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Oscar Pistorius Case. Justice cannot be for one side alone.
Justice cannot be for one side alone, but must be for both. (Eleanor Roosevelt)
An alleged misinterpretation of Dolus Eventualis forms the basis of the application to appeal by the State in the Oscar Pistorius case. There is much debate, the public has been told, as to the exact meaning of the legal term and there certainly is much legal literature devoted to the concept.A verdict of murder by Dolus Eventualis — a concept not found in many modern legal Jurisdictions — relies on the accused consciously and subjectively recognising that his or her actions will likely cause the unlawful death of a person or persons and carrying on with reckless disregard regardless.
What is essential therefore is determining the intention of the person performing the act. For it to be considered Dolus Eventualisis, it has to be proven that the individual demonstrated a reckless abandonment of the subsequent consequences of their actions which led to the death of another. The question that needs to be considered is whether the accused not only foresaw that his or her actions would likely result in the death of the deceased but was indifferent as to whether that death occurred and proceeded to act, reconciling themselves that if the death of an individual occurred so be it. This is described as the reckless disregard that death would occur. The Judge rightly emphasised the importance of not confusing should have known with did know.
“In considering the issue of intention to kill, the test is whether the [accused] foresaw the possibility that the act in question … would have fatal consequences, and was reckless whether death resulted or not. …..Thus, the courts work with two components for dolus eventualis: a cognitive component, foresight of the possibility of harm, and a conative (or volitional) component, most often expressed as recklessness whether the harm will result.” (http://www.melaniereinhart.com/melanie/documents/dolus.pdf)
Without these dual components of foresight and reckless disregard Dolus Eventualis can not be proven. That is not to say a person’s actions were not negligent but what is missing is the reconciliation that death may be the outcome and the person accepts this outcome.
In the case of Humphries, a taxi driver who ignored a level crossing barrier and whose actions resulted in the death of 10 children, he had his murder conviction changed to CH . His 20 year sentence reduced to 8 years that is 3 years longer than Oscar’s sentence which the state claim is wholly inappropriate. The Court of Appeal ruled that the intention was not to kill the children even though his actions were negligent. Oscar’s actions and intention resulted from a fear for his life, a belief his life was in imminent danger yet the State demanded a harsher sentence than Humphrey.
Much was made during the trial that Oscar had taken a proficiency test for owning a gun. Humphrey also passed a test to show he was proficient at driving and was employed as a driver. He was fully aware of the rules regarding level crossings yet ignored them. Humphrey’s proficiency at driving, his experience at driving far out weighed Oscar’s experience of using a gun.
If one is to take the State’s argument that Oscar’s proficiency at using and owning a gun should have negated the possibility of him firing as he did. The State would need to concede that every incident where a person was shot, mistaken for an intruder should be considered DE. Except the practice of the State in such cases is generally to offer a plea bargain to pleading guilty to CH and offer a suspended sentence.
If one wants to consider a case which blatantly ignored the rules with regard to the proficient use of a gun. The case of Viasgie is an excellent example. He was unable to identify the occupant of the car, he shot into the car, the car was being driven away, his life was not in danger. Yet there was never any attempt by the State either at the time or later to consider this as DE. While I accept the utter tragedy of this case, the police clearly had no regard for considering his intention to kill the occupant of the car. There was no additional charge of intending to kill whoever was in the car.
I believe what’s pertinent to consider is whether in an situation when one reacts out of fear for ones life, in those split seconds does a person actually have the cognitive ability to reconcile that their actions may result in the death of a person and importantly, cognitively dismiss this knowledge and take action regardless of those consequences. I would surmise there is an acceptance that in cases where a persons life is either at risk or perceived to be at risk, the practice of viewing these cases as CH implies a legal acceptance that this reconciliation does not occur. This may explain why these cases are traditionally regarded as CH and therefore leads me to question why the NPA appears to be viewing Oscar’s case differently.
