Unsuccessful Attempts to Justify Judge Masipa’s Errors (Revised & Expanded)

Posted: September 28, 2014 in Education
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*** This is a revised and substantially expanded version of the post “Unsuccessful attempts to Justify Judge Masipa’s Errors”. It is organised around themes rather than individual commentators. ***

Introduction

There is something deeply disturbing about many of the attempts that have been made to justify Judge Masipa’s judgment in the Pistorius case. They seem to take the line that her conclusion of culpable homicide was conceivable on the law as it stands, and therefore, although her reasons were questionable, her conclusion was correct. It’s the argument that the end justifies the means. This type of justification is as problematic in law as it is in most other areas of life.

In law it is a licence to introduce uncertainty in our law, or worse, distort or destroy the proper functioning of the principles. Perhaps even worse than that, it seems to reconcile with the notion that the principles don’t matter, as long as the right conclusion was reached. This is the worst possible implication because it reconciles with a lawless society. We must not accept this. It is not even the thin edge of the wedge – it is the wedge, the whole of the wedge.

Another common theme can be observed – related to the point made above. It’s the notion that there was nothing wrong with Masipa’s reasons because they are in line with a defence raised even if she did not actually apply the defence or principles underlying the defence. This is all very well, except that if the Judge did not actually rely on that defence or the principles underlying the defence, we cannot pretend that she did. This is law by wishful thinking. I’m not sure it’s as bad as lawlessness. But if lawlessness was bad, this is madness.

At this point it doesn’t serve any purpose to attempt to respond to the arguments raised in justification of Masipa’s judgment on an individual basis – that is, organised by individual attempt. It seems more sensible to extract the common themes from comments made (to date) and respond to those.

It is necessary to explain what dolus eventualis, dolus indeterminatus, error and objecto and putative private defence are, before I move on to explain what they are not. All of this is easier to understand when illustrated by the crime of murder – which is the intentional unlawful killing of another human being.

To confirm – we only have one single crime of murder in our law. Premeditation relates to bail or sentence. Also, no matter what form of intention you have, if you have any form, and if you unlawfully kill another human being, you are guilty of murder.

For authority, other than case law, I will refer to and quote from the textbooks of, arguably, the two leading authors on South African criminal law: Burchell (Principles of Criminal Law, 2013, 4th ed) and Snyman (Criminal Law, 2008, 5th ed). Both have also commented on the judgment in the Pistorius case, which I will discuss below.

Dolus Eventualis

Dolus eventualis is the widest form of intention known in our law. It exists (on the law as it stands: Ngubane 1985 AD; Humphreys 2013 SCA) where the accused, at the time of the killing: 1) foresaw the possibility of killing a human being; 2) accepted this risk; and 3) proceeded nevertheless.

Quite correctly it has been observed that, originally, Molemo Maarohanye (known as Jub Jub) was convicted of murder because he was found to have foreseen the risk of killing his victims, and to have accepted/reconciled to that risk. This conviction has now, on appeal, been reduced to one of culpable homicide and a sentence of 8 years imprisonment imposed. Humphreys (2013 SCA) was convicted only of culpable homicide. The facts of Humphreys are, briefly, that Humphreys drove a taxi and was transporting children. He approached a railway crossing where the boom had come down to stop traffic – in anticipation of a train that was about to pass. Humphreys switched to the right hand lane, overtook the waiting cars, and the boom, and begun to cross the railway line – directly in front of the oncoming train. The train struck the taxi killing 11 of the children being transported. Humphreys was charged with the murder of the 11 killed, but convicted of culpable homicide because the court found that, although he foresaw the risk that the children in his taxi could be killed, he did not accept the risk. This is an exceedingly controversial decision. The court’s reasoning seemed to be that he could not have accepted the risk, because, since he was driving the taxi, he too would be killed, and there was no evidence that he was suicidal. The apparently strange reasoning arose out of an application of the law of dolus eventualis.

The definition of dolus eventualis has been controversial for years – since the decision of Jansen JA in S v Ngubane (1985 AD). The definition of dolus eventualis adopted in Humphreys was set out in Ngubane. The definition was subject to devastating academic criticism. Nevertheless, this criticism was not even mentioned in Humphreys, when the court uncritically adopted the Ngubane definition of dolus eventualis.

However woeful our law is in respect of the requirements of dolus eventualis, Masipa’s judgement did not turn on a finding – that was crucial in the Humphrey’s case – that, although the accused did foresee the possibility of killing whoever was behind the door, he did not accept that risk.[1] Again, that would have been a valid basis (on our law as it stands) to acquit the accused of murder. However, from the wording of her judgement, this was not the reasons she gave for acquitting the accused of murder.

It is also notable that the defence never argued (as some commentators are now suggesting) that the accused had not intended to kill – but only, perhaps, at most, intended to injure. This would have been a valid defence against murder, but it was not a defence claimed, and certainly not one – from the wording of her judgement – relied on by Masipa as a basis on which to acquit the accused of murder. I don’t see how it could possibly make Masipa’s judgement right to refer to a basis on which she could have relied, but did not.

Identity: Dolus Indeterminatus and Error in Objecto

Our law distinguishes one’s identity in the sense of one’s body as opposed to someone else’s body (which I will refer to as object/body identity) from one’s identity in the sense of your name and other characteristics, such as your personality (which I will refer to as nominal/name identity). Nominal/name identity is irrelevant in our law – just as the colour of a victim’s clothing is irrelevant on a charge of murder. You cannot raise the defence that you thought the victim was wearing a yellow shirt whereas it turns out to be blue. In the same way, you cannot raise the defence that your victim’s name happens to be Peter, and not John.  If you have intention to unlawfully kill a human body, and you succeed in unlawfully killing that human body, you have committed murder in SA law.

This distinction and the irrelevance of nominal/name identity is borne out by our law in recognising that intention may be general (dolus indeterminatus), and in the attitude our law has taken to scenarios of error as to object (error in objecto).

Dolus Indeterminatus

Dolus indeterminatus is at play in scenarios where the accused throws a bomb into a crowded room. The accused may have no idea who is in the room (at the very least in the sense of nominal/name identity),[2] but intends to kill whoever is in the room. The accused cannot raise the defence that s/he did not intend to kill because he had no specific (nominal/named) victim in mind. (Burchell (4th ed, 2013) explains dolus indeterminatus as follows:

“Where a person throws a bomb into a crowd or derails a train, the fact that he or she has no particular intention to kill a particular individual in the crowd or upon the train does not mean that the person lacks intention. Since he or she knows or foresees that someone will die, this person has what is called ‘general’ intention or dolus indeterminatus. Dolus directus, indirectus or eventualis may be general or indeterminate intention.”[3]

The point here is that it is no defence to say you had no particular victim in mind. On this form of intention, the accused need not have known who was in the room at all, but will be held to have intention to kill nevertheless.

This principle extends liability. It excludes and denies a defence of mistake as to identity, at least in the sense of nominal/name identity. There is no basis for any suggestion that it somehow permits for exceptions. The rule is that you will not be able to validly argue, when you killed B, C and D, that you did not know that B, C, and D were in the room. There appears to be no basis on which it may be argued that somehow this rule would or should yield if one had some reason for thinking that, say, D was not in the room.[4] It will not be a defence for an accused to argue that s/he only thought that B and C were in the room, or that B, C and E were in the room. The point is that it doesn’t matter who was in the room. It certainly cannot matter that an accused thought that B, C and E were in the room, because the accused thought that D was not in the room.[5]

It follows necessarily that no matter what reason Pistorius might have had for thinking – if indeed he did – that it was someone else behind the door, and not the deceased, this cannot be a defence and it is no ground upon which to find that he lacked intention to kill.

This is confirmed by our law’s approach to problems that are far more like that of the facts of the Pistorius case. In our law, if one aims a shot at a particular human body (identified by a particular object/body), fire at and kill that particular human body, it is no defence if it transpires that that human body has a different name to what one expected. This is the essence of the law on error in objecto (error as to object).

Error in Objecto

Burchell (4th ed, 2013) distinguishes aberatio ictus (going astray of the blow – missing one’s target) scenarios, from error in objecto scenarios as follows:

“Aberratio ictus must be distinguished from error in objecto, since difficulty arises if the two are confused.  Error in objecto occurs where A, intending to kill B, shoots and kills C whom he mistakenly believes to be B. In these circumstances A is clearly guilty of the murder of C. A’s intention is directed at a specific predetermined individual, although he is in error as to the exact identity of that individual. In other words, he intends to kill the individual regardless of whether the name of the individual is B or C. There is thus in the case of error in objecto, so to speak, an undeflected mens rea which falls upon the person it was intended to affect. The error as to identity is thus … irrelevant to the question of mens rea. On the other hand, in the aberratio ictus situation A intends to kill B, but misses him and kills C. A’s intention is ‘directed at one whom he knows and recognises to be [B].  It is through unforeseen and unintended factors that the blow falls upon [C]’. It follows that A has intention in respect of C only if he foresaw the possibility of C’s death or, for culpable homicide, if C’s death was reasonably foreseeable.”[6]

Snyman (5th ed 2008) gives a similar explanation:

“What is the position if X intended to shoot Z but it subsequently transpires that he mistook his victim’s identity and in fact shot Y? Here his mistake did not relate to whether it was a human being he was killing, but to the identity of the human being. Murder is committed any time a person unlawfully and intentionally kills a human being, and not merely if a person kills that particular human being who, according to his conception of the facts, corresponds to the person he wanted to be the victim. For this reason X in this case is guilty of murder.”[7]

There can be no question that the facts of the Pistorius case disclose an error in objecto scenario – assuming that Pistorius did not know it was Steenkamp behind the door. He aimed at whoever (whatever object/body) was behind the door, fired, and struck and killed that object/body. He did not miss – which would have brought into play the rules relating to aberratio ictus.

It is worth noting that neither author (Burchell or Snyman) make any mention of the reason why A thinks that C is B. This is in line with our settled law, that takes no account of the reason why A makes his/her mistake. If (nominal/name) identity is irrelevant, the reason for any error as to identity cannot be relevant. The identity of the actual victim is irrelevant as is, necessarily, any reason for a mistake as to identity.

Both Masipa and Burchell[8] correctly observe that the facts of the Pistorius case disclose a scenario of error in objecto – in which the nominal/name identity of the victim is irrelevant.[9]

After noting that, in error in objecto scenarios, the identity of the actual victim is irrelevant, Masipa asks what she says is required by the test of dolus eventualis (legal intention): Did the accused foresee the possibility of killing the deceased. This is the wrong question for two reasons. As discussed below, the accused’s defence was that he did not intend to unlawfully kill anyone. This focus – the very basis of the defence of putative private defence – is lost. But, putting that aside, secondly, it is wrong because it deviates from, even contradicts, the recognition that the facts disclose an error in objecto scenario and that the identity of the victim is irrelevant. The question then, correcting also for the defence of putative private defence, should have been: did the accused foresee the possibility of unlawfully killing whoever was behind the door.

Again, it does not help to say this cannot be true because he thought the deceased was in the bedroom. This is the argument that Masipa seems to have finally settled on – and it is fatally flawed in logic. She says: the accused could not have foreseen the possibility of killing the deceased, or anyone else for that matter, because he thought the deceased was in the bedroom. The fact that the accused thought that the deceased was in the bedroom says nothing about what he thought about the presence of someone else in the toilet. Indeed, it is his defence that he believed someone else was in the toilet.

Burchell perpetuates this error in logic. Referring to his scenario in which he notes that it is irrelevant that A intends to kill B, but kills C, he argues that there can be no intention to kill C if A had excluded in his mind the possibility that the person he thinks is B, could be C. But this is the definition of an error in objecto scenario – let’s take this slowly: A intends to kill B. He does not intend to kill C, but B. He thinks that B (the human body) is, well, B. In thinking that B is B, he does not think that B is actually C. So thinking that B is B and not C, he has excluded in his mind, the possibility that B is C. This is the definition of an error in objecto scenario and there is no dispute that the identity of the actual victim is irrelevant. That is, it cannot help the accused that he thought that B (the human body) was B – where he did not think that B was C. Therefore, it cannot assist an accused who has excluded from his mind the possibility that B is C.

Importantly, the reason for any error as to identity is also irrelevant. It cannot help an accused who thinks that B is B because B is not C. Our law is clear, in error in objecto scenarios, (nominal/name) identity is irrelevant, and it remains irrelevant no matter what an accused’s reasons are for making a mistake as to the identity of his victim.

Masipa’s error was similar. In her view the accused could not be convicted of murder because the accused did not foresee that he could kill C (or B), because he thought C was in the bedroom. In that case, it leaves him thinking that B was in the toilet. As we know from the rules of error in objecto, it is no defence to say that he thought that B was B, and not C.

Some have argued that the charge of murder was somehow defective and restricted the prosecution to prove that Pistorius knew (or foresaw) that it was specifically Steenkamp behind the door. Phelps has argued that: “ … the problem started off with the way that the indictment was drafted. It focused closely on him shooting at Reeva Steenkamp and not on whoever was behind the door”.[10] Yet the indictment read as follows, and could not conceivably have said anything else:

COUNT 1 – MURDER …IN THAT … the accused did unlawfully and intentionally kill a person, to wit, REEVA STEENKAMP, a 29 year old female.

Given that the crime of murder is the unlawful intentional killing of another human being, it is difficult to understand how this restricted the prosecution to having to prove that the accused knew it was Steenkamp behind the door. They name the human being that he did unlawfully kill. On the settled law of error in objecto – where nominal/name identity is irrelevant and only object/body identity matters – all they had to argue was that Pistorius unlawfully and intentionally killed the body of Reeva Steenkamp. Reading in the technicalities, the indictment reads as follows: the accused unlawfully and intentionally killed the human body of Reeva Steenkamp, a 29 year old female. It is not necessary however to state the charge in this peculiar fashion, because the settled law of error in objecto requires that it be understood that way.

Putative Private Defence

It is true that the accused’s (original) defence was/is putative private defence.

Private defence excludes the unlawfulness of one’s conduct – only when one is objectively actually (in reality) under and unlawful attack that has commenced or is imminent. If so, one is entitled to use necessary and reasonable force against the attacker.

If, in hindsight, one was not actually under attack, one may not rely on private defence to render your conduct lawful – however, our law recognises that if one was mistaken in thinking one was under attack and entitled to use the extent of force one does resort to, one may raise the defence of putative private defence. If the accused makes this mistake, whether he is mistaken about the facts, or (as Burchell[11] correctly adds) the law (De Blom 1977 AD), the accused cannot be convicted of murder. This is because an accused who is mistaken in this way has no intention to act unlawfully. Putting it positively, the accused believes s/he is acting lawfully. The enquiry is entirely subjective – what did the accused actually think or foresee? It is, as indicated, a complete defence to murder.

Pistorius was not actually under attack, and therefore he could not rely on the defence of private defence. He could however, and did, rely on a defence of putative private defence. This defence was the original defence raised by Pistorius and persisted in by his defence team in the alternative. This defence required that Masipa asked whether the accused foresaw the possibility that his conduct could unlawfully kill.

The problem is that, after specifically stating that she was turning her attention to this defence (of putative private defence), Masipa erroneously states that the question is whether the accused foresaw that his conduct could kill [full stop]. As discussed, this is not the right question.

It does not make her decision right to say, as many commentators have,[12] that if Masipa had asked the right question, she would have (possibly) arrived at the same or right conclusion. We cannot know what conclusion she would have come to if she had asked a different question.

