he gets invited on breakfast TV and doesn't get charged with anything.

I do agree with you that the starting point is that the Judges are not 'sympathetic" to his case.

 

[Belgarion]

Why do we have to keep repeating this. He said he fired because he thought he was being attacked. Whatever he said was in his mind prior to that moment he had armed himself for a possible confrontation and when he got the fright he fired to defend himself. It really is that simple.

So I guess this is how it should have worked out then.....

Pistorius: M’lady I got a little skittish when a sort of wooden sound made me jump and before I knew it I squeezed the trigger and then was only able to control myself after I had fired four rounds.


Masipa: Perfectly understandable Mr Pistorius these things happen…off you go enjoy the rest of your day!

 

[Sherbert]

Well as you know its a semantic inquiry and the details matter ;-)

Had OP shot a real intruder in exactly the same circumstances then he gets invited on breakfast TV and doesn't get charged with anything.

I do agree with you that the starting point is that the Judges are not 'sympathetic" to his case.

Yes, there was definitely an elephant in the room when Leach handed down judgement...

 

[Belgarion]

You were the one claiming that you had to be a "practising lawyer" to be able to pass meaningful judgement. Grant was no more a practising lawyer than Steyn.

It seems that qualification in your eyes is whether the proponent happens to agree with your point of view.

Tut tut control yourself!!

 

[Trotterly]

So I guess this is how it should have worked out then.....

Pistorius: M’lady I got a little skittish when a sort of wooden sound made me jump and before I knew it I squeezed the trigger and then was only able to control myself after I had four rounds.


Masipa: Perfectly understandable Mr Pistorius these things happen…off you go enjoy the rest of your day!

Don't worry I understand that you never intended to let any of the evidence of Derman et al to influence you in any way. That is clear.

 

[Trotterly]

Tut tut control yourself!!

I'm in perfect control thanks. You just got caught out and you don't like it.

 

[Marfa Lights]

Why do we have to keep repeating this. He said he fired because he thought he was being attacked. Whatever he said was in his mind prior to that moment he had armed himself for a possible confrontation and when he got the fright he fired to defend himself. It really is that simple.

My question was in response to your post #871 shown below-- I was hoping you could elucidate on how the SCA did not take a properly subjective view of Oscar's testimony regarding his intentions to shoot or not.

Instead you appear still insisting that it was legitimate to use lethal force in response to a noise when conditioned by a general state of fear. Not sure we are on the same page here.

In court both sides nudged the line and sometimes crossed it IMO.

Masipa took a properly subjective view when needed, the SCA did not given the facts found.

 

[Belgarion]

Don't worry I understand that you never intended to let any of the evidence of Derman et al to influence you in any way. That is clear.

Of course I listened to Derman. Especially when as a defence witness he dropped Pistorius in the proverbial by conceding…

“He fired at the sound and I’m sure that was to nullify any threat.”

Rather the opposite of Pistorius consistently claiming he didn’t intend to kill anyone

Somewhat ranks with Dixon screwing Pistorius over the magazine rack moving