James Grant has stated on his twitter account that he is assisting the State with the Appeal arguing that there is something deeply disturbing about attempts to justify Masipa’s verdict, citing reasons such as encouraging lawlessness and a belief that the end justify the means. http://criminallawza.net/2014/09/28/unsuccessful-attempts-to-justify-judge-masipas-errors-revised-expanded/Yet the State seems to have adopted that exact philosophy of the ends justifying the means. Their approach to the case suggests that they sought a guilty verdict and only witnesses were called who the State felt would hopefully support this premise. Lead investigators did not give evidence which I would think highly unusual in a case of this magnitude, denying the defence the ability to determine how the initial investigation was conducted. Similarly the State failed to call Van Aard who took witnesses statements despite there being discrepancies within those very statements.
Notable legal experts such as Kelly Phelps believe Masipa was correct and the probable verdict in such cases is almost always CH. Furthermore Phelphs suggests that had a plea being offered in the case for CH it would probably have been accepted thus saving the tax payer millions of rand.
Although the State attempted to prove that Oscar intentionally killed Reeva, it failed to provide any credible evidence to support this charge. The State did not challenge the findings of the psychiatric/psychological evaluation, it could not use any part of it to back their case . The States case by it’s own admission relied on circumstantial evidence but this evidence was selectively chosen to back the States case not to show the events of that evening. Therefore any witnesses that were initially on the States list that had a different account of events to the States were disregarded regardless that they were nearer, would have heard more than the witnesses relied on by the State. It then seems strange that the State would challenge Judge Masipa’s understanding of circumstantial evidence when the evidence they wish to be accepted would result in the more credible evidence being rejected.
This is something I find deeply disturbing that the State would reject all evidence that would support a version of events provided by the accused demonstrating an apparent lack or inability or unwillingness to investigate, to determine what actually happened. What is more disturbing is that those who now support the States appeal feel this is acceptable and cite their desire for an appeal as somehow being in the interests of Justice. Was it similarly the States view that the guilty verdict was their goal and the ends the justified the means? Was their application for leave to appeal a further example of this philosophy?
The State has also been unable to establish that Oscar’s intention was to kill whoever was behind the door. There have been many cases the NPA have regarded as CH when a person shot directly at an intruder either in the person’s own home or in the parameters. There have been cases where police have shot at vehicles they believed to have been driven by suspects yet have not been charged. The DJ Khuli Chana being one such example. Another case involved a policeman given a suspended sentence for firing 8 times twice the number of shots fired by Oscar and killing two plain clothes officers.
It was established that Oscar did not know it was Reeva in the toilet. Had he known he would not have fired. In the split seconds between hearing what he perceived to be a noise in the toilet and the possibility that an intruder may be exiting the toilet he fired. Did he intend to kill, I would say no. What is essential in proving this was Dolus Eventualis is an acceptance on his part that his actions may kill, but the resultant death was inconsequential to him and that he reconciled himself with these actions and carried on regardless. There was nothing to show this was the case, neither in the evidence presented to the court because no evidence was submitted to show this intention and reconciliation of that intention and the psychologist report certainly showed nothing to suggest a callus disregard for life, in fact it showed the opposite. It also then needs to be considered in the light of the practice of the State to view cases where an accused kills a person either as a direct or perceived threat has CH not murder.
Oscar was not acquitted, he was given a sentence, harsher than the policeman who killed two fellow officers and certainly harsher than any of the cases of home owners killing intruders or family members mistaken for intruders. What the state failed to prove was he intentionally killed anyone least of all Reeva.
It is interesting now to note that the Defence seek to appeal the leave to appeal granted to the State.The State can only appeal an acquittal verdict. Yet Oscar was not acquitted he was found guilty of CH. In the state charging Oscar with Count 1 murder of Reeva and Count 2 murder of whoever was behind the door, Oscar could only ever be convicted of one count. He could not be found guilty of murdering a perceived intruder and Reeva simultaneously. So is was always going to be the case that he would be not guilty on one charge. Therefore has the State placed Oscar in the unsavoury Catch 22 position of claiming, he was in fact acquitted of one of those counts thus enabling them to appeal. No wonder the Defence is wanting to appeal their leave to appeal. This is not about semantics, not a game the State must win. This is about Justice and Oscar has an absolute right to Justice.