It also does not follow that – as Snyman is reported to argue[13] – a defence of putative private defence somehow excludes a scenario from also being an error in objecto. Putative private defence describes the accused mental state – that s/he was mistaken in believing that whoever X (a human body) happens to be, X is about to attack. An error in objecto is an error as to who X actually is – B or C. These mistakes may obviously be related: an accused may have mistakenly believed s/he was under attack because s/he believed that X was B (who posed a threat), whereas it transpires, X was actually C (who posed no threat). This is indeed what Pistorius is claiming – and it invokes the principles relating to putative private defence and error in objecto.

Conclusion

In conclusion, we have seen several attempts to justify Masipa’s judgment, all of which seem to fail. It does not make Masipa’s judgment right to pretend that her reasons were reasons that would make her judgement right: that she decided that the accused had not accepted the risk of killing the deceased, that she recognised putative private defence, or that she found that the accused only intended to injure the intended target. These were not her reasons and, however valid they may be, it doesn’t help to pretend that they were her reasons. It also doesn’t help to attempt to justify the distortion of our law on dolus indeterminatus and dolus eventualis applied to error in objecto and the logical error made by Masipa. The law on dolus indeterminatus and error in objecto is clear. Nominal/name identity is irrelevant – for that very reason it cannot help the accused if he thought that it was B behind the door; nor can it help an accused who argues that he thought that it was not C. The identity of whoever was behind the door remains irrelevant – and the indictment did not need to remind the judge that it is not relevant. Finally, there is no reason to ignore this clear law (that nominal/name identity is irrelevant) just because the scenario triggers the rules relating to both error in objecto and putative private defence. There appears to be nothing to save us from the inevitable conclusion that Masipa made errors of law and errors of logic.

 

***

 

[1] See B Cubane, “JUDGE MASIPA GOT IT RIGHT: Oscar Pistorius and the intention to kill” http://shar.es/1aWktC via @thelawthinker.

[2] Possibly even in the sense of object/body identity – although this may be controversial and is unnecessary for present purposes.

[3] Footnotes omitted; p 348.

[4] As Kelly Phelps is reported to argue (Martin Williams, quoting K Phelps “Why Oscar Judge was right”, The Citizen, (Tuesday 16 September 2014).

[5] This is very similar to the argument made by Burchell discussed below (under the heading “Error in Objecto”) – that someone (C) may be excluded from an error in objecto if A thinks that B is not C.

[6] Footnotes omitted; p 396.

[7] p 193.

[8] Such as J Burchell “Masip’a decision to acquit Oscar of murder justified” (http://m.bdlive.co.za/opinion/?articleId=339191).

[9] Snyman disagrees on the basis that the defence was one of putative private defence. As discussed below (under the heading “Putative Private Defence”), this does not exclude the scenario from being one of error in objecto.

[10] http://citizen.co.za/241517/legal-experts-mixed-reaction-pistorius-judgment.

[11] Such as J Burchell “Masip’a decision to acquit Oscar of murder justified” (http://m.bdlive.co.za/opinion/?articleId=339191).

[12] Such as J Burchell “Masip’a decision to acquit Oscar of murder justified” (http://m.bdlive.co.za/opinion/?articleId=339191); N Taitz (“Judge Masipa was right on Dolus and murder” http://bit.ly/1wGgNdm&#8221); Martin Williams, quoting K Phelps “Why Oscar Judge was right”, The Citizen, (Tuesday 16 September 2014); http://m.bdlive.co.za/opinion/?articleId=339191; Sonja Carstens, quoting CR Snyman “Legal question that divides” http://www.beeld.com/stemme/2014-09-19-regsvraag-wat-verdeel?vc=e9eccde605d8837f80b9fa6ccc527a34.

[13] Sonja Carstens, quoting CR Snyman “Legal question that divides” http://www.beeld.com/stemme/2014-09-19-regsvraag-wat-verdeel?vc=e9eccde605d8837f80b9fa6ccc527a34: “Die situasie staan in die reg bekend as error in objecto . But it is not in Oscar’s case happened. Maar dit is nie wat in Oscar se saak gebeur het nie. It was not error in objecto not. Dit was nie error in objecto nie. Jack in the case I would have realized I act unlawfully on. In die Koos-geval sou ek besef het ek tree wederregtelik op. “Pistorius did not realize he was acting unlawfully stops.“Pistorius het nie besef hy tree wederregtelik op nie. He thought he was acting in self-defense. Hy het gedink hy tree op in noodweer. The storms were not objectively present. Die noodweer was nie objektief aanwesig nie. This just in his mind, his subjective representation exists, “says Snyman. Dit het net in sy gedagtes, in sy subjektiewe voorstelling bestaan,” verduidelik Snyman.”

Comments
  1. […] there appears to be nothing to save us from the inevitable conclusion that Judge Masipa made errors of law and errors of logic we are eyeing frontward for the just decision in an appeal against both the verdict and sentence by […]

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  2. […] citing reasons such as encouraging lawlessness and a belief that the end justify the means. http://criminallawza.net/2014/09/28/unsuccessful-attempts-to-justify-judge-masipas-errors-revised-ex… Yet the State seems to have adopted that exact philosophy of the ends justifying the means. Their […]

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  3. What does the State’s Application for Leave to Appeal say about the State’s understanding and practice of legal justice?

    The State in the Oscar Pistorius case claims that five years is shockingly light for the crime of culpable homicide.

    The actual application, however, reads that the sentence is light for “the murder of Reeva Steenkamp” so one wonders whether it should be thrown out on that very point:- they wish to appeal a sentence for a crime that the accused was, on the facts and the law, fully acquitted of.

    I have looked and been unable to identify a single case where a person convicted of culpable homicide in similar circumstances was given a similar sentence of five years imprisonment. Does the fact that Oscar is famous or has a disability that rendered him inarguably more vulnerable in that he was unable to flee down the stairs, make him more culpable in the eyes of the State than all those who have come before and since? It is a puzzle as to why the state refer to sentence as shockingly light and one I’d request they elucidate. Perhaps the legal minds who appeared on the Oscar Trial Channel 199 can respond with numerous cases where the sentence was similar or where a sentence was ‘shockingly’ harsher.

    There have, in fact, been many cases in recent weeks highlighting similar tragic misunderstandings that proved fatal. The sad theme in most of those cases was it was child that was killed. None of them were considered murder and those that came to trial were all given suspended sentences.

    Oscar was criticised for not verifying where his girlfriend was when he shot through a door. Such failure was viewed as negligent, resulting in the verdict of CH. Yet in at least one recent case, a father heard a sound and also shot through a door. Given the likelihood that a child hearing a sound would go to the parents’ bedroom, a common factor in these cases is not waiting to check the identity of the person before shooting. What also needs to be considered is whether this hesitance and wanting to check identity are precisely the actions taken by those individuals who were killed by intruders. While I accept that in some cases there were, in fact, intruders in the home, it was the assumption that a door opening, or a noise or a shadow was perceived to be the intruder that resulted in the shots being fired. The State however in Oscar’s case failed to prove that Oscar knew where in the toilet the person was standing either directly behind the door or to the side.

    Another pertinent question that needs to be considered is having determined that the father in the above case and similar cases had no motive, reason or intention of harming let alone killing their child, could they then be considered to have acted so negligently that they should be found guilty of murdering whoever happened to be behind the door? Because this is exactly what the State seeks to prove in Oscar Pistorius’s case. The state refers in its application to appeal the gruesome way in which Reeva died but isn’t every death by gunshot brutal and gruesome, regardless of whether it was intentional, accidental or a result of negligence?

    The state considered the number of bullets fired by Pistorius, but a few months ago a woman shot her husband multiple times through a door mistaking him for an intruder and no charges were brought. Similarly, the DJ Chana was shot a number of times by police and, in that case, all charges were dropped. The case of a police man who shot dead two plain clothes policemen eight times as referred to in the Defence HOA; this case was similarly considered CH and a non-custodial sentence given. It, therefore, seems to be a discrepancy in the application of the theory put forward by the State that more bullets equates with intention to kill. If that was true, the aforementioned cases would be classed as attempted murder or murder and not CH.

    There is much in the appeal application and on social media that would suggest the chief prosecutor Gerrie Nel believes that Oscar did, in fact, know it was Reeva. If this is true then I wonder whether he actually investigated his own contentions, listened with an open mind to the evidence presented, or if he was so convinced about the accuracy of his own position that he simply disregarded the mountain of exculpatory evidence that led Judge Masipa and two able assessors to agree Oscar genuinely had NOT realised it was Reeva. Is the purpose of the application for appeal an attempt to revisit facts already ruled on at trial? The state can only appeal on a point of law so it seems an incongruity that the State would mention circumstantial evidence and an experienced Judge’s understanding of such evidence in their appeal application. In fact, it is unclear exactly what the state wishes to appeal. Do they believe Reeva was murdered or do they believe that Oscar intentionally murdered who he believed to be an unknown intruder? The State can’t claim both positions are valid: one necessarily excludes the other. Similarly where in the appeal papers does the state mention or recognise that Oscar intended to kill whoever was behind the door and that he reconciled himself with the knowledge that his actions would kill and forged ahead with reckless disregard to that eventuality. The word “reconcile” appears nowhere in the appeal papers but it is one of the prerequisites of Dolus Eventualis.

    In his summing up following the cross examination of Oscar, Nel appeared very confident that the Court would make a finding that Oscar knew it was Reeva. This assertion could only be made by disregarding statements and evidence from other witnesses on the States witness list whom they didn’t call, an action that could be considered culpable in its omission, and by conveniently disregarding aspects of the State’s own witnesses’ testimony. How is it in the interests of justice to accept that witnesses heard a woman scream before and during the shots/bangs and then conveniently omit that those same witnesses testified to hearing screams after the shots, thus proving it could not and never could have been Reeva who was screaming? While one might allow the state the leeway of not wanting to accept testimony given by witnesses in the defence case, it is neither acceptable nor in the interests of justice to conveniently forget key parts of their own witnesses’ testimony. Yet that is exactly what the state wished to do. Secondly, if the state is so confident that the prosecutors have the evidence to show that Oscar knew it was Reeva, why omit the first set of bangs their witnesses testified to hearing and why be unable to produce a timeline? The answer, of course, is the level of discrepancies in the State’s case are such that not only is there reasonable doubt in their case, but the probability or even possibility of it being reasonably possibly true is remote. To then suggest that the Judge erred on her understanding of circumstantial evidence is both erroneous, arrogant, and leads one to question whether it is justice the NPA prosecutors wish to seek or a conviction for murder at any cost, even at the cost of the justice they are claiming is their primary concern.

    The state’s application for leave to appeal, further, cites public and international interest as a reason for granting the appeal. How can pandering to an anonymous public and one whose opinions were ginned up by your allegations be called justice with a straight face? It has already been demonstrated that an accused person who is presumed innocent can have their rights and wishes overridden and a trial televised against their will. Interestingly, the NPA viewed it not to be in the interest of Justice to have the Dewani trial televised.

    What then does it say about SA justice system if the appeal is allowed? To my reading, it would only prove:

    that the State can apply for leave to appeal based on a verdict that the accused person was found not guilty of on the facts as well as the law.
    that the State is calling the Judge incompetent and accusing her of having erred badly in her understanding of said circumstantial evidence.
    – that the State can single out a person because of their position in society, fail to call their lead investigators in the case, fail to produce a timeline, fail to investigate any version other than their own, rely on media, hearsay and radio psychologists to back their case. Then even considering the States attempts at gaining a guilty verdict at any cost, believe the verdict is wrong and the sentence too light but fail to provide any comparison to other cases, apply for leave to appeal a sentence based on a verdict the person was found not guilty of. They then do all this claiming it is in the interest of Justice but what remains to be seen is their exact understanding of the word Justice.
    -that the State to date can ignore the need to produce any references to cases where a similar sentence was given, yet claim the sentence was shockingly light.

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  4. R Taylor says:

    It seems to be accepted without question that Pistorius was shooting through the door at what he thought was an unknown intruder. But… the undisputed bullet trajectories suggest otherwise. They go corner-to-corner, from front right to back left and are spread just enough at the right height to target a person seated on the toilet. It seems reasonable to ask (but wasn’t): who would be more likely to be seated? An intruder ready to burst out and attack (according to Pistorius and the Judge, since she said she believed him) or a woman who had just entered the toilet? If it had been an intruder standing in the middle of the floor or against the back wall, the bullets would have missed completely. Clearly, the trajectories strongly suggest that he knew who he was shooting at.

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  5. pan81 says:

    From Prof Grant’s conclusion: “reasons that would make her judgement right: that she decided that the accused had not accepted the risk of killing the deceased”

    ‘The deceased’? This makes no sense, is it a mistake?

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  6. DJ says:

    SHOOTING AT A PERSON DOES NOT IMPLY SHOOTING TO KILL!

    Prof Grant, just stopped by at your Twitter account, I am not on Twitter so just dropping the line here:

    You wrote while following the sentencing hearing:

    “Huh: “in the present case the aim was to shoot the intruder” – contrary to verdict.”

    But you CAN aim to shoot a person but not aim to kill them. Shooting and trying to kill are not synonyms. It depends where you shoot.

    In both the judgement and the sentencing, Masipa’s reasoning was the same: It was “clear” he was intending to shoot into the cubicle at the intruder, but because the shots are at waist height, not so clear he was intending to kill.

    Banging head against brick wall to keep on saying that “shooting at” MEANS “shooting to kill, isn’t it? I do not foresee a successful appeal by the state unless Nel would be remembering to draw this distinction himself.

    I assume the DE appeal will be based on “error in persona” – and assuming the error is clear and it leads to a review of DE on the merits of the facts then there better be a solid argument for it, otherwise the entire exercise was a waste of time.

    That means establishing:

    (1) Why he should have elements of intention imputed to him even though he denied them
    (2) That these elements of intention plus the circumstances amounts to “dolus…”.

    Don’t hold out much hope for those arguments to succeed if the starting point is stuck in a loop of saying “shooting at” means automatically that there is “intent to kill”.

    Perhaps could argue:

    (1) He did not give true direct evidence, therefore has the “reasonable man” imputed as his state of mind
    (2) Firing four times at waist height, the reasonable man could not fail to perceive the risk of death EVEN IN THE CASE WHERE THEIR INTENTION WAS SPECIFICALLY TO WOUND.

    It basically has to work out such that four bullets at waist height is something a reasonable man cannot fail to realise might cause death.

    Anything less than that and the appeal will fail due to lack of argument.

    Like

    • DJ says:

      STATE APPEAL #2: WHY IS SHOOTING AT WAIST HEIGHT “DOLUS EVENTUALIS”?

      Some other practical considerations:

      [1] A person shot at waist height may die, though will often survive

      [2] Being shot multiple times there is a good chance they would fall into the path of more bullets and then die. As happened.

      [3] So the “danger to human life” from firing many times at waist height is very high.

      [4] But would a “reasonable man” in the midst of an alarming situation take all this into account
      .
      [5] And to what extent can Oscar be made to take it into account for the simple reason he gave an evasive evidence about the shots

      [6] How much of his evasive evidence about the shots could be explained away due to the fact he was charged with “premeditated murder” – which was deemed incorrect on the facts – but nonetheless might have “scared” him into trying to avoid consequences even more than normal?

      [7] And is the scenario sufficiently enough of an attack, to constitute a complete breach of the PPD defence to the extent of DE (this point seems quite easy to argue)?

      [8] And is there a robust line of argument ready against any return of the startle of “panic” defence?

