Discussion between the verdict and sentencing
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Yes, but I think the point is that people on here are focusing so much on it now because Masipa herself stated it as a big reason for her own conclusion(s). She said, basically, that the timeline doesn't work if we believe the prosecution's theory (paraphrasing of course).
I dunno, but has she ever thought of the possibility that BOTH the defense AND the prosecution could be wrong about some things? I mean, we do not have a videotape of the murder - hth is the prosecution supposed to get everything 100% accurate? It is possible that what happened didn't follow the exact sequence of either the defense or the prosecution's theories.
Also, hth are the witnesses themselves supposed to get their timings 100% accurate? At the time when you're hearing something, very rarely do people stop and record on a piece of paper the exact time. Sure, there are the phone records, but what I'm talking about is the sequence and all the context that the witnesses heard. Heck, I can't remember what I did 15 minutes ago, much less be able to recount something in exact order. Especially when things are moving fast. But that does not mean that Judge is just able to simply toss out everything they say. Because, out of something horrific or some memorable experience, certain things are going to stick out and stay in your mind. For example, Burger kept saying "terrifying" screams. She remembered the screams very vividly. The "big" things are going to stick in your mind. So just because you don't remember small minute details and timings and sequence of everything exactly, does not mean that the witnesses were not valuable or that what they say could just be tossed out.
Anyway, Masipa's reasonings are very odd.
When a full transcript of Masipa’s ruling became available I tried to follow her “reasoning” with respect to the dismissal of dolus eventualis.
Before doing so, I also went through the prosecution’s closing argument.
Some excerpts…
To even consider the accused’s defence the court will need to accept that:
- the deceased decided to relieve herself and did so without saying a word to the accused
- for no apparent reason she opened the bathroom window
- she took her cellphone with her to the bathroom
- she decided not to switch on any of the lights
- she did not utter a word whilst the accused was screaming, not even when he was in the bathroom
- the deceased got up from the toilet to close and lock the door
- the deceased dressed herself before she was shot
- the deceased did not hide as a result of all the screaming but stood upright facing the danger
Objectively viewed the accused shot and killed the deceased.
He elected to testify and furnish an explanation of why he did so.
The version furnished, however, was so far-fetched that it can never be found to be reasonably possibly true.
Why did the accused shoot?
During his evidence in chief he testified –“…I heard a noise from inside the toilet what I perceived to be somebody coming out of the toilet. Before I knew it I had fired four shots at the door.”
During the bail application the version was:-“I heard movement inside the toilet… I felt trapped…I fired shots at the toilet door…”
The accused’s version that he never intended to shoot anyone destroys any reliance or hope of success of a defence of putative self-defence.
We will mention just a few of the accused’s contradictory versions.
“…I never intended to shoot anyone…I got a fright from a noise”
“…I did not shoot at anyone. I did not intend to shoot at someone. I shot out of fear…”
“…I did not intend to shoot into or …I did not intend to shoot at anyone…”
“you never purposefully fired shots into the door?...no My Lady, I did not”
“…so you never wanted to shoot at robbers, intruders coming out of the toilet…that is correct…”
His evidence then changed to him having fired at “what I perceived as a intruder coming out to attack me…”
Nel did a good job outlining those statements by OP that were contradictory, untruthful and at least objectively, far-fetched.
While Masipa acknowledged at least some of this she quickly dismissed them with the statement, “These questions shall unfortunately remain a matter of conjecture.”
However, what we are dealing with here is the fact that the accused was, amongst other things, an evasive witness. In my view there are several reasons for this. He failed to listen properly to questions put to him under cross-examination, giving an impression that he was more worried by the impact that his answers might cause, rather than the questions asked.
Often a question requiring a straight forward answer turned into a point of debate about what another witness did or said. When contradictions were pointed out to him or when he was asked why certain propositions were not put to state witnesses, he often blamed his legal team for the oversight.
Although the untruthful evidence of an accused is of importance when a court determines the guilt or otherwise of an accused, caution must be exercised and courts ought to avoid attaching too much weight to such untruthfulness.
The conclusion, that because an accused is untruthful he is therefore probably guilty, must be guided against, as a false statement does not always justify the most extreme conclusion. In the present case the deceased was killed under very peculiar circumstances.
There are indeed a number of aspects in the case which do not make sense, such as:
- Why the accused did not ascertain from the deceased when he heard the window open, whether she too had heard anything.
- Why he did not ascertain whether the deceased had heard him since he did not get a response from the deceased before making his way to the bathroom.
- Why the deceased was in the toilet and only a few metres away from the accused, did not communicate with the accused, or phone the police as requested by the accused. This the deceased could have done, irrespective of whether she was in the bedroom or in the toilet, as she had her cell phone with her. It makes no sense to say she did not hear him scream, ‘get out’. It was the accused version that he screamed on top of his voice, when ordering the intruders to get out.
Another question is:
- Why the accused fired not one, one shot but four shots, before he ran back to the bedroom to try to find the deceased.
These questions shall unfortunately remain a matter of conjecture.
What is not conjecture, however, is that the accused armed himself with a loaded firearm when, on his own version, he suspected that an intruder might be coming in through the bathroom window. He was not truthful when asked about his intentions that morning, as he armed himself with a lethal weapon. The accused was clearly not candid with the court when he said that he had no intention to shoot at anyone, as he had a loaded firearm in his hand, ready to shoot.
