Posts Tagged ‘Pistorius’

*** 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.”

If, on a charge of murder, an accused claims to have been mistaken as to whether he was under attack – that he thought the person he shot and killed (who it transpires was his girlfriend) was imminently about to attack him, the veracity of this claim would seem to be undermined by evidence that the girlfriend screamed loudly before she was shot. The question arises whether this fact, that the girlfriend screamed, must be proved beyond a reasonable doubt? More importantly, must each individual piece of evidence of screaming be proved beyond a reasonable doubt? Is this not what an accused is entitled to in a criminal trial?
Virtually anyone who is old enough to watch TV will tell you that the standard of proof required of a prosecution, in a criminal trial, is proof beyond a reasonable doubt.
Lawyers will explain that this means that every requirement of the criminal offence in question must be proved beyond a reasonable doubt. They will also explain that the case against an accused and all the evidence against the accused must be considered in its totality. That is, that courts are not permitted to take a piecemeal approach to the evaluation of evidence. Many will say that all evidence against an accused person must be proved beyond a reasonable doubt. This, they will say, all follows.
What is often not recognised is that it also does not follow from the ultimate onus of proof (that the prosecution must prove its case beyond a reasonable doubt) that all evidence must be proved beyond a reasonable doubt. One possible source of this error may lie in the adoption in our law of “the cardinal rules of logic” pronounced by our former Appellate Division (now the Supreme Court of Appeal) in the case of S v Blom (1939 AD 188). These cardinal rules of logic were set out as a guide to how courts ought to draw inferences in the context of circumstantial evidence.
Conventionally, evidence is thought of as falling into two discrete and mutually exclusive categories: direct evidence and circumstantial evidence. On one hand, direct evidence, such as the testimony of an eyewitness, requires that no inferences are supposedly necessary from this sort of evidence. Direct evidence is conventionally thought of as evidence which, if true, is direct evidence of the fact in issue. Circumstantial evidence on the other hand is considered to be evidence which, if true, is not direct evidence of the fact in issue. Instead, it is evidence of a fact from which an inference must be drawn to the fact in issue. Thus where a question of fact before the court is whether the accused shot and thereby killed the victim, direct evidence may take the form of a witness testifying to the fact that s/he saw the accused shoot the victim. In the alternative, circumstantial evidence would be evidence such as that of a witness who testifies that s/he saw the accused who was armed with a gun go into the room where the victim was shot dead, that s/he heard a bang, and saw the accused exit the room shortly thereafter. This sort of evidence is circumstantial in that it requires that inferences must be drawn from the evidence (of what the witness saw) to the fact in question – did the accused shoot and kill the victim?
A first point worth observing is that circumstantial evidence is often considered to be weaker evidence and a so-called circumstantial case is one which is considered to be more easily refuted – at least relative to the case in which the prosecution will produce direct evidence. However, it is not the case that circumstantial evidence is necessarily weaker than direct evidence. The classic example is that of the persuasive value of fingerprint evidence (which is circumstantial evidence) for the purpose of identification, compared with that of an eyewitness.
Beyond that, as is the case in respect of many attempted distinctions in law, the distinction between circumstantial and direct evidence is not sacrosanct and breaks down on analysis. It breaks down at least in the sense that it is incorrect to imagine that direct evidence or indeed any evidence is free from requiring the court to draw inferences (Zeffertt and Paizes, The South African Law of Evidence, p 99). This is best illustrated by the following example (drawn from Wigmore on Evidence): The accused (X) is charged with the murder of the victim (Y) by shooting. X denies that s/he shot Y. The prosecution calls a witness, who testifies that s/he saw X arguing with Y, that s/he saw X produce a firearm, and point it at Y, heard a loud bang, and saw Y fall to the ground. The defence explains that it has only one question for the witness: whether the witness saw the bullet strike Y.
The point of the illustration is only to draw one’s attention to the fact that even given what appears to be a straightforward case of direct evidence, one must nevertheless draw inferences. The point ultimately is that all evidence requires a court in considering its verdict to draw inferences from the evidence. Zeffertt and Paizes explain that: “All evidence requires the trier of fact to engage in inferential reasoning.” (The South African Law of Evidence, p 99). Some evidence requires fewer inferences, this would be traditionally so-called direct evidence whereas other evidence, traditionally circumstantial evidence, will require more inferences. Nevertheless the point must be observed that the court is never free of drawing inferences and therefore the rules that govern the drawing of inferences govern the court in its ultimate evaluation of all evidence.
Thus we are left with the ultimate problem: how is a court to evaluate the evidence? We must recall that the standard of proof required is beyond a reasonable doubt. So does this require that every piece of evidence that the court considers significant, be tested against this standard (of a reasonable doubt) and only if it passes can the court rely on it, whereas if it fails, the court must discard it? For many lawyers this is obviously what a court must do. It follows from the onus of proof, and something more – it follows from the so-called “cardinal rules of logic” from the case of S v Blom (above).
The “cardinal rules of logic” in Blom represent the law on the drawing of inferences in criminal trials. They state that (to paraphrase):
1. The inference sought to be drawn must be consistent with the proved facts.
2. The proved facts must exclude all other inferences except the one sought to be drawn.
The second rule seems to be little more than a restatement of the standard of proof in a criminal trial. The inference must be the only reasonable inference – presumably, otherwise it may not be drawn. The problem in criminal cases, is that in its ultimate assessment of guilt, all evidence relies upon inferences, and so all evidence requires the application of the rules of Blom. Each inference must be the only reasonable inference – right?
