Pistorius charged with murder!

[jonovision_man]

What IMO makes his defence wrong is that it's up to him to identify which human is behind the door before shooting.

Suppose he had known for sure that it was a stranger behind that door. Is he then justified in killing someone who, up to that point, is only guilty of trespassing? It kind of takes "get off my lawn" to a whole new level.

Break & Enter... so more than trespassing. And my understanding about South Africa is they cower in gated communities because there is a significant threat of violent robbery in general. I don't think he'd be entirely justified maybe, but I'd be surprised if they could have convicted him of murder.

jono

[La]

I think it's a case of SA law being different than Canadian law. Even if it was an intruder, it didn't matter. In Canada, you could claim self-defence (I didn't know it was her, I thought it was a burglar!), whereas in SA you can't.

[deerdree]

I think it's a case of SA law being different than Canadian law. Even if it was an intruder, it didn't matter. In Canada, you could claim self-defence (I didn't know it was her, I thought it was a burglar!), whereas in SA you can't.

yes, it does seem to be different.

that said, i'm not sure you would get away with shooting blindly at a door and calling it self-defence, even in canada. i guess it would have to be case by case (you could spend days reading about this on google). according to wikipedia: "By court ruling in 2011, a resident is permitted to use "reasonable and necessary" force in subduing an intruder in his or her private domicile or business. By definition, killing the intruder is only an option if non-lethal means cannot be carried out, and excessive force with obvious intent to kill is not necessarily defensible in court."

so, even here, the "obvious intent to kill" would come into play.

[turd ferguson]

I think it's a case of SA law being different than Canadian law. Even if it was an intruder, it didn't matter. In Canada, you could claim self-defence (I didn't know it was her, I thought it was a burglar!), whereas in SA you can't.

None of this makes a lick of sense. If you can't claim self-defence in SA then I have no idea what his defence even was. I legitimately don't know what he would have had to prove to be found not guilty - maybe that the gun went off by accident? As I read the decision, there's nothing less than first degree murder. And the jurisdiction of the appeal court to re-litigate findings of fact is baffling for a common-law country. I'm not going to think about it any more.

Roses are red
Violets are glorious
Never sneak up
On Oscar Pistorius

[eme]

Canadian Self Defence:

Defence of Person

Defence — use or threat of force

34. (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

Factors

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

No defence

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

South African (can't find the actual law, not as cut and dry as Canadian law, from what I can see).

Summary that I could find:

The defence must be
directed against the attacker;
necessary to avert the attack; and
a reasonable response to the attack.

that the accused must not have done more harm than was actually necessary to avert the harm or danger;
that the harm done must not be greater than the harm avoided. The accused must have chosen the lesser of two evils.

[purdy65]

One thing that makes this VERY different than anything we know, is that here in and in the US the prosecution cannot appeal a conviction - only the defense. At least that's my understanding. Well that and the whole jury system thing.

[deerdree]

One thing that makes this VERY different than anything we know, is that here in and in the US the prosecution cannot appeal a conviction - only the defense. At least that's my understanding. Well that and the whole jury system thing.

are you sure? i've spent more time googling the law today than i have in years, so i'm all over the place. but both wikipedia and the (ontario) attorney general site say: "The Crown may appeal an acquittal, but the Crown's right to appeal is not as broad as the accused's right to appeal and is very limited. The Crown must show there was a significant error of law. An example of an error of law may occur when important evidence is wrongly excluded at the trial. The Crown may also appeal the sentence but such appeals are also very limited because appeal courts will not usually interfere with the trial judge's decision on sentencing."

in this case, "On 10 December 2014, Judge Masipa gave prosecutors leave to appeal against the murder acquittal, but not the five-year sentence given for the lesser charge of culpable homicide." it seems like that would be possible in canada, under exceptional circumstances, based on the above?

[turd ferguson]

One thing that makes this VERY different than anything we know, is that here in and in the US the prosecution cannot appeal a conviction - only the defense. At least that's my understanding. Well that and the whole jury system thing.

You are correct about the US but not Canada. The crown can appeal acquittals here.

[purdy65]

Ahhh I watch too much CNN, and thought it was the same here.