However, as stated above, untruthful evidence does not always justify the conclusion that the accused is guilty. The weight to be attached thereto must be related to the circumstances of each case. (S v Mtswene 1985 (1) SA 590 (A)).
I am left to openly wonder how much more “evasive” and “untruthful” OP would have had to have been, how many more items of “conjecture” there would have to have been for Masipa to have rejected his story?
Indeed, at times, Masipa seems naïve and gullible. There is no better example of this than in her comments about OP’s behavior immediately following the shooting. (Those comments also form the foundation for her rejection of dolus directus.)
Perhaps Masipa would be well served to review the conduct and statements by Casey Anthony and Jodi Arias. The skill, speed, and intricacy of their lies was a thing to be marvelled at, and to think that OP could not have quickly fabricated his story when his freedom was at stake borders on delusional.
The spectre of prison is a great motivational tool for creativity in deception.
Counsel for the defence correctly argued that it was highly improbable that the accused would have made this up so quickly and be consistent in his version, even at the bail application before he had access to the police docket and before he was privy to the evidence on behalf of the state at the bail application.
[SNIP]
To find otherwise would be tantamount to saying that the accused’s reaction after he realised that he had shot the deceased was faked; that he was play acting merely to delude the onlookers at the time
Below, OP shamelessly attempts to dispel any doubt that he did not foresee that firing four rounds into the cubicle could kill anyone, attempting to persuade Masipa that he could not be guilty of dolus eventualis.
The accused stated that he never thought of the possibility that he could kill people in the toilet. He considered, however, that thinking back retrospectively it would be a probability that someone could be killed in the toilet. He stated that if he wanted to shoot the intruder he would have shot higher up and more in the direction where the opening of the door would be to the far right of the door and at chest height. I pause to state that this assertion is inconsistent with that of someone who shot without thinking.
Masipa does not believe any hint of a defence based on reduced or impaired criminal capacity.
More importantly, why didn’t Masipa find it disingenuous and suspicious that “there was a plethora of defences?” Again I ask, is there anything that would have shaken Masipa’s unswerving belief in OP’s story?
The above extracts and the submissions by defence counsel show without a doubt that we are here dealing with a plethora of defences. I proceed to deal with each of them in turn.
The first one is: Did the accused lack criminal capacity at the time that he killed the deceased?
Masipa’s conclusion: No. There can be no defence based on reduced or impaired criminal capacity.
Having regard to expert evidence and the evidence as a whole this court is satisfied that at the relevant time, the accused could distinguish between right and wrong and that he could act in accordance with that distinction. It is also clear that the defence of non- pathological insanity has no foundation.
The following should have been the end of the putative private defence argument for OP.
The second possible defence: Putative private defence.
He was asked: “You never purposefully fired into the door ?”
The answer was: “No M'Lady I did not.”
The question: “So you never wanted to shoot at robbers, intruders coming out of the toilet?”
The answer was: “That is correct.”
…but Masipa refuses to accept it. She is convinced that OP wanted to shoot at “the perceived danger,” and, furthermore, differentiates between the intent to shoot and the intent to kill.
Masipa is paving the way to show that the putative private defence is valid for OP.
What Nel thought was a nullification of PPD is cast aside unceremoniously by Masipa.
The essence of the accused’s defence is that he had no intention to shoot at anyone but if it was found that there was such an intention then he shot at what he: “...perceived as an intruder coming out to attack me.”
Counsel for the state, correctly in my view, submitted that if the accused never intended to shoot anyone, he cannot rely on a defence of putative self-defence.
[SNIP]
The accused clearly wanted to use the firearm and the only way he could have used it was to shoot at the perceived danger. The intention to shoot however does not necessarily include the intention to kill. Depending on the circumstances of each case an accused may be found guilty of dolus eventualis or culpable homicide. In this case there is only one essential point of dispute and it is this: Did the accused have the required mens rea to kill the deceased when he pulled the trigger? In other words, was there intention? The essential question is whether on the basis of all the evidence presented, there is a reasonable doubt concerning the accused’s guilt.
Masipa reiterates that she believes that OP had every intention to fire the gun despite his plain claim to the contrary.
What is not conjecture, however, is that the accused armed himself with a loaded firearm when, on his own version, he suspected that an intruder might be coming in through the bathroom window. He was not truthful when asked about his intentions that morning, as he armed himself with a lethal weapon. The accused was clearly not candid with the court when he said that he had no intention to shoot at anyone, as he had a loaded firearm in his hand, ready to shoot.
However, as stated above, untruthful evidence does not always justify the conclusion that the accused is guilty. The weight to be attached thereto must be related to the circumstances of each case.
Once again there is a reference dealing with PPD.
The starting point however, once more is whether the accused had the intention to kill the person behind the toilet door whom he mistook for an intruder.
The accused had intention to shoot at the person in the toilet but states that he never intended to kill that person. In other words he raised the defence of putative private defence.
[SNIP]
In the present case, on his own version the accused suspected that an intruder had entered his house through the bathroom window. His version was that he genuinely, though erroneously, believed that his life and that of the deceased was in danger.
Masipa now outlines the basis for accepting or rejecting DE.
However, as has been pointed out by many, Masipa is plainly wrong in the form of her questions. The identity of the person in the cubicle is irrelevant.
