Discussion Thread #60 - 14.9.12 ~ the appeal~

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For those interested in what OP's phone usage data might show us, I am considering whether or not OP might have tethered his iPhone to his iPad 3, such that all data usage on his iPhone used his (potentially higher) iPad data allowance when the two devices were within range of each other. This is technically possible and relatively easy to set up. It would explain the missing GPRS for the period of the cousin Binge WhatsApp exchange (20:10-20:25). However it would also have other consequences on how the phone usage data is interpreted and I'm not sure whether this set up can realistically fit with the GPRS usage profile we have for 0020. Obviously tethering to an iPad hotspot won't work when the iPad is switched off or the iPhone is out of range (this latter point adding a possible movement dimension). I welcome views (the police should already know the answer to this question).

As an aside, note that most calls made on the iPhones either end on 2G, or are switched to 2G immediately after they end, before then re-establishing a 3G connection. Switching voice calls to 2G was not uncommon according my research.

Links to the relevant resources may be found in my post #5 (Phone usage charts now include an iPad usage tab)
 
James Grant ‏@CriminalLawZA 3h3 hours ago
In the absence of an appeal against sentence, if SCA finds murder, the case has to be sent back to High Court for new sentence. 1/
James Grant ‏@CriminalLawZA 3h3 hours ago
But if appeal against sentence is allowed & pending, & SCA finds murder was committed, it can impose new sentence. 2/2

In the first case, does this mean Masipa decides the sentence?

That's why Masipa denied the leave for appeal for the sentence..the SCA wouldn't be able to impose a new sentence ..it will still be up to her..this is ridiculous!

Nel should go to SCA to appeal the sentence.
 
Surely he cannot a escape murder conviction after a bench of judges look over the case? Surely they cannot accept his version..
 
I am not sure if Nel will win the appeal or not. Many legal experts seem to think it won't be reversed. But the one 'rainbow' in all of this is that OP cannot just rest, relax and do his 10 months. No, he has to be worried and upset that he might do 10 more years. And that makes me happy.
 
Surely he cannot a escape murder conviction after a bench of judges look over the case? Surely they cannot accept his version..
If there are just three judges, that's one for each of OP's versions!
 
This is the final version. There are a couple of new entries, amendments and additional information. The Van der Burgh/Batchelor incidents have been changed yet again after much checking.

Feb 14, 2006 - Nodded off at the wheel after setting off for Vicky Miles’ house, 400 miles from his, at 3am after they had a blistering row. One side of the vehicle was completely destroyed.

2008 - At the pre-games training camp for the Beijing Paralympics he phoned David O’Sullivan and raged about what he perceived to be an inadequate training kit. His fury caught O’Sullivan by surprise. OP “knew he couldn’t be ignored and his anger would ensure his demands were met”.

2008 – OP’s ex-stylist, Francois Louw, witnessed a terrifying temper tantrum whilst they worked together to create a fragrance. When there was an issue when delivering the finished products, OP screamed, swore, kicked the garage door, went inside and screamed even louder, swearing constantly. He also threatened Louw’s family.

Sept 12, 2009 - Cassidy Taylor-Memmory charged OP with assault when he punched a door so hard a piece broke and fell on her leg following an argument with his then girlfriend, Melissa Rom.

Feb 21, 2009 – Crashed his boat into a relatively new pier on the Vaal River which shattered his face and nearly cost him his life. He lied when he said that 1) the pier was submerged; 2) it happened at sunset (it was after 10pm); 3) he hadn’t been drinking (he was seen drinking in a river pub and 3 empty bottles of liquor were found on his boat. He was never breath tested).

A further individual had an altercation with OP on the river that same evening which occurred “long” after sunset but before the boating accident took place.

Sept 6, 2011 - Stormed out of a BBC radio interview after taking exception to a question about his fight to take part in non-disabled athletics.

Oct 2011 – At a Kings of Leon concert he was very drunk and stumbled into a group of people. Later, two women were practically shoved off their feet by an aggressive OP. One told him his behaviour was rude and unacceptable. He was extremely abusive to the two women, calling them “*advertiser censored**ing lesbians”. One of the women said “What is your problem?” to which he replied, “I’m drunk, what’s yours?”