      Because the defence is still at liberty to argue he shot recklessly into the cubicle with no specific choice of firing angles. They would say he thought the intruder was “coming out” to the right so “clearly” from the fact he started shooting at the left and lower down it means he wasn’t really aiming properly.

      Much more than just “shooting into cubicle at intruder”. Does Gerrie have good arguments against all these arguments?

      I think the appeal should be granted but it will be a futile exercise when the SCA actually gets stuck into the matter, in terms of charge level, unless it is fully prepared in these matters.

      Like

    • DJ says:

      STATE APPEAL #3: DE on the FACTS

      So what is there in the trial evidence to support DE:

      [1] The cubicle was very small

      [2] It was from a range of around 2.2m which is near enough point blank shooting

      [3] The intention was to shoot at the intruder – that’s the entire point of the story

      [4] He prepared the weapon (as the judgement noted)

      [5] He had the gun training, no diminished responsibility, was sober, understands the weapon

      [6] He also prepared his posture to fire (this was NOT mentioned in the judgement and should have been IMO)

      [7] He would have corrected for the jerk of the gun between B and C+D (Mangena’s evidence, independent of either scenario)

      [8] The firing was not at maximum possible speed: There physically HAD TO have been a pause while Reeva fell because otherwise she would have been struck by bullet B on the way to E. This cannot be a shooting where all four bullets is fired in the space of a second due to how far apart injuries are on her body and no getting around that. “Quick” is subjective and it matters that it cannot be “absolutely rapid” but rather involves even some small pauses.

      [9] After firing:

      9a. He clearly did not hear anyone crying out in pain – he said as much.
      9b. He clearly did assume he had shot them – because otherwise why did he leave the bathroom.

      So what is the only other reasonable inference, from having shot a person but being unable to hear them moving?

      As he wasn’t candid about the shooting itself the credibility in the moments before, during and after is still clearly up for debate. I would suggest that the reasons and circumstances of stopping firing is a very important aspect.

      And could be the difference between CH or DE.

      [10] His testimony on carrying the gun around everywhere afterwards didn’t make any sense and it’s much more likely he just chucked the gun on the bathroom floor. As Nel argued.

      It is significant I think that the judge conceded she had to “conjecture” why he fired four times, meaning the OVERALL purpose of the shooting was not analysed. There is more than can be “wrung out” of the trial evidence, perhaps, as in [9] and [10]. Masipa will not be aided in having not engaged in some of the prosecution evidence and arguments on these matters.

      If appeal is granted – it will be a proper debate/battle – not a push over.

      Like

    • DJ says:

      STATE APPEAL #4: Firing blind into a locked space is a strongly aggravating factor.

      [1] Firing blind:

      This means he cannot so easily rule out causing death, it is inherently more risky and dangerous to fire into the small space without identifying the person or knowing how they are stood, or whether seated, so not being able to carefully control where the bullets precisely might end up.

      It makes it more reckless, more likely to cause death.

      Firing at “waist height” would be a stronger argument if he was able to say he knew for sure he was firing at waist height rather than guessing and reconciling himself to going ahead with it.

      Particularly since it might have been a child.

      That point seems strong for the state as the gun laws are also very clear about identifying a target as well. There was certainly “no excuse” for the conduct considered in those terms.

      [2] Into a locked / closed and small space.

      There is no purpose to depriving people of the sanctity of hiding spaces in the home, many people need those spaces to get away from attackers: it should be discouraged to shoot into enclosed areas for that reason.

      My hunch is definitely that DE is about right and would be RATIONALIZING things far better, and therefore respected by all the various interests groups as fair. He can presumably get less than 15 years due to disability.

      I think the arguments need to mine wide and deep not just his case but social precedents as well.

      Good luck with your consultations. I’ll leave it there. 😉

      Like

    • spqr2014 says:

      TWILIGHT ZONE

      I sometimes feel like this is an episode from TTZ. Many moons ago, when I was at Law School, the amount of foresight required for indirect/oblique intention (DE) was an elastic concept. It started off quite widely, with any consequence which flowed naturally and directly from the act (much like the Hadley v Baxendale rule of remoteness in contract law). This standard was subsequently narrowed. Judges made mistakes in directing juries; using phrases such as “likely to occur” were ruled as mis-directions. When a D poured petrol through a letter-box and then ignited it so that a fire ensued and children died, the D was convicted of murder even though their defence counsel argued they had not intended to kill, only to frighten and when striking miners threw a concrete block off a bridge onto a taxi ferrying miners to work with the result that the taxi driver was killed, they too were convicted of murder. Both cases were overturned and the sentences reduced to manslaughter (CH). Through many changes in position the law finally settled on the level of foresight: that death or GBH was a virtual certainty. NOTE: that although the virtual certainty threshold is high, grievous bodily harm was enough. So, if X intended to break Y`s arm and in doing so, Y died, under English Law X is charged with murder.

      Now it seems, there is an argument which is being raised that somehow firing 4 x 9mm Black Talon rounds from less than [2] metres through a wooden door into a small cubicle is not virtually certain to lead to at least, GBH on the wholly spurious notion that the shots were fired at waist height??! I am amazed and scared in equal measure at that as arguable position. There is a legal maxim: res ipsa locquitur (the thing speaks for itself). If ever there was an application of this maxim in Law, then this is act is surely it.

      Like

      • DJ says:

        ‘Now it seems, there is an argument which is being raised that somehow firing 4 x 9mm Black Talon rounds from less than [2] metres through a wooden door into a small cubicle is not virtually certain to lead to at least, GBH on the wholly spurious notion that the shots were fired at waist height??! ‘

        Absolutely no disagreement it would be virtually certain to lead to at least GBH. And in English law would suffice for murder charge if the effect was in fact death. But this is South African law, with different legal tests. I don’t think it will be sufficient to argue one is “amazed and scared” because if there is a technicality going, obviously the defence will use that.

        I’m arguing from the perspective that I actually believe he shot his girlfriend while in an emotional state of some kind, with directus, in the heat of the moment. But despite believing that, it still is quite apparent that they will need to dot the i’s and cross the t’s in order to secure DE – they can’t just say “He fired a bunch of bullets in there”. That approach, no matter how scary or amazing it might seem to consider it possibly a type of manslaughter, WILL fail! 😉

        Like

      • DJ says:

        I know exactly what you mean, all these academic arguments and technicalities seem ridiculous because of:

        – Four bullets
        – Targeted at someone
        – Into a small locked space
        – For “no clear reason”
        – That killed.

        But they will be argued in that technical way and need counterarguments.

        Much of the “sophistries” is the result of Oscar spending so much cash on mounting a defence including buying up a variety of psychologists to bolster his weird evasive manner and to try to explain away ALL his responsibility in this matter.

        There’s no clear reason how this is helpful to society.

        It seems a completely clear cut case of murder in all but a very “clever” way of looking at things – and that’s unlikely to be the best way.

        Hopefully common sense will prevail.

        Like

      • DJ says:

        I suspect despite all the lengthy arguments about it that it will really come down to which of the Supreme Court judges has strong feelings about vigilantism as compared to sympathies for the dangers faced by home owners. So they will wind up ruling with conscience and mindful of the “type of society” they plan on living in. Yes, they will speak a nice speech at the end to justify all their reasoning in full but it will remain a subjective exercise and it will be nothing other than their consciences and perspectives on fire-arms, in the end, which determines Oscar’s fate.

        Like

      • Jason says:

        The old Heisenberg Uncertainty Defence (Cohen Brothers): when you examine something real close – all common sense goes out the window. It is the equivalent of the ancient proverb of not being able to see the wood (forest) for the trees.

        Liked by 1 person

    • pan81 says:

      Wow, I just read those Twitter exchanges. I didn’t realise that was Professor Grant’s reading of the judgment, it’s not obvious from these pages. That’s just nutty. I’m sorry to say I now think his opinion on the Masipa judgment is next to useless.

      Like

    • nat says:

      Apart from firing four shots behind a toilet cubicle with no escape route, we should also consider that the CALIBRE of the ammunition used i.e. Black Talon is so powerful that it could, and in fact did, inflict fatal wounds

      Like

      • Jason says:

        I think the State should have put greater emphasis on presenting an argument that OP had foreplanned that if he had been presented with an intruder situation that he was in possession of something providing him with lethal force. Even someone shot in the leg with such bullets would likely bleed to death if not treated quickly. Hence that gun with those bullets was for Oscar an object delivering lethal power no matter where directed at the human body … a proper zombie stopper.

        Like

  7. Jason says:

    The following is a rigorous argument for Dolus Directus of the Killing of Reeva: without the need to refer to an argument or a woman’s scream.

    From OP’s own testimony coupled with the evidence of four shots at close range with Black talon bullets: we have DE of the Person Behind the Door, OP had full visibility of the toilet door (light from outside), he could see that the door handle wasn’t turning and hence the door wasn’t opening, He decided not to give a warning shot because it might have ricocheted and killed him. According to him the window had slammed open and the toilet door had slammed closed and he headed to the bathroom with his zombie stopper in hand to fire four shots. He aimed pulled the trigger, aimed pulled the trigger four times changing the direction of his aim mid-way to create the down-turned V shape of bullet holes through the door. Despite denying pulling the trigger of a gun at Tasha’s restaurant he later accepted he had pulled the trigger.

    An estimate of the time taken to discharge four bullets from the gun can be made by the dynamics of Reeva’s body being in an upright position prior to a bullet hitting her in the waist then her falling down with what seems to have been the fourth and final bullet hitting Reeva in the head as she fell to the ground. Maybe someone else can estimate the duration from this. It is curious that the final bullet (?) was also the fatal bullet.

    So in this line of reasoning we have DE of the Person Behind the Door as a banker. But can we do better? I believe yes and we don’t need to bring in a woman’s scream.

    So here are TWO arguments for Dolus Directus of the killing of Reeva.
    a) For the toilet door to be locked there would need to be a noise following the slamming of the door. The door slammed closed followed by a key turn of the lock – bang then clunk. They would have been separated in time by about 1 second at least. Remember there was no light in the toilet. According to OP the toilet door slammed closed when he was halfway up the passageway in response to him shouting something or other. According to OP he was listening intently to what was going on in the bathroom. He HAD to have heard the door lock FOLLOWING the door slam but OP claims he heard no locking of the toilet door. We should also add that OP also didn’t hear any toilet flush. Now since OP HAD to have heard the door lock that PROVES he must have been lying (allegedly) on that part of the testimony. But that is no big deal because OP did not have a track record for telling the truth while on the witness stand (allegedly e.g him not recalling who drove him home after the night time motorway incident).

    b) It is beyond a reasonable doubt that OP would have heard and / or seen Reeva go to the toilet. He claims to have woken up with Reeva next to him in bed and awake. OP claims Reeva told him “What’s Up can’t you sleep” despite OP being asleep for at least 5 and half hours or so. Then OP didn’t ask Reeva to bring the fans in or close the curtains, despite her being awake, being closest to the fans & window, and having two lower legs in good working order.

    So OP gets out of his side of the bed and walks AROUND the bed to Reeva’s side of the bed to get the fans and close the curtains. While he was moving around the bed he didn’t encounter Reeva going past him in the opposite direction, which is what she would have done if she got out of the bed from her side of the bed. OP brings the fans in, closes the curtains and is now looking at the blue light of the record player – with his back to the bed. He claims his back was always against the bed and this is the reason why he neither sees nor hears Reeva getting out of the bed and walking out of the bedroom. Reeva would have had to shuffle across the bed and would have had to get out of the bed from OP side – otherwise they would have collided as OP was fiddling around with the fans.

    Unfortunately for OP although he might not have seen or heard Reeva shuffling out of the bed from his side he should have seen the illumination of Reeva’s mobile phone as she navigated her way up the passageway towards the bathroom and toilet – as he had closed the curtain to make the bedroom nice and dark. OP had said he had his back to the bed and was facing the record player – so he should have seen the illumination from Reevas mobile phone in his peripheral vision. When Nel raised this as a question, OP replied he had his back against the passageway. Yet he had said his back was against the bed. So his back was in two positions at the same time. But that is no big deal as OPs testimony already contained mutually exclusive explanations (e.g. his firing of the gun in the bathroom was both intentional (putative private defence) and unintentional (startle response)).

    This scenario is easily re- enacted: there is no way (to beyond a reasonable doubt) that OP would not have seen or heard Reeva going past him from originally being in the bed next to him, or not seen the light of her mobile phone as she navigated her way up the passageway.

    There is NO PRECEDENT for these turn of events. In the Siyabonga Mdunge case the husband woke up and the wife was already in the toilet. He assumed the wife was asleep and went out and shot the person in the toilet who was his wife. So in this case when Mdunge woke up, his wife was already in the toilet, so he didn’t see or hear his wife going to the toilet because he was asleep when that happened.

    NEVER, since the dawn of time, has there been a situation where the man woke up with his partner still next to him in bed and then later followed her to the toilet to accidentally kill her. It has only been done to intentionally kill her (murder).

    So we have Dolus Directus of Reeva without the need to resort to evidence of a woman’s scream or evidence of an argument. It is simple geometry and walking speed kinematics and it is without precedent. No need for speculation, it is to beyond a reasonable doubt Dolus Directus of the killing of Reeva.

    Like

    • Jason says:

      Remember too that according to OP this was the first time he had woken up on 14th February. This was their first Valentines Day together yet according to OP not a single mention of happy valentines day was made by Reeva nor OP. Yet we know from Reeva’s personal message in the Valentine Card she had written to OP – she was thinking of committing long term to the relationship. So for Reeva this was a critical day and a critical day for their relationship – she was willing to commit to the relationship. It was her idea to spend the night with OP – not OPs idea. Maybe OP had other plans …

      As it turned out, OP made no tangible plan for Valentines Day, no Valentine card no Valentine present – nothing. That must have come as a disappointment for Reeva.

      It is also not beyond a reasonable doubt that OP could have received one or two texts or whatsapp messages from other female interests wishing him a happy valentine days in the wee hours … of course OPs phone was taken from the shooting scene by him and all its data was deleted before being handed in to the police about 10 days later.

      If one wants a motive for a possible altercation one doesn’t need to go beyond a standard Valentines Day tiff due to a mismatch in commitment.

      Like

      • Jason says:

        It’s not quite speculation for DD if it can be shown that the physical evidence is only consistent with OP knowing Reeva was behind the toilet door before he shot. We know how this world works physically – we can apply Newtonian physics and Euclidean geometry to it. The problem with the states case was that its two main elements fell apart (woman’s scream, bat first – gun second) and the baby was thrown out with the bathwater.

        With the Appeal, the OP – Reeva story is not going away (there has already been about ten books published on it), but I think my reasoning for the physical component of the case is solid and will remain constant. If it is accepted, all the loose ends readily fall into place. It is readily testable. It satisfies me at least.

        What can’t be tested to the same degree is what is in peoples heads. My background is in physical sciences. Physical science is easy. Human “science” is more complex. In my spare time I try to develop an understanding of human “sciences” – needed for an understanding of the psycho-social world we inhabit. This case caught my attention: part voyeurism, part celebrity world, part problem to be solved, part human relationships, part process of law, part social media, part public perception. On my part I have learned about the law (an on going process) and have enjoyed reading comments from on the whole caring and intelligent people. “thumbs up smiley goes here”

        Like

      • Jason says:

        I misplaced the above comment. It was in response to spqr2014 fair point of “why bother” and TIMs comment (yes, academic analysis – with “academic” having two meanings) see below.