The question should be:
1. Did the accused foresee, the possibility of death ensuing for the person inside the toilet cubicle given that the bullets which were of a design intended to cause great harm had a trajectory likely to strike that person either directly or through the danger of ricocheting off the walls and ,
2. Notwithstanding the foresight, did he then fire the shots, thereby reconciling himself to the possibility of that event occurring?
I now deal with dolus eventualis or legal intent.
The question is:
1. Did the accused subjectively foresee that it could be the deceased behind the toilet door and
2. Notwithstanding the foresight did he then fire the shots, thereby reconciling himself to the possibility that it could be the deceased in the toilet?
The evidence before this court does not support the state’s contention that this could be a case of dolus eventualis.
On the contrary, the evidence shows that from the onset the accused believed that, at the time he fired shots into the toilet door, the deceased was in the bedroom while the intruders were in the toilet. This belief was communicated to a number of people shortly after the incident.
What follows is perhaps the most unambiguous statement by Masipa with regard to dismissing dolus eventualis.
It appears to be on the basis of putative private defense.
It follows that the accused’s erroneous belief that his life was in danger excludes dolus. The accused therefore cannot be found guilty of murder dolus eventualis.
In her look at culpable homicide Masipa finds the OP fails the “reasonable man” test. Her reasoning here is sound.
I now deal with negligence in culpable homicide cases.
[SNIP]
The accused knew that there was a person behind the toilet door and chose to use a firearm which was a legal weapon. He was competent in the use of firearms as he had undergone some training.
I now revert to the relevant questions.
First: Would a reasonable person in the same circumstances as the accused, have foreseen the reasonable possibility that, if he fired four shots at the door of the toilet, whoever was behind the door, might be struck by a bullet and die as a result?
The second question is: Would a reasonable person have taken steps to guard against that possibility?
The answer to both questions is yes.
The last question is: Did the accused fail to take steps which he should reasonably have taken to guard against the consequence?
Again the answer is, yes. He failed to take any step to avoid the resultant death I am of the view that the accused acted too hastily and used excessive force. In the circumstances it is clear that his conduct was negligent.
Later in her recap, Masipa appears to forget about PPD and speaks instead to the issue of foreseeability.
Count 1: In respect of count 1 the allegation was that the accused and the deceased had an argument. That the deceased ran and locked herself in the toilet and that the accused followed her there, and fired shots at her through the locked door. Three shots struck her and she died as a result.
Evidence led by the state in respect of this count was purely circumstantial. It was not strong circumstantial evidence. More over the evidence of various witnesses who gave evidence on what they heard, in what sequence and when, proved to be unreliable.
The accused denied the allegations. Notwithstanding that he was an unimpressive witness, the accused gave a version which could reasonably possibly be true. In criminal law that is all that is required for an acquittal as the onus to prove the guilt of an accused, beyond reasonable doubt, rests with the state throughout.
The version of the accused was that he fired shots at the toilet door, because he thought there was an intruder inside the toilet. The sequence of events namely the shots, the screams, the shouts of help, the sound of a cricket bat striking against the toilet door, the calls made by various witnesses to security to report screams and or shots, are more in line with the version of the accused.
Although it is not necessary for the state to prove motive, there is no basis on which this court could make inferences of why the accused would want to kill the deceased. In addition there is objective evidence in the form of phone records. This too supports the version of the accused. Furthermore the conduct of the accused shortly after the incident, was inconsistent with the conduct of someone who had intention to commit murder. He acted promptly in seeking help soon after the incident. He shouted for help. He called a friend, Stander. He called 911. He called security, although he could not speak as he was crying. He prayed to God to save the deceased’s life. He was seen trying to resuscitate the deceased and he pleaded with Dr Stipp to help and he was distraught.
From the above it cannot 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. Therefore he could not be found guilty of murder dolus directus.
Note that Masipa concentrates here on foreseeability.
This court has already found that the accused cannot be guilty of murder dolus eventualis either, on the basis that from his belief and his conduct, it could not be said that he foresaw that either the deceased or anyone else, for that matter, might be killed when he fired the shots at the toilet door. It also cannot be said that he accepted that possibility into the bargain.
I might just add that in respect of the first leg of the test in dolus eventualis, Burchell & Hunt: General Principles of Criminal Law, states the following on page 371 :
“The courts have warned against any tendency to draw the inference of subjective foresight too easily.”
For example in S v Bradshaw, 1977 (1) PH860 (A) Wessels JA stated :
“The court should guard against proceeding too readily from ‘ought to have foreseen’ to ‘must have foreseen’ and thence to ‘by necessary inference in fact foresaw’ the possible consequences of the conduct being enquired into. The several thought processes attributed to an accused must be established beyond any reasonable doubt. Having due regard to the particular circumstances which attended the conduct being enquired into.”
In S v Sigwatla, 1967 (4) SA 566 (A) Holmes JA expressed the degree of proof in the following terms:
“Subjective foresight like any other factual issue, may be proved by inference to constitute proof beyond reasonable doubt. The inference must be the only one which can reasonably be drawn. It cannot be so drawn if there is a reasonable possibility that subjectively the accused did not foresee, even if he ought reasonably to have done so and even if he probably did do so.”
It would appear that Masipa dismissed dolus eventualis because of a blend of two reasons.
