One may intentionally kill another human being…

Posted: 4th May 2014 by James Grant in Uncategorized

It is worth remembering – because this issue continues to be misunderstood: one may intentionally kill another human being – so long as you are justified (such as in self/private defence) and you know/believe you are justified.
If you are not justified (such as you are not under attack), you are only liable to a murder conviction if you know/believe you were not justified – if you know that you were not under attack. If you know you were not justified, you have intention in South African law. Intention is an entirely subjective enquiry. It turns on what the accused was actually thinking.
If you are not justified, and you did not know that you were not justified (that is, you were mistaken) you cannot be convicted of murder. In this scenario (of mistake) you can still be convicted of culpable homicide, if the mistake you made was not one that the reasonable person, in the circumstances, would make. The enquiry into negligence is objective and essentially a comparison between the conduct of the accused, and what the reasonable person would have done in the circumstances that the accused was in. 
In this enquiry, everything depends on what one regards as the “circumstances of the accused” and one’s construction of the reasonable person. The more characteristics of the accused that are attributed to the reasonable person, the more like the accused the reasonable person becomes, and the less likely a court will be to find that the accused was negligent. The significance of what constitutes the “circumstances of the accused” is whether this includes anything “internal” to an accused or anything beyond the immediate circumstances of an accused. The answer to this is that our law has, until now, only been prepared to take into account the immediate external
circumstances of the accused, and has not been prepared to attribute to the reasonable person any disorders, disabilities, or deficiencies on the part of an accused person (S v Ngubane 1985 AD). Quite the opposite, our law has instead attributed to the reasonable person the skill and knowledge that is required to perform the task or activity that the accused was engaged in. Thus, the conduct of an accused who performs a surgical operation from which the victim dies, will be compared to the conduct of a reasonable surgeon. The conduct of an accused who uses a firearm will be compared to that of a reasonable firearm owner.

  1. Musa says:

    Watching the judgement and it is clear that the judge is going with mistake(error in persona).At the same time if she said that he intentionally got the gun and was ready to shot, why would the forseeability of killing a human being with 4 shots ruled out?The basis of her reasoning is also prior consistant statements that he made to the witnesses who came to his house. Also, is prior consistant statement inadmissible?

  2. Greg says:

    Dear Prof Grant,
    I trust that you can shed some light in herein: In an instance where a person is being followed home in their car by another; feeling threatened by the car following them, and having a family in the car. A potential hijack situation, the driver of the car being followed stops and gets out of his vehicle and at the same time the driver of the car following him gets out, feeling threatened and that his life is at risk he shoots the driver of the other car. Would the actions of the shooter constitute putative private defence, or even self/private defence and thus would the shooter be able to negate his liability in respect of the murder of the victim?

  3. Fathima says:

    Prof, thank you for the blog, it really helps us in understanding the trial. I have a question relating to dolus and mistake. Is it possible that dolus eventualis existed even though OP is claiming that he made a mistake as to the identity of the person behind the toilet door?
    Thanks again

  4. danielle says:

    Dear Professor Grant, firstly, why does Judge Masipa say she does not want to punish Oscar Pistorius twice by sending him for an evaluation, whilst claiming she is doing it out of fairness to him? And listening back to previous questioning by the prosecutor Gerry Nell to the accused, he mentions that Pistorius and Reeva were alone in the house on that fateful night, to which Pistorius answers yes. But how can that be? Later on we hear a witness testifying that it was Oscar’s housekeeper who opened the door for her.

    • James Grant says:

      Dear Danielle
      I think the comment from judge Masipa that she doesn’t want to punish OP twice is interesting but probably just means that she wants to try to avoid inflicting suffering if possible. She has asked to be advised of her options. I don’t think its worth reading anything more into it.

  5. Jason says:

    This was posted lasted year.
    This coupled with inconsistent testimony in this trial does suggest that OP has a personality disorder (and not a mental illness).

  6. Jason says:

    I haven’t been paying too much attention in recent days to the particulars of the OP case but it seems (reading the headlines) that the defence are changing their plea towards an inference of temporary insanity brought on by a “generalized anxiety disorder”.
    This seems to me to be the best defence approach if they are to get OP off the murder rap, as it is my layman’s belief that OP’s actions are verifiably unreasonable (my previous comment). Hence a reason needs to be given as to his unreasonable action: some type of temporary insanity brought on by some form of intense generalised anxiety disorder seems like a possible reason. Hence the defence wish for a second opinion.

