following from my previous post, just my humble brief, rough and ready judgement with SA legal citation
The accused did not act in putative private defence
The accused claims he mistakenly thought there was an intruder. A case of putative private defence therefore seems possible and deserves consideration.
In such cases “To secure a conviction, the State had to prove beyond a reasonable doubt that the appellant unlawfully and intentionally killed the deceased. The State must show that he did not act in private defence or in terms of a putative private defence”
Mkhize v S (16/2013) [2014] ZASCA 52
If an accused acted in full and true accordance with putative private defence, then he must be acquitted of murder as he did not intend to unlawfully kill. He may still be found guilty of culpable homicide however, based on a judgement of whether or not his beliefs and actions were reasonable. “If an accused honestly believes his life or property to be in danger, but objectively viewed they are not, the defensive steps he takes cannot constitute private defence. If in those circumstances he kills someone his conduct is unlawful. His erroneous belief that his life or property was in danger may well (depending upon the precise circumstances) exclude dolus in which case liability for the person’s death based on intention will also be excluded; at worst for him he can then be convicted of culpable homicide.’
S v De Oliveira 1993 (2) SACR 59 (A)
The virtue of putative private defence as a legal defence against murder is therefore one of differing and mutually exclusive intention. The intention was to act lawfully, therefore the intention was not to act unlawfully. Thought, awareness and intention are therefore necessary components of acting in putative private defence. “The defence of putative private defence implies rational but mistaken thought. It is inconsistent with a lack of awareness of what you are doing.”
S v De Oliveira 1993 (2) SACR 59 (A)
In his evidence, the accused was clear in claiming awareness of discharging the firearm, but denying thought and denying intention. It is therefore simple to reject putative private defence in this case, as this was not the evidence of the accused himself.
What of the possibility the accused was lying in this regard and did in fact act in putative private defence ? Must the court consider that this may reasonably be possibly be true? The answer is no. “I may not think up a defence for him. The accused may continue to protest his innocence - that is his right. But I cannot foist a defence on him”
S v Mthembu (CC 163/2008) [2011] ZAKZPHC 60
What if counsel argue on the accused’s behalf? The same remains true. “It is trite law that a Court is entitled to find that the State has proved a fact beyond reasonable doubt if a prima facie case has been established and the accused fails to gainsay it ….. But one of the main and acknowledged instances where it can be said that a prima facie case becomes conclusive in the absence of rebuttal, is where it lies exclusively within the power of the other party to show what the true facts were and he or she fails to give an acceptable explanation ……. The State is not required to plug every loophole, counter every speculative argument and parry every defence which can be conceded by imaginative counsel without a scrap of evidence to substantiate it” S v BOESAK [2000] ZASCA 112; 2000 (1) SACR 633 (A)
The accused did not act involuntarily
The accused's evidence was clear in that he fired the gun involuntarily: “I can remember pulling the trigger” but “I didn’t intend to shoot”.
Is this plausible? There are some actions which we may conceive could possibly happen involuntarily - e.g. muscle reflexes, falls, blinks, flinches, dropping things, jumping out the way, slips of the finger and other simple, instantaneous stereotyped behaviours. However, firing four shots in the manner the accused claimed he did, which his own ballistics expert explained would need a high degree of strength, skill and repeated finger pressure on the trigger, is a complex, co-ordinated, purposeful action that cannot reasonably be conceived to happen involuntarily. We must assume that one is in control of such actions until proven otherwise, from both a common sense and a legal viewpoint. The burden of proof is therefore on the accused and any expert witnesses in this regard.
Dr Scholtz’s psychological report talked of an exaggerated fight or flight response in the accused, but concluded the accused was able to act in accordance with his understanding of right or wrong, therefore he does not support the claim of involuntary action. The unanimous psychiatric report also concluded the same.
Dr Vorster in her testimony said the specific form of involuntary action known as automatism could not be the case here as among other things, there was memory of the incident.
