The Problem with the Oscar Pistorius Judgment – For Dummies.

2014-09-28 15:32

From the title of this post please feel free to suppose that this article is to impart understanding in a way that ordinary human beings can grasp the issue and be free from confusion.

Much evidence was led in this trial. Many aspects were hyped up, especially as regards a woman’s screams and expert evidence on ballistics and sound. It is unnecessary to be concerned with any of this as, in the end, the verdict devolved around only one aspect, and this was the explanation advanced by the accused.

The Court took the stance that, in reality, this is what answered the question of “Guilty” or “Not Guilty” to the charge of murder.  For current purposes I do not propose to grumble about this approach and to simply assume that the Court was right, even though I have serious reservations, for instrance, about a Court of Justice simply glossing over evidence in which a young lady communicated that she was afraid of the accused and soon thereafter she is shot to death by him.  Never mind.

All of the supporters of the Court’s decision have relied heavily on a claimed entitlement of the Court to accept Oscar’s version as being “reasonably and possibly true”  because there is much Superior Court law that says that this is the correct approach in appropriate instances. 

What they have also done is to make the jump and, in effect, apply this approach as being correct in this case with virtually no support why this should be so, except to insist that “as it is in our law, the court was entitled to, and within its rights, to apply the law in Oscar’s favour”

And that is really the problem here. Was the Court right to simply accept that Oscar’s story was “reasonably, possibly true”??

The answer is No, in my respectful opinion, and quite an emphatic No.

1.      You see a trial nearly always involves a competition and/or dispute over facts, factors and circumstances. This trial was just that.  In particular the State did not accept Oscar’s story, either in itself, or as providing any kind of legal excuse for the killing.

2.      In these circumstances the Court had, as always, an absolute duty to … a)settle/find/state the facts that it was accepting and … … b) then apply the law.

3.      … and provide its reasons for all such findings.

4.      The reason for this is that it is fundamental to the concept of justice that a Court’s decision/judgment  must NEVER be ARBITRARY.

5.      A judgment that is devoid of reasons, as set out above, is intrinsically arbitrary. Arbitrary decisions are nearly always inimical to the cause of justice. That is why enlightened societies have rules that enforce procedural fairness, designed to ensure that facts are established to support and justify administrative action(s).

6.      So it was an absolute imperative in this case that the Court scrutinize Oscar’s story, examine it at every stage and make finding as to what facts, factors or circumstance(s) it was accepting.

7.      Applying this approach it should have started with OP hearing the sound.   Feel free to imagine that the Court would have accepted that the sound alerted him, made him apprehensive, and induced him to arm himself.

8.      Go on and play out what Oscar claims he did thereafter and you will find that you will unavoidably find that you have to accept that .. a) his apprehension escalated to terror and … b) his apprehension escalated to utter conviction that he was faced with an armed intruder or intruders.

9.      By the time you put him at the door and ask the question – “why does he point the weapon … a loaded weapon … with safety catch off …” you are forced to accept that it was because he needed to make sure that would deal effectively with the armed intruder or intruders … NOT some street kid.

10.   At this stage you cannot say he was firing at a door. The door was not a threat.  You cannot say that he just fired aimlessly . . … as the shots are grouped.

11.   You are forced to find that he fired purposefully … at a human being or human beings … and fired 4 times in order to ensure that he would “win” the confrontation.

12.   You will see that having reached this point by settling the facts, as claimed by him, it will be IMPOSSIBLE for you to say that, when he pulled the trigger 4 times, he did NOT intent to disable the human threat behind the door and did not foresee the death of a human being.

13.   Such a finding would render all the findings already quite sentiently arrived at as regards Oscar’s conduct up to that point as nonsensical. Disabling the human threat by firing shots at that threat is the ONLY conclusion that presents as the “possible and reasonable” conclusion of the mini saga that starts in the bedroom when he first hears the sound.

14.   His state of mind and intention, or lack of intention, MUST have been informed by, and consistent with what went before. It could not exist on its own, unsupported by previous events.

So we see why it was necessary, as always, that the Court applied its mind to every aspect of this story and find the facts … firstly in accordance with its ordinary duty to do so … AND also in order to test if the story was indeed “reasonably, possibly true”  in ALL respects.

This the Court did not do. This is proved also by the fact the Court has not said what it has found Oscar intended when he pointed and fired the weapon. We have been told what he did not intend, without being told what he did intend.  A sane human being has intention as regards his/her actions. Unless Oscar was temporarily insane he too had an intention.  The Court has not stated that it has found that the accused suffered from temporary insanity or divested of his cognitive capacity and such a finding would have been contrary to all the findings of the medical experts who examined him for a whole month.

In colloquial terms the supporters of the judgment are saying no more, no less than that that the Court was right in accepting Oscar’s story “hook, line and sinker”.  Given that he was the only witness I will accept that Yes the Court was not wrong to accept the story “hook and line”.  However I reject that the “sinker”  stood to be included. A Court of justice simply must not be that gullible. Surely?

So in terms of “hook and line”  we accept his story until the stage he is at the door and pointing the firearm. What we cannot accept is the “sinker” that firing 4 shots was without any purpose whatsoever and involved no intention to disable a perceived human threat and excluded any foreseeabilty that a human MIGHT be killed.

Such a finding is not only NOT possibly, reasonably true.  It is arbitrary and irrational.
Arbitrary and irrational are to justice as oil is to water.

Note: I know of no jurisprudence that controverts anything I have set out above. 

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