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Oscar Pistorius shoots girlfriend

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Skwinty said:
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.:rolleyes:
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This is not a legal citation. It may be you don't know what that would look like but it's certainly not a bunch of hypotheticals taken from Oscar's assessment. And it's not new who is defending a proposition of SA law.
 
Skwinty said:
The judge did make mistakes. She should have convicted him of murder.:rolleyes:

http://criminallawza.net/2014/09/13/pistorius-remains-in-jeopardy-of-a-murder-conviction/


"The effect is that, if the state does appeal, and one may well expect that it will, Pistorius continues to face the prospect of a murder conviction."
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I found that very difficult to follow. Which is odd because there is nothing difficult about this case analytically. Not in English law anyway. I suspect SA law has taken a wrong turn somewhere. The author, while declaiming on the supposed difficulty of the concepts, certainly doesn't make a good job of explaining them.

Here, so far as murder is concerned, he falls to be judged on the facts as he subjectively (not objectively, not reasonably) believed them to be. On that assumption, did he use reasonable force in defence of himself, his property and/or another? If so (as I think) he is not guilty of murder. As we don't have an offence of homicide by negligence (unless it is gross) he would not be convicted of any kind of homicide here.

I shall not be surprised if the judge's reasoning fails to withstand scrutiny but it makes no difference to my argument which concerns whether there is any objective basis for the CH conviction.

Btw. your smiley suggests you think I care about the outcome and will be dismayed if a state appeal succeeds. You are mistaken again, I am afraid. You are confusing me with Lionking.
 
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anglolawyer said:
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?
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The judge took the position that the prosecution could not prove OP knew it was Reeva. (I personally, think his actions strongly suggest he did know it was her(#3550), but I agree the prosecution did not prove this.) The Judges opinion is that Oscar was negligent no matter who was behind that door. He clearly intended to kill somebody and a noise behind a closed door was not sufficient reason.
 
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MontagK505 said:
The judge took the position that the prosecution could not prove OP knew it was Reeva. (I personally, think his actions strongly suggest he did know it was her, but I agree the prosecution did not prove this.) The Judges opinion is that Oscar was negligent no matter who was behind that door. He clearly intended to kill somebody and a noise behind a closed door was not sufficient reason.
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Thanks. Of course, if he believed it was Reeva then he is a murderer. There is no suggestion anywhere, least of all from him, that she posed a threat to him that justified shooting her. Acquitting him of murder is tantamount to a complete rejection of the state's thesis of what happened.

I must admit, I don't understand the judge's reasoning in convicting him of culpable homicide rather than murder by use of excessive force against the supposed intruder. If the force was not excessive but reasonable and proportionate then why is he guilty of anything? OTOH if it was not then why exactly was he acquitted of murder?

I have already explained, I hope, why I would acquit him of both since in my opinion it is reasonable to shoot to kill night-time home invaders who still pose a potential threat but I don't follow the judge's thinking (assuming I have understood it).
 
anglolawyer said:
This is not a legal citation. It may be you don't know what that would look like but it's certainly not a bunch of hypotheticals taken from Oscar's assessment. And it's not new who is defending a proposition of SA law.
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Firstly, I don't have access to the statute books.
Secondly, the bolded text is Rens giving evidence wrt the legally binding competency test Pistorius undertook.
It is also in answer to your questions you posed earlier. I don't see any hypotheticals there as it is in the court transcripts.
So you are a criminal lawyer in the UK who knows all about SA criminal law.
Perhaps you should come over here and school our judiciary and legal establishment.
I too am not concerned about your expectations wrt to this trial, but you sure have a lot to say about it.
Who is Lionking by the way? :)
 
anglolawyer said:
Thanks. Of course, if he believed it was Reeva then he is a murderer. There is no suggestion anywhere, least of all from him, that she posed a threat to him that justified shooting her. Acquitting him of murder is tantamount to a complete rejection of the state's thesis of what happened.

I must admit, I don't understand the judge's reasoning in convicting him of culpable homicide rather than murder by use of excessive force against the supposed intruder. If the force was not excessive but reasonable and proportionate then why is he guilty of anything? OTOH if it was not then why exactly was he acquitted of murder?

