Oscar Pistorius - Discussion Thread #69 *Appeal Verdict*

[mrjitty]

Murder (via DE) and Culpable homicide should not really be rolled together on a sliding scale. I think this is causing confusion.

They are completely different charges.

PPD is a defence to murder.

However if in the context of your PPD defence, you killed another person through negligence - then that is a classic manslaughter (CH) type of case.

Essentially Masipa found OP guilty of CH because his behaviour fell short of what we objectively expect from a reasonable person.

His conduct in killing Reeva was "outrageous" and not a reasonable mistake. This is what makes him "culpable" for her death

 

[mrjitty]

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.

As I quoted from Leach upstream - these matters were not accepted.

You continue to quote the contentions of the defence as if these were matters proven at trial.

 

[sinth]

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.

BIB - Can you prove that statement ? The reality is, that it is quite the opposite. Take a look at this video which was filmed a few days after the CH verdict.

https://youtu.be/Ma3t2QYH-jY?t=274
(starting at 4:34)

The lawyer mentions his surprise at the verdict and explains where he thinks Maisipa went wrong (DE, error in objecto), he also mentions that many of his peers disagree with Masipa´s verdict. Fast-forward one year and 3 months later and what happens at the SCA? An unanimous bench of the supreme court disagrees with her verdict and exactly on the grounds raised by this lawyer just a few days after the original verdict.

The reality is that it is Dr. Steyn and possibly a few others agree with the CH verdict but certainly not "many" in the SA legal circles.

 

[aftermath]

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

Everyone knows you are not allowed to shoot people.

I don't think anyone had suggested otherwise though

 

[mrjitty]

I don't think anyone had suggested otherwise though

But there straightaway is your intention to act unlawfully (shoot a person)

This is displaced, if and only if, the accused genuinely believed he was acting in self defence

 

[Belgarion]

BIB - Can you prove that statement ? The reality is, that it is quite the opposite. Take a look at this video which was filmed a few days after the CH verdict.

https://youtu.be/Ma3t2QYH-jY?t=274
(starting at 4:34)

The lawyer mentions his surprise at the verdict and explains where he thinks Maisipa went wrong (DE, error in objecto), he also mentions that many of his peers disagree with Masipa´s verdict. Fast-forward one year and 3 months later and what happens at the SCA? An unanimous bench of the supreme court disagrees with her verdict and exactly on the grounds raised by this lawyer just a few days after the original verdict.

The reality is that it is Dr. Steyn and possibly a few others agree with the CH verdict but certainly not "many" in the SA legal circles.

As fair as I can understand even Dr. Steyn has not gone as far as disagree outright with the judgement of the SCA and say he still agrees with Masipa

However as you point out it would be interesting if the poster could provide some names of the legal persons who still agree with Masipa's reasoning and verdict. Should not be difficult if there are ‘many’ of them as suggested

 

[mrjitty]

The point about self defence and thus also PPD is the law recognises justification if and only if a detailed set of standards are met.

Aftermath is basically asking for a new kind of defence not amounting to self defence, where you shoot because you were scared or just because you decided you were allowed to.

That has never been the law.

We have always held the accused explanation up to a detailed set of standards

 

[mrjitty]

As fair as I can understand even Dr. Steyn has not gone as far as disagree outright with the judgement of the SCA and say he still agrees with Masipa

However as you point out it would be interesting if the poster could provide some names of the legal persons who still agree with Masipa's reasoning and verdict. Should not be difficult if there are ‘many’ of them as suggested

Steyn himself appears to say it is a question of where you draw the line.

And it is this application of the facts to the law which is the precise role of the judiciary.

As Sherbert correctly points out - the difficulty with Steyn's analysis is that OP lacked bonafides in court. The SCA couldn't determine what his "best truth" was

So he can hardly start crying over spilt milk when the SCA finds him to be on the wrong side of the line

 

[aftermath]

The point about self defence and thus also PPD is the law recognises justification if and only if a detailed set of standards are met.

Aftermath is basically asking for a new kind of defence not amounting to self defence, where you shoot because you were scared or just because you decided you were allowed to.

That has never been the law.

We have always held the accused explanation up to a detailed set of standards

No. That's not what I am saying.