Justice cannot be for one side alone, but must be for both. (Eleanor Roosevelt)
An alleged misinterpretation of Dolus Eventualis forms the basis of the application to appeal by the State in the Oscar Pistorius case. There is much debate, the public has been told, as to the exact meaning of the legal term and there certainly is much legal literature devoted to the concept.A verdict of murder by Dolus Eventualis — a concept not found in many modern legal Jurisdictions — relies on the accused consciously and subjectively recognising that his or her actions will likely cause the unlawful death of a person or persons and carrying on with reckless disregard regardless.
What is essential therefore is determining the intention of the person performing the act. For it to be considered Dolus Eventualisis, it has to be proven that the individual demonstrated a reckless abandonment of the subsequent consequences of their actions which led to the death of another. The question that needs to be considered is whether the accused not only foresaw that his or her actions would likely result in the death of the deceased but was indifferent as to whether that death occurred and proceeded to act, reconciling themselves that if the death of an individual occurred so be it. This is described as the reckless disregard that death would occur. The Judge rightly emphasised the importance of not confusing should have known with did know.
“In considering the issue of intention to kill, the test is whether the [accused] foresaw the possibility that the act in question … would have fatal consequences, and was reckless whether death resulted or not. …..Thus, the courts work with two components for dolus eventualis: a cognitive component, foresight of the possibility of harm, and a conative (or volitional) component, most often expressed as recklessness whether the harm will result.” (http://www.melaniereinhart.com/melanie/documents/dolus.pdf)
Without these dual components of foresight and reckless disregard Dolus Eventualis can not be proven. That is not to say a person’s actions were not negligent but what is missing is the reconciliation that death may be the outcome and the person accepts this outcome.
In the case of Humphries, a taxi driver who ignored a level crossing barrier and whose actions resulted in the death of 10 children, he had his murder conviction changed to CH . His 20 year sentence reduced to 8 years that is 3 years longer than Oscar’s sentence which the state claim is wholly inappropriate. The Court of Appeal ruled that the intention was not to kill the children even though his actions were negligent. Oscar’s actions and intention resulted from a fear for his life, a belief his life was in imminent danger yet the State demanded a harsher sentence than Humphrey.
Much was made during the trial that Oscar had taken a proficiency test for owning a gun. Humphrey also passed a test to show he was proficient at driving and was employed as a driver. He was fully aware of the rules regarding level crossings yet ignored them. Humphrey’s proficiency at driving, his experience at driving far out weighed Oscar’s experience of using a gun.
If one is to take the State’s argument that Oscar’s proficiency at using and owning a gun should have negated the possibility of him firing as he did. The State would need to concede that every incident where a person was shot, mistaken for an intruder should be considered DE. Except the practice of the State in such cases is generally to offer a plea bargain to pleading guilty to CH and offer a suspended sentence.
If one wants to consider a case which blatantly ignored the rules with regard to the proficient use of a gun. The case of Viasgie is an excellent example. He was unable to identify the occupant of the car, he shot into the car, the car was being driven away, his life was not in danger. Yet there was never any attempt by the State either at the time or later to consider this as DE. While I accept the utter tragedy of this case, the police clearly had no regard for considering his intention to kill the occupant of the car. There was no additional charge of intending to kill whoever was in the car.
I believe what’s pertinent to consider is whether in an situation when one reacts out of fear for ones life, in those split seconds does a person actually have the cognitive ability to reconcile that their actions may result in the death of a person and importantly, cognitively dismiss this knowledge and take action regardless of those consequences. I would surmise there is an acceptance that in cases where a persons life is either at risk or perceived to be at risk, the practice of viewing these cases as CH implies a legal acceptance that this reconciliation does not occur. This may explain why these cases are traditionally regarded as CH and therefore leads me to question why the NPA appears to be viewing Oscar’s case differently.
