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think positive 
Side By Side
Joined: 30 Jun 2005
Location: somewhere
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He knew who it was, I reckon she went in there in fear of her life
If she had not been in the house, then it's self defence (if no one else should have been there at all)
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You cant fix stupid, turns out you cant quarantine it either! |
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stui magpie 
Prepare for the worst, hope for the best.
Joined: 03 May 2005
Location: In flagrante delicto
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But to claim self defense you need to be able to be reasonably sure you're in danger.
If you wake up to find a burglar in the house and you shoot him, that's not self defence unless you can show he was armed and your actions were reasonable in the circumstances. If you hear someone in a room when there shouldn't be anyone in there and you just open fire without checking to see if there's a threat or not, it's murder.
If you take a baseball bat to an unarmed burglar who's showing no signs of trying to attack you, you're going to be up for assault or worse.
If the burglar had a knife or other weapon and came at you with it, and you pulped him with said baseball bat, then it's self defence, but only up to the point where your actions are reasonable to defend yourself. If you break his arms and a leg and he's on the ground disarmed and helpless, and you then decide to smash his head in it's no longer self defence but assault or murder.
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Every dead body on Mt Everest was once a highly motivated person, so maybe just calm the **** down.
Last edited by stui magpie on Sat Dec 05, 2015 1:24 pm; edited 1 time in total |
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HAL
Please don't shout at me - I can't help it.
Joined: 17 Mar 2003
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| Thanks for the info. Some specific location? |
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stui magpie
Prepare for the worst, hope for the best.
Joined: 03 May 2005
Location: In flagrante delicto
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dead centre of the gooch.
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Every dead body on Mt Everest was once a highly motivated person, so maybe just calm the **** down. |
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David
I dare you to try
Joined: 27 Jul 2003
Location: Andromeda
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| stui magpie wrote: | But to claim self defense you need to be able to be reasonably sure you're in danger.
If you wake up to find a burglar in the house and you shoot him, that's not self defence unless you can show he was armed and your actions were reasonable in the circumstances. If you hear someone in a room when there shouldn't be anyone in there and you just open fire without checking to see if there's a threat or not, it's murder.
If you take a baseball bat to an unarmed burglar who's showing no signs of trying to attack you, you're going to be up for assault or worse.
If the burglar had a knife or other weapon and came at you with it, and you pulped him with said baseball bat, then it's self defence, but only up to the point where your actions are reasonable to defend yourself. If you break his arms and a leg and he's on the ground disarmed and helpless, and you then decide to smash his head in it's no longer self defence but assault or murder. |
But is it possible that you could be convicted of something other than murder in such cases?
The hypothetical I'm thinking of is that someone pulls a knife on you in the street. You pull out your handgun and shoot at them, but, in the chaos, you kill a bystander by mistake. Would that be murder? If you listen to Tannin and 3.14, it would be. I don't think that's right.
(By the way, I also suspect Pistorious's defence was bullshit. But, as I said, I can't know that for sure.)
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luvdids 
Joined: 22 Mar 2008
Location: work
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I'm pretty sure murder is having planned and carried out a killing.. Is it murder if you shoot someone accidentally (as David & Stui's examples suggest)? I thought that came under manslaughter, also shooting an intruder... unless he knew the intruder was going to be there before they got there and planned to kill them - then it would be murder.
Could be wrong, legal studies was a few years ago now but thought the general rule was:
planned killing = murder
unplanned killing = manslaughter.
That's why a lot of times killers are charged with manslaughter - the police or prosecutors or whoever can't show evidence that the killing was planned. |
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Tannin 
Can't remember
Joined: 06 Aug 2006
Location: Huon Valley Tasmania
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| David wrote: | | But is it possible that you could be convicted of something other than murder in such cases? The hypothetical I'm thinking of is that someone pulls a knife on you in the street. You pull out your handgun and shoot at them, but, in the chaos, you kill a bystander by mistake. Would that be murder? |
Obviously not. You had no intention of trying to kill any innocent party. You were trying only to defend yourself, and using reasonable force under the circumstances. (These things would have to be established by evidence, but we will go along with your scenario and assume that this has been done.)
I'm not sure what charges (if any) would apply, but provided that your action was in genuine, reasonable self-defence and constituted reasonable force under the circumstances murder is not on the menu. It might be manslaughter, or some lesser charge, or even be written off as a terrible accident.
Obviously, this does not apply to the Pistorious case. Assuming that he wasn't just murdering his girlfriend in an uncontrolled rage (which we all know is what really happened, but we are pretending to believe his defence team's story now), he had no idea who was in the toilet, he had no evidence that the person in the toilet was armed or dangerous or harmful in any way, and he has said nothing whatever to demonstrate that his use of deadly force was reasonable under the circumstances. The imaginary Toilet Monster wasn't even in the same room as the murder!
| David wrote: | | Would that be murder? If you listen to Tannin and 3.14, it would be. |
Only if you listen with both ears blocked tight, chewing a handful of LSD tabs, and playing death metal through your headphones with the volume on 11.
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�Let's eat Grandma.� Commas save lives! |
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stui magpie
Prepare for the worst, hope for the best.
