Tuesday, February 26, 2013

Did Oscar Pistorius commit murder?

I really had no intention of posting another article concerning the Oscar Pistorius murder trial so soon, but after reading people’s comments on various blogs, forums, youtube, social network sites, etc... I feel this blog cannot ignore the issue. Some of the arguments going on are way beyond silly. I have thus changed my mind and have decided to deliver an opinion (not a judgment), as I do happen to have some personal experience regarding these matters.

This case is a real murder mystery – that’s for sure – heightened by the fact that we’re dealing here with celebrities, and also the fact that there are still many points of dispute in this case which have not been fully examined and/or analysed yet. However, my gut feeling at this point in time is that Oscar is not going to be found guilty of murder, because the circumstantial evidence, which includes all the forensic evidence, is not going to be sufficient to prove murder beyond reasonable doubt… Maybe culpable homicide, "the unlawful negligent killing of a human being" - but not murder!

The crucial difference between the two crimes is that if a person kills intentionally it is murder, whereas if the person kills negligently it is culpable homicide.

The general impression I get from the man’s past relationships with woman, the current media hype, and also the little we know from what came out during the bail hearing last week, is that Oscar and Reeva possibly did have a quarrel of some sort earlier in the evening, but I suspect - the couple kissed and made-up, and then maybe went for a wild romp between the sheets. My feeling is – IF there was an earlier tiff between them and IF it got anywhere near hazardous for life and limb, Reeva would have left the house, phoned for help, or sent an sms to someone. There is no evidence that she took any of these actions (not that we know of) --- Oscar’s sworn affidavit submitted at the bail-hearing is hence in all probability telling the truth, but it obviously leaves out any details that may incriminate him.

The story doing its rounds that a cricket bat was used to crush Reeva’s skull are false malicious rumours, invented solely for purposes of sensationalism. My guess is that these rumours were started by journalists who either misquoted, or perhaps misunderstood people who saw the corpse. Bear in mind that a 9mm bullet to the skull does not leave a pretty picture. The effects may be even more devastating if the bullet was a high-speed tumbling ricochet-projectile, for example, one which perhaps bounced off a wall.

In any case, the post-mortem examination found no evidence of defensive injuries on the model’s body. The only injuries she had were those caused by the three gunshot wounds. This evidence was confirmed during the bail hearing.

Okay, we all know by now there was no intruder in the house. However, according to Oscar’s sworn affidavit he seriously believed there was one. This firm belief in his mind then triggered (pardon the pun) a rather scatterbrained series of actions, which in the end sadly resulted in the negligent killing of a human being. On the subject of culpable homicide: “The essential element of the crime is negligence, but before any court can make a finding of culpable homicide it must be proved by the prosecution that a reasonable man' in the position of the accused would have foreseen that death could result from his actions.” – Source

WHAT IF Oscar really shot an actual intruder in the toilet? He would have been charged for murder anyway, but he would have also been a national hero – for protecting Reeva! His sponsors would not have dropped him like a hot potato, and Nike would definitely not have removed their 'Bullet In the Chamber' Ad Campaign... I’m quite sure of that!

BTW: A toilet, believe it or not, is usually the first place of choice when a burglar is cornered in a house and has no other means of escape – for example, when the burglar is surprised by the sudden return of the home occupants. Most home owners in South Africa know this. It happened to family members of mine a few years ago when they were living in the suburb of Wierda Park in Centurion, but their story has a slight twist... Let me quickly share it with readers:

The elderly couple arrived home while three burglars were busy ransacking their home. Two managed to escape over the wall into the neighbour’s property, but the third one couldn’t get out in time, so he hid in the toilet in the main bedroom. The cops came over and searched the house, and declared the place “SAFE”. They never checked the toilet – and YES they were all untried-and-untested cops of the AA kind. They also refused to visit the neighbour’s property, because they were afraid of the dogs. Later that evening when the couple went to bed, guess who they found in the toilet? The savage attacked the elderly couple with a heavy-duty bolt cutter... It’s a miracle the elderly couple survived the vicious attack and lived to tell the story.

Incidentally, modern-day ‘upmarket’ toilets are surprisingly soundproof. Some even have an extractor fan that goes on automatically and which adds to the soundproofing. The fan is inaudible from the outside when the door is closed. Soundproofing is further influenced by other factors, for example: Was the toilet door hollow, or solid?

More questions: Bearing in mind the celebrity status of the couple, why would Oscar murder Reeva IN HIS OWN HOME when there was so much at stake and so much to lose? If there ever was an earlier jealousy-type tiff between the two, why did Oscar not shoot her then on the spur of the moment? If the murder was “premeditated” (planned) then I’m afraid Oscar doesn’t have much brains.

The fact that the man has a history of being a womanizer is not going to have any bearing (not of any evidential value) whatsoever in this current matter. In 2009 he once slammed a garage door on a woman while they were busy quarrelling. He was arrested and locked-up for assault, but was released when the lady withdrew the charges. This same woman now firmly believes Oscar murdered Reeva, simply on the basis of his previous show of aggression. However, I strongly doubt she (or any of the others) will be called to testify in this specific case, because whatever testimony they deliver it will be irrelevant to the present circumstances, and besides - Oscar’s legal team will tear their testimony to pieces anyhow!

Criminal Law by CR SnymanSpeaking of the defence team – they are the best a man can hire, and they are going to give SA’s State Forensic Experts all their hell – mark my words! The Inge Lotz case has already damaged the integrity of South African forensic experts; Oscar’s case is going to put the cherry on the cake!

