Eh! ?
Oscar Pistorius - Discussion Thread #69 *Appeal Verdict*
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Eh! ?
Marfa Lights
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Let me see if I can help...
Oscar hears a series of noises and wrongly assumes it is an intruder inside his bathroom. He then takes his gun and supposedly acting out of fear, shoots through a closed door before identifying his target or determining if there is indeed an actual threat. He assumes the person behind the door represents a potential threat.
As I understand the law in South Africa it is unlawful to shoot an intruder even if inside your own home, unless they are commencing to attack you or other members of the household. If you shoot them in a pre-emptive strike, you are essentially attacking them. If you kill them it is murder since there was no threat or direct attack and there was no need for any defensive action.
Oscar over-stepped the bounds of lawful self defense and regardless of his fears, anxieties or vulnerabilities, this was not a justifiable homicide. He may have been mistaken in his belief that an intruder entered through his bathroom window, but this is still not a license to kill and does not make his actions justifiable as a lawful self defense.
Sean Rens testified and gave evidence that Oscar had knowledge of the legal responsibilities for a licensed gun owner acting in self defense. Therefore it is not reasonable to believe he would have thought he was acting lawfully and consequently his actions rise to level of murder in the form of Dolus eventualis.
IMO the appropriate place to consider any vulnerabilities and anxieties related to his disability will be as mitigating factors at sentencing.
I was referring to the determination of DE including an appreciation of lawfulness but your explanation is of self defence and you have confused private defence and putative private defence. For example in almost every example of mistaken identity the strike will be pre-emptive as there will be no "strike".
That is referring to an unlawful act not knowledge of unlawfulness.
In this case, the unlawful act was the shooting of Reeva - there is no dispute about that.
Clearly the shooting of Reeva was unlawful
The question about whether OP knew it was unlawful is a question of PPD, not a question of DE
Steyn's argument is very low quality from a technical point of view. No proper review of the case law or judicial trends.
I doubt anyone any high level Justice would bother with it.
Again you can understand all this better if you conduct a thought experiment to check the different stages of the inquiry
This is a common technique in legal analysis.
Stage 1
Replace Reeva with a real intruder in the toilet
It is clear that killing someone is ordinarily an unlawful act.
Did OP intend to do so? Yes - he fired four shots at the person knowing he could kill them, but persisted anyway.
But can the shooting be legally justified? Here we have to roll out the self defence test.
Clearly the test for self defence is not met.
The accused did not verify identity, no attack commenced and the force was excessive.
Stage 2
What difference does it now make if we replace the "intruder" with Reeva?
Did OP know the killing was not legally justified given his mistaken belief? (this is where knowledge of unlawfulness comes in).
Clearly this does not assist the accused.
It was murder whether it was reeva or a "bad man" in the toilet.
This is a common technique in legal analysis.
Stage 1
Replace Reeva with a real intruder in the toilet
It is clear that killing someone is ordinarily an unlawful act.
Did OP intend to do so? Yes - he fired four shots at the person knowing he could kill them, but persisted anyway.
But can the shooting be legally justified? Here we have to roll out the self defence test.
Clearly the test for self defence is not met.
The accused did not verify identity, no attack commenced and the force was excessive.
Stage 2
What difference does it now make if we replace the "intruder" with Reeva?
Did OP know the killing was not legally justified given his mistaken belief? (this is where knowledge of unlawfulness comes in).
Clearly this does not assist the accused.
It was murder whether it was reeva or a "bad man" in the toilet.
It is referring to an unlawful act which OP had to be fully aware of at the time he was firing.
You have to read a bit between the lines with Roux's submissions which aren't really legal but policy.
Basically Roux is arguing that fear levels are such in gated communities that the line for self defence needs to be shifted to more of a shoot first ask questions later position
In this view, executing your girlfriend is a tragic accident, but just an expected by-product of a crime ridden society.
No doubt you can find a judge or two who see things the same way.