James Grant has stated on his twitter account that he is assisting the State with the Appeal arguing that there is something deeply disturbing about attempts to justify Masipa’s verdict, citing reasons such as encouraging lawlessness and a belief that the end justify the means. http://criminallawza.net/2014/09/28/unsuccessful-attempts-to-justify-judge-masipas-errors-revised-expanded/Yet the State seems to have adopted that exact philosophy of the ends justifying the means. Their approach to the case suggests that they sought a guilty verdict and only witnesses were called who the State felt would hopefully support this premise. Lead investigators did not give evidence which I would think highly unusual in a case of this magnitude, denying the defence the ability to determine how the initial investigation was conducted. Similarly the State failed to call Van Aard who took witnesses statements despite there being discrepancies within those very statements.
Notable legal experts such as Kelly Phelps believe Masipa was correct and the probable verdict in such cases is almost always CH. Furthermore Phelphs suggests that had a plea being offered in the case for CH it would probably have been accepted thus saving the tax payer millions of rand.
Although the State attempted to prove that Oscar intentionally killed Reeva, it failed to provide any credible evidence to support this charge. The State did not challenge the findings of the psychiatric/psychological evaluation, it could not use any part of it to back their case . The States case by it’s own admission relied on circumstantial evidence but this evidence was selectively chosen to back the States case not to show the events of that evening. Therefore any witnesses that were initially on the States list that had a different account of events to the States were disregarded regardless that they were nearer, would have heard more than the witnesses relied on by the State. It then seems strange that the State would challenge Judge Masipa’s understanding of circumstantial evidence when the evidence they wish to be accepted would result in the more credible evidence being rejected.
This is something I find deeply disturbing that the State would reject all evidence that would support a version of events provided by the accused demonstrating an apparent lack or inability or unwillingness to investigate, to determine what actually happened. What is more disturbing is that those who now support the States appeal feel this is acceptable and cite their desire for an appeal as somehow being in the interests of Justice. Was it similarly the States view that the guilty verdict was their goal and the ends the justified the means? Was their application for leave to appeal a further example of this philosophy?
The State has also been unable to establish that Oscar’s intention was to kill whoever was behind the door. There have been many cases the NPA have regarded as CH when a person shot directly at an intruder either in the person’s own home or in the parameters. There have been cases where police have shot at vehicles they believed to have been driven by suspects yet have not been charged. The DJ Khuli Chana being one such example. Another case involved a policeman given a suspended sentence for firing 8 times twice the number of shots fired by Oscar and killing two plain clothes officers.
It was established that Oscar did not know it was Reeva in the toilet. Had he known he would not have fired. In the split seconds between hearing what he perceived to be a noise in the toilet and the possibility that an intruder may be exiting the toilet he fired. Did he intend to kill, I would say no. What is essential in proving this was Dolus Eventualis is an acceptance on his part that his actions may kill, but the resultant death was inconsequential to him and that he reconciled himself with these actions and carried on regardless. There was nothing to show this was the case, neither in the evidence presented to the court because no evidence was submitted to show this intention and reconciliation of that intention and the psychologist report certainly showed nothing to suggest a callus disregard for life, in fact it showed the opposite. It also then needs to be considered in the light of the practice of the State to view cases where an accused kills a person either as a direct or perceived threat has CH not murder.
Oscar was not acquitted, he was given a sentence, harsher than the policeman who killed two fellow officers and certainly harsher than any of the cases of home owners killing intruders or family members mistaken for intruders. What the state failed to prove was he intentionally killed anyone least of all Reeva.
It is interesting now to note that the Defence seek to appeal the leave to appeal granted to the State.The State can only appeal an acquittal verdict. Yet Oscar was not acquitted he was found guilty of CH. In the state charging Oscar with Count 1 murder of Reeva and Count 2 murder of whoever was behind the door, Oscar could only ever be convicted of one count. He could not be found guilty of murdering a perceived intruder and Reeva simultaneously. So is was always going to be the case that he would be not guilty on one charge. Therefore has the State placed Oscar in the unsavoury Catch 22 position of claiming, he was in fact acquitted of one of those counts thus enabling them to appeal. No wonder the Defence is wanting to appeal their leave to appeal. This is not about semantics, not a game the State must win. This is about Justice and Oscar has an absolute right to Justice.