Who knows, maybe something good will eventually come out of this awful tragedy?

Hopefully the final outcome of this case will force the ANC’s Police Farce to start outsourcing their Forensic Services to qualified people in the private sector who can do the job properly, as has already happened in many other parts of the civilized world.

Note: I’m not implying that all South Africa’s police forensic specialists are incompetent, but there are most certainly some serious malfunctions in the current system, which Oscar’s legal team of professionals will utilize to the max.

And lastly: In case readers are wondering... No, I am no fan of Oscar Pistorius, or any celebrity for that matter!

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Gossip Girl said... .....Click here to refresh this blog

I am an attorney. And just to be clear, culpable homicide is determined by an objective 2 tier test – the reasonable man test. 2 questions have to be asked:
1. WOULD a reasonable person in his position have foreseen the harm that could have been caused?; and
2. Would that reasonable person have taken steps to avoid that harm?
If the answer yes to both questions then he acted negligently. This does not fit with the facts as they appear from his own affidavit and admissions.

You have to look at dolus eventualias – a form of intention. The test here is not whether a reasonable person foresaw a certain even but whether or not Pistorius foresaw that event and decided to continue with his course of action KNOWING that he could/would cause harm/death.
In this event there is no way that you stand outside a room and shoot blindly through the door without foreseeing the possibility that you could kill someone. By shooting in the first place he reconciled himself to the fact that he could kill someone through his actions and shot anyway. He in this way INTENDED to kill someone. The fact that he may have thought that it was an intruder is irrelevant – the law dictates that people take their victims as they find them. The identity of the person is not a factor for this kind of intention and on these facts Pistorius still has the possibility of being found guilty of murder.

I won't go so far as to say that I think the state has a case for pre-meditated murder seeing as I don't know all the facts - but I still say the charge is murder.

Tia Mysoa said... .....Click here to refresh this blog

@Gossip Girl – Thank you for sharing your opinion on this page, it is much appreciated.

I agree that he INTENDED to kill someone (a human being) however the human being he killed was Reeva, whom he did not intend to kill. The question of “mistaken identity” will thus play a crucial role in this case.

I have the latest Afrikaans version of Snyman’s Strafreg (Criminal Law) in front of me, but I do not want to translate and quote from it... besides there are many reputable online sources which provide ample examples of cases where “mistaken identity” resulted in a guilty verdict of culpable homicide, and not murder. Many of the South African cases involve police officer who fired their guns with INTENT to kill, but were found guilty of culpable homicide because they erroneously and negligently shot innocent people.

Gossip Girl said... .....Click here to refresh this blog

@Tia Mysoa

I agree with you and that was the previous position. However you have to look at the precedent that was set in the Jub Jub trial as well with the verdict of murder. I do not believe that, with his apparent complete disregard for the whereabouts of Reeva (as his own statement shows) that he can get away from a trial on murder. I cannot see that there is in any way negligence on his part - the intention is there to kill.

And you have to also appreciate the difference between a police officer acting in the line of his duty to protect and an individual acting the way Pistorius says he acted. The point is that police are required to act in a suspicious manner by law in order to execute their duties (not to mention the fact that courts are hesitant to convict police and doctors due to the extent of backlash it would have on those professions).

The only way, in my opinion, to NEGLIGENTLY shoot someone is to have the gun accidentally discharge in your hand or after a fall or something along those lines. To say that someone was negligent after walking 7m without attempting to determine where his girlfriend was, who was in the bathroom, without altering the police or an armed response or even estate security at the very least (he had the time) and then to determinedly point a firearm at a closed door and fire 4 bullets into it knowing that he could and intending to kill someone negates any form of negligence at all.

In my opinion.

Tia Mysoa said... .....Click here to refresh this blog

@Gossip Girl

Yes - the charge IS murder, and as this posting says... even if he did shoot and kill an actual intruder in the toilet, he would have been charged for murder anyway.

The fact that our opinions differ as to what the final verdict is going to be, coupled with the other factors mentioned in this posting only adds to the mystery-aspect of this case. As I said in the opening paragraph -- my opinion is not a judgment. I am not an attorney, but I have about 24 years experience in the SA Police, of which 18 years was in the field of Forensic Ballistics.

I feel very honoured that you, in your capacity as an attorney, have taken the trouble to comment on this posting. This is the type of professional opinion I was hoping to attract... Thanks again for your valuable input!

Let’s see where this goes when the trial starts in June.

In the meantime we have another interesting murder trial coming up soon – the ‘other’ tragic Steenkamp triple-murders of Griekwastad. The trial begins on 11 March.

sandradee said... .....Click here to refresh this blog

You say that Oscar will be charged with murder because he shot through the door thinking it was an intruder; but what about the South African father who thought that an intruder was outside the bedroom where he and his wife were and he too shot through the bedroom door and killed his daughter; he was aquitted. Why shouldn't Oscar get off; the case is the same.

Tia Mysoa said... .....Click here to refresh this blog

@sandradee – Thank you for visiting!

I think you are confusing legal terminology here…
There’s a difference between being charged for murder and for being found guilty for murder. Oscar was already charged for murder when this posting was published, so it’s impossible that I could have said he “will be charged”. If you’re confusing “charge” with a final verdict of “guilty” then I suggest you read the posting again.

I’m not sure what case you’re referring to - regarding the father who shot and killed his daughter. There have been several of these cases in crime-ridden South Africa. Was it the case in Siyabuswa, near Marble Hall where the father mistook his daughter for an intruder (news report here), or was it the Centurion case (news report here)?

Tia Mysoa said... .....Click here to refresh this blog

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