As things currently stand, the high court has found that the timeline favoured the defence- meaning that the screams were found to have been those of Pistorius on realising what he had probably just done to Reeva. This wasn't contested on appeal. The screams, therefore, had something to do with disproving the DD claim against him, but very little to do with the CH and then DE verdicts and sentences.

Whether any intruder was armed or not, in principle, if Pistorius didn't establish that his life was in immediate danger, he couldn't justify opening fire and would /should? have received the same verdict of DE as the one he currently has. The mitigating factors used at sentencing would be no different, so again, in principle at least, the sentence should be the same, shouldn't it? But that doesn''t appear to be what you were saying.

And as sure as hell you would not hear a pipsqueak about the disability which according to curley Roux feels there is a need to ‘remind’ us about now (constantly).

Kill an armed intruder and he would be a hero without a hint of disability

Murder a defenceless woman and his disability is being screamed from the rooftops as a means to minimise his culpability.

Strange that

You mean the laughable ‘substantial and compelling’ mitigating factors ‘according to Masipa’.

Factors that the SCA can dismiss immediately should they wish to

How do you know it wouldn't have been used?!

I think it would have been referred to - constantly - depending on the actual charges brought against him, either to promote that old 'superhuman' PR version of him, ('disabled hero defends model girlfriend from armed intruder' - thus emphasising his apparent strength and ability to overcome/neutralise disability, even if in truth he had acted out of fear and panic), or - if it had in fact been a child who had broken in - to present a more vulnerable version of Pistorius.

Do you think Nel and co would have pursued DE and 15 years so vehemently had he shot an armed intruder through the door? I don't.

But would they, had it been a real intruder? That was what was being discussed. What would a likely verdict and sentence have been had he killed an intruder who he wrongly thought was coming out of the cubicle to attack him?

No you don't, but the SCA did...

"... the State had not shown that the accused had fired at the toilet door for any reason other he had thought there was an intruder behind it. It [the High Court] therefore concluded that it could not be said that the accused did not entertain a genuine belief that there was an intruder in the toilet who posed a threat to him....."

The SCA won't be reassessing their previous findings.

I am afraid we are starting to convolute a hypothetical situation wherein Oscar might have killed an actual intruder with the reality of the case at hand.

I don't think it is possible to directly equate the two scenarios in terms of sentencing as you seem to be asking-- they involve completely different circumstances and consequences.

I mentioned the screams evidence because it was never proven that Oscar sounds like a woman when he screams (despite promises by Roux to produce such evidence) and I don't believe Masipa and her assessors were legally entitled to make that inference. Arguably the timeline was distorted based on that deception, but I don't want to revisit that now in a discussion of DE of Reeva versus what I believe would have been CH if it had been an actual intruder.

If there had been an actual intruder, you would naturally expect all of the other evidence to fall into place-- there would be no incongruities. The fact that there was an actual intruder would have substantiated and legitimized Oscar's perceptions and actions. There would be no relevance to the inside out jeans overlapping a blood-stained carpet and duvet, etc. Most importantly, there would be no dead Reeva, just an intruder caught in the act of a home invasion.

And so if that had been the case, it would likely be determined that while Oscar may have acted unlawfully, fortunately for him his rash actions turned out to be justified in this (hypothetical) case. If the intruder, however, had been an unarmed youth (which is a scenario most similar to Reeva as an innocent victim), then the court may have taken a harder stance against Oscar's actions. I would say he would face something similar to Masipa's sentence on CH.

On the other hand, if the intruder had been an armed murderer with a history of violent home invasions, then Oscar would have probably been cautioned about the legal technicalities of his response but would have been otherwise universally lauded, at least in the media.

But that wasn't the truth of the story, was it? Those weren't the circumstances of that night and the consequences of his actions were not that an unlawful felon/intruder was killed-- the consequences of his actions were that an innocent person was violently and senselessly killed.

I don't see how we can simply substitute a hypothetical intruder for the real Reeva and ask if all things were equal what would be the trial outcome and sentence. All things weren't equal.