The problem is, moving the line is better suited to a cause célèbre case where a good citizen kills a bad man - rather than blowing your girlfriend's head apart in "peculiar circumstances"
So the highest court is not going to rush to change the policy around self defence on these facts - especially not when so many bad men might take advantage of laxer rules in "real" shootings
Hence all the stuff about this being a "special case" - the SC and now the Con Court is invited to make an exception only for OP. (but by implication also for other privileged people)
All the rest is just legal window dressing.
It all depends whether Roux gets Justices who have overall sympathy for the accused's predicament.
It's weak sauce but as Amanda Knox discovered - you never know your luck
You might find the Highest Court of land is prepared to rip the Appeal Court decision up on the thinnest of pretext!
Basically Roux is arguing that fear levels are such in gated communities that the line for self defence needs to be shifted to more of a shoot first ask questions later position
In this view, executing your girlfriend is a tragic accident, but just an expected by-product of a crime ridden society.
No doubt you can find a judge or two who see things the same way.
The problem is, moving the line is better suited to a cause célèbre case where a good citizen kills a bad man - rather than blowing your girlfriend's head apart in "peculiar circumstances"
So the highest court is not going to rush to change the policy around self defence on these facts - especially not when so many bad men might take advantage of laxer rules in "real" shootings
Hence all the stuff about this being a "special case" - the SC and now the Con Court is invited to make an exception only for OP. (but by implication also for other privileged people)
All the rest is just legal window dressing.
It all depends whether Roux gets Justices who have overall sympathy for the accused's predicament.
It's weak sauce but as Amanda Knox discovered - you never know your luck
You might find the Highest Court of land is prepared to rip the Appeal Court decision up on the thinnest of pretext!
Sherbert
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Some interesting stuff here from Burchell about knowledge of unlawfulness:
https://books.google.co.uk/books?id=tM_BSGfDPG0C&pg=PA464&lpg=PA464&dq=self+defence+knowledge+of+unlawfulness&source=bl&ots=iFejTYcWBM&sig=v0Rv6_cEHz9Mu0P8bOHW-_aQ_Rw&hl=en&sa=X&ved=0ahUKEwiDhq6yu9TKAhUCGB4KHQf7CcAQ6AEIMDAD#v=onepage&q=self%20defence%20knowledge%20of%20unlawfulness&f=false
https://books.google.co.uk/books?id=tM_BSGfDPG0C&pg=PA464&lpg=PA464&dq=self+defence+knowledge+of+unlawfulness&source=bl&ots=iFejTYcWBM&sig=v0Rv6_cEHz9Mu0P8bOHW-_aQ_Rw&hl=en&sa=X&ved=0ahUKEwiDhq6yu9TKAhUCGB4KHQf7CcAQ6AEIMDAD#v=onepage&q=self%20defence%20knowledge%20of%20unlawfulness&f=false
I am simply pointing out that it is not included in Snyman’s definition of DE which you yourself posted
Precisely right.
It was never OP's defence that he didn't know it was unlawful to shoot a person
rather he claimed either that
1) It was putative self defence (i.e. with lawful justification)
or
2) Involuntary (a defence which excludes Dolus)
he is trying to have two bites at the same apple.
So per Burchell page 464 this case comes clearly under d) not b)
b) could only apply if OP was ignorant of the law of self defence - but again the evidence was the opposite. As a trained gun over, he was fully aware of the law, and that his actions were unlawful.
Well found!
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Re: BIB-- No, I don't think so. Unless I am mistaken, I believe the legal standards for a lawful self-defensive response to a threat are the same whether it was an actual threat or a misperception, i.e. "Putative."
Oscar may have mistaken Reeva for an intruder, but regardless he was not entitled to shoot and kill ANYONE who was not threatening him or attacking him. Pre-emptive strikes are clearly unlawful as a form of self-defense and mistaken identity is irrelevant.
While the court had to accept that it could be reasonably possibly true that Oscar held a genuine but mistaken belief that an intruder had entered his house, the court was not automatically required to accept that it was reasonable for him to have (subjectively) thought he was acting lawfully in killing someone who had not yet attacked or directly threatened him. Instead, the court would have to make the obvious inference that as a licensed firearms owner, he knew and accepted the responsibilities that go along with the use of lethal force.