This would seem to fit well with a case in which say, the accused (X) is charged with murder of a victim (Y) if the only piece of evidence is eyewitness testimony in which the witness testifies that s/he saw X shoot Y, and that, upon immediate inspection, the witness had found Y to be dead. Let us assume (again) that X denies that s/he shot and killed Y. X claims further to have never met the victim and to have been nowhere near the scene of the crime at the relevant time.
Since the evidence of the witness is the only evidence against the accused, the prosecution’s case depends on it. If this intermediate fact represents “an indispensable [link] in a chain of reasoning toward an inference of guilt” (from the Australian case of Sheperd v The Queen (1990) 170 CLR 573 at 579) the strength of the prosecution’s case is, of course, only as strong as the link in the chain. If this piece of evidence falls below the standard of proof beyond a reasonable doubt, a reasonable doubt must exist in respect of the accused’s guilt, and s/he is entitled to an acquittal. Just as a chain is only as strong as its weakest link, so must all the links (evidence) be proved beyond a reasonable doubt. Thus, in the example given, the only piece of evidence, the testimony of the witness, should be subjected to the ultimate standard of proof: is it true beyond a reasonable doubt? But what if the evidence is less straightforward. If for instance there was only evidence that:
1. Someone resembling X was seen in the vicinity of the crime scene. The eyewitness says he is 90% sure it was X;
2. The ballistic expert is able to say, because of damage to the bullet, that the likelihood that the bullet was fired from X’s gun is 80%;
3. A partial fingerprint is discovered at the scene which yields only enough points of similarity with the accused’s right thumb, so that the forensic expert can only be 70% sure this print is that of X.
Blom requires that, at least on the second “cardinal” rule of logic, the inference sought to be drawn must be the only reasonable inference. But what if none of the possible inferences are reasonably possible and what if there are other reasonable inferences? If we assume that we adopt, nominally, a 99% standard of proof as proof beyond a reasonable doubt, what if none of these pieces of evidence exclude all other reasonable possible inferences:
1. There is a 10% (reasonable) possibility that the eyewitness identified the wrong person;
2. A 20% (reasonable) possibility that gun that fired the fatal shot is not that of the accused; and
3. A 30% (reasonable) possibility the fingerprint is not that of the accused.
None of these items of evidence stand up to the standard of a reasonable doubt, and, on the 2nd rule in Blom, no inferences can be drawn at all. Blom seems to demand ‘chain-reasoning’. Bellengère and Palmer (et al), state:
“Even where the court may draw a reasonable inference to the exclusion of all other reasonable inferences, it must nevertheless assess that inference to be persuasive beyond a reasonable doubt before it can rely on the inference to sustain a criminal conviction” (Oxford, The Law of Evidence In South Africa, p 202).
However, if one regards the evidence as the “strands in a cable” (following Sheperd v The Queen (1990) 170 CLR 573 at 579), quite a different result follows. The strength of a cable or rope is, of course, made up of the combined strength of its strands – and each strand may be, by itself, quite weak. To pursue this analogy, pieces of evidence may be considered together, even if each, by itself, does not satisfy the standard of beyond a reasonable doubt, to support an inference.[1] At once it will be obvious that this is contrary to the specific instructions in Blom. Yet, our courts are clear that in the drawing of the inferences they must take account of the totality of the evidence, and must not consider evidence on a piecemeal basis. (S v De Villiers 1944 AD 493; S v Reddy 1996 (2) SACR 1 (A); R v Mtembu 1950 (1) SA 670 (A)).
Is it that Blom is wrong, and if so, why has it not been ejected from our law? The problem is that Blom seems right, given that it seems to fit neatly with the criminal onus, and it is sometimes right – depending on the work that the inference is doing. Blom appears to demand “chain-reasoning” through-out, whereas, on occasion, “rope-reasoning” is more appropriate. If the inference sought to be drawn will carry an entire case, Blom would be an appropriate standard to employ. But if one is engaged with numerous intermediate facts, none of which are crucial, or necessary in and of themselves, then the “cardinal rules of logic” in Blom, can lead one into a logical fallacy. When one should adopt “chain-reasoning”[2] (as directed by Blom), or “rope-reasoning” is not straightforward – it all depends on the work that the evidence has to do in a given case. Perhaps one method would be to always adopt “rope reasoning” on the analogy that if a single piece of evidence or fact is crucial, it equates with a single, and only strand of a rope – of a rope of one strand.
So, if for instance, on a charge of murder, the accused claims to have been mistaken as to whether he was under attack – that he thought the person he shot and killed (who it transpires was his girlfriend) was imminently about to attack him, and the veracity of this claim would seem to be undermined by evidence that the girlfriend screamed loudly before she was shot. For our purposes let us assume that, given the context, it would entirely undermine the accused’s claim of mistake. The question of fact as to whether she screamed becomes so crucial as to represent an ultimate issue which would seem to properly attract the requirement that it must be proved beyond a reasonable doubt. However, evidence (of intermediate facts) from which it may be inferred that she screamed need not pass the ultimate standard of proof beyond a reasonable doubt. If five witnesses claim to have heard a woman scream at about the relevant time on the night of the incident, each need not be true beyond a reasonable doubt before the court, considering this testimony together, and together with ballistic and pathology reports to the effect that she incurred a severe wound which would probably have caused her to scream before she was incapacitated, concludes that a woman screamed that night, before she was shot.
There is a substantial difference between raising some doubts, even reasonable doubts in respect of some of the evidence against an accused, and raising reasonable doubt in respect of the case against the accused.