Okay, they don't need to. If you don't mind accepting that we are not still arguing CH versus the final verdict of Murder DE then please don't forget that the SCA determined Masipa misdirected herself:

[30] There was a further fundamental error. It is apparent from the extract of the judgment quoted above, in particular the two questions posed at the outset and the passages that I have emphasized, that the trial court’s consideration of
17
11 S v Sigwahla 1967 (4) SA 566 (A) at 570C-E.
dolus eventualis centred upon whether the accused knew that the person in the toilet cubicle was Reeva, and its conclusion that dolus eventualis had not been proved was premised upon an acceptance that, as he had thought Reeva was in the bedroom, he did not foresee that she was the person in the toilet. Simply put, the finding was that as the accused did not realise that it was Reeva in the toilet, he did not foresee that his action in shooting could cause her death and he could not be held guilty of her murder.
[31] This finding goes to the heart of the first question of law reserved ie whether the principles of dolus eventualis, including so-called ‘error in objecto’, were properly applied. In this regard, it is necessary to stress that although a perpetrator’s intention to kill must relate to the person killed, this does not mean that a perpetrator must know or appreciate the identity of the victim.

<Edited from ¶32>
The accused’s incorrect appreciation as to who was in the cubicle is not determinative of whether he had the requisite criminal intent.

Random thought. I always felt using the shooting range video against Oscar was harsh. The whole “zombie stopper” bullet or whatever it’s called and the shooting of a water melon. I felt that was reaching a little too far.

Why? Well we know Reeva also visited shooting ranges. So it wasn’t hobby unique to Oscar. Although she clearly had more control over her gun(s) outside of the range than Oscar did.

However I’ve just watched a female whom I won’t name as it’s not important shooting at a shooting range and she was firing at an actual dummy head. And it made me realise that this must be pretty common at shooting ranges. Just targets effectively.

I don’t think it makes her a potential murderer however. And I felt the same way with Oscar. The video just didn’t add anything in terms of proof.

Other than he unquestionably knew the effects of high powered guns and ammo.

Not many people shooting water melons compare it to shooting brains tho, to my knowledge anyway. But hell what do I know.

Did Reeva own a gun? Did she have a whole arsenal of guns and powerful rifles on order or in her possession?

It has been found and not challenged at appeal that Pistorius mistakenly believed he was shooting at an intruder. He has been sentenced on that basis and not on any residual suspicion over inside out jeans or duvets on the floor.

The BIB in your post relate to the conviction. There is no disagreement about the finding of DE. Following your 5 year comment I am here concerned with sentencing.

I don't think you are denying that the SCA cannot disturb the finding that OP thought he was shooting at an intruder.

The screams etc cannot be used to somehow bleach away that finding. They can only stand as OP's screams given that he thought there was an intruder.

In the hypothetical you thought 5 years for shooting an actual intruder. The situation is identical to that of an actual intruder once it has been found that OP believed there was that intruder. That must be so as the SCA also stated that he did not know who was behind the door, though the HC had found the fact that he thought it was an intruder.

The SCA may have had to accept Masipa's questionable finding that Oscar thought there was an intruder, but they also found that he did not have any reason for a rational belief his life was being threatened and ruled out PPD.

So, I don't think you can say the two scenarios are identical at all. Please correct me if I am wrong, but if there had been an actual intruder then wouldn't it have been a situation of legitimate private defense (although not lawfully carried out)? In that case I believe a CH verdict would be easily justified.

Anyway, for purposes of discussing sentencing, let's just examine a hypothetical case of CH based on Private Defense (albeit unlawfully executed) with an actual intruder wherein it turned out fortunately for Oscar that he did in fact have a rational basis for thinking his life was in danger.

As I said earlier, I think if the intruder was discovered to be an unarmed youth with no criminal history then Oscar could likely receive a 5 year sentence with the same 10 month (one year) custodial terms similar to Masipa's sentence on her CH verdict. Although clearly, if he had taken out one of SA's ten most wanted, then he would probably be hailed a hero. (Justifiable homicide with technical penalties.)

Legal peoples, please straighten me out if I have gone astray.