I have already explained, I hope, why I would acquit him of both since in my opinion it is reasonable to shoot to kill night-time home invaders who still pose a potential threat but I don't follow the judge's thinking (assuming I have understood it).
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A noise behind a closed door is in itself is not a sufficiently potential threat. I think that is the judges opinion. The fact that he didn't verify that it wasn't her just makes it worse. FYI I've sat on three jury's and I would reluctantly have to admit that the prosecution did not prove beyond a reasonable doubt that Oscar knew it was her. I would have found him guilty beyond a reasonable doubt of manslaughter under California law.
 
anglolawyer said:
I found that very difficult to follow. Which is odd because there is nothing difficult about this case analytically. Not in English law anyway. I suspect SA law has taken a wrong turn somewhere. The author, while declaiming on the supposed difficulty of the concepts, certainly doesn't make a good job of explaining them.
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The law is complicated and nuanced. The bone of contention is the interpretation of dolus eventualis.

There is a fine line between culpable homicide and dolus eventualis.

The sentencing differs significantly however.
 
anglolawyer said:
I have already explained, I hope, why I would acquit him of both since in my opinion it is reasonable to shoot to kill night-time home invaders who still pose a potential threat but I don't follow the judge's thinking (assuming I have understood it).
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It maybe reasonable in your opinion but is it reasonable in the eyes of the law?

If it was up to me he would be executed.;)
 
For Anglolawyer

http://criminallawza.net/2014/05/28/criminal-law-in-4d/

" In the case of private/self-defence the value judgments (made by Courts) to date allow us to set out the requirements of the defence as follows:
1. You can only resort to force in response to an attack against you that is unlawful itself (you can’t resort to force against someone who is acting lawfully, such as in the execution of a warrant of arrest against you);
2. It must have commenced or be imminent (It is possibly worth noting the ground breaking decision of Satchwell J in (Engelbrecht 2005 WLD) in which she accepted that it is enough if the attack was ‘inevitable’.);
3. It must be an attack against a legally protected interest of yours or of another person (life, limb, or property of substantial value);
4. It must be necessary to resort to force;
5. That force must be directed at the attacker (not someone else); and
6. The extent of force must be necessary and reasonable – for instance, you cannot shoot someone for threatening you with a light assault.
 
anglolawyer said:
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.
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Then there should be carte blanche to shoot blindly through doors in one's own property whenever one hears or believes one hears an unidentified noise on the other side?
 
MontagK505 said:
<snip> FYI I've sat on three jury's and I would reluctantly have to admit that the prosecution did not prove beyond a reasonable doubt that Oscar knew it was her. I would have found him guilty beyond a reasonable doubt of manslaughter under California law.
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I agree. While I think he knew it was Reeva, I think he was angry and wanted to shoot her, the evidence is really not there to support that legally. I agree shooting into an occupied bathroom -- without knowing who was there or why they were there -- and killing the occupant would also be manslaughter in New York State and I would vote him guilty as well.
 
Skwinty said:
For Anglolawyer

http://criminallawza.net/2014/05/28/criminal-law-in-4d/

" In the case of private/self-defence the value judgments (made by Courts) to date allow us to set out the requirements of the defence as follows:
1. You can only resort to force in response to an attack against you that is unlawful itself (you can’t resort to force against someone who is acting lawfully, such as in the execution of a warrant of arrest against you);
2. It must have commenced or be imminent (It is possibly worth noting the ground breaking decision of Satchwell J in (Engelbrecht 2005 WLD) in which she accepted that it is enough if the attack was ‘inevitable’.);
3. It must be an attack against a legally protected interest of yours or of another person (life, limb, or property of substantial value);
4. It must be necessary to resort to force;
5. That force must be directed at the attacker (not someone else); and
6. The extent of force must be necessary and reasonable – for instance, you cannot shoot someone for threatening you with a light assault.
Click to expand...

A noise behind a closed door does not meet the requirements of item 2 or item 3.
 
Skwinty said:
It maybe reasonable in your opinion but is it reasonable in the eyes of the law?

If it was up to me he would be executed.;)
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Skwinty - I have tried to make completely plain my consciousness of my own ignorance in the field of 'lethal home security'. My argument is that neither I, nor you, nor the judge is qualified to say what a reasonable course of action would have been, assuming an intruder in Oscar's toilet.
 
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