Murder is the intentional unlawful killing of another human being. Culpable homicide is the negligent unlawful killing of another human being.
You are entitled (justified) in law to intentionally lawfully (such as, in self-defence) kill another human being. There is no criminal liability for doing so. Whether you are under attack and entitled to act in self defence is judged objectively, on the facts. Pistorius is not making this claim. He accepts he acted unlawfully – he was not entitled to shoot at anyone that night.
In addition, you will be excused on a murder charge for unintentionally unlawfully killing another human being. This is a mental state defence – it denies the required guilty mental state.
For murder, you must intend to unlawfully kill. If you are mistaken, and genuinely believe you are acting lawfully (such as in private-defence (the technical name for the defence under which self-defence is located)), whereas you are not acting lawfully, you cannot be convicted of murder because you don’t intend to act unlawfully. To escape a conviction of culpable homicide this mistake must be reasonable – one which the reasonable person may make. But on a murder charge, it is enough, for an acquittal, if the accused was subjectively mistaken.
This defence (that you mistakenly thought you were entitled to act in private-defence) is known as “putative private-defence”. Until his testimony, this was Pistorius’s defence. I say “until his testimony”, because during his testimony, he seems to be claiming that he fired at the toilet door by accident. This is vastly different – a claim of “accident” amounts in law to a claim of involuntariness. The defence of involuntariness is well recognised – examples include movement during an epileptic seizure and sleepwalking. The essence of the defence is that your mind did not direct or control your conduct. His testimony seems to be raising this defence. In Tasha’s, the gun in his hand simply went off by itself. His claim is he did not pull the trigger. This is not, at least, at odds with what he has said before on this firearms charge because his testimony is, to my knowledge, the first indication of his defence on this charge.
However, on the murder charge, his defence, until his testimony, has been that he mistakenly thought he was entitled to act in self defence. This, as I’ve said, is a valid defence. Yet in his testimony, he seems to be changing his defence. He seems to be claiming that the discharge of his firearm was an accident or at the very least, that his conduct was not under the control of his mind. This is again a claim that the gun had gone off in his hands, but he had nothing to do with it. This seems to keep happening to Oscar.
A claim to involuntariness is a difficult one because our courts assume that ordinary conduct is voluntary. If you have done something, you need to lay a basis for a claim to have done so involuntarily – because the courts presume voluntariness (S v Henry 1999 SCA). There appears to be no basis for this claim – at least nothing in the evidence that I have seen so far. To be fair, the interpretation of “accident” as a claim to involuntariness is a technical one. It is understandable that an accused who is unfamiliar with the law and the legal implications of what he is saying may make this mistake. This is not, in my view, the problem. The problem is that he seems unclear as to what his defence is. Until his testimony his defence has been one of putative private defence. It is consistent with such a defence to say: I intended to kill – although I thought I was doing so lawfully; I intended to kill the person behind the door who I thought was an intruder and that I had to use lethal force. On a charge of murder, there is nothing inconsistent with innocence to intentionally kill someone – so long as you think you are doing so lawfully (such as in private defence). But if this is your defence, it makes no sense to deny having intended to kill anyone. An accused who does so would appear to be unclear about his/her defence.
For me this gives rise to a crucial question: Why would an accused be so unclear about his defence that it seems to change as he testifies on the stand?
Has he actually admitted that he acted unlawfully? I also wonder how much Roux et al knew about this ‘accidental’ shot defence.
Yes, in both his bail application and plea explanation, he concedes he acted unlawfully, but claims not to have known he was acting unlawfully. This is the defence of mistake relating to unlawfulness – of putative private defence. It’s a valid defence to murder. Beyond that, if the mistake was reasonable, it’s a valid defence to a charge of culpable homicide.
If the court accepts that there is a reasonable possibility that he was mistaken, it must acquit him of murder. If it accepts that this was a reasonable mistake, it must acquit him of culpable homicide.
Ah, I see the distinction and have now read your article covering the defence
Great!
Is it possible that Pistorius is not changing his defense intentionally, but rather that, although he put forth a defense of “mistake relating to unlawfulness” initially, he just views the whole thing as an accident? In other words, is it possible that he does not understand that he’s offering a new defense, one of “defence of involuntariness”? And if so, is that something his defense could clear up satisfactorily?
Great article and very interesting to see various factors of South African law in this regard as most of us are just exposed to over dramatitized american law opera’s.
Maybe should include your comment in the post as this makes everything a lot more clearer. Thus if I understand correct the defenses first objective is to acquit of murder, but the real challenge is to acquit him of culpable homicide also.
“If the court accepts that there is a reasonable possibility that he was mistaken, it must acquit him of murder. If it accepts that this was a reasonable mistake, it must acquit him of culpable homicide. “
I find your articles most informative, and sincerely thank you for these, but you have me stumped here… or am I am missing something or being stupid?
Going with the premise that it is found OP’s was a reasonable mistake would that be sufficient to acquit without the court considering things like, reasonable force, avoidance of confrontation, recklessness/negligence (“know your target and what lies beyond”), failure to verbalise a warning or fire a warning shot, etc.? I ask because it seemed Nel was accounting for these within his cross, I thought with the purpose of putting them before the judge to consider in judgement. I also believed that in SA an intruder had protection similar to in the UK where, unlike the US, we do not have stand your ground laws not even within the home if there are less finite options available.
If OP shows that he made genuine mistake (thinking he was entitled to act), he is entitled to an acquittal on the murder charge. If, in addition, he shows that he made a genuine and reasonable mistake, he is entitled to an acquittal on a charge of culpable homicide.
This is all true despite the fact that he was actually, in the situation, not entitled to act in private defence.
Such a clear explanation in so few words, your pupils must learn a lot!
So presumably it could feasibly go against a finding of OP mistakenly believing he was entitled to shoot his knowledge of gun laws, the competency test? And if he did make a genuine mistake in respect of an intruder, presumably it could go against a finding of reasonable such things as his rushing towards danger even despite disability, firing blind through a door?
Fully understood now… I hope! Thanks.