June/July, 2012 - Attends shooting range with friends, including Francois Hougaard, and fires at a watermelon which explodes. He says,” It’s a lot softer than brain, but *advertiser censored**, it feels like a zombie stopper.”

July/Aug 2012 - Temper tantrum at London Paralympics when he loses a race to Brazilian, Alan Oliveira whom he wrongly accuses of using illegal blades. Following his outburst on the track he was taken to an underground room where he went on a 2 hour rampage, shouting, screaming, crying, hitting tables, kicking walls and throwing furniture around. Each time Paralympic chiefs went into the room to try and calm him down they saw a fresh escalation of his hysterical reaction.

Room-mate, Arnu Fourie changes rooms to get away from OP’s constant screaming on the phone.

Sept 2012 - Enraged by jealousy, confronts and swears at Quinton van der Burgh at the Kyalami racetrack about his relationship with Sam Taylor. He said he would break his legs and *advertiser censored** him up.

Sept 2012 - Started sending threatening SMSes to Van der Burgh.

Sept 30, 2012 - Shoots through the sunroof of a car.

Nov 2012 - Marc Batchelor, a friend of van der Burgh got involved and he and OP exchanged threatening SMSes. Threatened to break Marc Batchelor’s legs.

Nov 2012 – Divaris arranged a meeting with the Hawks to settle the dispute. Batchelor said OP turned up with a black eye and stitches in his head because he had been involved in a fight at a party the night before. Schultz said, “He was so pissed he fell and cut his head. He was dancing with his gun”.

Jan 2013 - Tasha’s shooting incident

Jan 2013 – Turned up for filming at “It Gets Better” gay and lesbian youth campaign with a very angry looking black eye

Feb 2013 - Shoots and kills Reeva

Apr 2013 - 52 days after killing Reeva he turned up, uninvited, at a private party in Illovo, Joburg, hosted by a businessman. Guests said he was drunk, knocking back one drink after the other, including tequila shots. He hit on Kesiah Frank, a beautiful blonde model who holds a law degree. He asked her to dance and flirted with her repeatedly until she made it clear she was not interested.

Apr 6, 2013 - Out partying with friends at the Kitchen Bar restaurant, throwing back shooters and patted a friend’s girlfriend on the bottom. Patrons were shocked and thought it horribly insensitive to go out for drinks with friends so soon after Reeva's death.

After leaving the Kitchen Bar he went across the road to the Buddha Ta cocktail lounge accompanied by Craig Lipschitz who was involved in a vicious brawl with former bouncer, Guil Yahav. Lipschitz is always accompanied by 4 bodyguards. Yahav was implicated in the vicious murder of another bouncer, Patrick Caetano who was hacked to death with a butcher’s knife at the Kyalami Business Park and was caught on CCTV.

July 2014 – OP attended The VIP Room nightclub with Guil Yahav. He was intoxicated and got involved in an argument with Jared Mortimer. The club’s bouncers were asked to remove him after he then got into a confrontation with another man.


Miscellaneous:

2002 - At 15 he was allowed to drive Carl’s car illegally around Pretoria

2004 - Bought his first car when he was 17, too young for a driver’s licence

Mothers had to remove their children from the gym because of his continual swearing. He was known to rant and rave as he struggled to complete the simplest of routines, would stalk out in a fury, returning only when his anger had expired.

His biographer Gianni Merlo said, "He could get very furious suddenly"
 
No.

Masipa held he did not intend to kill the person in the toilet.

We are dealing with the question as to whether the possibility was foreseen.

I don't think that's correct. If I understand correctly, Nel argued that Masipa's findings were questions of law, as they were interpretations of fact, not actual facts. Fact would be OP shot and killed Reeva, etc, so they can find a different intent., and reject oscar's story.

If I also understand correctly, IF a judge accepts Oscars story then dolus eventualis becomes irrelevant, as putative self defence allows for intent to kill. Masipa just confused the issue by considering it. If you accept OP's version he cannot be done for murder under any circumstances because he had no intent to unlawfully kill, the only option is CH.
 
@Judgejudi, the scary part is those incidents are only what we know about. You can bet there were many more that were kept hush hush, I'm sure there are some that even his family may not know about.
 