It's not just about what Oscar thought or believed that night-- it's not even about WHY he did what he did--- it's also WHAT he did and HOW he responded to a perceived threat (real or imagined) and whether or not it his actions conform to the laws of self-defense.
Or perhaps you believe it is lawful to shoot and kill an intruder inside your house if you surprise them in your living room? Is that why you continue to believe his actions were justifiable? Or, is it that in the heat of the moment anything goes?? And maybe there are exceptions to the laws of self-defense for disabled people? Or perhaps just especially jittery and anxious people with itchy fingers?
BIB Can I imagine being so scared for my life that I might fire ? Yes I think so.
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I understand, but if I had a loaded weapon in hand and I did not see a weapon in their hands, I hope I would hold fire until I could better assess the threat.
Nice thing about having a smart dog inside with you, you can see how they are reacting to a sound at night or send them to "go see." I know Oscar claimed his dogs were too friendly to have barked, but if they were loose in the backyard as I believe they were, it's hard to imagine he would not have instinctively factored in whether they had barked or not the minute he suspected an intruder was coming in the bathroom window.
Maybe we are just different in that my only priority on hearing an intruder inside my house, just in the next room would be my safety rather than ruminating on how they got in.
If a car is coming towards me on the wrong side of the road I'm concentrating on avoiding them rather than on how they came to be there. How about you?
All of this Steyn malarkey is a bit mystifying
High level appellant courts will obviously consult sources other than case law and statutes.
Authoritative texts being an obvious example.
It's not unheard of for the Court to refer to long standing legal disagreement between experts from the law journals.
However this business of citing mere articles is a bit of an odd one
High level appellant courts will obviously consult sources other than case law and statutes.
Authoritative texts being an obvious example.
It's not unheard of for the Court to refer to long standing legal disagreement between experts from the law journals.
However this business of citing mere articles is a bit of an odd one
Also - and lets make no bones about this, it is a quite a leap into the blue for Steyn to be suggesting that the test for DE is a three step test when all the texts and case law say its two step.
The fact that knowledge of unlawfulness is required in RSA law does not make that a component of DE.
And it was a question that the SC specifically addressed in the judgement.
Steyn's better submission is the tricky question of where does the line sit
This part i can agree with.
But he is not able to show how the SC got that part wrong.
The fact that knowledge of unlawfulness is required in RSA law does not make that a component of DE.
And it was a question that the SC specifically addressed in the judgement.
Steyn's better submission is the tricky question of where does the line sit
This part i can agree with.
But he is not able to show how the SC got that part wrong.
Again I 100% disagree that Leach did this.
When asking "what must the defendant have foreseen"
Courts down through the ages have always taken the view that the accused must be taken to foresee logical and natural consequences, results, states etc.
So when OP can see 100% clearly that the toilet door is not opening, it will be implied that he knows for certain that a person is not in fact coming out to attack him (yet).
This is the same as when he fired 4 shots at the person, any sentient human would be aware death might results - so that knowledge is implied as something he must have known.
This is not the same as negligence where we ask what a reasonable person would know.
But nevertheless the Court must have regard to the natural and obvious things a human would perceive (and thus know).
But here is the other key difference.
Primafacie, a person intends the natural and obvious consequences of their actions and must have known things that are obvious
But the defence may prove that the accused did not in fact know.
However the defence failed to prove these points
1. The defence failed to prove OP did not know that a person might be killed (indeed the evidence at trial was completely the opposite)
2. The defence failed to prove that OP believed an attack was starting
3. the defence failed to prove OP believed the force was necessary and reasonable (he fired by accident!)
Tortoise
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Hearing and seeing, two different things.
Upon hearing a noise in another room, most people's first response would be to wonder if it could be a family member before firing shots through a door knowing they would kill whoever was behind it, and even if they thought their partner was awake and in bed, to actually check they hadn't left the room while you had your back turned, especially if they didn't make a sound when you spoke to them.
Yes, negligence....and?
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