 

[mrjitty]

No. That's not what I am saying.

But you are saying that OP is not guilty of murder even when the test for PPD is not met.

So that creates a new class of non-murder shootings where the accused simply believed he was allowed to shoot or didn't even consider it.

To date the law only recognises quite specific exceptions e.g.

Self defence
Involuntary action
Automatism
etc

 

[Belgarion]

No. That's not what I am saying.

Well then with respect what are you saying as it seems confusing to me the approach you appear to be taking to 'defend' Pistorius

 

[Tortoise]

SCA Judgement Para 54 -

"...yet he fired without having a rational or genuine fear that his life was in danger."

There is the proof that the SCA considered PPD subjectively, and that his many explanations were just not believed.

 

[aftermath]

Well then with respect what are you saying as it seems confusing to me the approach you appear to be taking to 'defend' Pistorius

I will try to clarify for you, but will take a while to set it all out in not-excessively-lengthy posts

 

[Tortoise]

As I understand it, in a self defence case, knowledge of unlawfulness has always been part of the enquiry into mens rea. Because, to be guilty of murder, there must be unlawful intent. And this must ultimately be a subjective enquiry.

Personally, therefore, from my brief scan of his articles, I don't see anything particularly new or outlandish in what Steyn is saying.

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.

The SCA found no evidence to rebut the prima facie proof that Pistorius knew he was behaving unlawfully. In fact, not only did he fail to fire a warning shot, but, also, they described his testimony as so vacillating and untruthful that it was impossible to know what he was thinking when he pulled the trigger.

So, as far as I can see, the issue of unlawful intent has already been dealt with adequately by the SCA.

And, moreover, we must not forget that Pistorius claimed that he had fired involuntarily as a result of a startle and didn't actually claim that he thought he was acting in lawful self defence. Therefore, given that he was found not to be suffering from a mental disorder, it is arguable that, in relation to the question of knowledge of unlawfulness, the SCA need only have considered the issue of whether or not he was suffering from automatism, to which the answer can only have been a resounding 'no'.

I agree with what you have written in the main, but re the bits in bold -

1. The new part - borrowed by the defence and contained within the appeal - is that the courts have thus far got it wrong on DE - and that there is a second leg to DE - knowledge/foresight of unlawfulness, which must be proven. It comes from the law on criminal intent (since the 1977 case of De Blom) where subjective knowledge of unlawfulness must be proven.

They seem to be saying (but haven't said as much) that the test for PPD which would establish lawful intent (if accepted by the court), does not satisfy the requirement for establishing knowledge of unlawfulness if PPD is rejected. In other words that it must be a stand alone enquiry into the accused's knowledge/awareness of unlawfulness.

The grounds they put up for this are that it is, as I have said, an integral part of accepted SA law on criminal intent, and the crime of DE inherently being an unlawful act.

However there is no legal precedent for this claim, as the courts have never used this approach - the approach has always been that if there is no lawful justification for the killing it is an unlawful killing and the intent was therefore unlawful.

I have pointed out in other posts that it is impossible to prove subjective knowledge of unlawfulness when dealing with murder - without a confession - so what they are proposing is outlandish by any view.

2. The PPD enquiry is a subjective one - it isn't the reasonable man but the rational one, where he has not given evidence for example.

 

[Marfa Lights]

SCA Judgement Para 54 -

"...yet he fired without having a rational or genuine fear that his life was in danger."

There is the proof that the SCA considered PPD subjectively, and that his many explanations were just not believed.

Even Steyn recognized there is a problem for OP in that so much time lapsed after first thinking there might have been an intruder and to the point when he fired four rounds-- time in which he should have ascertained if he was in a life-threatening situation or not (negligence).

If Reeva, had suddenly bolted out of the toilet at him he would have likely been able to justify his "mistake" as a defensive reflex (CH).

But nothing like this happened-- nothing happened that would make it understandable that he thought he was under attack or that he had to use lethal force to fend off an imminent attack.

He might have gone to investigate a noise in his bathroom with understandable apprehension, but nothing transpired that would substantiate any reason for him to have been in legitimate fear for his life. He had an obligation to confirm his suspicions before using lethal force.

Yet he took aim and with reckless disregard killed the person behind the door before they presented any legitimate threat (DE).