Karyn Maughan ‏@karynmaughan 19s19 seconds ago
Webber statement in response to story in The Times, quoting unnamed prisoner saying he witnessed Oscar "throw a wobbly" after appeal ruling

Karyn Maughan ‏@karynmaughan 2m2 minutes ago
Webber: accordingly, (the 'Oscar throws wobbly') story is simply untrue @eNCAnews

Karyn Maughan ‏@karynmaughan 3m3 minutes ago
Webber: (that meeting with Oscar at 10:45) was the first time received information about what had transpired in court @eNCAnews

Karyn Maughan ‏@karynmaughan 4m4 minutes ago
Lawyer Brian Webber: I personally went to see Oscar straight after Judge Masipa gave her ruling and discussed at length with Oscar at 10h45

Karyn Maughan ‏@karynmaughan 6m6 minutes ago
#OscarPistorius lawyer dismisses as "simply untrue" story that OP "threw a wobbly" after hearing Masipa appeal ruling on radio. @eNCAnews
 
No.

Masipa held he did not intend to kill the person in the toilet.

We are dealing with the question as to whether the possibility was foreseen.

I'm pretty sure that Masipa inferred from the evidence that OP did not foresee the possibility of killing the person behind the door. Should have, but didn't.

If I understand correctly, the question to be decided is whether or not she was entitled to draw such an inference. Did she incorrectly consider the circumstantial evidence 'piecemeal', rather than weigh all the 'feathers' together?

In other words, the State is attempting to challenge her decision-making method, rather than the findings of fact themselves. If the method was wrong, this could open the door for the Appeal Court to re-visit her rather bizarre findings of fact. At least, that is my rather hopeful opinion.
 
Really?

"By the time I’m 50, I hope to be married with a family, dog and white picket fence around my house. Owning a restaurant is a dream. I love food and working with people."

"... a dog". I bet it won't be another silent, playful pit bull. Next time it will be a snarling, highly trained guard dog with a propensity to go for the throat.

"... a white picket fence around my house". I think maybe a 20' high brick wall, barbed wire and broken glass on top of it, electronic sensors, and a moat filled with crocodiles might be more the go. If he can't legally own guns, what will he use to protect himself while at home?

"... working with people"? I'm unaware of him ever having worked with people. Maybe he'll get work experience in prison.

http://fandaily.info/celebrity-coup...ar-pistorius-girlfriend-or-is-it-vicky-miles/
 
Aimee's latest tweet. Surely she could have found something more appropriate bearing in mind OP's current position.

Nel, the prosecution team, including Prof Grant, and all of us who have no doubt of his guilt could take this as our own now that the appeal is going ahead.
 

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NPA spokesperson Nathi Mncube explained what would happen if the SCA were to uphold the state’s appeal.

“Automatically, once a person has been convicted of murder, the court would then have to consider an appropriate sentence,” he said. “Our argument is that an appropriate sentence for murder can definitely not be the sentence that has been imposed here. So it would have to be a minimum sentence, in terms of the Minimum Sentence Act, which is 15 years’ imprisonment.”

He said the NPA couldn’t speculate on the timeline that would be involved, but as the SCA doesn’t sit all year round, and the amount of paperwork and preparation that will be required render it’s unlikely that the appeal will be heard for the best part of 2015.

http://www.dailymaverick.co.za/arti...ould-yet-be-convicted-of-murder/#.VIsIlyxxnBw
 
I don't think that's correct. If I understand correctly, Nel argued that Masipa's findings were questions of law, as they were interpretations of fact, not actual facts. Fact would be OP shot and killed Reeva, etc, so they can find a different intent., and reject oscar's story.

If I also understand correctly, IF a judge accepts Oscars story then dolus eventualis becomes irrelevant, as putative self defence allows for intent to kill. Masipa just confused the issue by considering it. If you accept OP's version he cannot be done for murder under any circumstances because he had no intent to unlawfully kill, the only option is CH.

Without hashing through it all over again - Dolus Directus related to the state's allegation that OP intentionally and knowingly murdered Reeva

That is off the table permanently.