Thanks.
No wonder SA courts are in a mess the time all this is taking. And real justice jics not being meted out
However channel 199 only has self interested lawyers and journalists babbling on about how wonderful the lawyers and legal system are.
If you have time look at what is going on in Trademarks (nothing actually ) or in civil cases where lawyers actively aid clients to commit fraud you may see the legal system and lawyers as merely exploiting the masses to line their own pockets..Forgive my cynicism. Its called experience.
My question is how does the judge decide which facts are true given that these witnesses and the accused himself are under oath?
What would make the prosecution’s theory to be viable or viewed as the actual truth by the judge?
That’s a tough one. The best answer I can give, without writting a thesis here, is that a court considers everything, including the credibility and reliability of all the witnesses, what they have said, and the “inherent probabilities” of what everyone has said, especially the accused.
For more see he piece I wrote on “The Perplexing Problem of Proof”.
While we appreciate the time you took to write this article, could you please write in simple terms next time?
That’s a fair comment. I promise, I tried – spent all morning trying to figure out how to explain this in understandable terms. It is my purpose. Some concepts are truly hard to crunch. But, point taken, I will try harder.
Thank you so much.
I think you’ve explained it sufficiently already !!! It was good of you to bother and I appreciate it 🙂
ROUX .. Do you think his legal team anticipated his testimony under cross and what he was going to say or do u think they were taken by suprise at his answers to Nel’s questions for instance that the shooting through the roof was a fabrication by the other witnesses … .
I would guess that at the very least some of what Oscar has said will have come as a surprise to Roux. Difficult to know what though.
THANK YOU for the answer .. the articles you have written helps a lot since I have limited knowledge of the law and how it works…. and usually just follow Barry Bateman who seems to be tweeting without drama.
Pleasure. I would also be lost without BB’s coverage.
Thanks for this article. Its nice to read about the “technical” stuff in an understandable way for someone clueless about law. If Pistorius is lying about his defence and did infact know that Reeva was behind that door, what are the chances that Roux would know? And is there a law that prevents Roux from defending someone based on a lie?
Thanks. Yes, Roux’s ethics require that he cannot present a version to the Court that he knows is not true.
Ethics? On 199 the lawyers suddenly were as one whem OP criticised Roux. Sadly recent experience has taught me that lawyers are no different from rest of human race. Anyone preaching ethics should understand that their ethics are judged by others not their own peers OP should have been held overnight when giving evidence. And no access to outside world
I would not trust Roux an inch. He is in it to make money and will not care a toss what the result is.
I share your scepticism of human nature; in fact, I may be even more sceptical. For any lawyer with his/her eye on the future, I expect that being ethical is also good business.
I have listened to the testimony this week and it appeared to me, at least on some occasions, that there was an issue of semantics at play. When OP referred to an ‘accident’ I rather got the impression he was acknowledging, with hindsight, that he had been mistaken to have reacted in the way he did – but that on the night he genuinely thought there was a burglar and his fear took over, leading to an action (pulling the trigger) that he had not fully rationalised.
I’m just a layperson trying to learn a bit more about the law – so sorry if I’m not making sense or have misinterpreted!
I think you are spot on. It’s why I don’t pursue the line that he is shifting to a defence of involuntariness – but he does seem to be shifting, at least from, “I intended to lawfully kill”, to “I didn’t intend to kill at all”.
LOST IN TRANSLATION
The semantics have also interested me. As an native Afrikaans speaker I’ve had the impression a few times that nuances in the meaning of words are getting lost in the cross examination and under stressful conditions in the case Roux, Nel and Pistorius. None of them are mother tongue English speakers. For example the Afrikaans “per ongeluk” to me does have exactly the same meaning as the English “by accident”. The Afrikaans means ” I did not mean to do it” i.e. no. intent, whereas the English is less emphatic and could be closer to “I made a mistake”, not necessarily without intent, more “I was wrong to so it”.
Tk u for this article, makes sense, even for me..a Graphic Artist. My question is: is OP going to serve time? And all this in court now is to figure out ‘how many’ years. Or can he walk free with no yrs behind bars? Is this possible?
At what stage can resign as counsel, to protect his own credibility? OP accused his legal team on 3 occasions of submitting wrong info
Prof Grant said “But on a murder charge, it is enough if the accused was subjectively mistaken.” Do you mean “enough to be convicted” or “enough to be discharged and acquitted” ?
Thanks for the query. I mean: enough for an acquittal. I’ll clarify that.
Oscar was clearly sinking in under pressure. On Thursday when Nel asked him if the firing of the shots had been an accident, he was very hesitating to respond.
To a layman (like Oscar and myself), ‘accident’ seems to be the least culpable category. So he gave that answer. Also on the occasion of the bullet fired ‘by accident’ in the restaurant: “The gun went off when in my possession, but I didn’t pull the trigger” seems like he instictively tries to defend his actions as nonvoluntarily. (Although the latter clearly is a lie, these guns have a triple safety mechanism and never ever go off without someone pulling the trigger)
I think the change in defence occurred ‘by instinct’ under heavy pressure felt by the accused during cross-examination. Roux will not be amused, I suppose…
Apparently a Glock has been known to discharge without an “active” finger on the trigger – it is what is claimed in the Dewani case. I am no expert but if the safety is off and the gun is passed under a table (a dangerous thing to do!) then possibly it could go off, I know I have only seen it on film but don´t guns go off if you let them fall?
Even if it was a gun model without any safety mechanism (like an old revolver) in Oscars case the gun did not fall, leaving the only option someone must have pulled the trigger.
Here are the specs of Frescos Glock:
http://us.glock.com/products/model/g27gen4
This generation of guns is touted by the manufacturer as extraordinarily safe, particularly drop safety:
http://us.glock.com/documents/BG_Gen4_6_2010_EN_MAIL.pdf
Also there is no manipulation other than pulling the trigger which could trigger a shot.
Oscar clearly lied about him not pulling the trigger. He did that in order not to put charge on himself. On the other hand if the judge finds out about this lie, this will weaken this credibility a lot.