1. Putative private defense:
“It follows that the accused’s erroneous belief that his life was in danger excludes dolus. The accused therefore cannot be found guilty of murder dolus eventualis.”
2. Lack of foreseeability and reconciliation:
“This court has already found that the accused cannot be guilty of murder dolus eventualis either, on the basis that from his belief and his conduct, it could not be said that he foresaw that either the deceased or anyone else, for that matter, might be killed when he fired the shots at the toilet door. It also cannot be said that he accepted that possibility into the bargain.”
Why did Masipa not believe that OP had the foresight to know that firing at the door carried with it the possibility of killing whoever was behind the door and reconciling himself to the possibility fired anyway?
I can see no other reason than the fact that OP said so.
“The accused stated that he never thought of the possibility that he could kill people in the toilet.”
There is unquestionably reversible error in her judgement, in my opinion, and I can only hope that any appeal court review would be as harsh as possible in their criticism of her verdict.
I am especially baffled by the extraordinary weight given to OP’s word by Masipa considering the extraordinary amount of discrepancies and problems with his story.
Masipa was clear that OP failed the “reasonable man” test, I think it’s also clear that Masipa failed the “reasonable judge” test.
Link to verdict transcript:
https://juror13lw.files.wordpress.com/2014/09/pistorius-trial-judgement.pdf
Link to closing arguments by Nel (media copy)
http://www.enca.com/oscar-trial-states-heads-argument
Before doing so, I also went through the prosecution’s closing argument.
Some excerpts…
To even consider the accused’s defence the court will need to accept that:
- the deceased decided to relieve herself and did so without saying a word to the accused
- for no apparent reason she opened the bathroom window
- she took her cellphone with her to the bathroom
- she decided not to switch on any of the lights
- she did not utter a word whilst the accused was screaming, not even when he was in the bathroom
- the deceased got up from the toilet to close and lock the door
- the deceased dressed herself before she was shot
- the deceased did not hide as a result of all the screaming but stood upright facing the danger
Objectively viewed the accused shot and killed the deceased.
He elected to testify and furnish an explanation of why he did so.
The version furnished, however, was so far-fetched that it can never be found to be reasonably possibly true.
Why did the accused shoot?
During his evidence in chief he testified –“…I heard a noise from inside the toilet what I perceived to be somebody coming out of the toilet. Before I knew it I had fired four shots at the door.”
During the bail application the version was:-“I heard movement inside the toilet… I felt trapped…I fired shots at the toilet door…”
The accused’s version that he never intended to shoot anyone destroys any reliance or hope of success of a defence of putative self-defence.
We will mention just a few of the accused’s contradictory versions.
“…I never intended to shoot anyone…I got a fright from a noise”
“…I did not shoot at anyone. I did not intend to shoot at someone. I shot out of fear…”
“…I did not intend to shoot into or …I did not intend to shoot at anyone…”
“you never purposefully fired shots into the door?...no My Lady, I did not”
“…so you never wanted to shoot at robbers, intruders coming out of the toilet…that is correct…”
His evidence then changed to him having fired at “what I perceived as a intruder coming out to attack me…”
- Excerpts from Masipa’s judgement.
Nel did a good job outlining those statements by OP that were contradictory, untruthful and at least objectively, far-fetched.
While Masipa acknowledged at least some of this she quickly dismissed them with the statement, “These questions shall unfortunately remain a matter of conjecture.”
However, what we are dealing with here is the fact that the accused was, amongst other things, an evasive witness. In my view there are several reasons for this. He failed to listen properly to questions put to him under cross-examination, giving an impression that he was more worried by the impact that his answers might cause, rather than the questions asked.
Often a question requiring a straight forward answer turned into a point of debate about what another witness did or said. When contradictions were pointed out to him or when he was asked why certain propositions were not put to state witnesses, he often blamed his legal team for the oversight.
Although the untruthful evidence of an accused is of importance when a court determines the guilt or otherwise of an accused, caution must be exercised and courts ought to avoid attaching too much weight to such untruthfulness.
The conclusion, that because an accused is untruthful he is therefore probably guilty, must be guided against, as a false statement does not always justify the most extreme conclusion. In the present case the deceased was killed under very peculiar circumstances.
There are indeed a number of aspects in the case which do not make sense, such as:
- Why the accused did not ascertain from the deceased when he heard the window open, whether she too had heard anything.
- Why he did not ascertain whether the deceased had heard him since he did not get a response from the deceased before making his way to the bathroom.
- Why the deceased was in the toilet and only a few metres away from the accused, did not communicate with the accused, or phone the police as requested by the accused. This the deceased could have done, irrespective of whether she was in the bedroom or in the toilet, as she had her cell phone with her. It makes no sense to say she did not hear him scream, ‘get out’. It was the accused version that he screamed on top of his voice, when ordering the intruders to get out.
Another question is:
- Why the accused fired not one, one shot but four shots, before he ran back to the bedroom to try to find the deceased.
These questions shall unfortunately remain a matter of conjecture.
What is not conjecture, however, is that the accused armed himself with a loaded firearm when, on his own version, he suspected that an intruder might be coming in through the bathroom window. He was not truthful when asked about his intentions that morning, as he armed himself with a lethal weapon. The accused was clearly not candid with the court when he said that he had no intention to shoot at anyone, as he had a loaded firearm in his hand, ready to shoot.