        Like

      • TIM says:

        @Jason.
        ‘It’s not quite speculation for DD if it can be shown that the physical evidence is only consistent with OP knowing Reeva was behind the toilet door before he shot. ‘

        Beyond a reasonable doubt the intruder scenario is possible however the devil is in the details and a lot of stuff about it points to it being a creation of Oscar’s mind rather than something which really occurred lol

        The physical/geometic/kinematic arguments place certain bounds and probabilities on their movements around one another and generally work to push the likelihood of the scenario down but it’s not enough – it’s possible to simply miss someone leave the room because you were focused on something else at the time.

        What I find more interesting is not looking for the things which seem odd or unlikely in his story but starting from the perspective it is literally made up from scratch and trying to figure out why it would look the way it does if so.

        If it was a story, all the little details had to come from somewhere! 🙂

        Like

      • TIM says:

        @Jason. Also worth mentioning that even if Nel’s + addition arguments/evidence had been accepted by a court as a sufficient proof he knew he was shooting at Reeva, this in itself would still not establish “dolus directus”. There are ways to shoot knowingly into a cubicle at Reeva that would only be “eventualis”.

        I do believe he was very hysterical so soon after shooting that you can backwards infer that he was emotional while shooting – and indeed that’s his evidence – and it rolls back further than that to the shout “Get the F— outta my house”.

        Not cold blooded.

        I also think the door reduced the extent to which he would have appreciated what he was doing, in the fullest sense possible. It’s a mitigating factor anyway.

        I expected the judge to call it “eventualis” because it can capture both cases of intruder and Reeva in a manner which displays legal rigour in regard to the amount of bullets, combined with sympathy/understanding that this was not some kind of dastardly plan but rather a situation gone very horribly wrong.

        I would have been totally cool with that judgement anyway.

        Like

    • spqr2014 says:

      Jason:

      Why speculate as to DD? Why bother?

      An appeal court cannot overturn findings of fact and your observations are all findings of fact.

      Anyway your arguments are highly speculative -OP must have heard key turning?? What does that prove (even if it could be proven)?

      Like

      • TIM says:

        Agreed, these arguments would be for retrial or merely academic analysis about it in the future. Nel raised these points in the cross-examination and there are 100 others like it but all the case complexity lead to a different conclusion in this instance, so legally there is no where else to go with it. It does raise some interesting questions about how much tolerance should be given to contradictions, incongruities, improbabilities etc when a person gives direct evidence. Single eye witness homicide cases often lead to retrials due to hung juries and the area in general is a worthy one for study because so much of the “evidence” is credibility and how that interacts with “reasonable doubt” is not something for which there is a very clear set of standards IMO. I do genuinely believe it is poorly understood as the results of trials with this kind of scenario are patchy and often have to be rerun due to differences in opinion among the jurors!

        Like

  8. TIM says:

    PUTATIVE PRIVATE DEFENSES ARE INHERENTLY SUSPECT

    I’m seeing a lot of debate surfacing about how the matter would be treated quite differently in the event Oscar really did have a criminal of some kind in his bathroom that morning. Quite apart from the fact no genuine dangerous burglar would ever hide in a toilet, it is worth bearing in mind that the court has really found that he might be telling the truth. The fact remains, whether his version “In general” is accepted, there was no intruder. And this still matters. It’s an inherently suspect line of defense and nothing can change that perception.

    Here’s how a criminal might interpret a lenient ruling in this matter:

    1. You kill
    2. You said you thought you were about to be attacked
    3. There’s no one else around to say otherwise
    4. You get all the same sympathy as if you really were about to be attacked?
    5. No. You get cross-examined instead.
    6. The judge agrees you were evasive, “not candid”, your story “doesn’t make sense” and “no one knows what was in your mind”.
    7. And we could say a good deal more than that to be frank.
    8. But you still find the court is able to trust you when you say [2] and ask for [4].

    If i was a person that just killed a partner in a rage, and had watched this trial, i’d be feeling pretty inclined to give it a go. Sounds a heck of a lot better than being found guilty of actual violence doesn’t it.

    If Oscar has to be a fall guy to stop this happening, so be it. He shouldn’t have wound up in the situation of the findings [6] and [7] being made because this defense “PPD” is far too easy to feign. You can admit ALL the forensics and the remainder of the evidence might be “stuff that’s in your mind”. So it’s a big problem if the judge arrives at a point of giving you a pass while conceding you weren’t honest enough for it to be clear what was actually going on in your head.

    Did he get very very unlucky? Who knows. Purely taking bets, I’d say no he didn’t get unlucky he probably brought this onto himself. Ultimately: We don’t know what was in his mind so how can we comment on that. We just know the testimony was pretty unreliable and evasive and the action of shooting INTO a locked space four times defies logic.

    Does this provide opportunistic formulae and recovery plans to people who kill? Most definitely, a 10 month sentence sounds great, indeed, if you were working on a professional commission to kill someone it would probably be worth it as the fees would compensate you well.

    It’s especially accessible to the more “sophisticated” class of killers – those with good jobs and nice families for which there would be a bunch of decent character references to suggest they would be so very unlikely to do such a thing on purpose. Obviously the judge would reach a different conclusion in the case you were a thug and pretended to be so scared but for the gentleman killer, it’s definitely worth thinking about. 😉

    For the same reason it is definitely worth the Supreme Court to think about.

    Things would be very, very, very different if there had been a real intruder, replete with weapons and threats of rape, etc, the state would have far less cause to double-check things then, that’s for sure…

    Like

    • Jason says:

      How about the following: An intruder as part of his normal shady business of breaking into peoples homes encounters a home owner. In fear for his life the intruder kills the home owner claiming putative private defence.

      Liked by 1 person

      • TIM says:

        Believe it or not, intruders have actually pressed charges for being physically assaulted before lol 🙂

        Like

    • spqr2014 says:

      Agreed that the Defence`s Heads scenario of mother and girl is easily distinguished from the instant case as it is spurious to try to compare the depth of love of a mother/child to that of a man/woman who have only known each other a few months regardless of the amount of any outward affection.The facts are easily distinguishable too.

      The Court had a problem with this case. The circumstances are very unusual. On the face of it, the killer killed a loved one. That is not your typical second-degree murder. The only reasonable explanation was either that OP:
      [1] had, as he claimed, made a terrible (but not unlawful) mistake in PDD or that,
      [2] he was lying and if he was lying, then it follows that he flew into a rage as an argument escalated and was therefore guilty of at least second-degree murder.

      Can you imagine what would have happened if the Court had found OP to be innocent of ANY wrong-doing? Believe it or not, that is what Harvard law professor Alan Dershowitz is advocating!

      For [1] this meant he would have been freed and that was too unpalatable for the Court.
      So the Court was on the horns of a dilemma here because if [1] was out, that meant a finding of [2] but with respect to [2] a loved one had been shot dead, perhaps by mistake and to find OP guilt of second-degree murder in those circumstances was also too unpalatable. (The answer would have been to allow flexibility in the sentencing. But for [2] with a 15 year minimum, the Court thought such a prospect was not just.)

      As above, OP`s PDD if accepted, would have meant acquital of murder and culpable homicide. But it was not accepted because the amount of force used was held not to have been reasonable. So with the PDD having failed, the Court finding a reasonable man would not have used such an amount of force as OP used, the Court then had to face the prospect of finding OP guilty of second-degree murder, in highly unusual circumstances, and HAVING to hand down a 15 year custodial sentence because on these facts, it would be absurd thinking to hold that OP did not have the foresight that the reasonable man would have had.

      And then came the Huh??? moment; the rabbit out of the hat, which is being appealed as it had to be. Because “hey presto”, OP did NOT have foresight! How do we know this?

      After-the-fact behavior (ATFB)

      Er, hold on a moment. Jeremy Bamber – ring any bells? He murdered 5 members of his family, in the 80s in England and appeared completely grief-stricken at the funeral. True he had a motive (financial) whereas OP did not, but to give such weight to ATFB (as R v Bamber proves) cannot be correct. What if he were lying? I mean it was accepted that he was not candid etc. This is inconsistent reasoning.

      The Court stated that the ATFB must be authentic as otherwise it would have been “a ruse” and thus they were not prepared to accept that position. Again in England, we had the unsafe convictions of the Guildford Four and the Birmingham Six, and Denning LJ infamous words on appeal to the effect that if what the Appellants said was true, that meant the police were liars and corrupt and he was not prepared to believe that SOLELY because such a position “would open up an appaling vista”. But it was true.

      No mens rea

      We don’t need to go over this again as the reasoning is flawed. I believe the appeal will be allowed as the flaw is not as to a fact, it is in the application of the law; the error being a misdirection in that the wrong question was asked.

      Like

      • TIM says:

        With the greatest possible respect to professor Alan Dershowitz I just read his interview and the analysis is not worth diddly squat – watch Robert Shapiro’s interview on YouTube for the CORRECT analysis, at least proving that not all hot shot American lawyers is inclined to soundbite generating oversimplifications when they chat to the media! 🙂

        Like

      • TIM says:

        The only reasonable explanation was either that OP:

        [1] had, as he claimed, made a terrible (but not unlawful) mistake in PDD or that,
        [2] he was lying and if he was lying, then it follows that he flew into a rage as an argument escalated and was therefore guilty of at least second-degree murder.

        Where did these other options disappear to?

        [3] He made a mistake in the identity but still unlawfully, either through his conduct overstepping bounds of force (as was found), or

        [4] because he really did proceed in a true aggressive, combattive, essentially murderous, way into that bathroom before discharging the rounds (which would be “dolus…”) .

        I find it really frustrating that “PPD” can map onto any situation where a person says “I felt threatened” as though speaking those words gives you access into this magical land where there are fewer legal consequences to your actions, because it then becomes, in reality, a PPD.

        No no no no no!

        It needs to be justified to pass muster. Just a reductio for a moment, it leads to legal farce if any time a person says “PPD” we agree to call it “PPD”. M’Lady, yes i did indeed perceive the threat of the crowd crowding in upon me for which reason i detonated the bomb causing 100s of legitimate culpable homicides. ????? etc.

        But i had no prior intention to detonate the bomb – it was just that moment of being subjectively overwhelmed by the terror of the crowd.

        This is sophistry. And absurdity.

        At the other end of the spectrum we have a “PPD” which is, in fact, also a GENUINE “private defense” – for example when a person perceives they are under attack because they really are under attack. That’s a very valid instance of PPD.

        In between the two extremes, there are situations of greater or lesser justification, where the balance between the “subjective fear of violence” and “subjective desire towards violence” gradually shifts by degrees to a point where the person claiming “PPD” buzzword is now, in fact, and beyond any REASONABLE doubts about it, the aggressor.

        Opinions differ exactly where Oscar’s scenario should be placed on this spectrum but I would argue it most definitely is not a straightforward case of a “PPD” which should be rubber-stamped as legitimately some kind of self-defense, as opposed to reflecting aggression, and an urge to violence on his part. Even on his version. Yes that too must be tested and argued!

        The fact is he shouted “Get the F outta my house” on the way to the passage and the target hid in a cubicle, even locked the door, and this was a climbdown for sure, but one which made absolutely no difference to the fact the target got shot and killed. For me, the dynamic between Oscar and the “intruder” tips at that juncture, where he felt confident enough to shout at the person(s) – and then proceeded to “claim” his dominance in the situation, and see it through with bullets. He was empowered with a gun and his target was not only hiding in an locked space but unarmed with it. The trigger for the shots, a mere sound, and there is not even CLOSE to being a “threat” parity between a “sound” and four times lethal force in response.

        The PPD in that situation is all belonging to Reeva – or the intruder if you will. It certainly is stretching the bounds of human threat perception to make Oscar into the vulnerable one given these dynamics – from the shout to the shots inclusive, analyze them, and see who has the upper hand. I find it difficult to imagine an attack which could not be explained away as a “PPD” if this one could be.

        Hence, i believe it would be very stupid to classify it as a PPD, without in the process classifying about 90% of attacks as legitimised defenses of some kind.

        Like

      • TIM says:

        I suppose defense would argue it is automatically a PPD because:

        (a) South Africa is a dangerous place
        (b) he is an amputee with a history of certain anxieties

        Can’t really comment on (a) except insofar as high crime is not solved by normalizing vigilantism – that’s a counsel of despair, drifting into a cycle of no return to argue this way.

        Factoring in the cultural context we can say this much: There was definitely NO PRECEDENT for “defense through a locked door” and i don’t see any reason to create one now.

        The perception of greater lawlessness may shape how citizens perceive their own entitlements to vigilantism under law.

        As for (b), I guess the rest of us see a confident champion that was earning $0.5 – 1 million/year and had boundless professional success, thrived in a boarding school without any special noticeable embarrassment about his legs, even though adolescence is the most “awkward” time i life for physical difference, and generally seems to have done very well so to plead a great fear now…? The psychologist “explanation” into the matter did not impress I have to say.

        We all have misfortunes but it doesn’t mean they are relevant to the mistakes we make. More a matter for sentencing mitigation rather than weighing up the actions (PPD). I don’t personally agree disabled people should be claiming firearms related PPDs more often than others,as they are not any more inclined to such outbreaks of violence are they, The number of more vulnerable people summed across all other categories is much too great (a majority of the population?) hence it does not help to be guided by that in arriving at an “average” weighting for whether it is PPD or not.

        Would be inclined to set it aside for those reasons and focus purely on the scenario of an attack versus a defense and see where the lines may be drawn here. That’s my view anyway.

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      • TIM says:

        Just noticed something you wrote and CANNOT AGREE MORE:

        “But for [2] with a 15 year minimum, the Court thought such a prospect was not just.)”

        I agree, to the extent that human intelligence was used to deliberately steer it into culpable homicide rather than to objectively weigh things up then they failed in their duties to give a “true verdict” as opposed to a “finding more consistent with the consequences they wanted” IMO.

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      • TIM says:

        P.S. Which could be wholly sincere or unintentional: But if they were patching things up to engineer CH by all means necessary deliberately dropping inconvenient arguments and this kind of thing, then that is wrong!

        Like

      • TIM says:

        This applies just as strong to people who can only see the guilt and none of the innocence, if you get me.

        Like

      • TIM says:

        In who’s interests is it, except Oscar’s, to make it merely negligent to shoot through a door intentionally and so many times at a person – with the result of death – and for no clear, even false, reasons.

        I would argue it is in no one’s interests except his.

        He basically got mollycoddled by the court which rather invokes cynicism that the tears might have been a strategy and furthermore might have worked.

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  9. TIM says:

    NO MATTER WHAT WAS IN OSCAR’S MIND – BECAUSE OF THE LOCKED CUBICLE – LEGAL SAFEGUARDS AGAINST DOMESTIC VIOLENCE TAKE PRECEDENCE OVER HOME DEFENSE

    There is a trade off between risk of being attacked by criminals in your home, and risk of people within a home shooting one another, and the two scenarios is clearly debated in this case.

    How often in real life would a dangerous criminal, upon hearing the home owner, and when they have a means to escape out the window, instead voluntarily lock themselves into a toilet cubicle?

    I’d say that would never happen or if it did then chances are the criminal is in fact not dangerous but rather clueless and perhaps very scared!

    So there is practically ZERO protective value afforded to home owners in general by advocating that you may shoot into a small cubicle. It would just never arise and if it did the person you shot would invariably be harmless.