RE-SARAH
OP’s gun is specifically designed to prevent accidental discharge, Many of the US Police services use this weapon. Apart from the Keystone Cops – there hasn’t been a list of police officers shooting themselves in the foot – or even accidentally shooting.
Some weapons do have sensitive triggers – OP’s weapon did not. I’ve shot a similar weapon to OP’s – but without the in-built safety OP had on his weapon. I’ve also shot bolt-action, semi-automatic and automatic weapons. I know how these weapons kick-back and how easy they are to shoot.
This experience tells me OP is lying.
Yes, he broke every rule that could have justified a reasonable plea of self defence. Yet, the law allows him to be mistaken so that he could have acted involuntarily or instinctively to a perceived threat.
I don’t find “involuntary action” convincing.
OP’s weapon requires deliberate trigger action. After one shot the pistol kicks back and up. OP claims he shot with his arm bent. A fast discharge (as OP claims) with a bent arm when shooting (involuntarily) would create a wide dispersion of shots. I’d expect one or two shots to have missed the door.
The pattern of shots; A, B, C, D are close. My experience of firearms tells me that this is not the result of involuntary action.
Hi there. I have not been able to follow every word of the trial but would like to know if the cell phone records of Reeva’s cell phone were checked? She had her phone with her and surely would have dialled 10111 as Oscar was yelling at her to do before he shot her. Surely this could tell if he is telling the truth or not?
I, too, have been wanting to know the answer to this? I remember reading that Oscar tried to use her phone to contact emergency services after the shooting but that it was password protected and therefore useless. What has happened to this phone and surely it provides crucial evidence?
dont most phones if locked allow for an emergency call to go through so if had picked up her phone to ring emergency services he would have been able to do so
If Reeva had tried to call emergency services, what does that prove? Would she have been calling because Oscar told her to, or calling because she was locked in the bathroom scared to death of him?
With all the fuss made by Oscar regarding “keeping things out of the media” (the gun going off at Tasha’s – telling her not to chew gum because it doesn’t look good on camera) I’m pretty sure she understood that it would make him more angry if she involved the police in a private argument between the two of them. For this reason I don’t think she would have called the police if they were arguing, but rather wanted to phone a friend perhaps, hence the cell phone in the toilet with her. If he is telling the truth about asking her to call the police, why wouldn’t she? Her cell phone records should show this, iether way, not so?
How is it secured that O.P. is not in contact with his legal team while he is under oath?
Apologies – I can’t keep up with the comments. Please forgive me if I don’t get a chance to answer you.
Thanks I enjoyed learning the technical stuff of the law from this. My thinking is that all that Nel is trying to proof is there was intent borne from rage,a trait characteristic of OP linking other incidents of uncotrolable temperament for consitancy.Hope I make sense
Thank you for your elaborations Prof. Otherwise it gets so confusing to a lay person to listen to winding questioning about items in the accused’s house.
Pleasure.
To fully understand this case, one needs a knowledge of guns, and how they work. Oscar broke EVERY basic safety rule of gun ownership during his imagined home invasion; it boggles the mind. It’s almost impossible for experienced gun owners to believe this was an accident or a case of mistaken identity. NEVER call out and give up your defensive position (and Reeva’s, since he thought she was in bed). NEVER shoot when you don’t know who you’re shooting at, and NEVER shoot through a door – unless you want to wind up in serious trouble. Always try to get out without engaging, and Oscar admitted he had that chance, but I don’t think this was ever about home invasion.
MENTAL ILLNESS
Misty, since your comment the OP case is examining his mental competence to act in terms of what he knew to be right and wrong.
The shifting sands of OP’s defence describe desperation – but the law allows this. Perhaps the televising of this trial may lead to improvements in the SA justice system. One improvement might be that the accused is required to make an explicit statement in their defence and the court then charged with proving its case against that statement. I’m no expert – but this doesn’t seem unreasonable.
Yes, OP broke the gun rules. He started with that as his defence but he has since changed it. I think the changes are; undermining public confidence in the judicial system, contributing to a belief that OP is receiving special treatment and considerably adding to the costs of hearing this case.
It appears OP is incapable of acting in accordance with gun rules or responding like a reasonable person. Once the defence raised his mental capacity as a factor the prosecution acted. The court had no option but to have OP assessed.
In part, the court is doing the right thing but the process is flawed.
TV coverage has noted the many breaks and the public have been critical. Roux and his defence team haven’t helped. Before running out of witnesses (having had a couple of weeks break to organise his case) Roux had released the mobile number of a witness and assigned his junior to cross-examine Annette Stipp. Roux’s junior was no match for Mrs Stipp so he resorted to suggesting she’d corroborated with other state witnesses. There was no evidence of such corroboration.
When OP took the stand he knew his self-defence plea was weak – so he changed it. This doesn’t auger well for OP – nor does it for the SA justice system.
Prof thank you for the insight. What I seek to understand is Oscar has a vague understanding of the state’s charge against him? Also I’d like to ask whether or not it was intentional the state will be charge him for negligence or a charge of that sort? Because his testimony is based on an intruder he never saw. Also what he says on the stand contradicts some of the “facts” he presented in his statement. Is this lawfully allowed? To “alter’ your own defence?
Ignorance is no excuse for the law. Oscar Pistorius is a very guilty man.
Ignorance of the law was accepted as a valid defence in SA in 1977 in the case of S v De Blom (AD).
Whether Oscar is guilty is another matter.
Thanks so much James Grant…
James what is the standard of proof in S. Africa? Thanks
In a criminal case, the overall onus on the prosecution is beyond a reasonable doubt. But it’s not that simple – see the post on “The Perplexing Problem of Proof” on this site. james
Reblogged this on rdkreative and commented:
Interesting read… day 22 continues today, lets see what it brings
Is Nel building up to some amazing evidence here ? I’m no advocate but I would have asked Why did Reeva have the phone with her in a locked toilet ? Is it possible he has phone evidence that he can bring in but surely that would have needed to be included from the beginning? Am I missing something here ?!!