If he didn't actually confirm that a life-threatening attack was under way before opening fire then in principle it shouldn't make a difference whether it was an unarmed person or a fully armed intruder intent on bloodshed, should it?

Not quite. As I responded to Porky in the post above, although the SCA could not disturb Masipa's finding that Oscar believed there was intruder, they did not find that legitimized his actions and clearly stated that he did not have any rational basis to be in fear for his life and did not meet the criteria for a PPD claim.

Masipa may have sentenced him on what she personally felt should have been PPD based on his belief in an intruder, but since she did not spell that out in her CH judgment, then the SCA was able to insert their opinion on the matter. He is being sentenced on Murder DE of Reeva Steenkamp.

There is no "residual suspicion" re: the jeans or other circumstantial evidence contributing to the SCA's verdict of DE. However, if you want to invent hypotheticals to compare an alternate intruder version, then I don't think it is helpful to strip away all of the circumstantial evidence submitted in court and oversimplify the realities of the case.

For the verdict, no. For sentencing, probably.

Why? If he didn't know for certain that the person in the cubicle posed an imminent threat?

Sorry, which question am I answering??

I think you are getting confused. The original hypothetical was simply to replace Reeva with an intruder. But we could replace Reeva with anybody because the SCA confirmed OP did not know who was behind the door even though he thought it was an intruder. Therefore the sentence should remain the same regardless of who was actually behind the door. The important point is the law has it that OP thought it was an intruder.

OP murdered DE and that must be punished appropriately. You suggested 5 years for an intruder but this would also apply if it was Reeva (or anybody else)

This is the way I see it-- the existence of a real intruder puts it into the realm of private defense which would be evaluated objectively, i.e. it could have been factually proven that a threat did indeed exist (dead intruder). However, if it could be determined that Oscar killed the intruder unlawfully before any actual threat was imminent, he would probably be charged with CH, but not murder.

I think the sentence might vary based on the nature or degree of the threat-- unarmed youth or vicious criminal. That may seem illogical but I just believe the courts would try to balance things and factor in the obviously unlawful intent of the intruder and the degree of risk they posed.

In the situation with killing Reeva in mistaken identity-- his actions can't be justified by private defense and because of the specific circumstances, he does not even meet the criteria for PPD even though it is purely subjective standard. He's in a lot more trouble. He has no basis to justify his actions-- there was no threat and no rational reason for him to believe so. His actions went beyond anything defensive. His pre-emptive strike became an intentional act of murder that could not be objectively or subjectively justified.

The two crimes-- CH and murder DE will merit significantly different sentences because one was ultimately justifiable to some extent whereas the other was not and had disastrous consequences for an innocent person.

Isn't a pre-emptive strike still pre-emptive regardless of who was behind the door? The SCA said that based only on the window and the noises, there was no rational basis for him to believe that his life was in such danger as to justify opening fire. Are you saying that in terms of sentencing and verdict, it would come down to (bad?) luck? ie that if Pistorius had been 'fortunate' enough to make the same pre-emptive strike against an intruder who happened to be armed, (even though he didn't know the intruder was arned), he wouldn't have been found guilty of DE, or sentenced to very much at all?

Call it fortunate if you want to, but I think finding a real intruder in the toilet, dead or alive, would have been a total game changer. Instead of their failed defense of PPD with mistaken identity they could have had much more likelihood of a successful PD claim had there been an actual intruder (even though Oscar would still be guilty of acting unlawfully).

Someone with an actual legal mind, please let me know if I have gone off the deep end. I am starting to creep up to the edge I think...

I wouldn't worry to much here, you can be open minded and as rational as you like it will be twisted and like day after night yet another query or challenge will be put up. There was no Intruder, just Reeva, Oscar and Frank in the house that night.

There is nothing actually being twisted here though is there?

The SCA gave a verdict based on Pistorius believing there was an intruder but not confirming that his life was under immediate threat before he opened fire. That should mean that whether it was Reeva being mistaken for an intruder, an unarmed intruder, or an intruder armed to the teeth with every weapon imaginable, the actions of Pistorius would add up to DE. (bordering on DD, if the state are to be believed) Wouldn't it?