    So the scenario of “defending yourself from a burglar that locks themselves in a small space in your house” does not need to fall under home defence, perceived or otherwise, since there is no need for home owners to defend themselves against people shut in cubicles. The issue will never arise in such a way as to make people safer, hence, it simply one of the many situations in which the person using the gun would be the one causing all the problems.

    Home defence laws only need to capture realistic situations to keep people safe in. They don’t to collect additional scenarios such as Oscar’s into the bargain which will never arise in a way to keep people safe anyway, but rather, they might make people on the receiving ends of bullets less safe.

    A locked cubicle is more often a refuge than a threat so it SHOULD be the priority of the law to safeguard the possibility a person needs that refuge from another home occupier, rather than put it within the scope of home defence.

    This if you will is a very abstract way of explaining why domestic violence takes precedence over home defence in this case even in the case where he did in fact think he was shooting at a burglar.

    Because for a long time scared people has been running away from partners to lock themselves in a safe space – a refuge – whereas burglars has never been doing this. So why allow any lenience for a person to be firing into the locked spaces in a house.

    That’s one very practical and common sense way to look at it and set aside the PPD and call this a bad precedent.

    Like

  10. Jason says:

    Question to Prof James Grant

    Having discussed this elsewhere and in line with my previous comment – it seems that Judge Masipa constructed a defence for Oscar – a defence that was not claimed by OP and in fact denied by him in at least one of his main versions. The defence Judge Masipa constructed for OP (reading through all her arguments and overlooking the no sense assertion of “Clearly he did not subjectively foresee this as a possibility, that he would kill the person behind the door, … as he thought she was in the bedroom at the time”) was …

    … that OP intentionally shot at the person behind the door but did not foresee that his four shots would possibly cause the death of that person behind the door.

    So my question is how can this be lawful – how can Judge Masipa decide on a defence for the accused if that defence was never the defence of the accused?

    This denies the possibility for the state to examine and question that defence – because it is brought up at the end of the court proceedings as per a rabbit out of the hat finale with magic dust and whistle bells.

    Surely the law shouldn’t allow the Judge to do this?

    Surely the Judge has to decide whether the defences argument is acceptable or not. She decided that the defences two arguments could be rejected. According to her it was neither a startle reaction nor putative self defence. So how is it lawfully acceptable for her to decide on another defence (intended to shoot but did not foresee death) …. and under what legal rule was OP allowed to shoot?

    Surely the best she could have done (for OP) was to say that the States case was unproven as was the Defences case … then make a decision based on the fact that OP shot Reeva dead in a confined space?

    Like

  11. jason says:

    Please Correct me if I am wrong:

    Although Judge Masipa didn’t give a clear reason why she cleared OP of Dolus Eventualis, there is enough bits and pieces to put it together.
    a) She ACCEPTS that OP INTENDED to SHOOT
    b) She ACCEPTS that OP didn’t shoot as a result of being startled.
    c) She ACCEPTS that OP was THINKING BEFORE & DURING the shooting.
    d) She ACCEPTED OP reasoning that IF he intended to Kill he would have aimed HIGHER at the head and shoulders of a person STANDING UP
    e) She also ACCEPTED OPs reasoning that he would have emptied the Gun of its bullets if he intended to kill.

    Hence she Concludes that OP INTENDED to shoot but he took sufficient care not to kill (because he fired at waist height of a person standing behind the door and because he didn’t completely discharge the gun of all its bullets).

    The illogicality of this argument
    a) This is an argument Judge Masipa pieced together herself. It was NEVER OPs explanation of what happened.
    b) Her explanation is in DIRECT CONTRAST of OPs explanation of firing after being startled and firing while not thinking, Hence her explanation means OP MUST HAVE BEEN KNOWINGLY LYING while recounting the critical moments of what was going through his head immediately before and during the shooting – when he said he wasn’t aiming and when he said he wasn’t thinking. But she doesn’t explain WHY OP was lying and doesn’t account for this lying in the verdict.
    c) Her explanation requires OP to believe the Person behind the door was STANDING UP but she gives NO EXPLANATION as to WHY OP would BELIEVE the person behind the door was standing up. Nor does she consider the BASIS as to why OP would believe the person behind the door was standing up.
    d) Her Explanation is a Putative Self Defence Argument yet she REJECTED putative self defence argument as she ACCEPTED THERE was NO IMMEDIATE PERCEIVED THREAT (closed door no handle turning in full visibility) so what exactly is her argument?
    e) …

    Liked by 1 person

    • spqr2014 says:

      COURT`S REASON FOR FINDING NO INDIRECT INTENTION (Eventualis)

      Jason, I believe Masipa J DID give a clear reason. The problem is her reason did not make sense.

      “How could the accused reasonably have foreseen that the shots he fired would kill the deceased?…Clearly he did not subjectively foresee this as a possibility, that he would kill the person behind the door, let alone the deceased, as he thought she was in the bedroom at the time.”

      This statement is the ratio decidendi for the finding of no dolus eventualis. As has already been pointed out, its reasoning is flawed because it is illogical: consideration of RS in the bedroom is irrelevant as to foresight of killing “the person behind the door”. This should be appealed because it is so obviously wrong.

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    • Jason says:

      I wouldn’t call that a clear reason. It is certainly a clear set of ordered words and it certainly appears to be grammatical, but when one tries to make sense to it, it falls down. Hence as a reason it is at best unclear and at worst faulty. If I was marking it as a submitted essay I would have to consider getting my special red pen out.

      I was attempting to move on from the dead end that is (with removal of the unnecessary subordinate clause): “Clearly he did not subjectively foresee this as a possibility, that he would kill the person behind the door, … as he thought she was in the bedroom at the time.”

      One could ask WHY an intelligent person that is Judge Masipa would make such a no sense deliberate comment that was at the very heart of a process to determine a verdict for the highest profile court case in the international arena for at least the past ten years. The use of the word “clearly” reminds me of how weaker students make use of the word “obviously” to support an incorrect, often ridiculous, statement.

      My view is that there is enough in this case to support a verdict of dolus eventualis of the killing of the person behind the door, and one can include Judge Masipa’s other statements, to make such a finding.

      Other things can be included to support dolus eventualis:
      a) after firing four times through the toilet door, he didn’t attempt to open the door but rather turned his back and headed back to the bedroom to look for Reeva. (In his testimony he only checked the toilet door after not finding Reeva in the bedroom).

      b) after realising in very quick order that Reeva was not in the bedroom, and realising that it was likely Reeva that he had shot at through the toilet door – he started screaming like crazy so that all his neighbours could hear him (many of whom thought it sounded like a woman screaming). He wouldn’t have made those screams if he didn’t think of the possibility he had shot and killed Reeva.

      I really think this is such a simple case of “intending to shoot and intending to shoot forseeing death as a likely outcome” that it could be used for teaching purposes. The only real defense against such a murder charge, given the evidence, was “putative self defence”. One could argue that he was thinking but he wasn’t thinking clearly – but I don’t think that was ever OPs defence.

      OPs testimony was clearly based on a stance not to admit anything incriminating other than admitting that which was impossible to deny – that he was the one that shot through the door. The States faulty time line and the woman’s screams were ultimately red herrings to a case that was at core very straight forward and simple.

      Liked by 1 person

      • Jan says:

        “The use of the word “clearly” reminds me of how weaker students make use of the word “obviously” to support an incorrect, often ridiculous, statement.”

        Hehe, you are so right. “Clearly” and “obviously” are red flags for me when marking term papers.

        Like

      • TIM says:

        ERROR IN PERSONA: A LOVE STORY.

        “One could ask WHY an intelligent person that is Judge Masipa would make such a no sense deliberate comment that was at the very heart of a process to determine a verdict for the highest profile court case in the international arena for at least the past ten years.”

        It wasn’t Masipa + the panel’s idea to use the argument. It’s in the defense Heads Of Argument. Specifically the example with the “little girl” because shot by her “startled” mother once through a door. They then argue it would be outrageous if this would qualify as murder and an “affront” to the principles of justice.

        The “trick” as such as that the example in the defense heads involved really very little in the way of intention on the part of the mother to even shoot the gun let alone at a person. So it was doubly-sad and a true accident. We definitely did not have this mother yelling “Get the F— outta my house” before – and then shooting four times KNOWING that there was a completely trapped person – and with a prepared arm posture.

        The only similarity was that it involved the “accidental death of a loved one” with one imagines a lot of tears in both cases. So it was, fundamentally, an emotional argument, and the judgement expanded on the point in just the same way as for the mother and the little girl.

        It was Roux’s very last remark to Masipa before she went off for the recess.

        So THAT is where it came from: An appeal to principles, so that, no matter how much force Oscar used, or how focused, or how telling his language in the moments before, or anything else about this case, his tears and the love story itself would protect him from murder conviction, in just the same way as for that mother and her little girl.

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  12. Prof Snyman must be right when he says that a defence of putative private defence excludes the possibility of the scenario also being one of error in objecto. A defence of justification precludes a finding of the required intent. Therefore, even when the accused is mistaken about some of the aspects of the ‘attack/attacker’, his defence stays one of justification.

    It stands to reason that without intent being subjectively present in the mind of the accused, there is absolutely zero grams or milligrams, millilitres or whatever unit you may choose to express the amount of mens rea present and available to make the accused guilty of anything except negligence when he goes ahead and kills a ‘second’ mistakenly identified attacker.

    Like

    • pan81 says:

      Materially, Prof Snyman and Prof Grant agree.

      The difference is just in definition of error in objecto. For Grant, it does not require dolus: one can kill in error in objecto, and whether it was murder is to be determined. For Snyman, it does require dolus: it must be first determined it was murder before it can be said there was error in objecto.

      Snyman misunderstands the detail of the case/judgment/commentators however. This leads him to mistakenly believe people are seeking to undermine the absolute defence of putative private defence by misunderstanding error in objecto – he thinks people are claiming that it doesn’t matter if you thought it was an intruder and you thought you were acting lawfully, and they are mistakenly using the error in objecto rule to back this claim up.

      This of course is not what people are saying. Grant and others are saying that Masipa did not exclude murder properly in the first place, as she asked if there was intention to kill the deceased. Therefore, in the first instance, she has not ruled on whether he intended to unlawfully kill whoever he thought was behind the door and has not properly made a finding of putative private defence. We are not yet at the stage Snyman thinks we are at.

      So, Snyman and Grant agree materially in law.

      What is interesting is Burchell. He appears to make no sense. He appears to state the theory correctly, and then appears in the next breath to contradict himself. What is very interesting is this is exactly what Masipa did, in exactly the same way in principle and on exactly the same facts. Neither are not what one could ever call unintelligent people. There’s something going on here in their reasoning which nobody else can seem to fathom. I wish someone could ask Burchell to explain it.

      Like

    • DJ says:

      ‘A defence of justification precludes a finding of the required intent. ‘

      Well that is quite clearly true but the key word is “justification”.

      I may shoot person X and claim that I perceive them as a threat, hence, PPD defence. And my intention is gone? You see the problem with the argument you raised.

      The relevant tests need to be first applied to the scenario to see whether there can be a “justification” to perceive oneself under attack. I don’t recall Masipa focusing upon this aspect in her judgement.

      Perhaps she means to say that to hear a “movement” behind a closed door one can be “justified” in asserting a PPD? Or that Oscar, specifically, was justified, because of certain features of his mind in relation to that situation. If so, she did not spell it out.

      The general principle is obviously going to meet with a negative conclusion, since we can’t have people to walk up to others “swearing and shouting” and then kill them for “moving”, can we? Nel drew attention to these issues in his heads of argument: He describe the situation as a “provoked PPD” – and there’s case law for that. If it’s provoked, justification is gone, and intention then comes straight back in.

      He also pointed out “it might be different if the door had moved” but in this situation there was nothing “tangible” to cause the firing. Again, “perception of threat” needs to be justified. Reasons that are too trivial or common place would be called attacks – not defences. “I killed him because he looked at me funny.” – stuff like that – is not acceptable.

      He also devoted a lot of time and energy to refuting (I) Oscar’s mistake shots – which means he was evasive (the judge agreed) and (2) the “perception” of the door opening. Did he really perceive the door as opening? We haven’t a clue what Masipa’s opinion on that is. The panel simply revert to the bail affidavit wording – he heard a “movement” – the magazine rack? They don’t mention it, even once. So it appears to have fallen short on “evidence towards his state of mind” – the burden of the “honest perception of threat” which rests on the defence. There was plenty of arguments against that, but no analysis of them in the judgement.

      So, if it’s a PPD at the point of firing, all we can say is that we don’t know the reasoning to support that finding. And that is the basis upon which he lacks intention under “error in objecta”.

      Seems a bit of a weak argument to me…

      Like

      • DJ, please have a look at my reply to the issues raised by the ‘Senate and People of Rome’. If you do not immediately follow, without having to think for longer than a fraction of a second, why I now mentioned the ‘Senate and People of Rome’, please refrain from any further commenting.

        Like

      • DJ says:

        @Niel. Well I read your long story to the other poster but it is contradicting itself.

        e.g. at one point you remarked that the intruder:

        ‘certainly does not wish to be trapped inside a secured estate’

        yet Oscar’s perceived intruder deliberately chose to hide in the toilet when Oscar shouted and swore at him/them.

        Within the terms of Oscar’s story we do not have any dangerous threats by intruder on Oscar; rather there was what should have been perceived as a submissive act in backing away and hiding, shutting himself into a toilet.

        If Oscar encountered a real intruder there would be real threats. Oscar encountered a silent person that hid from him when he shouted. On his version, that is what happened.

        If someone backs away from you it is not justified to carry on advancing towards them and then kill them. This is what i am referring to in regard to tests for “justification” for a PPD not being satisfied.

        Unless you wish to assert the following: It is impossible to murder a burglar.

        But that is not the law.

        The classical reference you made has no bearing on the logic of the situation, so what was it’s purpose? Are you saying that, unless someone has a classical education to hand, they should refrain from commenting on your posts, because they are unlikely to understand the points you are making? Why classical?

        How’s about geometry, it’s as relevant. Kindly prove to me that the pentagon can be constructed with a ruler and compass (in under a minute). Otherwise, refrain from replying.

        What nonsense.

        Liked by 1 person

      • DJ says:

        @Niel. The irony of your intelligence test is how it is not a test of intelligence, as it depends on specific cultural knowledge to solve it. Which is a random imbibing of facts, uncorrelated with reasoning abilities in general.

        How would a guy so smart as yourself not realise that ‘cultural knowledge’ is expunged from intelligence tests?

        You should have asked me a logic question instead… 😉

        Like

    • spqr2014 says:

      1. “Prof Snyman must be right when he says that a defence of putative private defence excludes the possibility of the scenario also being one of error in objecto”
      Let`s keep things simple. You have a killing of a human being.
      Q: lawful or unlawful? Lawful, if reasonable force used in self-defence. This is a complete defence. Note Masipa J found the killing to be unlawful. (OP`s private defence if allowed would have meant complete acquital.) The discussion stops there and no further reference to “error in objecto” is required as that assumes UNLAWFUL killing (albeit of a wrongly identified person). I think that is what you mean when you write “excludes the possibility” etc.

      2. A defence of justification precludes a finding of the required intent. Not quite correct.
      [R]equired intent TO UNLAWFULLY KILL. Self-defence is a complete defence. I can have intention to kill you if such is the only way to save my own life. If the peril is so imminent and so great that I have no other reasonable alternative but to use lethal force then that force is REASONABLE and hence, lawful. If asked on the stand “did you intend to kill” I would narrow by answering “I intended to save my own life, and if in doing so I had no other option but to kill then, in those terms on that basis, yes I did.”