Exactly my thoughts as well?
1) Assuming she went to use the bathroom ‘normally’ that night, why would she go with her phone and then lock the door?
2) We need to know if the toilet door is usually closed or usually open. If it is usually closed, then why would OP assume there was someone in there as he says he saw it closed when he got there. Surely nothing abnormal in the closed door. If it is usually open, then why would Ms Steenkamp close and lock it?
So many things that don’t ‘tally up’ in this case.
I am saying that’s OP was very wrong as without asking or knock the door as who are you? Then she will answering but he knew something hapoened from the 13th of February 2013, then she was so scary with him because he have had been planned to killing on her and he really wanting to gunshot to her. He wasn’t mistook and he knew already. Oscar must Rot in Jail. I am really hating on him…. Regards MR. Mamabolo
She took his phone and her phone to the bathroom. Which I find extremely telling and it certainly supports the Prosecution’s theory. We also have to remember Oscar was looking at porn right before this fight broke out and Reeva was murdered.
Reblogged this on Here and There.
WITNESS DURESS
Is the prosecutor at liberty to pursue his line of questioning regardless of the effect on the accused? Or is duress a legitimate tool in the pursuit of truth?
So if we believe what OP is saying is true, then he told the person inside the toilet to get out, and he insists that Reeva did not reply back?
Right.
Please clarify, under SA law, (i) is OP not Certainly guilty of culpable homicide? He willingly placed himself in a situation which increased the probability of confrontation when he approached the bathroom; he entered the bathroom alcove (exposing himself to direct line-of-fire threat) without firing any warning shots; he ordered intruder from the home (either through the point of entry– with the ladder (?) or out the small toilet window- no ladder, several meters to ground); to comply with his instructions the intruder must either open the toilet door to return to the ladder or open the cubicle window– both require noise– therefore a reasonable defender should have anticipated sounds; finally he discharged four rounds of anti-personnel munition through a door into a small cubicle at torso height with no effort at target identification–having first placed himself voluntarily in a position to do so, when alternative retreat was available. Is this not, at the least, negligent and culpable homicide on the agreed facts under SA law? (ii) While it is my personal opinion based on the preponderance of evidence so far that OP intentionally murdered Steenkamp, is it not necessary to provide some compelling alternative reason that she should have sought refuge in the toilet cubicle? Absent some forensic evidence of prior injury (battery) before the shooting, can the State hope to prove beyond a reasonable doubt that OP is other than he says– a craven coward with tendencies toward hysteria and no judgement whatsoever?
Where is the factual proof there was indeed an argument that fatal night that state based on the assumption there was an argument and she ran to the toilet and locked herself behind the door and she was speaking to OP through the toilet door before he shot her is this not circumstantial evidence. also to what extent can a prosecutor openly accuse a person of lying while in the witness stand what happened to a fair trial comments made by Nel even getting tongue tied at times and saying wrong words have me so confused to me Nell has not proved beyond reasonable doubt that this was premeditated or factually murder not to mention the police did contaminate disturb and rob the accused at the time and why have they not call Hilton Botha the State have tried to pick up pieces and now assumption is what they are putting forward very confused we have to wait to see what the Defense come up with in my view lets hear all evidence then perhaps my understanding will be better so many opinions out there in fact the whle world watching is this added pressure for a accused more than encoroaching on the Bill of Rights and how far this can be pushed
Dear Karlean
So many questions, I think I can only answer the first. The state’s case is largely based on circumstantial evidence. However, circumstantial evidence is evidence, and is not necessarily weaker than “direct” evidence. Consider fingerprint evidence – this is circumstantial evidence, but it is generally very persuasive.
I was believing that’s Oscar Pistorius was shot the fire to her, because he knew everything about Reeva and why he brought his gun? I believed him as he was shot on her and he killed her, I won’t talk so many about the proof. But God knows about him and He will judgment on him…… Oscar must be accepting for the guilty and he goes to the prison for life.
Here is your factual evidence. The neighbor’s testified they heard a couple arguing before shots were ever fired.. I find it very hard to believe they would make up such events. Furthermore, two calls to the security office, an hour prior to the shooting of Reeva Steenkamp went ignored because they were coming from Oscar’s home. These calls were detailed as ” call 1) a disturbance/noise and call 2) possible domestic fight in progress.” Oscar has always gotten special treatment. Herein Lies the problem with Oscar’s belief he will be vindicated. Oscar believes his own deceit and lies. He knows he has to make his story believable so he can escape a life of prison. When Oscar took the witness stand it was “showtime.”
I believe the neighbors accounts over Oscar’s, because he has been caught in so many lies and multiple contradictions. He’s a true narcissist and megalomaniac. His direct testimony shows he was only concerned for himself . Oscar’s concern is fake when it came to Reeva that fateful morning, because the events he claims occurred simply didn’t. His story is made up to cover up murdering Reeva in a jealous rage.
I should also point out many of these neighbor’s professional’s themselves had no clue exactly where in Silverwoods’ Oscar Pistorius lived. Although his name was used as a selling point for some of the properties sold in Silverwoods no realtor pointed out his home as to protect him.
If you’re truly love another human being, it is natural to involuntarily speak about them even after their death. You should never be forced to speak about them as Oscar was by Gerrie Nel during his testimony. Especially when a traumatic event in which Oscar professes happened in his home on 2/14/14. If Oscar was telling the true events it would flow, it would not change and we all know, his story isn’t that of logic.
Oscar speaks only about self. “I, I, me, me.” I counted over 20+ “I” statements in the first hour of his testimony. If you listen with well trained ears you will repeatedly hear Oscar refer to himself, never Reeva. He only began referring to Reeva after Gerrie Nel brought to his attention he was only referred to himself when describing the events of 2/14/2013. The most damning of Oscar’s comments were on April 11, 2014-afternoon session. I carefully reviewed his testimony for many hours listening for his multiple errors.
Examples of involuntary speaking: You have a suspect who speaks of their “missing” or “murdered” love one in the past tense. This is a huge “red flag” for any investigative officer especially when the person hasn’t been located/found/ or their fate is unknown to the suspect.