Eventualis is in play, with multiple errors of law alleged.

e.g. the Judge asked the wrong question
e.g. the Judge mishandled the circumstantial evidence
e.g. the Judge indicated the identity of the deceased mattered

Inferences from facts (e.g. subjective belief) are facts - not questions of law.

I realise it gets complex but the legal questions are to do with whether the judge applied the wrong legal tests to the facts, or asked the wrong questions, or used the wrong analysis.

I agree with what you say about Putative Private Defence.

If PDD applies, it cannot be murder

However the problem is the Judge held that OP had other options he should have objectively taken - therefore logically the test for Private Defence is not met, even on the facts as OP believed them to be.

This was Grants point. It should be murder at that stage as legal intent via DE is self evident.

The other point is that OP stated he had no intention to fire, let alone to shoot the "intruder"

Masipa held against him - he did intend to shoot the intruder - and thus the risk of death should fall naturally out of that.

In any event - Directus is not an available verdict any more.

Only murder via DE
 
Ok thanks. I think I understand it now. The relationship between all the different legal issues are confusing.
 
Now would seem to be an opportune time to resurrect Pandax's excellent post of 18 August 2014...

08-18-2014, 11:36 AM #554 pandax81 pandax81 is offline
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What do dolus directus and dolus eventualis mean when applied to OP’s case?

I see misinformation and misconception has spread on this, so I thought it may be helpful to set the record straight in my rough, layman's language before judgement and sentencing proceedings.

They are both types of intent, intent being a necessary component for murder. In SA law, they are both assessed subjectively - i.e. what was in the accused’s mind - not what he should have thought, but what he did actually think.

Dolus directus - the accused wanted to unlawfully kill a human being behind the door

Dolus eventualis - the accused did not want to, but foresaw the possibility that he would, unlawfully kill a human being behind the door

The identity of the human being behind the door is not directly relevant.* If he thought it was an intruder, or if he thought it was Reeva, and whoever it may have turned out to be, all forms of intent, and even pre-meditation are possible. (I have seen it repeated a few times from various sources that dolus directus means he knew it was Reeva, and dolus eventualis means he thought it was an intruder - this isn't the case).

Imagine he knew it was Reeva. If he wanted to kill her then it is dolus directus. If he wanted to seriously injure her, but foresaw that he may end up killing her, then it is dolus eventualis.

Imagine he thought it was an intruder and he did not believe he was under attack. If he wanted to kill the intruder, e.g. because he thought intruders deserve it, then it is dolus directus. If he wanted to incapacitate the intruder, e.g. so he couldn't escape before the police arrived, but foresaw that he may kill him, then it is dolus eventualis. The fact it turned out to be Reeva does not change it being murder directus or murder eventualis.

Imagine he thought it was an intruder and that he thought the door was opening to launch a deadly attack - a case of putative self defence. If he wanted to kill him then it is not murder because the intention was to lawfully kill, not unlawfully kill. If he wanted to incapacitate him or ward him off, but foresaw that he may kill him, then this too is not murder as the foreseen possibility was of a lawful killing not an unlawful killing. If however, he foresaw the possibility that the door was not opening to launch an attack or he foresaw the possibility that it may be Reeva, then that means he foresaw the possibility he would be killing the human being behind the door unlawfully rather than lawfully, and then that would be murder eventualis. In other words, putative self defence works as a complete defence against murder by virtue of excluding intent to kill unlawfully, and this means excluding any foresight that you may not be under actual attack or that it may be someone innocent.

*The defence do argue against this, but every legal expert I have seen commenting on the trial in SA has flatly rejected this and common sense rejects it too.
Last edited by pandax81; 08-18-2014 at 01:09 PM.
 
Yes pandax81 posts great stuff.

What I would comment is that the identity of the human may not matter technically - but it matters in terms of the practicalities of legal proof.

If the Court had accepted he knew Reeva was behind the door, then practically OP would have an impossible job to convince the Court that he didn't intend directly to kill her. Why else shoot her?

When the Court accepts the intruder version then OP can have legitimate direct intentions of self defence, so the easiest standard the state can meet is DE. They don't need to prove more.

I agree in theory you can say OP intentionally wanted to kill the intruder - but I think the state was nowhere close to proving that and Masipa's findings rule it out now.

In any event - the question should have been was it lawful.
 
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