      3. Therefore, even when the accused is mistaken about some of the aspects of the ‘attack/attacker’, his defence stays one of justification.
      Yes. If lawful force (albeit lethal force) is used to kill Bob (whom I think is Bob) but it transpires that in fact the deceased is Bill, the identity the deceased (Bob or Bill) is irrelevant as my belief was honest and is not affected by a mistake as to identity.
      If the attack itself was a mistake (as happened with OP) that is a separate mistake than the “identity mistake”. The question is did the defendant have an honest belief that they were under imminent peril etc. and lethal force was needed? To answer that, an objective test has to be applied otherwise the defendant would always say they believed they had grounds and could never be found guilty of murder or manslaughter (culpable homicide).

      4. It stands to reason that without intent being subjectively present in the mind of the accused, there is [no] mens rea present and available to make the accused guilty of anything except negligence when he goes ahead and kills a ‘second’ mistakenly identified attacker.
      As above, the intention must be to kill unlawfully. The use of the word “second” looks superfluous. OP killed a person whom he mistook as an intruder. Given the unavailability of private putative defence which, being a complete defence would have rendered OP blameless (and which obviously therefore would have caused even more consternation) to be cleared of murder, the Court had to exclude dolus (intention) to kill unlawfully. Direct intention was ruled out (directus) leaving indirect intention (generalis) on the table. Masipa J made her ruling and it is this which has caused the uproar as the ratio decidendi is flawed (much like an illegal chess move) her conclusion looks to be erroneous.

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      • Let me try to make it really really simple, ‘required intent’ means that mens rea is present in the mind of the accused, and for the purposes of this discussion, use of the word ‘intent’ will always mean to intentionally commit whatever unlawful action. It shouldn’t be necessary but lets also confirm that a defence of justification obviously means a ‘successful defence of justification’. An unsuccessful defence of justification, is no defence of justification.

        A further mistake that seems to have crept in through the explanations provided by Professor Grant, is that an error in objecto somehow became some sort of legal rule, instead of merely being a phrase that seeks to describe an occurrence in which an actor injures or kills someone or something lawfully or unlawfully, and then, only after the completion of the action, realizes or is informed that he had been mistaken regarding the ‘identity’ or nature of the something or someone his action was directed against,

        The situation described by the phrase ‘error in objecto’ was ordinarily mentioned in defence by an actor trying to explain how it happened that he managed to have caused harm to something of more value or importance than the something his action (in his mind) had been directed at. And obviously, if say the actor was part of a hunting party, looking to shoot baboons that had become a dangerous nuisance on a farm.

        Instead of shooting a baboon, the actor then somehow manages to shoot a fellow hunter (while under the bona fide belief that he shot at a baboon in a tree) who had climbed up a tree, from where he thought he would have a better vantage point. The error in objecto that the actor makes, would be a very acceptable defence against a charge of murder (as no intent was present), but the actor could still quite feasibly be found guilty of manslaughter (culpable homicide), in other words, be found guilty of the unintentional but unlawful killing of another human being, if it can be shown that he should have exercised more care under the specific circumstances.

        Perhaps we should also just quickly again remind everybody that a defence of putative private defence, does not in any manner whatsoever imply that someone necessarily dies or is even very seriously injured. It also is not limited to instances where the physical integrity of the actor , or anybody else that he wishes to protect, is under threat or already under attack. One is quite entitled to hurt or even kill a person who tries to deprive one of one’s valuable possessions.

        This is an important factor to be aware of, and if an intruder is already inside your house, he probably isn’t there merely to browse, and it would be fair to argue that ‘an attack (the process) to deprive you of your property’ had already swung into action. I am however, well aware of the fact that Pistorius had never testified that this had been his most pressing concern. On the other hand it must be fairly logical that the presence of an intruder in your home, where al your most valuable possessions are being kept, must in 99% of home invasions be due to the that intruder primarily wanting to take your stuff, and not your life.

        The above then probably goes far enough to justify the home owner to quite legitimately be convinced that an attack/attempt to unlawfully deprive him of his property had started. An intruder brazen enough to have knowingly and wilfully unlawfully entered;

        – Firstly into the secured estate you chose to put up your home;

        – Secondly also have entered your very own home;

        – Thirdly, that he had indeed done this with the knowledge that you were in the house;

        – Fourthly, that you will in all probability be defending yourself, your loved ones and property with the maximum force you may deem necessary.

        Surely at this point there can be no doubt anymore as to the possibly lethal lengths that the intruder/s would be willing to go and that this hardened fearless criminal (a skilled intruder, no bergie who happened to be stumbling past by chance) will want to render you incapable of raising the alarm, as he certainly does not wish to be trapped inside a secured estate. When last has anyone heard of a robber who would rather be arrested and sent to jail, because he felt that it would be against relevant legislation on the legal use of fire arms to use excessive force to escape arrest.

        Next on the list of fallacious thinking is that somehow a notion has quite remarkably survived(quite despite the fact that Pistorius himself had fired off shots through a closed door, thereby aptly illustrating exactly how much one can rely on someone on the other side not to open fire upon you), that as long as there is a closed door, an ordinary flimsy wooden door situated between yourself and a criminal paying you an unexpected and unlawful, highly inconvenient, evidently mala fide visit, you have absolutely nothing to fear.

        Exactly like there had been no immediate danger facing Pistorius. Really? With an ‘intruder’ on the other side (remember the judge has already ruled that Pistorius was convinced that Reeva was still in the bedroom), ‘who has already shown his willingness to break the law’. Can anybody on the planet honestly think that can reasonably be expected of Pistorius to simply accept in good faith that the ‘robber’ on the other side will not start shooting at where he would have judged Pistorius to be, epecially after Pistorius had so eloquently announced his arrival and intentions.

        No, surely basic logic would dictate that if even the lawful inhabitant of the house could decide to shoot right through that closed door at the
        unlawful intruder, then it is only reasonable to expect of the intruder, in all probability someone of vastly inferior moral fibre, to try his level best to be the first to get his shots off and through that same closed door.

        Now, it has also been said that being ‘mistaken about the identity’ of the of the person behind the door is irrelevant…, and the mere description of the situation of someone being mistaken as such, error in objecto is now being offered as a rule in law by which it becomes possible to transfer the required intent to be present when it turns out to be that the victim is not an intruder, seemingly even despite the fact that there was none of the required intent present in the mind of the actor in the first place…

        Masipa J was quite correct when she determined that Pistorius’s subjective conviction had been that Reeva was still in the bedroom, as this absolute conviction, absolutely proved his subjective conviction that the person behind the door was a dangerous intruder, ultimately proving without doubt that there was no mens rea in his mind when he fired those shots. No mens rea means no possibiity of being guilty of murder.

        Then there is the fallacy of Maspa J supposedly having asked the incorrect question when she was only interested to determine whether Pistorius did foresee the possibility of unlawfully killing anyone behind the door. He himself testified that he did not foresee killing anyone at all, let alone killing someone unlawfully. Thus, at the stage when she mentioned ‘asking the incorrect question, she had already determined that due to the fact of the mistaken identity being of the utmost importance in this matter, mens rea and murder had already been ruled out.

        By asking only whether he did foresee killing the ‘intruder behind the door’, she wanted to determine whether he could be found guilty of negligently causing Reeva’s death, and if she found that he really did not, as well as could not foresee that, then Pistorius could have beaten both the murder and manslaughter charges.

        It has rather disingenuously been argued that Pistorius’ version that his pistol had fired those shots without him consciously controlling it, had destroyed his chances of utilizing a defence of putative private defence. But that completely loses sight of the medical expert witness for the defence, that disagreed with Pistorius on that point and testified that Pistorius must have quite obviously fired those shots with the purpose of disabling the ‘intruder’ behind the door. Gerrie Nel just about went ‘Hallelujah!’ upon hearing that and a big thing was made of the fact that Pistorius and one of his principal expert witnesses contradicted each other, which of course implied that Pistorius had indeed been aware of firing the shots. Nel gladly accepted this as proof of Pistorius being a less than candid witness, but now it seems to have turned out to be just one more of his many air punching mistakes and it has also now returned to bite him from behind.

        In view of the above, I do think that it would only be a terribly ill- judged waste of time and effort to attempt ways around S v Seekoei, as the State will certainly not be prepared to receive even more of a hiding and earn themselves more derisive comment from the vast majority of the legal community.

        I trust that I have been able to keep this so simple as to allow any member of the public to come to the realization that Pistorius was found guilty on the correct charge, and lastly, will in all probability not receive a sentence that will require of him to actually go to jail, on the one hand because it does seem like inappropriate punishment, but on the other hand, Dup de Bruyn SC had not been sitting next to June Steenkamp to support and comfort her, while earning fees that must now come close to R1,5 million. My guess would be that they had probably hoped for a quick-ish murder conviction, where after claims for past loss of support since Feb 2013 up to now, as well as two claims for future loss of support for almost the rest of the natural lives of Mr and Mrs Steenkamp would have been instituted against Pistorius.

        Then two problems arose, no murder conviction, and the case ran on for much too long and drained all of Pistorius’ funds (he had to sell his car to be able to come up with the vastly inadequate offer of +/- R350 000 -. towards their own damages (and let’s not forget De Bruyn’s fee of +/- R1,5 million). That probably leaves them with only one option, to agree with the defence that compensation instead of jail time would be his sentence, since he has to be able to earn the those amounts payable towards damages, as his own once considerable wealth is gone.

        Liked by 1 person

    • spqr2014 says:

      Let me try to make it really really simple, ‘required intent’ means that mens rea is present in the mind of the accused, and for the purposes of this discussion, use of the word ‘intent’ will always mean to intentionally commit whatever unlawful action. –(Agreed.)

      It shouldn’t be necessary but lets also confirm that a defence of justification obviously means a ‘successful defence of justification’. An unsuccessful defence of justification, is no defence of justification. – (Agreed.)

      A further mistake that seems to have crept in through the explanations provided by Professor Grant, is that an error in objecto somehow became some sort of legal rule, instead of merely being a phrase that seeks to describe an occurrence in which an actor injures or kills someone or something lawfully or unlawfully, and then, only after the completion of the action, realizes or is informed that he had been mistaken regarding the ‘identity’ or nature of the something or someone his action was directed against, – (Agreed (save for the Prof. James Grant statement)

      The situation described by the phrase ‘error in objecto’ was ordinarily mentioned in defence by an actor trying to explain how it happened that he managed to have caused harm to something of more value or importance than the something his action (in his mind) had been directed at. And obviously, if say the actor was part of a hunting party, looking to shoot baboons that had become a dangerous nuisance on a farm. – (So D intended to shoot a baboon, but shot a human being instead – roger that. In other words, the defence of mistake.)

      Instead of shooting a baboon, the actor then somehow manages to shoot a fellow hunter (while under the bona fide belief that he shot at a baboon in a tree) who had climbed up a tree, from where he thought he would have a better vantage point. The error in objecto that the actor makes, would be a very acceptable defence against a charge of murder (as no intent was present), but the actor could still quite feasibly be found guilty of manslaughter (culpable homicide), in other words, be found guilty of the unintentional but unlawful killing of another human being, if it can be shown that he should have exercised more care under the specific circumstances. – (Agreed. In those circumstances, prima facie, no mens rea for intention, direct or oblique. The culpability – carelessness (if proved) is a question of degree, on the facts.)

      Perhaps we should also just quickly again remind everybody that a defence of putative private defence, does not in any manner whatsoever imply that someone necessarily dies or is even very seriously injured. – (Agreed)

      It also is not limited to instances where the physical integrity of the actor , or anybody else that he wishes to protect, is under threat or already under attack. One is quite entitled to hurt or even kill a person who tries to deprive one of one’s valuable possessions. – (This is where we part company. The issue is to proportionality. I doubt it would ever be reasonable to answer a thief in the process of stealing ANY asset by lethal force. At least in England, such a position would never succeed, as such response is not proportionate. No jury I venture would ever find such amount of force, reasonable. The defence would fall away completely.)

      This is an important factor to be aware of, and if an intruder is already inside your house, he probably isn’t there merely to browse, and it would be fair to argue that ‘an attack (the process) to deprive you of your property’ had already swung into action. – (Again, this position has more to do with the state/[S]tate of South Africa if in such circumstances, the support that lethal force, in the absence of violence, is reasonable.)

      I am however, well aware of the fact that Pistorius had never testified that this had been his most pressing concern. On the other hand it must be fairly logical that the presence of an intruder in your home, where al your most valuable possessions are being kept, must in 99% of home invasions be due to the that intruder primarily wanting to take your stuff, and not your life. The above then probably goes far enough to justify the home owner to quite legitimately be convinced that an attack/attempt to unlawfully deprive him of his property had started.
      – (For PDD to succeed, the first test is the subject belief of the D which has to be honest. On the facts, I don’t believe OP and many, many people agree with me. The facts do not support such a contention. No intruder was seen. No attack was in process. The sole basis for the PDD was a sound heard and a window alleged to be open. And that is it. And that should never be enough, generally, if “on the street” or if living in a township. Specifically, in relation to OP, living in a secured, gated community, I agree with the state`s contention that his version is so improbable that it cannot reasonably possibly be true.)

      An intruder brazen enough to have knowingly and wilfully unlawfully entered;
      – Firstly into the secured estate you chose to put up your home;
      – Secondly also have entered your very own home;
      – Thirdly, that he had indeed done this with the knowledge that you were in the house;
      – Fourthly, that you will in all probability be defending yourself, your loved ones and property with the maximum force you may deem necessary.
      Surely at this point there can be no doubt anymore as to the possibly lethal lengths that the intruder/s would be willing to go and that this hardened fearless criminal (a skilled intruder, no bergie who happened to be stumbling past by chance) will want to render you incapable of raising the alarm, as he certainly does not wish to be trapped inside a secured estate.
      – (Fantastical, in my view)

      When last has anyone heard of a robber who would rather be arrested and sent to jail, because he felt that it would be against relevant legislation on the legal use of fire arms to use excessive force to escape arrest. Next on the list of fallacious thinking is that somehow a notion has quite remarkably survived (quite despite the fact that Pistorius himself had fired off shots through a closed door, thereby aptly illustrating exactly how much one can rely on someone on the other side not to open fire upon you), that as long as there is a closed door, an ordinary flimsy wooden door situated between yourself and a criminal paying you an unexpected and unlawful, highly inconvenient, evidently mala fide visit, you have absolutely nothing to fear.

      – (You talk about fallacious thinking. Having fear? As a reason to kill? Not justifiable. Again, goes to demonstrate nothing more than the appalling state of some views in SA, if this is a reasoned response.)

      Exactly like there had been no immediate danger facing Pistorius. Really? With an ‘intruder’ on the other side (remember the judge has already ruled that Pistorius was convinced that Reeva was still in the bedroom), ‘who has already shown his willingness to break the law’. Can anybody on the planet honestly think that can reasonably be expected of Pistorius to simply accept in good faith that the ‘robber’ on the other side will not start shooting at where he would have judged Pistorius to be, epecially after Pistorius had so eloquently announced his arrival and intentions.

      – (So many presumptions. Robber? Could have been kids, could have been burglar, unarmed and not dangerous. Could have…..on and on and on. I hope you are being sarcastic with your “eloquently”.)

      No, surely basic logic would dictate that if even the lawful inhabitant of the house could decide to shoot right through that closed door at the unlawful intruder, then it is only reasonable to expect of the intruder, in all probability someone of vastly inferior moral fibre, to try his level best to be the first to get his shots off and through that same closed door.

