Editor’s Note:Orock Nsok II commenting on a post on Perception’s Facebook Group had this to say, .which cuts the chase in the ongoing Pistorius saga and adds flesh to a report by the BBC.”Going through all the above comments, one could draw that most of the comments and arguments are built on emotions rather than relevant and reliable evidence.
The case at hand is not about a man pulling a trigger which resulted to the death of another. The question at bar is to determine whether, pulling the trigger by Oscar Pistorius amounts to Premeditated murder or not. A charge is brought by the prosecutor against Oscar Pistorius for the crime of premeditated murder.
Before we all jump into any fast decisions by condemning Oscar Pistorius, we should understand the following:
1) Oscar Pistorius is innocent until proven guilty beyond a reasonable doubt: the onus of proof rests with the prosecutor. What then should the prosecutor be busy with? He has as duty to prove beyond any reasonable doubt that the accused named: Oscar Pistorius’ act amounts to premeditated murder.
2) What is murder? I may not be well informed on the criminal code and procedures in South Africa. However, I would like to draw from general principles of criminal law applicable in most Common Law jurisdictions of which I assume South Africa is no exception.
If Murder be defined as the killing of another human being with malice aforethought. From this, two fundamental elements in criminal law could be drawn namely: the actus reus (the act) and the mens rea (the intention). The actus reus of murder consists of the unlawful killing of a human being in peace time (absence of war). The mens rea of murder is malice aforethought, which is the intention to kill or intention to cause Great Bodily Harm (GBH).
As stated in the piece of evidence above, it would be irrelevant at this point to argue if a trigger was pulled or not since in Oscar Pistorius’ statement, he admits pulling the trigger. Thus the issue of the actus reus is clearly undisputable since the facts speaks for itself confirming the maxim Res ipsa loquitur.
The second and yet most difficult part is the mens rea of murder which demands the intention of Oscar Pistorius to kill his wife and or cause serious bodily harm to her. The question then is, did he “intend to kill” Reeva Steenkamp; the love of his life? That woman who brings him joy when every other has left? This is the bone of contention before the courts. This is where the prosecutor’s task rests. This is where he has a greater homework to do; proving he actually intended to kill Reeva.
Why is the intention to kill her so crucial in this case? Because if the prosecutor fails to establish beyond a reasonable doubt that he intended to kill her, the courts may not be able to distinguish the act of murder from other forms of unlawful homicide such as manslaughter and or unlawful or lawful killing.
The question then is, did he have the intent or knowledge that his conduct would result in the death of Reeva? Or did he actually have the requisite mental element present in his mind at the time of the act that he was purposely, knowingly, recklessly shooting to kill the love of his life Reeva? If the prosecutor can prove that beyond a reasonable doubt in the affirmative, then he has a good case but if not, the case may be wanting.
Let us revisit the facts above if it falls within the above.
3) What is premeditated murder?
Premeditated murder is murder after rationally considering the timing or method of doing so, in order to either increase the likelihood of success, or to evade detection or apprehension.
Does that fall in place? Are there any elements of coincidence that could be drawn here? If yes then no premeditation can be invoked. The question we should be asking is, if he intended and premeditated to kill his girl friend, why did he use his own gun licensed in his name? Why did he not try to destroy or hide the evidence? This leads one to opine that if he had anything premeditated, he could have possibly arranged for another gun, and arrange on how to destroy it. Was he under any spell?
4) We also have to note that: The killing of someone is homicide of which some may be planned while others are accidental and the act does not make a person guilty unless the mind is also guilty. The loss of life is equal in both circumstances, but the killer’s criminal intent and the factors involved are used to classify the homicide either as murder or homicide or even manslaughter.
5) Culpable Homicide Vs Muder:
Murder is premeditated, culpable homicide is not planned. Under the South African law, the concepts of culpable homicide and murder are separated through the concepts of dolus and culpa. Dolus is the malicious intention required for murder, while culpable homicide requires no dolus but culpa or negligence.
6) Manslaughter Vs Murder:
Manslaughter is the equivalent of culpable homicide which is the unlawful taking of another life under circumstances that makes the criminal less culpable than someone who commits murder
7) Voluntary Vs Involuntary
Voluntary manslaughter and murder are similar while involuntary manslaughter is the killing of someone unintentionally
8 ) Lawful and Unlawful killing
All unlawful killings are result crimes and thus causation must also be established while lawful killing could fall in the category of killing in self-defense or state of necessity.
9) Self defense? What is that?
Self defense is an act of defending yourself which is a reasonable justification to carry out an act if the accused can prove that the attack was immediate, imminent and direct. Thus its allowed and falls under lawful killing.
What then is my humble opinion; If only it may count?
In my humble opinion, the prosecution is pressing on murder charges or premeditated murder or intentional killing rather than culpable homicide charges. This is just where the issue is considering the fact that; no mention has been made regarding the “baseball bat.”