However, as stated above, untruthful evidence does not always justify the conclusion that the accused is guilty. The weight to be attached thereto must be related to the circumstances of each case. (S v Mtswene 1985 (1) SA 590 (A)).
I am left to openly wonder how much more “evasive” and “untruthful” OP would have had to have been, how many more items of “conjecture” there would have to have been for Masipa to have rejected his story?
Indeed, at times, Masipa seems naïve and gullible. There is no better example of this than in her comments about OP’s behavior immediately following the shooting. (Those comments also form the foundation for her rejection of dolus directus.)
Perhaps Masipa would be well served to review the conduct and statements by Casey Anthony and Jodi Arias. The skill, speed, and intricacy of their lies was a thing to be marvelled at, and to think that OP could not have quickly fabricated his story when his freedom was at stake borders on delusional.
The spectre of prison is a great motivational tool for creativity in deception.
Counsel for the defence correctly argued that it was highly improbable that the accused would have made this up so quickly and be consistent in his version, even at the bail application before he had access to the police docket and before he was privy to the evidence on behalf of the state at the bail application.
[SNIP]
To find otherwise would be tantamount to saying that the accused’s reaction after he realised that he had shot the deceased was faked; that he was play acting merely to delude the onlookers at the time
Below, OP shamelessly attempts to dispel any doubt that he did not foresee that firing four rounds into the cubicle could kill anyone, attempting to persuade Masipa that he could not be guilty of dolus eventualis.
The accused stated that he never thought of the possibility that he could kill people in the toilet. He considered, however, that thinking back retrospectively it would be a probability that someone could be killed in the toilet. He stated that if he wanted to shoot the intruder he would have shot higher up and more in the direction where the opening of the door would be to the far right of the door and at chest height. I pause to state that this assertion is inconsistent with that of someone who shot without thinking.
Masipa does not believe any hint of a defence based on reduced or impaired criminal capacity.
More importantly, why didn’t Masipa find it disingenuous and suspicious that “there was a plethora of defences?” Again I ask, is there anything that would have shaken Masipa’s unswerving belief in OP’s story?
The above extracts and the submissions by defence counsel show without a doubt that we are here dealing with a plethora of defences. I proceed to deal with each of them in turn.
The first one is: Did the accused lack criminal capacity at the time that he killed the deceased?
Masipa’s conclusion: No. There can be no defence based on reduced or impaired criminal capacity.
Having regard to expert evidence and the evidence as a whole this court is satisfied that at the relevant time, the accused could distinguish between right and wrong and that he could act in accordance with that distinction. It is also clear that the defence of non- pathological insanity has no foundation.
The following should have been the end of the putative private defence argument for OP.
The second possible defence: Putative private defence.
He was asked: “You never purposefully fired into the door ?”
The answer was: “No M'Lady I did not.”
The question: “So you never wanted to shoot at robbers, intruders coming out of the toilet?”
The answer was: “That is correct.”
…but Masipa refuses to accept it. She is convinced that OP wanted to shoot at “the perceived danger,” and, furthermore, differentiates between the intent to shoot and the intent to kill.
Masipa is paving the way to show that the putative private defence is valid for OP.
What Nel thought was a nullification of PPD is cast aside unceremoniously by Masipa.
The essence of the accused’s defence is that he had no intention to shoot at anyone but if it was found that there was such an intention then he shot at what he: “...perceived as an intruder coming out to attack me.”
Counsel for the state, correctly in my view, submitted that if the accused never intended to shoot anyone, he cannot rely on a defence of putative self-defence.
[SNIP]
The accused clearly wanted to use the firearm and the only way he could have used it was to shoot at the perceived danger. The intention to shoot however does not necessarily include the intention to kill. Depending on the circumstances of each case an accused may be found guilty of dolus eventualis or culpable homicide. In this case there is only one essential point of dispute and it is this: Did the accused have the required mens rea to kill the deceased when he pulled the trigger? In other words, was there intention? The essential question is whether on the basis of all the evidence presented, there is a reasonable doubt concerning the accused’s guilt.
Masipa reiterates that she believes that OP had every intention to fire the gun despite his plain claim to the contrary.
What is not conjecture, however, is that the accused armed himself with a loaded firearm when, on his own version, he suspected that an intruder might be coming in through the bathroom window. He was not truthful when asked about his intentions that morning, as he armed himself with a lethal weapon. The accused was clearly not candid with the court when he said that he had no intention to shoot at anyone, as he had a loaded firearm in his hand, ready to shoot.
However, as stated above, untruthful evidence does not always justify the conclusion that the accused is guilty. The weight to be attached thereto must be related to the circumstances of each case.
Once again there is a reference dealing with PPD.
The starting point however, once more is whether the accused had the intention to kill the person behind the toilet door whom he mistook for an intruder.
The accused had intention to shoot at the person in the toilet but states that he never intended to kill that person. In other words he raised the defence of putative private defence.
[SNIP]
In the present case, on his own version the accused suspected that an intruder had entered his house through the bathroom window. His version was that he genuinely, though erroneously, believed that his life and that of the deceased was in danger.
Masipa now outlines the basis for accepting or rejecting DE.
However, as has been pointed out by many, Masipa is plainly wrong in the form of her questions. The identity of the person in the cubicle is irrelevant.