Many grief experts will tell you when trauma is real survivors often still refer to their loved one in the present tense. if Oscar is as traumatised as he claims why isn’t he behaving verbally like a traumatised survivor? He does himself no justice.
I don’t believe he “didn’t intend to murder” Reeva based on so many of his slip up’s in court. People like Oscar don’t realize their deceit is easily spotted by the professional human lie detectors. These professionals are trained in deception. Oscar Pistorius is not a master at deception but to the layman he would appear to be genuine. I assure you, he’s not.
Oscar is a spoiled brat and I find it hard to believe he hasn’t always lived an entitled life. He believes he’s done nothing wrong. He has never accepted responsibility for his actions.
I pray the Judge finally shows Oscar he is far from entitled. I pray Oscar sits in prison a very long time and his story serves a purpose to help the many women who are victims of domestic violence.
Thing’s you didn’t hear in court. As defense attorney’s often get evidence suppressed.
1) Multiple domestic violence calls were answered since Oscar moved to the Silverwoods estates by the police.
2) The fact Samantha’s Taylor’s mother was so afraid for her daughter’s life, she publicly stated she thought Oscar would murder her daughter, before her daughter finally broke up with him.
3) Oscar’s behavior was reckless long before the night of the murder. Reeva once called her mother begging her to ask Oscar to slow down as they were driving in his car at extreme and high rates of speed.
In closing;
I’ve been in love and I’ve also heard things that go bump in the night. I’ve also retrieved my weapon before. But never, EVER before notifying my partner of the noise and securing a safe location for my partner so as I could investigate the situation. This is instinct. Is Oscar telling us because he is crippled emotionally and physically he is immune to those instincts?
Guilty as charged..I’ve been working on this case since the night of the incident. I didn’t want Oscar to be guilty. However in light of everything I’ve heard so far..it’s the only conclusion I can make.
Reblogged this on bruceproducts's Blog.
I’ve watched all the sessions and thought long and hard about this.
Pistorius has ended up now (and I believe he has been changing on this) such that his mind and argument distinguishes between intent and purpose. Intent he believes must have a conscious thought prior to the action. This is why he believes his testimony is sound and truthful that after hearing a noise in the toilet he did not intend to even ward off an intruder. He also thinks this is perfectly reconcilable with his testimony that “why” he fired was because he perceived the door opening – an unconscious reflex-like action had as its purpose to ward off or kill the intruder (like saying retracting your arm from a hot liquid may not have been intented but its purpose was to stop the contact).
I think Nel has always jumped straight to “did you intend” (to kill or ward off an intruder). If he also asked “was your purpose” or even “was the purpose” I’m not sure he would get a straight no.
I’m convinced Pistorius thinks it is sound to argue he fired involuntarily but purposefully yet without intent. He thinks if the law doesn’t fit, that’s not his problem, at least in testimony.
I’ve had a long day. & had to read your article a couple of times but it does make perfect sense now….
Thank you so very much!
I think Oscar Pistorius is of the mindset that he is “fighting for his own life” or as someone mentioned elsewhere his own lifestyle. So he is not going to admit to anything that could potentially see him get any jail time or a criminal record. So he is not going to admit to intentionally firing at anyone or intentionally firing in the restaurant, or intentionally firing out of the car.
This is the mindset that seems to be causing Pistorius to keep thinking on his feet and to adapt his testimonyn.
But it doesn’t look good. Because Pistorius is extremely certain on statements that make Pistorius out to be entirely guilt free, and he is correcting Nel on very specific (almost trivial) detail. And he keeps bringing in other peoples testimony if he thinks that supports his argument (or statement). Or he mentions some other event in his life that somehow demonstrates him acting in a certain way. Or he hears someone mention that two witnesses colluded in their evidence.
But when contradictions are highlighted Pistorius can no longer remember, or he says he doesn’t understand, or he gets emotional or he says he doesn’t know or he says other people are lying, or he says he doesn’t remember who told him the witnesses were colluding, or he doesn’t remember who drove him home after he had been shot at on the motorway.
Very insightful Jason. I think we agree.
One contradiction that sticks in my mind is he played ignorant on the law relating to the basics of the homicide charge, yet on the ammunition charge he boldly argued on the intricacy of definitions ‘I think Mr Nel and I both know the law isn’t that simple”
James, TV journalists (Sky News, but others too I assume) have been doing daily reports from inside the courtroom. One Sky journalist was actually INSIDE the toilet cubicle. On Monday 14/4, Adv Nel used the sound of the door being locked as part of his cross examination which seems to indicate that the toilet setup is still evidence that may be crucial in the trial. Could the defence argue that evidence has been contaminated by journalists if it suits their case?
I was in court yesterday (14/4). The toilet hasn’t been brought to court. Only the door, which has been set up in a model of the toilet. The evidence has all been recorded by this stage – as it was at the relevant time (the shooting). If, for instance, someone damaged the door in court, that damage would be ignored by the court.
One other comment. Pistorius seems to be adding to his testimony that in a simple sense appear to be supporting his case but when considered in more detail turn out to create contradictions.
For example he “hears wood moving” when he is facing the bathroom with his gun pointing (not aimed) at the toilet door. He also says he felt that there was an intruder inside and he thought that the intruder was coming out of the toilet to attack him and he involuntary fired the gun four times.
When examined what he means by “hearing wood moving”, he says it Is like the sound the toilet door makes against the frame when it is opening. So the “hearing wood moving” was part of an addition to support his contention that he thought the intruder was about to come out and attack him … and this was the trigger for him to involuntary fire off four shots. Okay seems reasonable but …
… he says he could see the door, and the door didn’t move and the handle didn’t turn. So he knew the intruder was not coming out because he could see the door was closed and the handle was not turning. He could see the door because of the light from outside falling through the bathroom window. There is also evidence that the door was locked – so the door couldn’t have been opening. Although OP didn’t know the door was locked at the time (according to his version of events) he would have known at that point in time that the handle would need to be turned for the intruder to come out.