Oscar Pistorius did not plead “not guilty” for not killing or causing the death of his girl friend. Instead he is pleading not guilty of ‘intentionally killing’ or causing her death. What the defense may like to do here is to give the prosecutor more homework to redefine the charges brought against the accused and help the court in categorizing the crime in the right manner.
However, this and more depends only within the four walls of the court room, the evidence presented and the arguments presented by both sides. Let’s not be carried by what the media in bringing to us; for it might be misleading and a great reason for many a few to be disappointed. I pray justice prevails”
Pistorius stood with head bowed in the court dock,
A witness heard gunshots, screaming, and then more shots fired at the home of athlete Oscar Pistorius on the night Reeva Steenkamp was killed, a police officer has said.
Day two of his bail hearing in Pretoria also heard police suggest Mr Pistorius may flee if he is granted bail.
He denies the premeditated murder of Ms Steenkamp, his girlfriend, saying he mistook her for an intruder.
A full trial of the Paralympic star, 26, is not expected for months.
However, allegations of what happened on Valentine’s Day last week have continued to emerge in the packed courtroom.
The second day of the bail hearing saw Mr Pistorius hit by claims the police and prosecution say undermine his defence.
The session was adjourned until Thursday, when there could be a ruling on the bail issue.
The BBC’s Andrew Harding, in court, says judging by the magistrate’s line of questioning he may well grant bail.
As the prosecution began setting out its case on Wednesday, it said a witness had testified to hearing “non-stop talking like fighting” between 02:00 and 03:00 on 14 February.
Chief investigative officer Hilton Botha, who was the first officer at the scene, later said another witness had testified to hearing screams and gunshots from the house.
“We have the statement of a person who said after he heard gunshots, he went to his balcony and saw the light was on. Then he heard a female screaming two-three times, then more gunshots,” Detective Botha told the court.
But doubts were cast on the validity of that evidence when Det Botha told court the witness heard the alleged altercation from some 600m (1,800ft) away.
He later amended his testimony, telling the prosecution after the lunchtime break the witness was 300m away, not 600m.
Mr Pistorius claims he was asleep until only moments before the shooting and that there was no argument between the couple.
But Det Botha’s testimony demonstrated his belief that Mr Pistorius deliberately shot Reeva Steenkamp.
“I believe that he knew that Reeva was in the bathroom and he shot four shots through the door,” he told the court.
Earlier, Det Botha said he arrived at the house at 04:15 and found Ms Steenkamp lying dead on the ground floor. She was wearing white shorts and a black vest, he said and was covered in towels.
A lawyer and Mr Pistorius’s brother were already at the scene.
Ms Steenkamp was shot in the right side of her head, her right hip and her right elbow, Det Botha said.
The officer later testified that he thought the bullets were fired “down”, suggesting Mr Pistorius had his prosthetic legs on.
Mr Pistorius has claimed he was walking on his stumps, making him feel particularly vulnerable.
But the prosecution has argued he stopped to put his legs on, adding weight to its case that the shooting was premeditated.
Det Botha said police found two boxes of the male sex hormone testosterone and needles in Mr Pistorius’s bedroom.
But Det Botha was later put on the defensive when questioned by Mr Pistorius’s lawyer, says our correspondent.
The testosterone found was actually a legal herbal remedy used by athletes, the defence said.
Defence lawyers said a post-mortem examination showed Ms Steenkamp had an empty bladder consistent with someone getting up to go to the toilet, as detailed in Mr Pistorius’s narrative.
The defence accused Det Botha of putting the “worst possible interpretation” on the evidence.
Det Botha agreed the post-mortem examination had showed no signs of assault or defensive wounds on Ms Steenkamp.
On Tuesday, Mr Pistorius told the court he had woken in the middle of the night and heard what he thought was an intruder in the bathroom.
South Africa’s justice system
- Jury trials were scrapped more than 40 years ago because all-white juries were seen as unlikely to give black defendants a fair trial
- A single judge is considered less susceptible to public opinion or media comments
- So the South African media is more free to report details about the Oscar Pistorius case than the media in many other countries where such reporting would be seen as prejudicial
He shot through the door and only then realised Ms Steenkamp was not in bed.
He said he was “absolutely mortified” at her death.
The magistrate has deemed this a “schedule six” case, meaning Mr Pistorius is accused of premeditated murder.
His defence team will have to prove the extenuating circumstances that would justify granting bail.
The first day of the hearing on Tuesday coincided with Ms Steenkamp’s funeral.
The 29-year-old model and law graduate was cremated in her home town of Port Elizabeth where her father, Barry Steenkamp, told reporters: “We have to keep Reeva in our hearts for ever.”
Oscar Pistorius won gold medals at the 2004 Paralympic Games in Athens, in Beijing in 2008 and London in 2012.
In London he made history by becoming the first double-amputee to run in the Olympics, making the semi-final of the 400m