      – (More assumptions, now the burglar has turned into a “robber” (burglary with violence) now, armed with a firearm. Yes this armed intruder after having taken such risks (on your own version) rather than simply put a gun to OP head and demand “Give me the money in your safe”, proceeds to…. hide in a WC!! Laughable.)

      Now, it has also been said that being ‘mistaken about the identity’ of the of the person behind the door is irrelevant… – (Agreed)

      and the mere description of the situation of someone being mistaken as such, error in objecto is now being offered as a rule in law by which it becomes possible to transfer the required intent
      to be present when it turns out to be that the victim is not an intruder,
      seemingly even despite the fact that there was none of the required intent present in the mind of the actor in the first place…– (There indeed was intent. The intention to kill – in your words – the burglar, robber, intruder. Intention may not have been direct, but it beggars belief to hold that there was no oblique intention. Masipa rules an ordinary man would have had foresight but OP did not. Why not? Because he thought RS was not the intruder???)

      Masipa J was quite correct when she determined that Pistorius’s subjective conviction had been that Reeva was still in the bedroom,
      – (Arguable, she believed OP whilst at the same time saying he was an evasive witness. I disagree with that. The facts don’t support it, but that is just a matter of opinion. But even if you accept that, this is no logical reason for excluding indirect intention with respect to the non-existent intruder. To the extent that it tries to do so, it (the concept that RS was not the intruder) is irrelevant.)

      as this absolute conviction, absolutely proved his subjective conviction that the person behind the door was a dangerous intruder, ultimately proving without doubt that there was no mens rea in his mind when he fired those shots.
      – (Not correct, no mens rea with respect to RS (perhaps – whether one believes OP – I don’t) but mens rea (oblique intention/foresight) – unquestionably with respect to the “imaginary intruder”. You seem to be confused. Say a person tries unlawfully to take a bag of white powder believed to be heroin, through customs; is stopped, searched and charged with smuggling, possession and intent to supply. It is no defence to that charge and to his guilt, if the powder turns out, in fact, to be flour and not heroin if the D believed it was heroin. (See: R v Shivpuri 1986 UKHL)

      No mens rea means no possibility of being guilty of murder. – (Agreed, if there was no mens rea, but there was, in my view.)

      Then there is the fallacy of Maspa J supposedly having asked the incorrect question when she was only interested to determine whether Pistorius did foresee the possibility of unlawfully killing anyone behind the door. He himself testified that he did not foresee killing anyone at all, let alone killing someone unlawfully.
      – (Oh well then, if “he himself” said as much, then it must be true! What is that?!)

      Thus, at the stage when she mentioned ‘asking the incorrect question, she had already determined that due to the fact of the mistaken identity being of the utmost importance in this matter, mens rea and murder had already been ruled out.
      By asking only whether he did foresee killing the ‘intruder behind the door’, she wanted to determine whether he could be found guilty of negligently causing Reeva’s death, and if she found that he really did not, as well as could not foresee that, then Pistorius could have beaten both the murder and manslaughter charges.

      – (No, the finding of OP had no foresight = no indirect intention = no to murder. SHOULD he have had foresight = Yes = manslaughter. The reason Masipa gave as to why OP did not have foresight makes no sense. She needed to explain her reasoning for why OP lacked foresight of killing “the person behind the door”. Call that person “X”. RS, call that person “Y”. OP did not have foresight with respect to the killing of X because X is not Y?? Because OP did not have foresight with respect to Y is logically irrelevant as to foresight (or lack of it) with respect to X. That was her mistake. Her ratio decidendi is flawed.
      If Masipa J had wished to take a “soft option” and take into regard sentiment because of the circumstances of a lover killing his lover, she could have done this at the sentencing stage.)

      It has rather disingenuously been argued that Pistorius’ version that his pistol had fired those shots without him consciously controlling it, had destroyed his chances of utilizing a defence of putative private defence.

      – (OP was not cleared of murder because of a successful PDD. He was cleared of murder because of the erroneous reasoning/logic set out above.)

      But that completely loses sight of the medical expert witness for the defence, that disagreed with Pistorius on that point and testified that Pistorius must have quite obviously fired those shots with the purpose of disabling the ‘intruder’ behind the door. Gerrie Nel just about went ‘Hallelujah!’ upon hearing that and a big thing was made of the fact that Pistorius and one of his principal expert witnesses contradicted each other, which of course implied that Pistorius had indeed been aware of firing the shots. Nel gladly accepted this as proof of Pistorius being a less than candid witness, but now it seems to have turned out to be just one more of his many air punching mistakes and it has also now returned to bite him from behind.
      In view of the above, I do think that it would only be a terribly ill- judged waste of time and effort to attempt ways around S v Seekoei, as the State will certainly not be prepared to receive even more of a hiding and earn themselves more derisive comment from the vast majority of the legal community.
      I trust that I have been able to keep this so simple as to allow any member of the public to come to the realization that Pistorius was found guilty on the correct charge, and lastly, will in all probability not receive a sentence that will require of him to actually go to jail, on the one hand because it does seem like inappropriate punishment, but on the other hand, Dup de Bruyn SC had not been sitting next to June Steenkamp to support and comfort her, while earning fees that must now come close to R1,5 million.

      – (You are wrong in my view, for the reasons stated.)

      My guess would be that they had probably hoped for a quick-ish murder conviction, where after claims for past loss of support since Feb 2013 up to now, as well as two claims for future loss of support for almost the rest of the natural lives of Mr and Mrs Steenkamp would have been instituted against Pistorius.
      Then two problems arose, no murder conviction, and the case ran on for much too long and drained all of Pistorius’ funds (he had to sell his car to be able to come up with the vastly inadequate offer of +/- R350 000 -. towards their own damages (and let’s not forget De Bruyn’s fee of +/- R1,5 million). That probably leaves them with only one option, to agree with the defence that compensation instead of jail time would be his sentence, since he has to be able to earn the those amounts payable towards damages, as his own once considerable wealth is gone.

      Like

    • Jan says:

      Snyman was right in arguing that private defense and error in objecto do do not coexist.

      Since the presence of (punative) private defense excludes the mens rea element of murder, which is “intention to kill UNLAWFULLY”, it’s presence means that any finding thereafter on error in persona vel objecto is irrelevant.

      It therefore follows logic that (punative) private defense has to be considered first and only if it is found not to be present, you can then consider error in persona vel objecto.

      On another note:
      The correct term in the present case would be “error in persona” and not “error in objecto” – a human being is not an object.

      Like

      • DJ says:

        Yeah, Snyman’s right about that part but Dr. Grant addressed it in the section entitled “Putative private defence”, which begins:

        “It is true that the accused’s (original) defence was/is putative private defence.

        Private defence excludes the unlawfulness of one’s conduct ”

        Stating the principle correctly does not guarantee it can be made to apply in Oscar’s case as it depends whether the circumstances up to and including the decision to start shooting can be made to fit into a PPD. Since he advanced that he did not fire at the intruder at all, then didn’t Oscar himself rule out this defence? There are other issues with the PPD, including for example the amount of force used (there has to be a limit to that before it becomes an attack), and the “honesty of the perception” – which is Nel’s argument about the “door being perceived to be opening”. These issues were not carefully dealt with in judgement, or not dealt with at all.

        And as Dr. Grant commented on many occasions in his posts about this, it is not someone else’s possible reasoning for CH that matters but rather the actual reasoning in the judgement itself…

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  13. The intruder knows /foresees that he could be killed by the person whose home he is burgling and hence is at least partly responsible for his own death.In addition, the person who is being burgled is less responsible for his actions due to the fact that his free-will has been compromised by the knowledge that a failure to incapacitate the intruder could conceivably result in him and his loved ones being harmed or losing their lives.Someone whose free-will has been compromised by the threat of serious injury cannot be said to have murdered the intruder

    Liked by 1 person

    • Jason says:

      On the other hand a girlfriend spending a Valentines Night in her boyfriends bedroom, has the right to use the ensuite toilet without being shot to death by her boyfriend.

      At the end of the day the court found OP unlawfully killed the “person behind the door”. From Judge Masipa’s arguments it is unclear whether she would have made the same verdict if in fact there had have been an intruder in the toilet.

      As far as I am aware, and maybe someone knowledgeable in SA Law can tell me :), she should have made the exact same finding of unlawfully killing the “person behind the door” if indeed there had have been a dead intruder found behind the toilet door (under the exact same circumstances apart from the identity of the person).

      Like

    • DJ says:

      Pistorius was found to be criminally responsible and have “no diminished responsibility”. The fact of him being in his house was nowhere in this judgement linked to his “free will” being compromised to the extent where he was less able to make rational decisions. Aren’t you forgetting the testimony of Sean Rens? You have your gun laws for a reason: Identify the person you are firing at, if possible warn them, establish if there is a threat, if there is no real threat (as here), you better have a very good reason for thinking there was one. The enquiry is subjective into the actual circumstances – where the locked door and the 4 bullets causes problems – and Oscar’s evidence – where his vascillating defenses and lack of “candour” causes problems. This isn’t exactly a textbook example of how “home defense” laws are supposed to reasonably be applied.

      Are you forgetting that the law also needs to prevent vigilantism? Or the concerns of victims of abuse in domestic settings who may be inadequately protected if the gun laws are in effect weakened? If “unlimited force” fails to be murder when no one else is around, what safeguards are there, if someone says they perceived a threat and panicked, eh?

      Shooting through a door is so crass in the best instance but here we have four bullets and to cap it all a defendant that didn’t give straight answers, even said the gun went off by “accident”.

      Where are the safeguards for innocent parties in homes? I’m not seeing how they will work in your scheme of analysis.

      Like

    • DJ says:

      P.S. 10 bullets would be murder? It surely has to kick in and exceed mere “negligence” at some point. Why isn’t four enough? Specifically four, as well. Not six. Oscar had enough control to stop shooting didn’t he.

      In many jurisdictions you can infer “intent to kill” from the means used and amount of force, well here we have a gun, and four bullets, near enough point blank range (2.2m) and the person in a small space which provided no other means of exit.

      If in doubt as to the likelihood of the shots hitting the person note that 3, perhaps even all 4, of these bullets struck the person (the 4th might have glanced through her left hand).

      I don’t really understand how it could be any more like a “common law” murder (of a perceived intruder). Short of the person wearing a villainous cape and being heard to loudly cackle before opening fire??

      Like

  14. Chloe7 says:

    I believe the cricket bat happened first since she died in Oscar’s arms when Saayman said the last bullet killed her. And the trickling arterial blood? How did that give him time to walk around and PUT on prothesis etc. I really really think no-one bothered to give this a thought.

    Like

    • Jason says:

      The cricket bat was used to remove the entire top panel of the toilet door. This was shown by police photographs of the scene upon police arrival. If the cricket bat had been used first to break down the toilet door, there wouldn’t have been any bullet holes in the toilet door, as the bullets would have been fired through the huge open space created by the removal of the top panel of the door.

      Liked by 1 person

      • DJ says:

        DAMAGE TO DOOR

        I agree with your conclusion, bats came first, but not with your reasoning which is drawing too many inferences from too little evidence.

        There is a fracture line through bullet hole D. This means that the fracture line extended through that bullet hole after bullet D was fired.

        The formation of the fracture does not imply that the panel is removed. The panel is still intact with the fracture line.

        It needs to be prised out by wedging the bat into the fracture.

        The remainder of the door damage could come before the fracture line, and therefore before all four bullet holes.

        To say that the panel must be removed when the door is damaged does not follow from evidence.

        The most that can be deduced from the condition of the door is this: At least one large fracture was created – or extended – after a bullet went through hole D.

        The rest is up for debate and requires to analyze the other evidence in the case to reach a conclusion.

        Like

      • DJ says:

        DAMAGE TO DOOR (CORRECTED) – PLEASE DELETE OTHER COPY JUST POSTED AS IT HAS A BIG ERROR IN.

        I agree with your conclusion, shots came first, but not with your reasoning which is drawing too many inferences from too little evidence.

        There is a fracture line through bullet hole D. This means that the fracture line extended through that bullet hole after bullet D was fired.

        The formation of the fracture does not imply that the panel is removed. The panel is still intact with the fracture line.

        It needs to be prised out by wedging the bat into the fracture.

        The remainder of the door damage could come before the fracture line, and therefore before all four bullet holes.

        To say that the panel must be removed when the door is damaged does not follow from evidence.

        The most that can be deduced from the condition of the door is this: At least one large fracture was created – or extended – after a bullet went through hole D.

        The rest is up for debate and requires to analyze the other evidence in the case to reach a conclusion.

        Like

      • Jason says:

        “DJ The remainder of the door damage could come before the fracture line, and therefore before all four bullet holes.”

        The prising out of the panel could not come before the fracture line and therefore occurred after the four bullet holes.

        Specifically the top panel which was almost completely removed from the frame (as per police photographs) contained all four bullet holes.

        The top panel was therefore still intact and still part of the door before the bullets had been fired and the top panel was therefore removed after the shots had been fired.

        A crack running through one of the bullet holes can be shown to be formed after that bullet hole had been formed.

        The cricket bat was used for the purpose of breaking down the door in order to get inside the toilet cubicle implying a) the door was locked b) OP didn’t have the key to hand.

        It is likely that when OP had in his hands the cricket bat the fracturing and removal of the top panel of the door occurred in the same contiguous operation.

        All this is strong evidence that the cricket bat sounds followed the gunshots and not before and for certain the top panel was removed (prised out) after the gunshots.

        I could deduce more but need to know first whether the top panel prised out was in one piece or several pieces.

        Like

      • Jason says:

        Just to add it can be deduced the bullet holes were not made with the intention of getting inside the toilet cubicle. If the gun had been used to get inside the toilet cubicle the shots would have been directed at the lock. Hence it can be deduced the gun was fired in order to incapacitate the person behind the door and not to gain access to the toilet cubicle.

        Liked by 2 people

      • DJ says:

        @Jason. I cannot disagree with any of your reasoning but note one of the points on your argument means we actually made the same argument:

        ‘It is likely that when OP had in his hands the cricket bat the fracturing and removal of the top panel of the door occurred in the same contiguous operation.’

        That’s the part I’m referring to as “up for debate”. It is possible, though not likely, that the door frame was hit and the panel slightly cracked before bullets A, B, C, D fired, and then the bat used to prise through a fracture line – which grew and ran through D – and then pieces of the panel snapped away, and the whole could be removed.

        I don’t personally like this theory as it’s 3 different sets of actions on the door instead of 2, and 2 is simpler than 3. Also, it becomes a “lucky event” for Oscar than the only “clue” to the bat/shot order is a fracture line which supports the simpler “shots before bats” argument.

        I mean, in the sense, if he chose to tell a false story about the order, he got lucky that this “clue” helped to support his version. This happened so many times that it becomes quite implausible to believe he was not being truthful about the shots coming first, IMO.

        But, it’s all part of the debate. 😉

        Like

      • DJ says:

        @Jason. Note that same kind of reasoning w.r.t. the order of Reeva’s injuries or the blood spots across carpet and duvet – where the large and small fans should have been – points in the other direction. In those & other cases he would have to have been very UN-lucky in order to be telling the truth. He was also UN-lucky that the Netcare operator told him to carry on moving Reeva downstairs – something he had already decided to do a minute earlier, at least. He was very UN-lucky they had swapped sides for those two nights due to his shoulder injury, as otherwise he would have been looking directly over the bed at the moment when he picked up his gun.