Hence that is a contradiction.
Another contradiction is the “hearing wood moving” because OP said it sounded like the noise the frame made as the door was opening. But since the door wasn’t opening that could not be the source of the noise of the “hearing wood moving”. So that is contradiction number two.
When Nel raised this point OP had to think on his feet and suggested it could have been the magazine rack inside the toilet. …. This caused Nel to follow briefly another line of enquiry.
But where does this leave OP testimony in believing the intruder was coming out of the toilet to attack him …
This is just one example but there are many many contradictions arising as the details and specifics are being examined one at a time.
Agreed.
i) Culpable homicide – very likely. Depending on how he court constructs the standard of the Reasonable Person: a reasonable gun owner? Or a reasonable vulnerable double amputee. I think it will go with ‘a reasonable gun owner’.
But murder is still a real possibility.
ii) no, only that he must have forsee the possibility that Reeva was in the toilet, or that he was not entitled to resort to the lethal force which he did. There is lots of circumstantial evidence to support this. Whether it will be enough will be decided by the Court. Going to be a hard call.
Apologies all – I must now turn my attention to teaching my students.
GOOD QUESTIONS JASON
Among the questions you’ve posed – I’ve another.
If there was enough ambient light in the bathroom (as OP states) that light could not have come from the bedroom (as OP states). The only other source is via the bathroom window.
My question is how could OP not have seen RS walking to the bathroom when she would have been silhouetted by the light coming through the bathroom window? (according to OP’s version)
This is just one of many issues that make OP’s version unbelievable,
Thanks Prof for the insight!Ordinarily,one expects OP’s defence team to have gone through these legal jargon with him
Sure. But my concern is not about him not knowing the jargon. My question relates to why he seems to be shifting the substance of his defence.
Hallo Herr Grant, mit Interesse verfolge ich Ihre Beiträge, die ich sehr gut finde.
Ich komme aus Deutschland – my english is not good, sorry, ich habe heute ein interessantes Video gefunden und ich denke, dass man das Verhalten von OP hier leicht wieder findet. Ich hoffe, dass noch pschologische Gutachten erstellt worden sind, denn nur diese können Auskunft geben, wie es um seine Psyche wirklich bestellt ist. Ich glaube nicht an seine Ängste, denn im Gegensatz dazu ist er zu risikofreudig begibt sich in die Gefahr.
https://www.youtube.com/watch?v=JWqZQw0itTg
Like the Teresa above, I think that Mr. Pistorius is getting confused with semantics (many times throughout the testimony). I think by “accident” he means in retrospect, the entire event was an accident. Not that going back in time, assuming the same terror he felt (if true), he would have been able to control that fear and act differently. I assume that is something Mr. Roux could clear up in redirect.
If it were a jury trial here in the states, I would take it that way. If his account is true, it truly was an accident in whole. I don’t know how a judge separates what he views as an “accident” now, to be something beyond his control by fear, and therefore not an accident a year ago, but more an unintentional act as a result of that fear. Or maybe I should say, will she separate what he means by accident, from what she knows his defense to be? I’m not sure it’s fair, though it would be hard to judge on a case by case basis and perhaps that’s what would make it unfair, to ignore a true identifiable disability. But that’s the law.
Thank you, sir.
You say “his conduct was not under the control of his mind”… I disagree, Oscar is not that clever to change his defence. Looks to me like Oscar is being coached, overnight or weekends.
My point to is ultimately on tat he seems confused – and my question is why?
I find all the different views and discussions in the trial very interesting because I write detective stories. In my opinion, hard evidence points to Oscar being guilty of shooting at Reeva with intention to kill. However, although his evidence of the incident is so riddled with inconsistencies
and fabrication, there is no doubt that there is room for someone with an unstable mind who fails to see the truth of the situation. An example is like catching a child red-handed with a hand in the cookie jar, but they will go into a fit and deny they were not going to steal a cookie.
Consider this, if you get up in the dark to close the balcony doors or go to the toilet and your partner knows that you are up doing it. If they then get up afterwards to go to the toilet, they always would turn on the light – because they know you are already awake and up and about in the room doing stuff and they would not be disturbing you they would be assisting you and ensuring that they did not trip up in the dark when going to the toilet.
They would never fumble around in the dark with the risk of tripping up to go to the toilet when you are already up and about in the same room, at the very least they would turn on the bathroom light and/or toilet light as soon as they reached the corridor in that scenario.
Think of your own circumstances – when ever has the second person getting up done it in the dark
Right. Another “inherent improbability”.
Should the unlikely happen whereby Adv Nel or Judge Masipa or any of her assessors die or fall ill does the case start anew?
Only if Judge Masipa dies.
[…] This article was originally published on Criminal Law of South Africa […]
Hi James, just a minor thing that’s been puzzling me: why is the judge referred to by the honorific ‘My Lady’ in English but as ‘Your Honor’ (U Edele) in Afrikaans? Would it be ‘My Lord’ for a male judge? Are there any discussions in the SA judicial system to change a more ‘modern’ honorific, such as ‘Your Honor’ for all judges?
Judges are my Lady or my Lord. Magistrates are your Worship.
I haven’t heard of any moves to drop this terminology – but it’s always possible that I just haven’t been paying proper attention.
HOW MANY YEARS
I just want to know, if they decide that he killed Reeva by accident, how long will he go? to jail
I very much like the comment that OP is fighting for his “lifestyle”. This defendant has very carefully groomed his public image, and to resurrect his Brand he must resume travel and international competition to “put this behind him”. Accordingly, he seems to be rolling the dice for complete exoneration.
The risk is that his fairly obvious dissemblance (under oath) on relatively minor firearms charges seriously undermines his credibility on the more significant issue of knowledge/murderous intent in the Steenkamp/intruder slaying.
I think it is ironic that OP seems to fundamentally misunderstand his choice set. He established his Brand as a heroic individual who demanded his physical disability be ignored– that he be treated like everyone else. Now his defense is that he is a craven whose actions should be excused because he is an emotional cripple– as a result of his physical disability.
