Oscar Pistorius shoots girlfriend

[Skwinty]

Thay was a quick search and research effort. Cheers, carry on with your sterling work.

 

[anglolawyer]

Thay was a quick search and research effort. Cheers, carry on with your sterling work.

No Skwinty. It's your claim, you back it up. Tell you what, if the judgment cites the law as you claim it to be then I will concede. However, I bet it doesn't because your formulation makes no sense. What does 'identified' mean. A name and address? What if the person behind the door, when challenged, shoves a note under it saying 'I refuse to identify myself nor state whether I am armed. Therefore, I have the benefit of Skwinty's Law and you may not shoot'.

 

[anglolawyer]

No because he wouldn't know if the sound was her or the intruder. This is the problem, he put four rounds through that door without actually knowing what he was shooting at. This is why the judge has found him guilty of negligent homicide.

OK maybe I haven't paid sufficiently close attention. I thought she found that he subjectively believed it was not Reeva. Given that belief, where does she get her finding that a reasonable person would of should have consumed valuable seconds checking Reeva's whereabouts, risking both delay and making sounds which might alert the intruder to their whereabouts?

 

[Skwinty]

Don't be silly. You know that you need to be directly under threat and you need to identify the source of the threat. You can't shoot innocent bystanders.

 

[anglolawyer]

The judge found that Pistorius was reckless and used excessive force.

So what?

 

[anglolawyer]

Don't be silly. You know that you need to be directly under threat and you need to identify the source of the threat. You can't shoot innocent bystanders.

First highlight - define please
Second highlight - ditto
Third highlight - in certain circumstances, yes you can, otherwise SA law of CH is an offence of strict liability and the whole trial on that charge was a waste of public money.

 

[Skwinty]

Some of the principles applicable to the question posed above are as follows:

You should ascertain if the attack is ongoing or whether the attack is over. It sounds silly, but it is an important issue in court. You can only defend yourself against an attacker during an ongoing/imminent attack. If your attacker has fled the scene of the crime you cannot pursue him and think you are still acting in self-defense. Retaliation is not self-defense. In those circumstances you have become an attacker yourself and would be guilty of an assault. Your defence must also be directed towards the attacker. You cannot defend yourself by assaulting somebody else who never launched an attack on you.

 

[anglolawyer]

Some of the principles applicable to the question posed above are as follows:

You should ascertain if the attack is ongoing or whether the attack is over. It sounds silly, but it is an important issue in court. You can only defend yourself against an attacker during an ongoing/imminent attack. If your attacker has fled the scene of the crime you cannot pursue him and think you are still acting in self-defense. Retaliation is not self-defense. In those circumstances you have become an attacker yourself and would be guilty of an assault. Your defence must also be directed towards the attacker. You cannot defend yourself by assaulting somebody else who never launched an attack on you.

The highlighted part is certainly wrong. An apprehended assault is enough. There is no need to await the first blow.

Anyway, case law please? You are dodging my questions.

According to wikipedia: Culpable homicide" has been defined (in South African law) simply as "the unlawful negligent killing of a human being". That makes perfect sense to me. 'Negligent' is a much more complicated concept than the average lay person might think. It denotes an objective standard against the conduct in question must be judged. I am querying whether there was any evidence in the trial which established this standard in the given circumstances.

To illustrate, to make out a case of professional negligence against me, you would have to show that no reasonable lawyer in my position would have exchanged contracts, or settled on those terms, or failed to issue within the time limit (or whatever the case may be). No reasonable lawyer. Not - no lawyer. Not nobody at all. It's a high standard. If my conduct falls within a range of reasonable actions or responses, set aside it may not be what you would have done, then the claim against me fails. A fortiori in the criminal sphere where the burden on the party alleging negligence is higher.

 

[Skwinty]

Anyway, case law please? You are dodging my questions.

I have cited these laws before on this thread. I am not dodging your questions, only your laziness.

 

[anglolawyer]

I have cited these laws before on this thread. I am not dodging your questions, only your laziness.

No you haven't. You have cited nothing about any obligation to identify an assailant first. You can't have because SA us a country with a well-developed jurisprudence and nothing of that kind could withstand examination in such a context. Maybe you found a case in which, in the specific circumstances, it was held to be wrong not to have identified or challenged the aporehended threat but it would be very surprising if there were a case that established an across-the-board principle couched in terms similar to your formulation.