        One day i think we’ll put court cases into a supercomputer and get them to calculate the odds on guilt/innocence. With the physicists’ threshold of 5 standard errors to result in an incarceration? 3 standard errors for community service. 🙂

        Like

  15. Dolus eventualis is supposed to apply when someone has the intention to commit an unlawful act such as firing at a policeman and instead hits someone else -anyone- with the bullet intended for the policeman.This is because he knew that it is was unlawful to fire at a policeman and had lots of time to think of the ramifications of bringing a gun to the bank-robbery.Unfortunately,primitive logic- the habit of noting similarities and ignoring differences- has seen Dolus Eventualis being used against law abiding citizens who by circumstances beyond their control are flung in a confrontation with an intruder who could be armed, and on the spur of the moment and under the influence of fear overstep the boundaries of self-defense.Overstepping the boundaries of self-defense is not murder(except under exceptional circumstances).

    Liked by 1 person

    • DJ says:

      Four bullets is a lot, if the person cannot get away, and hid from the person shooting, while posing no threat – not even a verbal threat. This might be one of those ‘exceptional’ circumstances.

      Liked by 1 person

    • DJ says:

      Also what counts as “self-defense” is really in the eye of the beholder – if you walk up to some random guy and shoot them for “looking at you funny” don’t expect much sympathy if you were to claim it was “self-defense” rather than murder…lol. So, I mean, you first have to prove that the situation is actually a self-defense, in order to decide if the bounds were overstepped or not. If you simply launch an attack on someone (pretty much totally unprovoked) then it doesn’t matter if you try to call it a self-defense, a court could disagree with you. Then it’s no longer a question “were the bounds overstepped” as “was it simply an attack”! And that is an important question in this case tbh.

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  16. Dolus eventualis is supposed to apply when someone has the intention to commit an unlawful act such as firing at a policeman and instead hits someone else -anyone- with the bullet intended for the policeman.This is because he knew that it is was unlawful to fire at a policeman and had lots of time to think of the ramifications of bringing a gun to the bank-robbery.Unfortunately,primitive logic has seen Dolus Eventualis being used against law abiding citizen who by circumstances beyond their control are flung in a confrontation with an intruder who could be armed, and on the spur of the moment and under the influence of fear overstep the boundaries of self-defense.Overstepping the boundaries of self-defense is not murder(except under exceptional circumstances)

    Liked by 1 person

    • TIM says:

      Saying it is merely an “overstep” to four times into a LOCKED space does not make South Africa any safer. There will NEVER be a situation where a home owner needs to protect themselves from a person hiding in a LOCKED space in their house. Such a person is inherently NOT posing a threat.

      You are simply sweeping the rug out from under the feet of vulnerable people that need such spaces as a refuge from other people in the house who they are scared of. From a practical perspective it is way too easy to exploit your so-called “fear” argument in favour of shooting down the cowering person and thus to give the aggressor a free pass to kill and pass themselves off as some kind of victim in the process.

      Unless you can find me ONE SINGLE REAL case where a person needed to shoot at a “dangerous” intruder who was LOCKED into a toilet – or any other small space in a house – if you can find even ONE example for real – i will give you the point. but until then it is FAR more important to protect those spaces for the vulnerable who may be afraid of other house occupiers.

      The law cannot work for everyone all the time and ok maybe it might seem harsh if Oscar would be the “fall guy” to this particular brand of common sense but ask yourself the question whether you want a legal system that makes sense or one which licenses arbitrary violence and vigilantism to an ever increasing degree.

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  17. DJ says:

    AN IRONY

    It seems less about Oscar not foreseeing that he “might” kill … and more about him failing to foresee that he “might not”.

    How else to explain his incredibly risky decision to open fire through the door???

    It calls for a new kind of ‘dolus’ – but i can’t think of a decent name for it.

    The key requirement on your state of mind, however is this:

    Not reconciling yourself to the possibility your chosen method of murder may fail. 😉

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  18. DJ says:

    Just caught the above discussion about ‘notionally ruling out A’ excluding dolus if in fact you then kill A.

    I can see the rule that Burchell is proposing but it is easily refuted. He’s suggesting a special case where not only do you think B is B but it happens to cross your mind it is not C, before you kill. And this, Burchell suggests, leads to a special case exempting you from any malice towards C (because that crossed your mind and was eliminated).

    For example, if Oscar had thought “It’s definitely not Englebert Humperdink behind the door” – and it turned out to be – then he’d be in the clear. But if he thought “It’s not Reeva” – and it was Englebert – then he wouldn’t be. (No matter how fond he was of Englebert).

    OK, well this argument is just plain silly. Lets consider a criminal for a moment. Someone who really WANTS to carry out a revenge killing on someone in a rival gang. He manages to corner one of his adversaries, who he believes is Joe, based on his top, mask, and headgear, but wishes it was Mike. Mike’s the person he would really like to kill. But he’ll settle for Joe. Multiple stab wounds and then kicks the lad into a ditch and runs away. Only, it turns out it really WAS Mike, wearing some of Joe’s gear that day.

    So this excludes dolus, because when he carried out this brutal, premeditated killing, he didn’t think he was killing Mike, but was making do with killing Joe as the next best thing?

    Even though he would love to have killed Mike, since Mike was ruled out from consideration, it cannot be an intentional killing in relation to Mike’s body.

    Oh dear!!!!!!!! Clearly, there is something wrong with Burchell’s reasoning.

    I suspect he’s tried to slip in a “compassionate grounds” argument, much the same as masipa did i.e. if it turns out to be a loved one (rather than someone you really hated anyway), then in THAT case, it excludes “error in objecta”. Well then one has to say it plainly – it is NOT because of ruling such&such specific “notional” person out of consideration. It is because of compassionate grounds.

    But that’s a matter for the NPA to determine when bringing their charge, not Masipa to modify the law? In this case clearly the NPA did not believe that there was any mistaken identity anyway. They treated it as a hypothetical. But Nel is insistent: They would have charged him with murdering the burglar anyway, due to breaking all the gun laws, and firing four times for “no reason”, and regardless on the supposed error in identity. If it turned out to be a tragedy, it wouldn’t make it less illegal.

    Lets push it to absurdity again: Oscar fired 100 rounds into the toilet with a machine gun.

    According to Burchell he’s still not guilty of dolus.

    There’s a reason why error in objecta is not going to be modified anytime soon!

    Liked by 1 person

    • DJ says:

      Just 1 mistake in the symbols in the first para above:

      ‘I can see the rule that Burchell is proposing but it is easily refuted. He’s suggesting a special case where not only do you think C is B but it happens to cross your mind it is not C, before you kill. And this, Burchell suggests, leads to a special case exempting you from any malice towards C (because that crossed your mind and was eliminated). ‘

      I think the rest is correct logically. Sorry about that.

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    • DJ says:

      A PRACTICAL CONSIDERATION

      Does Burchell want it to become a popular pastime to create dubious PPD scenarios with unpopular spouses dodging bullets, their partners confident in the knowledge it can’t be murder so long as they can argue they “thought” their partner was in another room?

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  19. Jason says:

    Reeva died because Oscar gave her no time to respond according to Oscars own testimony. Oscar was in front of the toilet door carrying a lethal weapon loaded with explosive black talon bullets. According to common cause forensics, Reeva was standing behind the door, leaning or right up against the door, in a position consistent with listening.

    Oscar by his own testimony could see the door and could see the handle of the door. By his own testimony he shouted “get out of my house” loudly at the door. By his own testimony he heard a noise and immediately fired four shots. He could see the door was closed and could see that the door handle was not turning – this he testified to. He didn’t fire a warning shot because it might have ricocheted and hit him – this too was part of his testimony. He was clearly thinking and his firing into the toilet cubicle was intentioned – and this was a finding of the court. Oscar did intend to shoot into the cubicle according to the court.

    By Oscars own testimony he didn’t give Reeva time to shout out her presence. He shouted out to the person behind the toilet door “get out of my house”. Reeva made a noise behind the door. Oscar could SEE the door handle was not turning and the door was not opening. He fired four times through the door.

    If the noise he heard was Reeva’s voice then he would have known it was Reeva behind the door. He told the person behind the door to get out of his house and then fired when that person made a noise in compliance with his demand. Oscar did know there was someone behind the door, he had heard the toilet door slam closed when he was in the corridor leading up to the toilet. He had the toilet door covered with his very powerful handgun. He had been fully trained in its use.

    Forensics show that he fired four shots, changing aim after the first shot, and fired another three shots OR he fired two shots then changed aim – but the distribution of bullets show he changed aim during the shooting. The nature of the gun reveals that four separate trigger pulls were needed – it was not a semi-automatic weapon. It was a manual weapon. Forensics revealed that the shots would have taken about 2 to 5 seconds to discharge: four individual trigger pulls, a change in aim, plus time for the body of the person behind the door to fall. The first shot hit Reeva in the hip while she was standing up in front of the door in a position to be listening and possibly talking. As Reeva’s body began falling Oscar continued to pull the trigger and continued to aim and change aim with maybe the last bullet hitting Reeva in the head, after she had fallen to a certain level.

    Oscar did not continue to fire until he had unloaded all the bullets. He stopped firing after four shots. This stopping is a conscious process. Oscar did not fire once. He fired four times. He made sure that he had “deactivated” the person behind the door. The threat had been neutralised and he stopped firing. He knew about ricocheting bullets. He knew about the lethality of black talon bullets. He had made a conscious decision in the past to use black talon bullets. He knew he carried a lethal weapon. He likened it to a zombie stopper.

    Then what did Oscar do? According to Oscars testimony, he ran away from the toilet and away from the bathroom towards the bedroom. He never checked to see whether anyone was standing on a ladder outside of the bathroom window. The fact that he turned away from the toilet, away from the bathroom, is evidence that in his mind he believed in firing four shots at the toilet door he had deactivated any threat he had perceived from that area.

    There are some strange facts following the shooting according to Oscar’s testimony and according to the Defence’s time line. He never immediately called security. When he realised he had shot Reeva – which in his testimony was almost immediately afterwards, he never called an ambulance. When security first called him (Pieter Baba), Oscar said everything was fine. When Oscar was found carrying Reeva down the stairs he was also found with black refuse bags: during the time following his shooting of Reeva, he had found the time to look for and gather black plastic bags. There was clearly some thinking by Oscar after shooting Reeva (telling security everything was fine, not immediately calling security after firing at the toilet cubicle, not immediately calling the ambulance after realising he had shot Reeva, looking for black refuse bags).

    Liked by 1 person

    • Jason says:

      I withdraw my comment regarding black plastic bags. There is so much tittle tattle nonsense that is floating around in the public domain it is very easy to draw those bits in as “evidence” in support of an argument. I was drawn in by a classic “logical fallacy by authority rather than going back to the original source). Another example of having to be extremely careful when making public statements even if made under a pseudonym. Apologies.

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      • gbrbsb says:

        A wise withdrawal since in an emergency of this type when it is necessary to handle wounds or apply manual pressure to stem bleeding where proper latex gloves are not available the recommendation is to use clean plastic bags as gloves in order to limit transference of infections from responder to victim and vice versa. For obvious reasons unused refuse bags are typically the only unused plastic bags available. Clean plastic bags are also recommended to protect and seal dressings as well as to wrap and seal amputations before placing them on ice since contact with water will seriously limit any possibility of reattachment.

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      • Jason says:

        I recognise it is very easy to over analyse the situation. We are probably talking about a 15 minute period of waking up in the early morning to shooting through the door then another 7 minutes when the neighbours, security and Dr Stipps arrive at Oscars house. It is very easy to slip into a mode of armchair thought that diverges from the reality. Ultimately the court is best placed to decide with useful comments from those with a wealth of experience in law. I agree with Prof Grant about the issue regarding Dolus Eventualis and I found some of the no – nonsense comments of ex Judge Greenland informative.

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  20. Carmen says:

    Professor Grant,

    Below is a small excerpt from a recent Judge Greenland interview. If Judge Masipa decides to give a noncustodial sentence and the prosecution subsequently appeals and wins, does this mean that Mr. Pistorius would be guilty of murder but would still only serve a noncustodial sentence? It doesn’t seem right.

    ————————————–

    If they make that decision and his judgment is switched, do they go to sentencing again?

    The Court of Appeal will not be charged with his sentence. The court will correct the verdict in my respectful view and that’s it. It cannot interfere with the sentence. It can only interfere with the sentence if OP appealed his sentence and the State cross-appealed for an increase in the sentence. So let us say that the unlikely event plays out that the judge imposes a meaningful custodial sentence here, OP will be on the horns of quite a bad dilemma because if he appeals his sentence, that opens the door for the State to cross-appeal to have his sentence increased to match the then corrected verdict of murder on the basis of dolus eventualis.

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  21. pan81 says:

    Professor Burchell claims the Pistorius case was not error in objecto.

    1) “But, the error in objecto rule cannot apply when the actual victim is someone who has already been notionally ruled out by the accused as a potential victim.”

    This makes no sense. The error in objecto rule can then never apply – it can never exist in the first place. If I intend to kill B, and I believe my victim is B, I have notionally ruled out everyone other than B as a potential victim.

    2) His example illustrates this point above: “However, if, as Masipa rightly concluded, Pistorius’s evidence that he genuinely believed that he fired the shots at an intruder, not Steenkamp, was reasonably or possibly true, then Pistorius had already notionally ruled Steenkamp out of the category of possible victims when he fired the shots. Of course, if the ultimate victim behind the toilet door had turned out to be a nosey neighbour, investigative journalist or a hardened house-breaker this would clearly have been an irrelevant issue of identity.”

    If OP notionally ruled out Steenkamp because he believed it was an intruder, then he also notionally ruled out a nosey neighbour or investigative journalist. His example makes no sense.

    3) Let’s think about how this accords legally, morally and with common sense.

    Example A: If someone set out on a contract killing of Joe Bloggs, but was given the wrong house number and killed John Burchell instead, his error clearly would not stop it from being murder. The killer never foresaw the possibility of killing John Burchell and had notionally ruled out John Burchell, Mike Smith, Jane Fonda and everyone else as a potential victim. Charged by the state with murder, at the trial, the defence produces John Burchell’s article to argue he should not be convicted of murder – what should happen?

    Example B: Someone set out to commit a racist murder, believing only blacks lived at the targeted house. He set fire to the house and everyone died. It turned out there were 2 white people living there as well. Charged by the state with murder for all the victims, the defence produces John Burchell’s article to argue the 2 white victims were notionally ruled out of the category of possible victims and therefore he should not be convicted of murder on these counts – what should happen?

    Example C: I get a tweet in my timeline from Professor James Grant, my favourite professor, saying he is about to start a lecture with his students. 5 minutes later I get a knock on my door. An urge comes over me: I think it might be fun to shoot somebody today and see if I can get away with murder, so I shoot 4 black talons through the door. I open the door ready to start praying, but on opening the door I see it is Professor Grant, and suddenly I start crying and praying for real. I never thought it could be him, I never would have shot otherwise. I was sure he was at the university yet, not driving on the way when he had a crash and came to the nearest house for help. My defence counsel submit John Burchell’s article to argue that I had notionally ruled out Professor Grant as a possible victim and therefore I should not be convicted of murder – what should happen?

    *With apologies to all Professors of Law who might have come to an untimely end in the above scenarios. Let us not forget a young and innocent life was taken in horrendous fashion in the real case, and all our academic talk should ultimately serve the interests of justice.

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