[1] Assume that, for our purposes, proof of these (intermediate) facts beyond a reasonable doubt (99% on our assumption), the accused would be guilty. For those who may wonder what may be going on at the level of maths (although it is controversial whether using maths is appropriate at all), instead of needing all the factors to be true at the same time (in the case of ultimate issues/facts), when we are dealing with an intermediate fact though, where any number of pieces of evidence could prove the fact, the formula swings around – we now ask what are the chances of all of the pieces of evidence offered to prove that fact all being wrong (false) at the same time. Thus, items of evidence at 90, 80, and 70% produce a probability of 99.4% (0.1 x 0.2 x 0.3 = 0.006)
[2] Chain reasoning must also be carefully chosen and applied in case the “links” are not independent. (Tillers revision of Wigmore on Evidence IA (1983) at 1113, reported in Zeffertt and Paizes p 117.)

*I wish to thank Professor Andrew Paizes (co-author of Zeffertt and Paizes, The South African Law of Evidence) for his helpful comments on an earlier draft. I have amended this post in line with his suggestions. Nevertheless, any mistakes remain entirely mine.

Many spectacular and sensational claims have been levelled at Oscar Pistorius in the media: that he has a bad temper, threated to break someone’s legs, is obsessed with firearms, fired a gun out of his sunroof, and another in a restaurant, was in illegal possession of ammunition and browsed pornographic websites on the night that he shot and killed Reeva Steenkamp. Presumably these claims – if proved – would tend to show that Oscar has a ‘bad character’. But there is a question that demands an answer: what does any of this matter? What would it matter if Pistorius can be shown to have a bad character? The answer is that it depends. During the plea explanation tendered by Pistorius, his defence team indicated that they would oppose the admissibility into evidence of ‘inadmissible’ character evidence as similar fact evidence. The admissibility and value of similar fact and character evidence is far from straightforward, but in light of the intense public interest in the Pistorius case, and the aspersions cast on his character, it seems necessary to attempt to deconstruct the law on this issue. Part of the complexity of trying to understand the place and admissibility of character and similar fact evidence in law is that it seems that the target is moving. When focused on similar fact evidence (concerning prior bad acts), it may seem that one is truly concerned with the character of the accused, and the opposite, when attempting to focus on character evidence, it may seem that one is truly concerned with similar fact evidence. These intuitions are, in my view, correct. That is because of the inextricable link between the two forms of evidence. Ordinarily, evidence of the disposition of a person is inadmissible because it is simply irrelevant. We know that good people do bad things, and bad people do good things. But there may be occasions on which, or people, in respect of which, sometimes, what they have done in the past, or the way they have done something, does seem to matter. In the classic case of R v Smith ((1915) 11 Cr App Rep 229) in which the accused was charged with murdering his wife – found dead in the bath. His defence was that she had suffered an epileptic seizure and drowned. There was evidence that he would benefit financially from his wife’s death. More damning though, was evidence that this had occurred on another two occasions: two other female partners had died in the bath and the accused stood to benefit from their deaths. This was all a terrible coincidence, or there was something about the accused that linked the incidents – that made it more likely that he had killed all three of them. This is indeed what the court found – the evidence of the other deaths made the claim of an accident in respect of the death of his wife implausible. It is at the point where we must say that there is something about the accused that makes it more likely that he is guilty that we are relying on evidence of disposition. I will argue also that, while ‘similar fact evidence’ is conventionally concerned with specific incidents from which inferences are sought to be drawn, and ‘character evidence’ is, perhaps not conventionally, but more realistically concerned with the disposition of an accused, the link between the two is that we can only draw valid inferences about the disposition of an accused from specific instances of prior conduct (similar fact evidence). When one is dealing with similar fact evidence – evidence of ‘prior bad acts’ – one is, in truth, dealing with whether this gives us some basis to draw inferences about the character – the disposition of the accused. For almost eternity (under Makin v Attorney General for New South Wales [1894] AC 57 (PC)), our law insisted that similar fact evidence was not admissible if it relied on aspersions on the character of the accused – if it operated upon the disposition of the accused. We seem now to be clear of this (DPP v Boardman [1975 AC 421 (HL); S v D 1991 (2) SACR 543 (A)) so that we no longer need to, nor should we (DT Zeffertt and AP Paizes The South African Law of Evidence 2nd ed (2009)), pretend that similar fact evidence is not, in truth, about disposition. Regarding character evidence, this is/was distinct on the basis that conventionally it referred exclusively to the general reputation of a witness – what the public generally thought of him or her. On this thinking, it was not evidence as to the disposition of the accused which may, in turn, be inferred from evidence of instances of improper conduct. This no longer appears to be the position (R v Malindi 1966 (4) SA 123 (PC) quoting with approval Stirland v Director of Public Prosecutions.[1944] AC 315). In essence then, both ‘bad character’ evidence and similar fact evidence seem to be concerned with instances of prior improper conduct of an accused from which inferences of an errant disposition can be inferred. The alleged misconduct of Pistorius regarding firearms and ammunition form the basis of several charges, in addition to the murder of Reeva Steenkamp which Pistorius is now facing. Importantly though, the question that I wish to address here is whether the evidence of his alleged misconduct regarding firearms and ammunition, and beyond that, of the other (character/dispositional) evidence against him, show that it is more likely true that he is guilty of the murder of Reeva Steenkamp. The general rule, in respect of both similar fact and character evidence, is that such evidence is inadmissible. The rationale is that it is simply irrelevant: its persuasive value is marginal at best and it is typically highly prejudicial – it triggers stereotypical thinking and wastes time and money, and causes the court to be drawn off point. It raises collateral issues which, in itself is problematic, but worse, an accused may be ill prepared to explain everything s/he has done in his/her life. However, there are several grounds on which evidence as to the ‘bad’ disposition of an accused can be exceptionally admitted. In terms of ‘character evidence’, at common law, the most prominent is where the accused leads evidence of his/her good character, the state may respond and present evidence of bad character – by cross-examining the accused or other witness or leading its own witnesses to testify as to the bad character of the accused. In addition, s 197 of the Criminal Procedure Act allows for the cross examination of accused person as to his bad character, (a) where s/he places his good character in issue (as under the common law), or impugns the character of a state witness; (b) gives evidence against a co-participant to the offence, (c) the charges relate to the possession of stolen property; or (d) proof of some prior bad act is admissible to show s/he is guilty on the current charge. It is worth repeating that this section relates only to the cross examination of the accused. The specific wording of the section is as follows: An accused who gives evidence at criminal proceedings shall not be asked or required to answer any question tending to show that he has committed or has been convicted of or has been charged with any offence other than the offence with which he is charged, or that he is of bad character, unless – (a) he or his legal representative asks any question of any witness with a view to establishing his own good character or he himself gives evidence of his own good character, or the nature or conduct of the defence is such as to involve imputation of the character of the complainant or any other witness for the prosecution; (b) he gives evidence against any other person charged with the same offence or an offence in respect of the same facts; (c) the proceedings against him are such as are described in section 240 or 241 [relating to possession of stolen property] and the notice under those sections has been given to him; or (d) the proof that he has committed or has been convicted of such other offence is admissible evidence to show that he is guilty of the offence with which he is charged. It is worth dwelling on the meaning and import of the final exception (197(d)). As mentioned, this effectively permits cross-examination as to some ‘prior bad act/s’ where this would be admissible to prove the current charge. This is an indirect incarnation of the rules relating to similar fact evidence – here making cross examination contingent on whether the similar fact rules would be satisfied. What is similar fact evidence, and when is it admissible? The law on similar fact evidence was governed for a long time by the judgement from the case of Makin (Makin v Attorney-General for New South Wales 1894 AC 57 (PC)). In Makin, the skeletal remains of a baby were found in the garden of a residence rented by the Makins. Their defence was that, while they conceded they had improperly disposed of the body of the baby, the baby had died of natural causes: they had not murdered the child. What made the case interesting, is that the prosecution sought to introduce evidence that the skeletal remains of other babies were discovered in other former residences of the Makins. The court was careful that evidence which tended to show that the accused were of bad character was inadmissible, but such evidence could be admitted if it in some other way disproved the Makin’s defence: ‘It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it is relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.’ Makin spawned a legacy of lawyers who thought about similar fact evidence in terms of categories of evidence, rather than degrees of relevance. Such evidence was admissible only if it qualified somehow, into a neat exceptional category, such as, did the evidence go to show that the conduct in question was designed and intentional, rather than a mistake, or did it somehow otherwise rebut a defence available to an accused. We have now developed, at least in theory, to the point at which our courts seem to appreciate that the true question is whether the evidence (of prior improper conduct) is relevant: whether it properly proves anything (DPP v Boardman [1975 AC 421 (HL); S v D 1991 (2) SACR 543 (A)) so that we no longer need to, nor should we (DT Zeffertt and AP Paizes The South African Law of Evidence 2nd ed (2009)) pretend that the disposition of the accused is not the real issue. While the position is that similar fact evidence is generally inadmissible – exceptions to this rule are also accepted. Our courts have previously insisted on some form of a link or nexus (R v Bond [1906] 2 KB 389 (CCR)) and currently, a ‘striking similarity’ between the prior improper conduct and the conduct in question (DPP v Boardman [1975 AC 421 (HL); S v D 1991 (2) SACR 543 (A)). Nevertheless, it seems that at issue is really only whether any sort of pattern can be discerned from the former conduct, that will sustain inferences being drawn to the conduct in question. It is not clear that our courts are yet comfortable with drawing inferences based on the disposition of the accused, but there appears to be no good reason to shy away from doing so where the disposition of the accused, by virtue of his prior conduct, is relevant (DT Zeffertt and AP Paizes The South African Law of Evidence 2nd ed (2009)). Thus, evidence as to specific prior improper conduct is admissible as ‘similar fact evidence’ where it would establish a pattern which reflects the disposition of the accused, from which the court could draw an inference as to his/her guilt. The topic of ‘character evidence’ does not carry this much further. Putting aside the specific statutory provisions relating to co-accused people and possession of stolen property, the rules regulating character evidence as character evidence allow for the leading of ‘bad character’ evidence or the cross-examination of the accused about his bad character if s/he pursues the line that s/he cannot be guilty because he is a good character. It also allows cross examination of the accused if s/he impugns the character of a state witness. Beyond that the rules governing character evidence as character evidence allow for the cross examination of the accused to establish what would be permitted by the rules regarding similar fact evidence. The bottom line is that if evidence of prior improper conduct by an accused would tend to properly (without, for instance, operating on stereotypes and without wasting time) show that the accused is more likely guilty, the evidence is relevant and admissible. How much weight it is given in the final analysis is another matter entirely. It is worth considering whether this is the case for Pistorius. Presuming that the state can prove allegations of prior improper conduct, would the evidence of a bad temper, a threat to break someone’s legs, having fired a gun out of his sunroof, and another in a restaurant, that he was in illegal possession of ammunition and viewed pornographic material make it more likely true that he intentionally and unlawfully shot and killed Reeva Steenkamp? This is not evidence that he shot and killed several previous girlfriends, or even evidence of repeated domestic violence. I don’t see a court accepting this evidence as establishing any sort of pattern on the basis of which it would be prepared to infer that Pistorius intended to kill Reeva Steenkamp. Of course, if the state were to produce evidence of domestic violence, then valid inferences as to his character (disposition) and ultimate guilt may be drawn. Our ability to discern patterns from complex information make us an intelligent species. But we must be careful that just because the identification of patterns help us understand our world, does not mean the world is full of patterns.  *I wish to thank Professor Andrew Paizes (co-author of Zeffertt and Paizes, The South African Law of Evidence) for his helpful comments on an earlier draft. I have amended this post in line with his suggestions. Nevertheless, any mistakes remain entirely mine.