 

[Tortoise]

Even Steyn recognized there is a problem for OP in that so much time lapsed after first thinking there might have been an intruder and to the point when he fired four rounds-- time in which he should have ascertained if he was in a life-threatening situation or not (negligence).

If Reeva, had suddenly bolted out of the toilet at him he would have likely been able to justify his "mistake" as a defensive reflex (CH).

But nothing like this happened-- nothing happened that would make it understandable that he thought he was under attack or that he had to use lethal force to fend off an imminent attack.

He might have gone to investigate a noise in his bathroom with understandable apprehension, but nothing transpired that would substantiate any reason for him to have been in legitimate fear for his life. He had an obligation to confirm his suspicions before using lethal force.

Yet he took aim and with reckless disregard killed the person behind the door before they presented any legitimate threat (DE).

There was never any evidence tendered anyway that he would have gone on one of his "fight" expeditions while being without his prostheses, gun or no gun.

It should have been seen for what it was - a complete fabrication - with Derman winning 2nd prize for lying under oath, after Pistorius.

No wonder the SCA disbelieved him.

 

[Marfa Lights]

I agree with what you have written in the main, but re the bits in bold -

1. The new part - borrowed by the defence and contained within the appeal - is that the courts have thus far got it wrong on DE - and that there is a second leg to DE - knowledge/foresight of unlawfulness, which must be proven. It comes from the law on criminal intent (since the 1977 case of De Blom) where subjective knowledge of unlawfulness must be proven.

They seem to be saying (but haven't said as much) that the test for PPD which would establish lawful intent (if accepted by the court), does not satisfy the requirement for establishing knowledge of unlawfulness if PPD is rejected. In other words that it must be a stand alone enquiry into the accused's knowledge/awareness of unlawfulness.

The grounds they put up for this are that it is, as I have said, an integral part of accepted SA law on criminal intent, and the crime of DE inherently being an unlawful act.

However there is no legal precedent for this claim, as the courts have never used this approach - the approach has always been that if there is no lawful justification for the killing it is an unlawful killing and the intent was therefore unlawful.

I have pointed out in other posts that it is impossible to prove subjective knowledge of unlawfulness when dealing with murder - without a confession - so what they are proposing is outlandish by any view.

2. The PPD enquiry is a subjective one - it isn't the reasonable man but the rational one, where he has not given evidence for example.

: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.

 

[Interested Bystander]

What are the chances a real burglar would not have tripped the beam alarm which was on, not cause the dogs to bark even if they did not bite when they detected somebody skulking in the garden at night, be able to manipulate ladders from another area in the garden to under the bathroom window, alter the height of the ladder to reach the window, climb it in silence (given that ladders flex against the wall with the weight of the body climbing it), bang the window when they obviously would be trying to break in without being detected? Then go on to bang the toilet door to tell the occupiers where they were and make a noise in the toilet loud enough to frighten somebody into shooting. It just didn't/couldn't happen. Those who believe OP is innocent are throwing away so much common sense in order to accept his defence which is fairly obvious to most a complete pack of lies. The SCA look at the whole trial and are at liberty to determine what they thought happened. With this knowledge they will then listen to the Appeal and decide whether or not OP's testimony is truthful or not. They obviously thought he lied, as most of us do and determined that he knew exactly what he was doing.

 

[Trotterly]

BIB - Can you prove that statement ? The reality is, that it is quite the opposite. Take a look at this video which was filmed a few days after the CH verdict.

https://youtu.be/Ma3t2QYH-jY?t=274
(starting at 4:34)

The lawyer mentions his surprise at the verdict and explains where he thinks Maisipa went wrong (DE, error in objecto), he also mentions that many of his peers disagree with Masipa´s verdict. Fast-forward one year and 3 months later and what happens at the SCA? An unanimous bench of the supreme court disagrees with her verdict and exactly on the grounds raised by this lawyer just a few days after the original verdict.

The reality is that it is Dr. Steyn and possibly a few others agree with the CH verdict but certainly not "many" in the SA legal circles.

This "expert commentator" accepts that OP intended to shoot (and thru the cubicle size intended to kill) so that might help clear things up for those who found OP's testimony confusing.

 

[Trotterly]

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.

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