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.
Well no - as Grant observes, the judge, bafflingly, didn't even raise the issue of whether Pistorius subjectively felt that his life was in imminent danger, and if he did, whether he used proportionate force (which, taken together, would be the test for murder vs self-defence).
Instead, the judge concentrated solely on the intent part. And in my view Grant is entirely correct to claim that Masipa messed up stupendously on the way she treated indirect intent (dolus eventualis) alongside mistaken identification (error in persona).
What Masipa appears to have done is as follows - and the order of things is important here:
Firstly, she stated that the prosecution had not proven that Pistorius knew it was Reeva behind the door and not an intruder, plus the court found that the facts and evidence better fitted Pistorius' version, so the court concluded that Pistorius genuinely believed that there was an intruder behind the toilet door.
Secondly, she then applied the intent test under these circumstances (i.e. Pistorius genuinely believing there was an intruder behind the door), BUT....
she only applied the test with relation to Reeva Steenkamp!
In other words, her "reasoning" appears (amazingly) to have been as follows: since Pistorius believed he was firing at an intruder, he clearly did not intent to kill (or seriously injure) the actual victim, i.e. Reeva Steenkamp.
A reading of Masipa's verdict makes it pretty clear that this is indeed the way in which she decided there was no indirect intent. However, if this is the case, then she has obviously misapplied the law extremely incompetently. She has not understood that if there is a case of mistaken identification, then intent applies to the person who was shot in error. In making this mistake, she seeks to support her position by stating (correctly) that there is no concept of "transferred intent" in SA law. However, she totally misunderstands and misinterprets what that actually means, and erroneously takes it to mean that since Pistorius only intended to kill/injure an "intruder", this intent cannot therefore be "transferred" to the actual victim, Reeva Steenkamp.
I cannot see how the prosecution cannot appeal this decision. Again, if Masipa's written judgement goes much further than her oral verdict in regard to whether the court believes Pistorius genuinely felt in imminent mortal danger, then this might become moot. But as it stands, it appears to be a shocking and incompetent misapplication of the law.