  7. Jason says:

    The issue of “reasonableness” seems to be an important judicial concept. Were OP actions reasonable?
    Now it seems to me that partners sleeping together in the same bed at night is a common occurrence. Similarly one partner getting up at night and going to the toilet must also be a common occurrence. However, people being shot dead in the toilet by their partners at night seems to be a particularly uncommon occurrence (as reported in the papers etc). It therefore seems to me then that the majority of people waking up at night do not get up and shoot their partner in the toilet, if they happen to hear noises from the bathroom area.
    Hence it seems to that based on statistics of people shooting dead partners in the toilet at night, OP actions were unreasonable (assuming reasonableness is what the average person would do). There was nothing in OP testimony that assured or convinced me that his actions were reasonable. On the contrary I found OP’s testimony particularly evasive and non – reassuring.
    In my laypersons opinion he should have pleaded temporary insanity or something … as whatever he did, it seems that the statistics of such situations plus his testimony, and the evidence, point overwhelmingly to an unreasonable action.

  8. Andrew, Scotland says:

    I am gripped by the Pistorius trial and this blog is tremendously illuminating. I practice as a defence advocate in Scotland and an aspect of the presentation of the defence case is troubling me. Both Roger Dixon and now Thomas Wolmarans have been called as expert witnesses for the defence (albeit Mr Dixon’s credentials have been very much called into question). So far as I can gather, neither has produced a formal written Report as to their findings and methodology in advance of the trial. In Scottish procedure – and I imagine in most jurisdictions – the defence would be expected to instruct and commission expert reports well in advance of the trial and lodge those reports as productions so that they are available to be considered and referred to by all parties prior to and during trial proceedings. I hope I am not being unfair but it seems that in this case, both Mr Dixon and Mr Wolmarans have produced reports on a somewhat haphazard and ‘ad hoc’ basis, making rather unconvincing references to earlier analyses being ‘in notes’, not available or not retained on their computers. The High Court in Scotland would not countenance the defence preparing and leading expert testimony ‘on the hoof’ and not disclosing earlier – possibly contradictory – reports, particularly in a case of this magnitude. Does South African criminal law have a more relaxed attitude to these procedural matters? Is Mr Nel allowed to invite an adverse inference to be drawn from the manner in which defence expert evidence has been led? Is Judge Masipa entitled to make a judgement as to the weight which she attaches to ‘expert’ evidence if it appears that its content and presentation has been significantly influenced and altered by evidence adduced thus far? Would appreciate any observations!

    • James Grant says:

      Hi Andrew (from Scotland)
      Apologies for the delay in my response – I have been overwhelmed with questions. Thanks for sharing your insights.
      Some interesting differences. I SA the state/prosecution must disclose its evidence to the defence – not the other way around – the defence need not disclose its evidence to the state.
      I expect that a formal report is something that, first the party calling the expert, and then, ultimately, the Court would benefit from. It is possible for an expert to testify from notes, or even his/her memory. However, as you have suggested, unless the witness is brilliant and his/her testimony unassailable and clear – I do expect that the testimony of an expert who produces no formal report and whose testimony is disputed will likely attract less weight.

  9. Harriet says:

    Oh, of course. Apologies! I will re-read. Many thanks.

    • James Grant says:

      No problem. I don’t mean to be dismissive, but I think I’ve done the best I can to explain this in those posts. Hope they help.

      • Harriet says:

        They do indeed – and you have been very kind about it! I did read your posts during OP’s evidence (when there was the argument about whether the ‘zombie stopper’ video could be shown, etc) – so I should have remembered. I’ve been so mired in the detail of everything that’s come since that, by the time I read discussion yesterday about why Kim Myers and her father hadn’t been called as witnesses by the state, I had forgotten your very clear explanation of this point. I have never followed a legal case in detail before and am finding it absolutely fascinating, but also the learning curve for me is steep. That’s why your blog is so fantastically useful. Thanks again!

  10. Harriet says:

    I have read elsewhere that the state cannot ‘lead’ character evidence. Could you tell me what this means? Does it mean that the state cannot call a witness whose evidence is primarily concerned with the defendant’s character, but can only cross-examine the defence’s character witnesses – or am I completely wrong? (Thank you!)

  11. Robert says:

    This is a very interesting question if I apply my layman’s brains to possible judgements in the Pistorius case. Apologies it’s not that conscise, I hope I get my point across though?
    1) There’s only really a binary scenario in relation to did he think intruder or Reeva. Let’s just imagine (and I think it’s a real possibility) the judge decides that Pistorius’ own bail application and testimony have sufficient and specific elements of fabrication (the most blatant and significant being heard wood moving/thought under attack) to convict of murder of who he thought was an intruder. Now let’s imagine the judge also decides his evidence is riddled with fabrications designed to get off the charges, including some observed right under the nose of the court (eg whispering/soft voice), some absurd (eg finger never on trigger in restaurant), and also that the accused himself effectively admitted to knowingly lying under oath when he agreed under cross-examination he had said that he heard someone kick the door and that this was the case, only to say in re-examination that this was not what he said and not the case. At what point can one decide that it is sound to use all these lies as proof beyond reasonable doubt that he is also lying about an intruder? Can we ever make this jump no matter how small it seems? What if we add in other improbabilities (eg the duvet) – is this then safe?
    2) There’s a paradox in this case. Pistorius version hinges on him being certain there was an intruder on hearing the window open, which means he did not believe it could reasonably possibly be true Reeva had gone to the bathroom without him noticing. Now looking in retrospect, he needs the court to decide the contrary – that it could reasonably possibly be true. The problem is, there has been no evidence offered to suggest something misled him which can only be considered in retrospect (eg he thought he heard a response from Reeva). All the relevant evidence we know for that time period is also what the accused knew at the time. Does this therefore entail culpable homicide by default because he is in effect silently admitting he must have been wrong to think it couldn’t possibly have been Reeva?