Prof Derman talked of an exaggerated startle response in the accused, and said the noise from the toilet would have caused a startle response which is involuntary. However, he explained that a startle response is a brief muscle reflex of well-established and specific physiological nature, usually a blink or a flinch of the shoulder or back muscles, so this does not account for the claimed involuntary response of firing four shots. He too talked of an exaggerated fight or flight response, but again stopped short of offering any explanation as to how this may have caused the accused to fire involuntarily. In fact, he said when asked why the accused fired “that is a question for Mr Pistorius” - he clearly does not offer any expert corroboration of the claimed involuntary action.
What makes me certain that this defence is a concoction, is the accused’s strikingly similar defence on the charge of firing the gun at Tasha’s. The trend is clear - the accused knows the law well, knows the evidence well, and is throwing up a doubt, no matter how implausible, that he knows can neither be categorically proved or disproved in the hope that it may be accepted by the court and will therefore result in a full acquittal of said charge.
Prima facie case of murder proved and not successfully rebutted
Care must be exercised in giving too much weight to the lies of an accused, for an innocent person may lie in order not to imperil himself. However, where an accused’s core evidence and defence is rejected as false, then it is not justified to invent defences and possibilities for him, especially when they go against his evidence.
“It is trite law that a Court is entitled to find that the State has proved a fact beyond reasonable doubt if a prima facie case has been established and the accused fails to gainsay it ….. But one of the main and acknowledged instances where it can be said that a prima facie case becomes conclusive in the absence of rebuttal, is where it lies exclusively within the power of the other party to show what the true facts were and he or she fails to give an acceptable explanation ……. The State is not required to plug every loophole, counter every speculative argument and parry every defence which can be conceded by imaginative counsel without a scrap of evidence to substantiate it” - S v BOESAK supra paras 46 – 48.
In R v MLAMBO 1957 (4) 727 (A) 738 A – D it was said by Malan JA that:
“There is no obligation on the Crown to close every avenue of escape which may be open to an accused”. I may convict the accused if I am “morally certain of his guilt”. The learned Judge on appeal continued: “Moreover, if an accused deliberately takes the risk of giving false evidence in the hope of being convicted of a less serious crime or even, perchance, escaping conviction altogether and his evidence is declared to be false and irreconcilable with the proved facts, a Court will, in suitable cases, be fully justified in rejecting an argument that, notwithstanding that the accused did not avail himself of the opportunity to mitigate the gravity of the offence, he should nevertheless receive the same benefits as if he had done so”.
See also S v STEYNBERG 1983 (3) SA 140 (A) 146 F – H.
Finally, it is not for the Court to speculate about possible explanations not advanced by the accused himself - S v MKHIZE 1999 (2) SACR 632 (W) 639 d – e.
This case is one of prima facie murder, and it has been explained why the accused has failed to gainsay it. The common cause facts even without witness evidence speak for themselves: the accused was spending the night with his girlfriend who normally sleeps with him in the main bedroom on the upper floor at his burglar-proofed home in a gated estate, the home was otherwise undisturbed with no exceptional events that night, the victim locked herself in the toilet of the bedroom en-suite, the accused fired 4 shots through the toilet door and killed the victim. There can be no conceivable reasonable explanation for why the accused would fire 4 shots through the door other than pre-meditated murder. (Insert your own arguments from all the evidence here sleuthers) The accused has advanced his attempt at a conceivable explanation and this has been rejected. I therefore find the accused guilty of the pre-meditated murder of Reeva Steenkamp.
Interesting Nugget
In searching legal cases, I also found why Nel was hammering the point about what Roux put or didn't put to state witnesses. Seems OP didn't just throw poor Roux under the bus, but under the bus, train and plane too. In S v BOESAK [2000] ZASCA 112; 2000 (1) SACR 633 (A) para 50: “It is clear law that a cross-examiner should put his defence on each and every aspect which he wishes to place in issue, explicitly and unambiguously to the witness implicating his client”. And "It is the duty of defence counsel to put the version of the accused to the State witnesses" – S v VAN AS 1991 (2) SACR 74 (W) 108 C. All the evidence indicating lies and tailoring add up against OP too obviously in any real judgement
