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Saturday 15 March 2014

Oscar Pistorius will not be acquitted, that isn't his team's strategy anyway.

Oscar Pistorius shot at a door either knowing or having the duty to know that someone might be hit and killed by his bullets. Whether it is a robber or Reeva behind the door is irrelevant: the Error in Objecto rule, where someone intends to murder A, but accidentally murders B, still results in a murder conviction. Furthermore, aberratio ictus or missing blow theory cannot negate guilt if the wrong target is hit with intention to murder another target: but this sister of Error in Objecto, would not apply here, as it is not a case of the wrong target being hit due to bad aim. Likewise, private defence, what Americans call 'self defense', in South African law rests not on perceptions of danger but on objectively viewed imminent danger to the person's self. Whatever Oscar thought: Reeva was no threat to him, it thus cannot be said to be private defence. Such is the view of long established and long enforced case law. The law can change, but that is what the law is as it stands.

Before we get onto the other factors, we must remember that in South African law: if you can foresee that it is a real possibility that something (an unlawful death) will result from an action, and nonetheless/recklessly proceed with behaviour risking that possibility (dolus eventualis), it is murder not culpable homicide. If the facts show you did not foresee that possibility but a reasonable person would have, then your actions are culpable homicide. A further aspect lies in that those heart strung jury arguments in the west do not stop a murder charge: they emerge in mitigation, even complete mitigation of all jail. It is not in dispute that Oscar shot and killed Reeva Steenkamp. It is not disputed that she was no objective threat to Oscar Pistorius. The only way he could be completely acquitted is based on temporary insanity in the form of 'provocation'.

So what are Oscar's team aiming at?

Either culpable homicide (what Americans call manslaughter), and maybe a year or three in jail if he is lucky.

Or Putative Private Defence (my bet would be on this).

Or provocation (from the French word for cause).

Culpable homicide:

- The law requires a warning shot prior shooting.
- A reasonable person would not have shot through a door without checking if it was Reeva.
- Shorter sentence, not murder but a competent verdict of murder.

Putative Private Defence:

- An established part of our law: applicable when a person believes they are acting in private defence but are not.
- This goes both for proportion of response and for factors which appeared true to the accused, but were objectively false.
- The accused is convicted of murder, but gets mitigated sentencing and possibly even no jail time.

- One must give medical evidence that whatever caused the actions was based on uncontrollable sane automation. This is to be done via medical evidence: since the Eadie case we use medical evidence to prove temporary insanity. A neuropsychologist might be the appropriate expert witness.
- Classic Provocation is no longer a part of our law since the Eadie murder conviction, as the Supreme Court of Appeal set forth at that time:

'[57] I agree with Ronald Louw that there is no distinction between sane automatism and non-pathological incapacity due to emotional stress and provocation. Decisions of this Court make that clear. I am, however, not persuaded that the second leg of the test expounded in Laubscher’s case should fall away. It appears logical that when it has been shown that an accused has the ability to appreciate the difference between right and wrong, in order to escape liability, he would have to successfully raise involuntariness as a defence. However, the result is the same if an accused's verified defence is that his psyche had disintegrated to such an extent that he was unable to exercise control over his movements and that he acted as an automaton - his acts would then have been unconscious and involuntary. In the present contest, the two are flip sides of the same coin. The judgments of this Court referred to earlier, as the highlighted parts of relevant dicta show, see it as such.

'[59] Whilst it may be difficult to visualise a situation where one retains the ability to distinguish between right and wrong yet lose the ability to control one’s actions it appears notionally possible.

'[60] The view espoused by Snyman and others, and reflected in some of the decisions of our courts, that the defence of non-pathological criminal incapacity is distinct from a defence of automatism, followed by an explanation that the former defence is based on a loss of control, due to an inability to restrain oneself, or an inability to resist temptation, or an inability to resist one’s emotions, does violence to the fundamentals of any self-respecting system of law. This approach suggests that someone who gives in to temptation may be excused from criminal liability, because he may have been so overcome by the temptation that he lost self-control - a variation on the theme: “the devil made me do it”. It is for this reason that it was suggested earlier that the use by Joubert JA in Laubscher's case, supra, of the word "weerstandskrag" was unfortunate. So too was the use of the word "drang" in Campher's case at 956 B, referred to in paragraph [32] of this judgment. These words suggest a resistance to urges or temptation. No self-respecting system of law can excuse persons from criminal liability on the basis that they succumbed to temptation. Against the fundamental principles restated by JM Burchell (quoted in paragraph [58] of this judgment) it is with respect, absurd to postulate that succumbing to temptation may excuse one from criminal liability. One has free choice to succumb to or resist temptation. If one succumbs one must face the responsibility for the consequences.

'[61] The time has come to face up to the fact that in some instances our courts, in dealing with accused persons with whom they have sympathy, either because of the circumstances in which an offence has been committed, or because the deceased or victim of a violent attack was a particularly vile human being, have resorted to reasoning that is not consistent with the approach of the decisions of this Court. Mitigating factors should rightly be taken into account during sentencing. When an accused acts in an aggressive goal-directed and focused manner, spurred on by anger or some other emotion, whilst still able to appreciate the difference between right and wrong and while still able to direct and control his actions, it stretches credulity when he then claims, after assaulting or killing someone, that at some stage during the directed and planned manouevre he lost his ability to control his actions. Reduced to its essence it amounts to this: the accused is claiming that his uncontrolled act just happens to coincide with the demise of the person who prior to that act was the object of his anger, jealousy or hatred. As demonstrated courts have accepted such version of events from accused persons.'

(S v Eadie (196/2001) [2002] ZASCA 24 (27 March 2002))

So, if Oscar's team can prove temporary insanity due to extreme fear: then he is in that scenario, acquitted and off the hook: for the murder itself: the problem is proving medical sane automation/ temporary insantiy. However that is not his likely intent. His likely intent is mitigation. Or change of law.

This article does not constitute legal advice. For legal advice, approach a competent legal practitioner with knowledge of your facts.

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