In order to understand the defence of Oscar Pistorius to the charge of murder against him, it is necessary to have reference to the general requirements of criminal liability (see the overview on this site). In particular, one must have reference to the requirement that the fault requirement of criminal liability must extend or relate to all the essential requirements of the unlawful conduct requirement. In the case of murder, the fault requirement is intention and the unlawful conduct requirement is the ‘unlawful killing of another human being’. It is worth observing that intention is an entirely subjective enquiry – it turns on the actual subjective mental state of the accused. One can only be convicted of murder in South Africa, if you intend not only to kill another human being, but if you intend to unlawfully kill another human being. This is a well-entrenched defence in South African law.

One must be careful though that there are subtle differences between claiming that one has not acted unlawfully, and claiming not to have realised one was acting unlawfully.

A claim that one did not act unlawfully is, of course, a claim to have acted lawfully. One may make such a claim if one raises a ground of justification. Self or private defence is the most well-known ground of justification. To succeed with a claim of self or private defence, one must satisfy a number of specific requirements. These requirements can be divided into those which relate to the attack, and those that relate to the response. The requirements of the attack are as follows:

1)      One must be under an unlawful attack;

2)      Which has commenced or is imminent;

3)      Against a legally protected interest – such as life, bodily integrity, or property (of significant value), or the life, bodily integrity, or property of another.

The requirements of the defence are as follows:

4)      Force used in response must be directed at the attacker (and no-one else);

5)      Force must be necessary;

6)      The extent of force must be necessary and reasonable.

If one satisfies these requirements, one’s conduct is lawful and one escapes liability. If one does not satisfy all of these requirements one’s conduct is unlawful. This is, of course, the position for Pistorius – who has conceded as much. There was no unlawful attack upon him or Reeva.

However, one is only ultimately liable, if, as required (see overview under ‘Fault’), one’s fault (intention for murder) extends or relates to all the requirements of the unlawful conduct. If one did not intend to act unlawfully, one has a valid defence. Thus – and this is what Pistorius appears to be claiming – if one mistakenly believes that one was acting lawfully, in self/private defence, one has a valid and complete defence. Here is the catch – actually, there are two.

