Discussion between the verdict and sentencing

[RosieC]

BIB When she read that out I could actually feel my blood pressure rising.

Yes, Masipa must be responsible for a sweeping outbreak of hypertension. Should we sue in class action?

 

[ApplesInMyBra]

I believe she read her official judgement into the record, so they are one and the same.

She kept "rephrasing" her verdict on the fly though, so I'm not sure they are one and the same. Also it seemed like she was reading/seeing it for the first time!!!

 

[sleuth-d-]

As far as I can tell, Judge Masipa found that Oscar's story was improbable, but reasonably possibly true. Although I'm no fan of hers, by any means, I can see that it's a tricky test to get right because, to my mind, something that is improbable is possibly true, but not reasonably possibly true.

Zulman JA in S v V 2000 (1) SACR 453 (SCA), at paragraph 3(i) stated:

‘It is trite that there is no obligation upon an accused person, where the State bears the onus, “to convince the court”. If his version is reasonably possibly true he is entitled to his acquittal even though his explanation is improbable. A court is not entitled to convict unless it is satisfied not only that the explanation is improbable but that beyond any reasonable doubt it is false. It is permissible to look at the probabilities of the case to determine whether the accused’s version is reasonably possibly true but whether one subjectively believes him is not the test. As pointed out in many judgments of this Court and other courts the test is whether there is a reasonable possibility that the accused’s evidence may be true.’

http://http://www.saflii.org/za/cases/ZAECGHC/2010/18.html

Any thoughts?

to me this is where 'fact' is tossed out of the open window. as level of 'improbability' and 'reasonably possibly true' are subjective judgements to apply to a 'version'.

she decided the level of improbability was acceptable within his version, and so also decided the op story was reasonably possibly true. the law doesn't decide this.

[imo, the level of improbability was way too high. but clearly it was not to masipa]

i think she was crying out for nel to spell it all out for her, step by step - she loved the defence timeline.
for me nel needed to hammer home the bats first/shots second element. and then fit everything into that timeline. he didn't do this - thus creating reasonable doubt in her mind.

at which point she pretty much threw out nel's whole case and turned to the op story.

 

[sleuth-d-]

I responded to a post on the last page of the old thread..so I'm posting my response here:



Thanks for correcting me. You're right it's amazing how she misused that piece of evidence to make it in favor of Pistorius. She forgot that the fact the window was open had nothing to do with intruders as there were no intruders. So Milady Masipa..could it be that he staged the scene by opening the window to fit his story and fool people like you?? Or could it be that he was not paranoid at all and slept with windows open?? Her reasoning ability leaves a lot to be desired...AMAZING!

i believe the window opening could well have been after the event ... roux was very insistent on leading dr stipp towards agreeing that the window was open in his crossexam.

a couple of clips of the window closed/window open - with a person behind, with light on, at 3 am - would have been interesting tests to put to dr stipp. i believe the frosted glass would have played quite a part in that visual.


also, re: the girlfriend versus the invented intruder
should the law not be dealing with facts, rather than figment.

 

[Sherbert]

to me this is where 'fact' is tossed out of the open window. as level of 'improbability' and 'reasonably possibly true' are subjective judgements to apply to a 'version'.

she decided the level of improbability was acceptable within his version, and so also decided the op story was reasonably possibly true. the law doesn't decide this.

[imo, the level of improbability was way too high. but clearly it was not to masipa]

i think she was crying out for nel to spell it all out for her, step by step - she loved the defence timeline.
for me nel needed to hammer home the bats first/shots second element. and then fit everything into that timeline. he didn't do this - thus creating reasonable doubt in her mind.

at which point she pretty much threw out nel's whole case and turned to the op story.

BBM

Thanks Sleuth-d! I agree. Also, I don't follow why photographs of the bashed bath panel and cracked bedroom door were submitted without explanation, although I would have expected her and/or her assessors to take the initiative and query the evidential value of these.

 

[Sherbert]

My thoughts on this sherbert is this, all well and good if there were no witnesses, Reeva was a mute and OP's half baked story actually made sense. I'm beginning to believe he could have said anything, and it would have been believed!

If OP hadn't damaged the toilet door and there weren't any bullet holes visible in the toilet, he could have dropped Reeva on the bed and simply gave Masipa's stupid example, he saw a dark silhouette hovering over his bed and shot her!!!! Outrageous!

Hi PrimeSuspect! Thanks for your thoughts. I agree that she seems to have been very generous indeed in her interpretation of reasonable doubt. And the fact that she also bent over backwards to clear him of the ammunition charge was quite telling, IMO. As others have pointed out, she has convicted him only of those charges already conceded by Roux.

I feel that it's helpful that the test isn't a subjective one - ie, the question is whether, on an objective analysis, his version was reasonably possibly true. I guess it could be argued on appeal that she misapplied the test by looking at the question subjectively. As JudgeJudi pointed out, all this mental gymnastics is exhausting!