  12. Jason says:

    Thanks for this.
    Question: if it can be shown that the defendants version of events is unreasonable (with maybe elements of impossible), does the judge have to go with the prosecution’s version of events (if reasonable, plausible, most likely) or can the judge decide something else?

  13. Dee says:

    I’m doing my Philosophy M on the expert/novice problem in law, and I’m continually amazed at the overlap between epistemology and legal evidence theory. Deserves it’s own textbook…

    • James Grant says:

      Epistemology underlies it all. Masters on this problem is very necessary. Please send a copy when your done.

      • deeteaspoon says:

        THE LEGAL VALUE OF “KNOWS”: United States v Bank of New England (1987)
        Hi Prof. I came across this in my MA research. (I’m investigating how Goldman’s novice/expert problem might be presupposed in legal rules of evidence [according to David Lewis’ epistemological contextualism].) My research, as well as the above case, highlights the indexical nature of “knows” in the ascription sentence “S knows that P”. (My apologies if you have heard about this case previously, if so please feel free to ignore.)
        The following is paraphrased from an interview with J. Lackey:
        In US law, the Collective Knowledge Doctrine holds that an institution (corporations etc.) can be held legally accountable on the basis of collective knowledge, even if no single member of the institution possessed all the knowledge required for intent.
        The case against the Bank of New England refers to its application. The bank has a policy that requires all “checks” cashed for over $10 000 to be placed on file; the customer must fill in a form prior to cashing them.
        The case is about a certain customer who entered the bank to cash multiple checks – all under $10 000. Together however they added up to over $10 000.
        The bank teller knew about the $10 000 policy, and they did not ask that the customer fill out a form, because all the checks (separately) were less than 10K.
        Another employee, higher up in the bank, did however know that the form should be filled out even in the case of multiple smaller checks (where the sum of them is greater than 10K). They did not know about the customer who cashed the checks with the teller, nor did they know that the teller did not request a form from the customer.
        So no single bank employee knew all the information to satisfy intent. But, as a collective entity, US law recognises that the Bank of New England “knew” about the misconduct, which motivated subsequent legal action against the bank.
        It’s so interesting for contextualism, which regards “knows” (in ‘S knows that P’) as an indexical term, which gets meaning from the knowledge attributer’s context (US law, in this case.)

    • Jason says:

      Question regarding experts in law.
      The media labelled “Roger Dixon” an “expert witness”. I believe that the defence called him their “expert witness”.
      My view is that the prosecution and Roger Dixon’s own testimony have shown the “expert witness” label to be a misnomer when applied in this case. Roger Dixons provable expertise (qualifications & positions in Geology) was completely outside of the fields he was commenting on. There are several examples of specialist (experts in a given field) making complete fools of themselves when making assertions in fields outside of their own specialism
      So whenever I see the headline “Expert Witness Pokes Holes in Prosecutions Case”, it makes me wince to see him labelled as an “expert witness”.
      But maybe I am mistaken. So my question is: What is the definition in law for “expert witness”?

  14. Harriet says:

    Many thanks for this – it is very clear. In the Pistorius case, it seems to me that the forms he had to fill in in order to qualify as a firearms owner (the ones which gave examples of scenarios and asked whether or not he would be justified in shooting in each case) constitute very clear evidence that OP knew he was not justified in firing his gun at a closed toilet door with no view of his (supposed) attacker. But can he argue that he ‘forgot’ these rules in the heat of the moment?

    • James Grant says:

      Good question. In short, yes, it’s entirely possible.

    • Andrew, Scotland says:

      I share your view that the evidence as to the forms which Mr Pistorius had to complete to persuade the authorities as to his fitness to hold firearms is absolutely crucial. That process required the accused to imagine (and therefore foresee and be prepared for) certain scenarios, including breach of security of property by an intruder. Even allowing for the unpredictability of a spontaneous event, firearms ownership is presumably only sanctioned if the authorities are satisfied that an applicant has demonstrated that they are capable of exercising rational, measured judgement, even in the most testing circumstances. I half expected Mr Nel to put the accused’s written application to him verbatim and emphasise that the words are none other than the accused’s own. Equally, not putting that material to Mr Pistorius didn’t allow him to try and distinguish the actual from the hypothetical. Mr Nel is at liberty to quote the application’s terms in summing up and to suggest that the accused departed entirely and brutally from the response he so carefully drafted to secure access to firearms in the first place.

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