Joined: 03 May 2005
Location: In flagrante delicto
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| luvdids wrote: | I'm pretty sure murder is having planned and carried out a killing.. Is it murder if you shoot someone accidentally (as David & Stui's examples suggest)? I thought that came under manslaughter, also shooting an intruder... unless he knew the intruder was going to be there before they got there and planned to kill them - then it would be murder.
Could be wrong, legal studies was a few years ago now but thought the general rule was:
planned killing = murder
unplanned killing = manslaughter.
That's why a lot of times killers are charged with manslaughter - the police or prosecutors or whoever can't show evidence that the killing was planned. |
I'm not sure if planned is a component or it comes down to intent.
If you came home from work, tired and cranky and found a friend had let themselves in, decided to use your kitchen and made a god awful mess and you utterly cracked the shits, brained them with the pepper grinder then did a riverdance on their head until it was pizza topping, it's hardly planned and would be real hard to argue you didn't mean to kill them by trampling on their bonce repeatedly. You may be able to argue it down to manslaughter but the starting point is murder.
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Every dead body on Mt Everest was once a highly motivated person, so maybe just calm the **** down. |
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luvdids
Joined: 22 Mar 2008
Location: work
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| stui magpie wrote: | | luvdids wrote: | I'm pretty sure murder is having planned and carried out a killing.. Is it murder if you shoot someone accidentally (as David & Stui's examples suggest)? I thought that came under manslaughter, also shooting an intruder... unless he knew the intruder was going to be there before they got there and planned to kill them - then it would be murder.
Could be wrong, legal studies was a few years ago now but thought the general rule was:
planned killing = murder
unplanned killing = manslaughter.
That's why a lot of times killers are charged with manslaughter - the police or prosecutors or whoever can't show evidence that the killing was planned. |
I'm not sure if planned is a component or it comes down to intent.
If you came home from work, tired and cranky and found a friend had let themselves in, decided to use your kitchen and made a god awful mess and you utterly cracked the shits, brained them with the pepper grinder then did a riverdance on their head until it was pizza topping, it's hardly planned and would be real hard to argue you didn't mean to kill them by trampling on their bonce repeatedly. You may be able to argue it down to manslaughter but the starting point is murder. |
See, I still don't think that would be murder - you wouldn't open the door & decide there & then to actually kill them. You might lose your sh1t & want to beat the crap out of them but I'd say any prosecutor would have a hard, if not impossible, job of proving you intended to actually kill them. |
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stui magpie
Prepare for the worst, hope for the best.
Joined: 03 May 2005
Location: In flagrante delicto
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It's like the second action.
If you just brained them with the pepper grinder in a temper, they fell over, cracked their head on the bench then floor and died, that's manslaughter.
If however, after you brained them and they fell on the floor stunned but otherwise undamaged, you then decided to do said river dance on their scone until it was paste, I think you'd have a hard time convincing a jury you didn't intend to kill them 
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Every dead body on Mt Everest was once a highly motivated person, so maybe just calm the **** down. |
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Jezza 
2023 PREMIERS!
Joined: 06 Sep 2010
Location: Ponsford End
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| think positive wrote: | | Jezza wrote: | http://www.enca.com/opinion/oscar-pistorius-what-essential-missing-link’-dolus-eventualis
A good summary of the case. |
Not really
Link is broken! |
Sorry Jo, copy and paste the link and it should work.
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| 1902 | 1903 | 1910 | 1917 | 1919 | 1927 | 1928 | 1929 | 1930 | 1935 | 1936 | 1953 | 1958 | 1990 | 2010 | 2023 | |
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Jezza
2023 PREMIERS!
Joined: 06 Sep 2010
Location: Ponsford End
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This might be a helpful link for those wondering about the distinctions between the four categories of murder in Victoria with them being:
1). Intentional Murder
2). Reckless Murder
3). Statutory Constructive Murder as defined under s 3A of the Crimes Act 1958 (Vic)
4). Common Law Constructive Murder
http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#4478.htm
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| 1902 | 1903 | 1910 | 1917 | 1919 | 1927 | 1928 | 1929 | 1930 | 1935 | 1936 | 1953 | 1958 | 1990 | 2010 | 2023 | |
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Dave The Man 
Joined: 01 Apr 2005
Location: Someville, Victoria, Australia
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| Jezza wrote: | This might be a helpful link for those wondering about the distinctions between the four categories of murder in Victoria with them being:
1). Intentional Murder
2). Reckless Murder
3). Statutory Constructive Murder as defined under s 3A of the Crimes Act 1958 (Vic)
4). Common Law Constructive Murder
http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#4478.htm |
I 99% sure He knew it was his GF he was shooting and that it's Intentional Murder but I going by his Story. It be Reckless Murder
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I am Da Man |
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stui magpie
Prepare for the worst, hope for the best.
Joined: 03 May 2005
Location: In flagrante delicto
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Keep in mind for comparison purposes that SA law is different to Victorian law.
Their justice system is a mixture of the English set up we inherited and also the Dutch system, so direct comparisons won't necessarily work.
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Every dead body on Mt Everest was once a highly motivated person, so maybe just calm the **** down. |
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Jezza
2023 PREMIERS!
Joined: 06 Sep 2010
Location: Ponsford End
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