He would have the world believe that he entered that bathroom corridor as a “Seal-Team 6er” protecting home and girlfriend; have the Court believe that he should be excused as a terrified emotional child as a result of his physical disability; and then have his Public believe that, having said he was sorry for his “mistake”, we should all just take a deep breath, and reset the clock to the Fall of 2012 (before he met Reeva) and get on with our adoration of OP as a gritty athlete and roll model who does not let anything (not even, it appears, culpable homicide/murder) keep him down.
For some of us, this is going to be a hard sell…
Could this case set a precedent? On other websites some people are claiming the prosecution has to “prove” intent and to “demonstrate” motive in order for a murder decision to be made.
I would have thought that it was up to the defence to “demonstrate” or “to prove” that the accused claim of accidental or unintentional death was true. Or at least everything has to be consistent with this …
… otherwise what is to stop boyfriends or girlfriends or husbands and wives from shooting each other in the middle of the night – then claiming that they thought it was an intruder. They could make any story up because they would be the only witness. They could wait for their partner to go to the toilet in the middle of the night then put a few bullets through the door.
It follows from the presumption of innocence that the prosecution must always bears the onus to prove it’s case beyond a reasonable doubt, including that any defence the accused raises is beyond any reasonable doubt untrue.
I will start by saying I currently believe his version of events but I think this situation has come about for a couple of reasons. Oscar is probably used to talking himself out of trouble, I would assume for most of his adult/ celebrity life he’s been sweet talking people and bending the truth to get himself off the hook and it’s worked. He’s applied that here and under Nel’s rapid fire style he’s not had time to analyse the questions to give the “right” answer so he’s ended up telling the court what he thinks he should say, then couldn’t backtrack so had to keep on digging. Some of his answers seemed to me like he was trying not to be trapped by Nel into admitting things he didn’t do which is why, perhaps, he blurted out that he didn’t mean to fire the gun at the toilet door.
I also think he is fundamentally incapable of accepting responsibility so his default state is to try to absolve himself of as much guilt as he can which is why he’s accidentally ended up with this new defence. The fact he refuses to hold his hands up for situations like the restaurant incident only weakens his case not strengthens it as he may think. On the whole I think he’s told the truth but in trying to relay his innocence he’s actually over-egged it and made himself look more guilty.
I believe his version of events is plausible and he’s said nothing to contradict my theory of a tragic case of crossed wires. OP gets the fan in, Reeva knows he’s hot so opens the bathroom window at the same time as using the toilet. Reeva is in the toilet and as far as she is concerned, OP knows she’s in the bathroom, she thinks he would have seen her; why would she assume differently? So when she hears him shouting at an intruder she shuts and locks the door and keeps quiet, the natural reaction given her assumptions. Oscar has testified he did not shout anything about the bathroom or toilet – so how is Reeva to know he is shouting at the toilet door? That’s why she didn’t answer back; in her mind she thinks OP knows where she is so he’s not talking to her (and since she’s cornered in a toilet she’s hardly going to shout and give her position away to an intruder). She was probably even listening through the door with her ear against the wood to find out what’s going on, which explains also why she got hit in the hip with the first bullet.
With regards to the “why didn’t he check where Reeva was argument”, this was answered by Nel himself in my opinion. He spends a whole day building a case that Oscar is egotistical, self-serving, always out for himself and the next day asks why Oscar didn’t check on Reeva first. Answer, that’s not in his nature! Oscar was in danger, so Oscar goes to protect Oscar. Oscar only thinks about Oscar. I think Nel made a mistake there.
Fair comment.
RE-HANNAH
Your description of what could have happened is one of the more sensible I’ve read but it still leaves me unconvinced – for a number of reasons:
1. At his bail hearing OP failed to mention having spoken to RS when he got up to move the fans. That’s an important oversight on his part – particularly since it makes his reason for not communicating with RS all the more difficult believe.
2. In opening the curtains to move the fans (OP’s version) the bedroom would have had ambient light from outside. The Stipps reported the house next door had almost all its upstairs lights on at the time.
3. If RS got up to go to the toilet with her mobile to light her way (OP version), OP failed to hear her, failed to see her but heard the window open. On entering the toilet he failed to hear any ‘waterworks’ in the toilet or her locking the door. In court the locking mechanism made a clear noise.
4. The autopsy reported RS’s bladder was empty. If she relieved herself on entering the toilet OP’s version is untenable – he would have had to have heard her. If she relieved herself shortly before – OP’s version is untrue.
5. The police photographed the quilt on the floor with a blood spatter pattern matching the floor. OP insists it was on the bed – he needs to. With the quilt on the floor how could he not have noticed RS was not in bed? He would have needed to walk over the quilt on the floor on his way to the bathroom – and again not realise RS was not in bed. OP may not want the court to believe the quilt was on the floor but the spatter evidence says otherwise.
6. The Stipps testify to seeing the bathroom light on – they were both very certain about this. If they are correct OP’s version cannot be true.
7. Testimony from the Stipps, Johnson and Berger all insist on hearing female screams. If RS screamed OP’s version is untrue. The defence witnesses were asked to mimic the screams they heard and they both sounded like a man. Annette Stipp heard a man and woman scream at the same time – a physical impossibility for OP.
8. Shooting OP’s weapon by accident is an incredibly difficult thing to do. It has a safety built in to the trigger that requires precise placement of the finger and then 4lbs pressure to release. On shooting the weapon kicks back and loads another round. To shoot that next round requires the same action again before another shot is fired. Wolmorans (the defence expert) stated he was too old to deliberately fire in that manner OP states he did by accident.
9. OP stated his arm was bent when he fired four shots in quick succession. He is probably fit enough to do what Wolmorans can’t but – to get the pattern of holes through the door – the weapon’s kick means he’d have had to re-adjust his aim. That pattern of shots was made by OP shooting with a straight arm or a very deliberate act.
10. Beyond reasonable doubt OP has lied. Under oath at the opening of his cross-examination he stated he didn’t know the term “zombie stopper” only then to be confronted with film footage recording him using that term just weeks before he killed RS. He denied pulling the trigger in the restaurant – a physical impossibility.