The question should be:
1. Did the accused foresee, the possibility of death ensuing for the person inside the toilet cubicle given that the bullets which were of a design intended to cause great harm had a trajectory likely to strike that person either directly or through the danger of ricocheting off the walls and ,
2. Notwithstanding the foresight, did he then fire the shots, thereby reconciling himself to the possibility of that event occurring?
I now deal with dolus eventualis or legal intent.
The question is:
1. Did the accused subjectively foresee that it could be the deceased behind the toilet door and
2. Notwithstanding the foresight did he then fire the shots, thereby reconciling himself to the possibility that it could be the deceased in the toilet?
The evidence before this court does not support the state’s contention that this could be a case of dolus eventualis.
On the contrary, the evidence shows that from the onset the accused believed that, at the time he fired shots into the toilet door, the deceased was in the bedroom while the intruders were in the toilet. This belief was communicated to a number of people shortly after the incident.
What follows is perhaps the most unambiguous statement by Masipa with regard to dismissing dolus eventualis.
It appears to be on the basis of putative private defense.
It follows that the accused’s erroneous belief that his life was in danger excludes dolus. The accused therefore cannot be found guilty of murder dolus eventualis.
In her look at culpable homicide Masipa finds the OP fails the “reasonable man” test. Her reasoning here is sound.
I now deal with negligence in culpable homicide cases.
[SNIP]
The accused knew that there was a person behind the toilet door and chose to use a firearm which was a legal weapon. He was competent in the use of firearms as he had undergone some training.
I now revert to the relevant questions.
First: Would a reasonable person in the same circumstances as the accused, have foreseen the reasonable possibility that, if he fired four shots at the door of the toilet, whoever was behind the door, might be struck by a bullet and die as a result?
The second question is: Would a reasonable person have taken steps to guard against that possibility?
The answer to both questions is yes.
The last question is: Did the accused fail to take steps which he should reasonably have taken to guard against the consequence?
Again the answer is, yes. He failed to take any step to avoid the resultant death I am of the view that the accused acted too hastily and used excessive force. In the circumstances it is clear that his conduct was negligent.
Later in her recap, Masipa appears to forget about PPD and speaks instead to the issue of foreseeability.
Count 1: In respect of count 1 the allegation was that the accused and the deceased had an argument. That the deceased ran and locked herself in the toilet and that the accused followed her there, and fired shots at her through the locked door. Three shots struck her and she died as a result.
Evidence led by the state in respect of this count was purely circumstantial. It was not strong circumstantial evidence. More over the evidence of various witnesses who gave evidence on what they heard, in what sequence and when, proved to be unreliable.
The accused denied the allegations. Notwithstanding that he was an unimpressive witness, the accused gave a version which could reasonably possibly be true. In criminal law that is all that is required for an acquittal as the onus to prove the guilt of an accused, beyond reasonable doubt, rests with the state throughout.
The version of the accused was that he fired shots at the toilet door, because he thought there was an intruder inside the toilet. The sequence of events namely the shots, the screams, the shouts of help, the sound of a cricket bat striking against the toilet door, the calls made by various witnesses to security to report screams and or shots, are more in line with the version of the accused.
Although it is not necessary for the state to prove motive, there is no basis on which this court could make inferences of why the accused would want to kill the deceased. In addition there is objective evidence in the form of phone records. This too supports the version of the accused. Furthermore the conduct of the accused shortly after the incident, was inconsistent with the conduct of someone who had intention to commit murder. He acted promptly in seeking help soon after the incident. He shouted for help. He called a friend, Stander. He called 911. He called security, although he could not speak as he was crying. He prayed to God to save the deceased’s life. He was seen trying to resuscitate the deceased and he pleaded with Dr Stipp to help and he was distraught.
From the above it cannot 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. Therefore he could not be found guilty of murder dolus directus.
Note that Masipa concentrates here on foreseeability.
This court has already found that the accused cannot be guilty of murder dolus eventualis either, on the basis that from his belief and his conduct, it could not be said that he foresaw that either the deceased or anyone else, for that matter, might be killed when he fired the shots at the toilet door. It also cannot be said that he accepted that possibility into the bargain.
I might just add that in respect of the first leg of the test in dolus eventualis, Burchell & Hunt: General Principles of Criminal Law, states the following on page 371 :
“The courts have warned against any tendency to draw the inference of subjective foresight too easily.”
For example in S v Bradshaw, 1977 (1) PH860 (A) Wessels JA stated :
“The court should guard against proceeding too readily from ‘ought to have foreseen’ to ‘must have foreseen’ and thence to ‘by necessary inference in fact foresaw’ the possible consequences of the conduct being enquired into. The several thought processes attributed to an accused must be established beyond any reasonable doubt. Having due regard to the particular circumstances which attended the conduct being enquired into.”
In S v Sigwatla, 1967 (4) SA 566 (A) Holmes JA expressed the degree of proof in the following terms:
“Subjective foresight like any other factual issue, may be proved by inference to constitute proof beyond reasonable doubt. The inference must be the only one which can reasonably be drawn. It cannot be so drawn if there is a reasonable possibility that subjectively the accused did not foresee, even if he ought reasonably to have done so and even if he probably did do so.”
It would appear that Masipa dismissed dolus eventualis because of a blend of two reasons.