 

[sleuth-d-]

BBM

Thanks Sleuth-d! I agree. Also, I don't follow why photographs of the bashed bath panel and cracked bedroom door were submitted without explanation, although I would have expected her and/or her assessors to take the initiative and query the evidential value of these.

re: the bath panel... in the op version it could have been damaged by flinging out of the door panels. i believe nel questioned op in this damage and got a somewhat vague answer or a 'can't remember'. so it went no further.

re: the bedroom door photos... someone [mr fossil i believe] correctly pointed out that they were taken one day after the event, so would be open to the 'police tampering defence'. and it would also be difficult to place the damage at the time of the shooting...

[imo both instances were signs of the escalating violence, that ended with the shooting.

argument in other areas of the house... frustration.
locked bedroom door... increased frustration; airgun shot; door damage; door broken down.
locked toilet door... increased frustration; bath damage; kicked door; shoulder-charged door; bat-smashed door; shooting.]

 

[ApplesInMyBra]

i believe the window opening could well have been after the event ... roux was very insistent on leading dr stipp towards agreeing that the window was open in his crossexam.

a couple of clips of the window closed/window open - with a person behind, with light on, at 3 am - would have been interesting tests to put to dr stipp. i believe the frosted glass would have played quite a part in that visual.


also, re: the girlfriend versus the invented intruder
should the law not be dealing with facts, rather than figment.

Carice Viljoen testified that after her and her father arrived on the scene, OP left and went upstairs for a very long time. I bet he was opening the window at the time, and also tampering with other things in the crime scene. He had to be!!!!

 

[Mr Fossil]

Carice Viljoen testified that after her and her father arrived on the scene, OP left and went upstairs for a very long time. I bet he was opening the window at the time, and also tampering with other things in the crime scene. He had to be!!!!

I don't think it can be said that he went upstairs for a 'very long time' but he was certainly heard by Carice walking on tiles e.g. in the bathroom. The testimony was 30-40 seconds and Carice followed him up but waited outside the bedroom. There has also been a line of thought that he went upstairs twice (I have been swayed both ways on this but I'm now convinced he only went up once that we know of).

 

[RosieC]

A lot has been said about how agonising the verdict must be for Reeva's family and friends, and of course I agree.

It must also be terrible for the state's ear witnesses, who did their best in very stressful circumstances. Masipa seemed to dismiss their evidence as worthless. Oscar was a ventriloquist. The bat strikes were quick thunderbolts, louder than gunshots. The witnesses just failed to appreciate the reality of what they thought they heard.

I don't think that I could have stood up nearly as well as they did. I can think of some sharp interchanges, like when on cross examination, Barry Roux asked Michelle Burger, Why would he [Pistorius] scream "help help help", and she replied, I don't know, you'd have to ask Oscar. I heard it. Then was it she who suggested that maybe he was mocking Reeva's "help help help"? I thought that quite astute and maybe Roux wished he hadn't asked.

 

[Sherbert]

I don't think it can be said that he went upstairs for a 'very long time' but he was certainly heard by Carice walking on tiles e.g. in the bathroom. The testimony was 30-40 seconds and Carice followed him up but waited outside the bedroom. There has also been a line of thought that he went upstairs twice (I have been swayed both ways on this but I'm now convinced he only went up once that we know of).

I seem to recollect that Carice was concerned that he was taking longer that he should - just to pick up Reeva's handbag and come back down, that is.

 

[sleuth-d-]

I don't think it can be said that he went upstairs for a 'very long time' but he was certainly heard by Carice walking on tiles e.g. in the bathroom. The testimony was 30-40 seconds and Carice followed him up but waited outside the bedroom. There has also been a line of thought that he went upstairs twice (I have been swayed both ways on this but I'm now convinced he only went up once that we know of).

i am interested to know - in the light of all the work you did on the calls/timeline - whether you are in agreement with roux's timeline, and/or masipa's timeline?

 

[soozieqtips]

Quote from June Steenkamp '(We) couldn't even look. (We) didn’t want to see him. They were jubilant. I can’t share that.'
My heartbreaks for them.

I just cannot fathom how someone can be found guilty of even the lesser charge of CH but only be handed a fine. I often complain about the light sentences that are given for convicted killers in Britain, but a FINE? What an insult to the victims.

BIB - OP's family are very wealthy, so a hefty fine for killing someone won't hurt them, or OP. I wonder what figure Masipa will arrive at to judge the value of Reeva's life. Seriously, fining rich people is a joke, because it doesn't matter to them, so a fine will be a drop in the ocean.

 

[lisasalinger]

A close family source said his lawyers were convinced Pistorius might avoid jail time altogether and be handed a suspended sentence instead.

The insider said Pistorius’ uncle, Arnold, had told them it was a “very good judgment and they shouldn’t mess with it”.

“They realise they were lucky to get away with culpable homicide.”

http://www.citypress.co.za/news/state-vs-oscar/

"Get away with culpable homicide"

"Get away with..."

This is the mindset of OP via his uncle who made the above statement. OP's only concern has been to "get away with" murdering Reeva.

Uncle Arnold has put into words exactly what OP has been hoping to accomplish this past year and a half - to get away with murder - although I've no doubt that OP was hoping to be acquitted of any and all charges.