Hannah – your explanation of events is better than that provided by OP or his defence team. I think your assessment of OP’s character is accurate but the evidence is pointing me towards believing OP guilty of murder. I have one remaining doubt.
Is Oscar Pistorius incapable of acting in a manner he knows to be wrong?
Thanks for your comments – and those posted by others. This is by far the best discussion of the OP trial that I’ve found on the web.
Kind regards,
John Power
James, is it too late for the prosecution (if they wished) to argue in closing argument that movement of the magazine rack in the toilet on the travertine floor tiles would not sound like wood moving or a wooden door opening (rather it would sound like an object scraping on the tiles)? Do they have to have put this to the accused? Can they ask this of the current forensic expert on the stand for the defence?
I was amazed to read the bail affadavit. Do you think it amounts to murder – because the accused knew the law about self-defence/being under attack, and pretty much everyone would understand he is referring to just movement of a person in the toilet that caused him to fire?
Do you think if it can be proved beyond reasonable doubt (I don’t mean just the sound) that Pistorius invented the magazine rack moving in order to tailor evidence to suit his defence (and everyone I’ve spoken to and showed the document is absolutely shocked and in agreement he genuinely is doing this without a doubt) – then this alone could secure a murder conviction?
There is a part of the OP testimony that can be shown to break the laws of physics. Nel’s team should be able to work out what this is during the two week break. This has appeared on twitter but has been understated in its original form.
This article is fantastic as it explains the law in laymen terms. However, as I understand the law of private defense goes, one cannot fire a weapon through a closed door without knowing who or what is on the other side. Unless your life is in imminent danger one cannot fire a weapon. Is this perhaps why Mr Pistorius is claiming he accidentally fired his weapon? If he intentionally fired the weapon in self defense is it still self defense if your life isn’t in imminent danger??
It is putative private defense. This means that though he wasn’t in actually danger, he thought he was in danger and actually acting in private defense. Reference here is to his state of mind, what he thought was happening.
Another improbability for me is hat there were fans on at all. The outside temperature (Lanseria) was a cool 23C at 10pm, and a chilly 21C at 2am. Not that humid either at 60% (RH). Understand that the house may be a reservoir for the day’s temperature, but I am inclined to think that it would have dissipated by the late evening, as the highs were in the morning, and fell of quite steeply after that. Data available at WolramAlpha, copied to my tweet a few days ago.
I am curious as to if he really did change his defense because I remember the him the following day (day after he changed his defense to involuntary action) he said that Mr Nel is confusing him with all these words of mistake, intention and so fourth and continued on to say something in the lines of I heard a noise and I shot, I didn’t intend on killing anyone. and ofcos in his re-examination with when Barry Roux asked a leading question according to Nel by asking pistorius “But you pulled the trigger?” and Pistorius replying, “YES”
Reblogged this on Conversations with Tsakani Maluleka.
OP’s testimony if true breaks the laws of physics:
OP claims that he pointed the gun in front of him with bent elbows towards the toilet door. He claims that him hearing “wood moving” triggered within him four shots from the gun. He claims there wasn’t time to think and he didn’t while the four shots were being discharged.
If this testimony was true there is no way one could match the evidence of the holes in the door without breaking the laws of physics: the force of the first gunshot would create a force directed down the arm to the bent elbows, this force would cause the elbows to move and bend further and cause the shoulders to pivot such that any further bullets would be directed in a vertical line below the first hole.
Any other pattern requires the arms to be in a locked position with straight elbows and / or thinking time to redirect the aim.
it should read: …. and he didn’t think while the four shots were being discharged.
Thank you, James, for your excellent posts, and for your involvement in this very informative comments thread, too. I am following the case from the UK, and am very grateful for your clear and detailed explanations. This is by far the best website I have found for in-depth information & discussions about the case. Please keep your articles coming!
ONUS OF PROOF
When the accused raises a defence of automatism (such as Oscar saying he did not act voluntary) is it to him or to the State to prove such defence? Do we apply the same reasoning as in the delict case of Molefe? (therefore the State would have to prove voluntariness beyond a reasonable doubt)
The onus remains on the state to prove all requirements beyond a reasonable doubt. Accused need to raise only a reasonable doubt as to his/her voluntariness – but, to do so, accused must produce evidence to disturb the “natural inference” that courts draw that conduct is voluntary (S v Henry).
However, if defence is involuntariness because of mental illness or defect, this defence must be proved by the accused on a balance of probability – this position is Constitutionally precarious – likely to be overturned if challenged as unconstitutional.
Prof Grant your comments and input on the channel have been valuable and insightful. Thank you.
You directed me to this article and, in conclusion ask the question as to why Oscar would be unsure of and change his defence on the stand. Is there not just one simple reason and that is he is lying and that, as his version or versions were destroyed during cross examination, he is left with no other choice but to develop a new version.
We find it laughable for him to suggest that the gun went off in his hand in both Tasha’s and in his bathroom yet this suggestion could possibly acquit him.
Surely anyone guilty of murder can use this excuse of involuntatiness as a way of beating a murder rap. It certainly is preferable to saying that he had an argument, flew into a rage and shot her and then, when it was all over, was deeply remorseful for what he had done.
To a layman like myself it appears that as time has gone on and as each defence appears to fail, a new defence is created. This time it is GAD.
Please enlighten me. I am really distressed for Reeva’s family that this man appears to be capable of getting away with murder.
Regards
Lynne Baker
Regards
Lynne
Nothing to prove that they had any argument. I feel that an accident is the only logical answer. Oscar loved her. You can tell how perfect they were together. No reason to read anything else into it. Just like any other case the media will convict him. Only a guilty person needs a defense, Oscar will walk if justice is served and if it is not served he will be a victim all over again. Reeva was so beautiful and killing someone is not the way to get rid of them. She felt safe in his house otherwise she would not have gone there. Something went terribly wrong and no rational human being is going to kill his sweetheart on sweetheart day.