1. Putative private defense:
“It follows that the accused’s erroneous belief that his life was in danger excludes dolus. The accused therefore cannot be found guilty of murder dolus eventualis.”
2. Lack of foreseeability and reconciliation:
“This court has already found that the accused cannot be guilty of murder dolus eventualis either, on the basis that from his belief and his conduct, it could not be said that he foresaw that either the deceased or anyone else, for that matter, might be killed when he fired the shots at the toilet door. It also cannot be said that he accepted that possibility into the bargain.”
Why did Masipa not believe that OP had the foresight to know that firing at the door carried with it the possibility of killing whoever was behind the door and reconciling himself to the possibility fired anyway?
I can see no other reason than the fact that OP said so.
“The accused stated that he never thought of the possibility that he could kill people in the toilet.”
There is unquestionably reversible error in her judgement, in my opinion, and I can only hope that any appeal court review would be as harsh as possible in their criticism of her verdict.
I am especially baffled by the extraordinary weight given to OP’s word by Masipa considering the extraordinary amount of discrepancies and problems with his story.
Masipa was clear that OP failed the “reasonable man” test, I think it’s also clear that Masipa failed the “reasonable judge” test.
Link to verdict transcript:
https://juror13lw.files.wordpress.com/2014/09/pistorius-trial-judgement.pdf
Link to closing arguments by Nel (media copy)
http://www.enca.com/oscar-trial-states-heads-argument
Considering the state was going for Directus, I was amazed that the state didn't make more of the jeans below the bathroom window.
Reeva Steenkamp was shot dead in the toilet, several metres directly above where they lay. I believe that she didn't have her phone and they were dropped, unbeknownst to Pistorius, as a last ditch effort to raise an alarm of some kind.
Annoying that Pistorius wasn't pressed on it. It would have been interesting to hear his explanation.
vansleuths
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Thanks PrimeSuspect.
Who sends the results to the NPA, is it change.org or is it the person who started the petition along with anyone else that is so inclined to do so?
Agreed. Not to mention evidence and experts stating there would be very likely be screaming after first shot and a delay and redirection of the subsequent three shots. The evidence speaks for itself. Only people who are beginner websleuthers would get sucked into the red herrings.
Maybe he shot first time out of anger or scared her but then the screaming (remember this screaming is not normal screaming is having a bullet inside u screaming) started and he really want the screaming to stop. We already had precedents that he uses his gun as a way to solve things.
JudgeJudi
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I agree with you Colonel with one exception.
When the verdict was handed down I was shocked. My initial reaction was how could Masipa get it so wrong. I thought it must have been that the assessors had overruled her on the question of facts and that to redeem this shed hand down the harshest sentence available. Once I simmered down a bit I realized that a 15 year sentence meant nothing except to somehow satisfy ourselves that OP was being punished. This thinking was incorrect also for two reasons. First, and less importantly, hed only serve half that time, if that, and maybe none at all.
Logic and common sense then prevailed. I then came to the view that far more importantly, the sentence in fact means nothing in the overall scheme of things. Now Masipa has established case law that every Tom, Dick and Harry can use as a defence for murdering someone in their own home, not to mention the hovering silhouette scenario.
If we didnt know before the trial we certainly know now that South Africa is a country ravaged by rape and the murder of intimate partners. It has some of the worlds worst rates of violence against women, and the highest rate of women killed by an intimate partner. The fact that Reeva was becoming a well-known personality in her own right made this the perfect trial to show the world how far the South African justice system had progressed over the past 20 years since apartheid. It was hoped the trial would show how the justice system deals with cases of violence against women, how it metes out maximum punishment to the wrongdoer and how it would show zero tolerance for aggression, arrogance and disrespect for human life. It was for these reasons that the decision was made to televise it. This would have the additional benefit of showing the ordinary man in South Africa how the judicial system works.
What we are left with is an ill-prepared, very confusing judgment that has left so many legal experts confused and who are saying shes misinterpreted the law.
The most important thing to me is that this decision is thrown out on appeal.
Notwithstanding the above, I do care about the length of his sentence. If its not lengthy it will show that fame, celebrity, power, privilege and wealth can and do buy just about anything and that lying under oath, crying equating with innocence and discarding excellent expert testimony can all be thrown out the window when it suits.
I'll be devastated if there's no appeal.
PrimeSuspect
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This is going to sound odd, but after cynic's helpful recap above, I don't necessarily think that Masipa got it wrong on eventualis. I think the mistake was on directus.
We've been focusing on Masipa's silly argument that OP didn't necessarily intend to kill whoever was behind the door, and her mistake in suggesting that the identity of the person mattered. But, it seems like her argument on putative private defense is sound. IF -and it is a big if - you accept that OP thought there was an intruder in the house, even if you also think his actions were unreasonable, then culpable homicide becomes the correct verdict.
The problem lies in the original belief in OP's claims. I didn't even realize before that Reeva was DRESSED and had her cellphone in the toilet. That totally destroys OP's already unbelievable story - nobody does that to go to the bathroom in the middle of the night. This confirms the ear-witnesses belief that they heard two voices arguing, and confirms the evidence that suggested RS had eaten well after OP said they had gone to bed.
