Tuesday, 15 April 2014

The Pistorius defence

I would appreciate comment from any lawyerly folks out there.

I haven't been following the Pistorius trial very closely (hardly at all), but is it just me or are the media getting somewhat mixed up by the fact that he appears to be trying to argue, in two completely different ways, that there was not the necessary intent to be convicted of murder?  ("I fired the gun accidentally" [no intent] and "I intentionally fired the gun mistakenly believing that there was an intruder behind the door" [putative/mistaken self-defence]).

The fact that the media seem to be quite confused by it indicates how it might work as a trial strategy in front of a jury, but it is hardly going to wash in front of the Honourable judge.

Consider this from the BBC's Andrew Harding: "He knows that he could be cleared of deliberately killing Reeva Steenkamp, but still be found guilty of intentionally murdering "someone" behind a closed door."

That's not right at all, and Harding is mixing up transferred intent and the victim.  There aren't two murder charges - if without a lawful defence he deliberately fired at "someone" through a closed door that resulted in the death of Reeva Steenkamp then he is guilty of the murder of Reeva Steenkamp.

Or consider this from RTÉ:

He insists he killed the 29-year-old law graduate and model accidentally after mistaking her for an intruder hiding behind a closed toilet door.

Well no.  In terms of a legal defence he either killed her accidentally, or he killed her after mistaking her for an intruder.  If he killed the person behind the door accidentally it makes no difference if it was Reeva or an intruder.  If he mistook her for an intruder, then when he shot he didn't do so accidentally; the question then becomes could he have reasonably come to the conclusion that it was permissible to shoot through the closed door in an act of self-defence.  His gun ownership exam suggests not.

My own, admittedly superficial, impression is that Pistorius doesn't really have a defence, and the whole show, both prosecution and defence, is mostly about theatrics.  "The gun went off in my hand" is the murder equivalent of "the dog ate my homework".  I cannot see at all how the judge would find that he could have come to the conclusion that firing through a closed toilet door was a necessary and reasonable response to a perceived attack.  (On a side note, it strikes me that the examination, as well as being designed to educate gun owners is also probably designed to make them legally culpable if they use excessive force).

So what has he left?

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