Firstly, Pistorius will have to convince a court that he genuinely believed that he was acting in self/private defence. The problem he may face is that our law takes a wide view of ‘intention’ – it regards the foresight of a possibility and reckless persistence in the face of that risk, as intention. An accused who foresees the possibility that one or more of the requirements of private defence may not be satisfied, who reconciles to that risk and persists despite the risk, will be held to have intention in our law. Not only would such an accused have acted unlawfully, but s/he will have intended to act unlawfully – merely by the foresight of a possibility that one of the requirements of self/private defence may not be satisfied, and to have persisted despite this risk. For Pistorius, this means that, having conceded that he acted unlawfully, if the state can show that he foresaw the possibility (and reconciled himself to the risk) that he was not under attack, that any supposed attack had not actually commenced and was not imminent, or that no legally protected interest was truly under threat, he may be regarded as having intended to act unlawfully and can be convicted of murder. Alternatively, even if Pistorius was genuinely mistaken in respect of all of the requirements of the attack, he may also be convicted of murder if he foresaw the possibility that one of the requirements of the response may not have been satisfied. He can be convicted of murder if the state can show that he foresaw the possibility (and reconciled himself to that risk) that he was not acting against the supposed attacker, that force was not necessary, or that the extent of force used was not necessary and reasonable.

The second catch is that even if Pistorius succeeds in his defence (of mistake as to unlawfulness) against the murder charge, the next automatic question will be whether this mistake was a reasonable one. This is the question of culpable homicide. It is judged objectively – whereas intention is judged subjectively.  The objective standard of the reasonable person is the basis on which our courts judge negligence. At its essence it is a hypothetical comparison of the actual conduct of the accused against what a reasonable person, in the circumstances of the accused, would have done. If there is any deviation on the part of an accused from what the reasonable person would have done, the accused will be judged to have acted negligently. It is worth noting that our law is only prepared to take account of the immediate external circumstances of an accused – and to hypothetically place the reasonable person in these circumstances. Our law has steadfastly refused to take account of any subjective factors peculiar to an accused, including any disability that the accused suffers with. This has been controversial, but it has been a line from which our courts have not wavered.  If the reasonable person would not have made the mistake Pistorius claims to have made, even if the court accepts that Pistorius made this mistake, he may be convicted of culpable homicide.

If I shoot a gun at a particular person, but I miss, the law recognises that the bullet may easily come to rest in a wall, a tree, or fall harmlessly to the ground somewhere. It could also, of course, strike another person – and this is where things get interesting. This is known in SA law as a scenario of aberratio ictus (going astray of the blow). Our law used to take the view that this was no defence – you still killed a human being. It used to do this by “transferring intent” from the intended victim, to the actual victim. But we have now shifted to the position that recognises that, if you miss your target (although you are liable for attempted murder in respect of your intended victim), whether you are liable for murder, if the bullet happens to strike another person and kill him/her, must depend on whether you had intention (in law, at least foresight) of this prospect.

This is all very different from scenarios of “error in objecto”. It doesn’t matter if an accused intended to kill one person (say, Bill), but killed another instead (say, Jake) – at least not in the sense that the identity of the victim matters. Thus, an accused who intends to kill a particular human body, and kills that human body, incurs liability for murder (assuming capacity and unlawfulness). The mistake involved (“error in objecto”) where one human body is mistaken for another, is an immaterial/inessential error – that is, it does not affect one’s liability. An error in objecto may be material where one shoots at what one thinks is a scarecrow, say, but it transpires that the scarecrow was a human being. This would be an essential/material error and one could not be convicted of murder, which requires the intentional unlawful killing of another human being – one must intend to kill a human being.

The problem is that it is easy to confuse an aberatio ictus (where one misses one’s intended victim and someone else is killed), with the scenario of an inessential error (in objecto) where one shoots at and kill a particular person. The fundamental difference is that in the former (aberatio ictus) there are actually two people/victims, and you kill a person you may not intend to kill. In the second scenario of the inessential error (in objecto) there is only one person/victim and you kill that human being – the human being you intend to kill.

Oscar did not miss his target. He fired at and killed whoever was behind the door. It is therefore no a case of aberatio ictus. It is, at best, an immaterial/inessential error (in objecto) – no defence. Instead, his defence, at least his original defence, is that he did not intend to kill whoever was behind the door UNLAWFULLY. This is a recognised defence. Oscar only needs to raise in the mind of the Court a reasonable possibility that he made this mistake to escape a murder conviction.