Oscar Pistorius: Criminal Law 101 – Constitutionally Speaking

There is no dispute that the killing of Reeva Steenkamp was unlawful as it would be impossible to argue that Pistorius acted in self-defence (or private defence, as it is known in law). You can only rely on self-defence to exclude unlawfulness if an attack on your life (or the life of another), on your property or other similar interest has commenced or is imminent. This is an objective test, so where no attack actually occurred, one cannot rely on self-defence to justify the killing of another person, which you thought was necessary to defend yourself. No such attack occurred or was imminent in this case. (Whether the common law should be developed in line with the values in the Constitution to restrict the right to kill others in defence of your property, is an interesting question, which I cannot discuss here.)

The question then is whether the accused had the requisite intention to kill another person. Intention must not be confused with motive. The person’s motive is the reason why he acted in the manner he did and is usually thought of as irrelevant for determining guilt. Motive can explain why an accused formed the intention to kill another person, but is separate from that intention.

The state can prove the direct intention by proving that the accused actually meant to kill the deceased. Evidence that the accused and the victim were involved in a stormy argument before the killing or that the accused had previously threatened the life of the victim could be important.

via constitutionallyspeaking.co.za

It's this thing that "premeditated murder" exists in our law that gets me. There is murder and the premeditated part of the murder determines whether this is dolus directus, indirectus or eventualis. As the prof points out, this act at its very core is murder - it's now the defence of self-defence that will keep Oscar out of jail.

Comments

[Richard Ferrer]

Self defence relates to the possible murder conviction. If Pistorius is convicted of Culpable Homicide (i.e. negligently caused the death of a person without intention to kill) there is no minimum sentence but if the court finds him grossly negligent he could still get a lengthy prison term. To get a firearm licence one has to do a test and these matters are covered, so he can't claim ignorance on the seriousness of shooting through a toilet door. If he had shot once through the very top of the door in order to miss anyone inside, but to give them a serious fright, then that might be very different. I think the Pistorius debate is around the length of imprisonment rather than 'will he escape the clink?'

[Paul Janisch]

I don't see a culpable homicide case here at all. Murder is an intention crime, in other words did the person intend to kill somebody else. If Oscar shot through a door he must have known that those bullets would have killed the person behind the door. If the person had not been killed then there would be a charge of attempted murder. I have my doubts whether you could suggest negligence here.
The claim of self defence would say - ok you intended to kill (murder) that person but this is only because you felt as though your person was in life-threatening danger. Under these circumstances the court would say, you protected yourself and as such the murder is justified and you have not been found guilty of murder.

I don't think that he will go to jail at all and that he will be found guilty of murder.

[Richard Ferrer]

If Pistorius is convicted of murder or pre-meditated murder there are minimum sentences and he will get a long prison sentence.
The two primary issues here are self defence and intention. As Pierre de Vos says that he unlawfully killed someone is not in dispute. Pierre de Vos says that self defence is unlikely to be accepted by the court. I agree. Therefore it revolves around intention to get the lower conviction of culpable homicide (i.e. unlawfully killed someone without intention to kill) where there is no minimum sentence. However courts do typically impose prison sentences for gross negligence. That's why I think there is a very high probability that Pistorius will serve prison time. I studied all this in some detail before deciding to hand in all my firearms. There's no point defending oneself with a firearm and ending up in prison for years as a result. Other ways of personal defence against crime need to be found and followed.