"Get away with culpable homicide" - rather than be rightfully convicted of what he deserved - at the very least murder (dolus eventualis, if not dolus directus).

If shooting & killing Reeva was truly a horrendous mistake that he never intended to happen, why in hell would OP hope to "get away with" anything at all???

Only a guilty person uses the term "get away with".

An innocent person has no need to "get away with" anything.

Thank you for this, Sorrell! :seeya:

 

[sleuth-d-]

BIB - OP's family are very wealthy, so a hefty fine for killing someone won't hurt them, or OP. I wonder what figure Masipa will arrive at to judge the value of Reeva's life. Seriously, fining rich people is a joke, because it doesn't matter to them, so a fine will be a drop in the ocean.

i would be leaning more towards a suspended sentence by the masipa*... this fits in, not only with her continuation of bail, but also with her strange warning to uncle - to keep his boy in check.

[*what i believe he should receive is a lifetime/world away from this]

 

[soozieqtips]

Terrifying! In the veiw of the judge anyone sharing a bed or room with another person needs to wake up the other person if they need to get out of bed in the night for any reason, otherwise it's their own fault if they are shot and killed. :banghead:

Yes. And to be on the safe side, they should also call or text when they're on their way back to bed, or crawl across the floor so they're not caught hovering.

 

[cottonweaver]

A close family source said his lawyers were convinced Pistorius might avoid jail time altogether and be handed a suspended sentence instead.

The insider said Pistorius’ uncle, Arnold, had told them it was a “very good judgment and they shouldn’t mess with it”.

“They realise they were lucky to get away with culpable homicide.”

http://www.citypress.co.za/news/state-vs-oscar/

"Get away with culpable homicide"

"Get away with..."

This is the mindset of OP via his uncle who made the above statement. OP's only concern has been to "get away with" murdering Reeva.

Uncle Arnold has put into words exactly what OP has been hoping to accomplish this past year and a half - to get away with murder - although I've no doubt that OP was hoping to be acquitted of any and all charges.

"Get away with culpable homicide" - rather than be rightfully convicted of what he deserved - at the very least murder (dolus eventualis, if not dolus directus).

If shooting & killing Reeva was truly a horrendous mistake that he never intended to happen, why in hell would OP hope to "get away with" anything at all???

Only a guilty person uses the term "get away with".

An innocent person has no need to "get away with" anything.

TOTALLY with you on the sentiment of your post but let's note that the family insider let this slip - not Uncle Arnie.

Sorry to nit pick but when i pasted that in previous thread i initially thought it read as such. Not sure Annaliese Burger would be so mad as to let that slip. Nonetheless, yes , it was a telling family phrase.

 

[pandax81]

Don't be reassured by the guilty verdict on culpable homicide. The devil is in the detail and it is equally disturbing.

He is NOT deemed negligent for not considering and checking it was Reeva simply using the ensuite bathroom. Surely this is the most obvious, shocking and grossly negligent aspect of the whole case that puts it on a whole other level. It appears that as far as Masipa is concerned, it is the same as if he was living alone and a real intruder smashed the window to break in and this is what he heard. Hence, she concentrates on him being negligent by not staying put and phoning for help and so on.

I fear this may become significant in determining how grossly negligent OP was.

 

[soozieqtips]

She wasn't only mute but also deaf as she was apparently opening the bathroom window just as Oscar was closing the sliding glass doors, according to the judge.

Mute, deaf, and invisible.

 

[RosieC]

Oscar verdict could be overturned – expert

"Prosecutor Gerrie Nel will only be able to appeal at the sentencing of Pistorius, if he intends to appeal."

http://citizen.co.za/243043/oscar-verdict-overturned-expert/

Oscar verdict cannot be overturned - expert

OSCAR PISTORIUS VERDICT A DONE DEAL. THIS IS A 'MUST READ': CPA APPEAL MAY NOT BE POSSIBLE - AT ALL. NOT EVEN IF HE IS GIVEN A NON-CUSTODIAL SENTENCE. Quote from article, which link failed:

Roberts prosecuted for some 32 years, serving as deputy DPP in KwaZulu-Natal and later as DPP in the Eastern Cape. On his retirement, he lectured criminal procedure in the Rhodes University law faculty for some nine years.

Marais, who has served in the National Prosecuting Authority for 37 years, agreed.

“The SCA has ruled that the right of the state to appeal on a question of law is only in the event of what it termed an algehele or total acquittal. In my understanding, Pistorius was not totally acquitted on a charge of murder. He was convicted of culpable homicide, which is a competent verdict to murder. So in terms of [S v Seekoei] it seems unlikely that the state can appeal.”

Marais said there were moves afoot to put the state on a more equal footing with an accused when it came to appealing, which might then enable the state to appeal on the basis of both factual and legal findings by a judge.

But any future amendments to the CPA will not change anything in the Pistorius case. The NPA has indicated it will only announce its intentions regarding an appeal after Pistorius has been sentenced.


Do any South African criminal law experts know if evidence of incompetent reasoning by judge on matters of fact and law can be grounds for review or re-trial? (God forbid the latter.)