And it is evasive to refer to unidentified previous posts. If you have a cite, just post it and we can all take a look.

 

[Skwinty]

No you haven't. You have cited nothing about any obligation to identify an assailant first. You can't have because SA us a country with a well-developed jurisprudence and nothing of that kind could withstand examination in such a context. Maybe you found a case in which, in the specific circumstances, it was held to be wrong not to have identified or challenged the aporehended threat but it would be very surprising if there were a case that established an across-the-board principle couched in terms similar to your formulation.

And it is evasive to refer to unidentified previous posts. If you have a cite, just post it and we can all take a look.

Mmmm, whatever. [emoji84] I'm going out now so have fun for the rest of the day.

 

[GlennB]

Why?

It's fundamental. You don't use a professional as a benchmark for the 'reasonable person' comparison unless the defendant is also similarly professional. This is how the 'reasonable person' test works, and quite rightly so.

 

[anglolawyer]

It's fundamental. You don't use a professional as a benchmark for the 'reasonable person' comparison unless the defendant is also similarly professional. This is how the 'reasonable person' test works, and quite rightly so.

You still don't get it. We would hold a professional to a higher standard than a lay person, right? So if it were shown that the rules of engagement of the SAS, or armed police service or some similar outfit permitted blind shots through a door in circumstances similar to those we are dealing with then it would clearly be wrong to hold Oscar to a more exacting standard.

I am simply asking what objective standard the judge used. I assume everybody knows by now what I mean by objective. Did she use some standard of her own devising, unaided by anything more than common sense, or was she assisted by any expert evidence.

My son is a trained lifeguard. I am not. He has taught me things about what he is supposed to do in certain situations that require knowledge and expertise. I would not think of them by myself, nor would most here. That's why training is required. What do people here think goes on in combat training? Do you think you can just imagine what to do in certain situations? I do not.

This was a dark place in a gated community in a violent and lawless country. It was the middle of the night. There was no way, without risk, to find out whether the intruder was armed nor what his intentions were. Shooting at him seems perfectly OK to me. If anyone knows of a risk-free alternative go for it. Remember the pro guidelines I posted earlier - neither a warning nor a demand are necessary if they cannot be given without risk. And every honest poster here knows perfectly well how a trigger-happy cop would have been judged on the same facts because it happens all the time.

 

[GlennB]

This was a dark place in a gated community in a violent and lawless country. It was the middle of the night There was no way, without risk, to find out whether the intruder was armed nor what his intentions were. . Shooting at him seems perfectly OK to me.

OP put himself in the bathroom, facing the unknown. He put himself at risk.

If anyone knows of a risk-free alternative go for it. Remember the pro guidelines I posted earlier - neither a warning nor a demand are necessary if they cannot be given without risk.

Get out the bedroom door with your partner and summon help, quite possibly using the gun to cover the passageway while Steenkamp exits. This obviates the need for warnings or demands entirely, so your 'protip guidelines' are a red herring.

 

[Azrael 5]

How likely is an intruder going to shoot from inside a toilet,assuming the occupant of the house has rumbled him? Not knowing whether occupant is armed(cant recall if OP shouted that he was). Wouldn't it be a bit dangerous to shoot from inside a small bathroom anyway?

 

[anglolawyer]

OP put himself in the bathroom, facing the unknown. He put himself at risk.



Get out the bedroom door with your partner and summon help, quite possibly using the gun to cover the passageway while Steenkamp exits. This obviates the need for warnings or demands entirely, so your 'protip guidelines' are a red herring.

Excuse me? Why does he have to abandon his own property? I guess that's a self defence point really but even so. It can't be the law that one must vacate ones own property when an intruder gets in. Whatever, your solution doesn't seem all that safe to me. What if the guy comes charging out of the toilet firing at you while you are going downstairs? Please demonstrate how this is safer than shooting him while he's in the toilet. Right. You can't. Because, like me, you don't know what you're talking about. Nor did the judge.

 

[anglolawyer]

How likely is an intruder going to shoot from inside a toilet,assuming the occupant of the house has rumbled him? Not knowing whether occupant is armed(cant recall if OP shouted that he was). Wouldn't it be a bit dangerous to shoot from inside a small bathroom anyway?