Honestly, I'm confused why a lot of the experts seem to suggest that he should have been convicted on DE, but that DD was a long-shot. Yes, some of the evidence might not have been as persuasive as Nel wanted the court to believe - but there was a lot of it that was. Focusing too much on whether or not every single ear-witness heard what they thought they heard at the precise second they heard it was a distraction from the overwhelming amount of evidence that OP's intruder story was entirely bogus.
We've been focusing on Masipa's silly argument that OP didn't necessarily intend to kill whoever was behind the door, and her mistake in suggesting that the identity of the person mattered. But, it seems like her argument on putative private defense is sound. IF -and it is a big if - you accept that OP thought there was an intruder in the house, even if you also think his actions were unreasonable, then culpable homicide becomes the correct verdict.
The problem lies in the original belief in OP's claims. I didn't even realize before that Reeva was DRESSED and had her cellphone in the toilet. That totally destroys OP's already unbelievable story - nobody does that to go to the bathroom in the middle of the night. This confirms the ear-witnesses belief that they heard two voices arguing, and confirms the evidence that suggested RS had eaten well after OP said they had gone to bed.
Honestly, I'm confused why a lot of the experts seem to suggest that he should have been convicted on DE, but that DD was a long-shot. Yes, some of the evidence might not have been as persuasive as Nel wanted the court to believe - but there was a lot of it that was. Focusing too much on whether or not every single ear-witness heard what they thought they heard at the precise second they heard it was a distraction from the overwhelming amount of evidence that OP's intruder story was entirely bogus.
PrimeSuspect
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RSBM
Excellent cynic, you've pretty much covered it. I wonder what Masipa would make of Casey Anthony and Jodi Arias?! Omg, I don't think I want to know, lol.
At end of the day, Masipa believed it because OP said so, you're so right!!
J Masipa said "Reeva died in very peculiar circumstances". How can she reconcile this with OP's story, for the life of me I can't fathom it. If she finds it so peculiar, maybe because it's a fabrication made up by OP!!
I believe the bbm part is a complete and utter lie. The door was locked yet he believed it was just about to be opened? He's just parroting Mdunge, who shot his wife as she opened the door of the bathroom. jmo :gaah:
P.S: love your quote.
Excellent cynic, you've pretty much covered it. I wonder what Masipa would make of Casey Anthony and Jodi Arias?! Omg, I don't think I want to know, lol.
At end of the day, Masipa believed it because OP said so, you're so right!!
J Masipa said "Reeva died in very peculiar circumstances". How can she reconcile this with OP's story, for the life of me I can't fathom it. If she finds it so peculiar, maybe because it's a fabrication made up by OP!!
I believe the bbm part is a complete and utter lie. The door was locked yet he believed it was just about to be opened? He's just parroting Mdunge, who shot his wife as she opened the door of the bathroom. jmo :gaah:
P.S: love your quote.
AlwaysShocked
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"Corruption or incompetence"
It could be a combination of both.
It could be a combination of both.
ColonelMustard
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@soozieqtips (Somehow it won't reply with your quote.)
I'm SO sorry to hear that your mother was murdered.
Your mother... Oh, my...
I can't imagine how hard that would be.
You said that it was many years go but, no matter,
I'm holding you gently in my heart.
I'm SO sorry to hear that your mother was murdered.
Your mother... Oh, my...
I can't imagine how hard that would be.
You said that it was many years go but, no matter,
I'm holding you gently in my heart.
D
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bbm
... and if they had taken not only the time of murder/shots but the time before and after until Reeva ended laying downstairs on the main floor, ...
ColonelMustard
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D
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I would guess: Reeva tried to dress herself with those jeans (belt already through the loops) but OP rushed along and she had to save inside the toilet. He full of fury then threw the jeans out of the bathroom window.
Sherbert
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Agreed and, (arguably), it would also be directus if he'd wanted to kill an intruder unlawfully, using unreasonable force.
yes, I was making an important point of substance. Somebody else was using the fancy legal term 'dolus directus', and I was honestly just trying to help the community understand what it really means.
'dolus directus' and 'dolus eventualis' are different types of intent, applied to the same crime, any crime. Both types of intent can make you responsible for the crime, and that's why on any charge we may need to consider both.
dolus directus = direct intention = wanted to do X
dolus eventualis = legal intention = did not want to do X, but foresaw chance of X, accepted it anyway and proceeded*
The crime of murder is the intentional unlawful killing of a human body in space and time, whoever you thought that person may have been. If it turned out to be someone different, it is still murder.** This applies to both types of intent, directus and eventualis.
* This might have a fancy legal term 'dolus eventualis' but common sense and morality usually agree, for instance in the crime of murder, just because your aim was to blow their legs off but let them live should not prevent it from being murder if you knew the risk you were taking.
** This might have a fancy legal term 'error in persona', but common sense and morality also agree that this must still be murder. One of the most terrible and heavily sentenced murders in recent times in the UK was where contract killers got the wrong house and person. Just because they never imagined it may be someone else and would never have killed the victim if they had, doesn't stop it being murder with direct intention.
Sherbert
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It was an important point of substance - and one that I'd failed to pick up from any of the numerous articles I'd looked at.
If Judge Masipa had found that OP had disqualified himself from PPD by using unreasonable force, and that he must have known that he would kill the intruder, do you think we'd be looking at dolus directus, even if she also found that it was reasonably possibly true that he feared for his life?
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