Demonstrate that it is not likely, please. Oscar fired through the door. Why couldn't the notional other guy do likewise? Why couldn't he burst out firing? He could. It's not a western where the bad guy gets to draw first.

 

[Dissolution]

Pistorius shot through the door without confirming the location of other parties that he knew were in the house.
He may have believed that he knew where Steenkamp was, but he made no attempt to locate his male housekeeper, Frank Chiziweni.

His movements were inconsistent with that of somebody who claimed to be paranoid about intruders or frightened at the prospect of being burgled.
He approached a possible intrusion, when he could easily have covered the room from the corridor and called the housekeeper, the nearby security of his gated community and/or the police.

He didn't act rationally or reasonably and it's ludicrous to claim that he did.
A professional acting in this manner would be dismissed and face criminal charges.

 

[GlennB]

Excuse me? Why does he have to abandon his own property? I guess that's a self defence point really but even so. It can't be the law that one must vacate ones own property when an intruder gets in. Whatever, your solution doesn't seem all that safe to me. What if the guy comes charging out of the toilet firing at you while you are going downstairs? Please demonstrate how this is safer than shooting him while he's in the toilet. Right. You can't.

He doesn't have to abandon his property and I haven't suggested it's the law. It's just a much more reasonable course of action under the circumstances.

OP had no idea 'the intruder' was in the toilet when he began to take action. You seem to be taking at as a given that he was. The supposed intruder would be much more likely to be on the loose in the bathroom or even clambering through the window still. OP's actions required him to waddle down the corridor on his stumps and turn the corner with no idea what he was about to face.

Getting out through the nearby bedroom door isn't safer than that?

 

[Skwinty]

No you haven't. You have cited nothing about any obligation to identify an assailant first. You can't have because SA us a country with a well-developed jurisprudence and nothing of that kind could withstand examination in such a context. Maybe you found a case in which, in the specific circumstances, it was held to be wrong not to have identified or challenged the aporehended threat but it would be very surprising if there were a case that established an across-the-board principle couched in terms similar to your formulation.

And it is evasive to refer to unidentified previous posts. If you have a cite, just post it and we can all take a look.

The links that I posted last year a now dead. You even looked at them and quite possibly downloaded the pdf documents.

Here is an excerpt from the trial wrt government issued gun competency certificate. The certificates are legally binding and have to be renewed and re-issued every 5 years. This is mandated by FIREARMS CONTROL ACT 60 OF 2000.

http://www.enca.com/south-africa/oscar-trial-gun-love-and-recklessness-under-spotlight

"Nel then went through a number of questions Pistorius had answered during his assessment tests.
“The one question states ‘You are alone at home far from police and security services. You happen to look out of the window and see two men jumping over your wall and making their way to your house. You are not expecting a visit because it is very late at night. Have they committed an offence that requires the use of lethal force?’ What did the accused answer?” Nel asked.
“The accused answered no,” Rens said.
“’The men break in through the burglar bars and remove your extremely expensive hi-fi equipment. Can you use lethal force then?’,” Nel asked, prompting Rens to state that Pistorius had again answered ‘No’.
The next question asked if the same men became aware of his presence behind a security gate several metres away and instruct him to leave or they will kill him, issuing a definite verbal threat, Pistorius had again answered that he could not use lethal force.
A third question giving a similar scenario but this time with no security gate and the two men – one armed with a knife and the other with a gun – then approach him in a threatening manner, to which Pistorius had responded that he could legally discharge his firearm because he believed his life to be in danger.
In answer to the question ‘When can you use lethal force’, Pistorius had written ‘The attack must be against you and it must be unlawful. It must be against a person’.
Nel asked if these scenarios had been discussed with the accused, and Rens said this had been done on several occasions.
In answer to other questions Pistorius had noted that it was necessary to always treat firearms as loaded, to always be aware of the target and what lies behind it.
He had been able to list the top safety rules.
Asked to explain target identification, Pistorius had answered: “Know your target and what lies beyond"


Now can you supply cites for your assertions relating to South African gun control and criminal law.

If you need any assistance remembering your assertions let me know and I will find them for you.