Discussion Thread #60 - 14.9.12 ~ the appeal~

[Colin de France]

Another illogical declaration from OP is after having shot the "intruder" he went back to the bedroom, how did he know that the intruder was no longer a threat, woudn't it have been the moment to shout to RS "i've shot him it's ok" or something like that and stay there without moving until help arrived, why did he leave the bathroom without being sure that it's safe to do so ?

 

[AJ_DS]

Plus she also seems to have disregarded the evidence of one of the defence witnesses (!) that Pistorius, shouting or wailing out loud, sounded like a MAN.

What I find unbelievable (besides OP's version of events and Masipa's verdict) is the SA Justice system :

1. The presiding Judge can misunderstand, ignore or even fabricate out of thin air facts, evidence, factual findings and neither the State nor the Defence can appeal a verdict based on erroneous facts… so Masipa could have decreed that Reeva shot herself four times with OP's gun and no one could do anything about it according to SA Law !!

2. The only allowance for an appeal is an error in Law… but the Law is NEVER applied in a vacuum, it is ALWAYS applied to facts, therefore an error in facts will invariably lead to an error in Law… but a verdict based on an error in Law resulting from an error in facts cannot be appealed ?!?

3. Finally, the party who wishes to contest a verdict must petition the Judge who made said contested verdict for permission to appeal… basically, you must convince the mistaken Judge that it is likely they made a mistake and that another Judge would not !!

 

[AJ_DS]

Another illogical declaration from OP is after having shot the "intruder" he went back to the bedroom, how did he know that the intruder was no longer a threat, woudn't it have been the moment to shout to RS "i've shot him it's ok" or something like that and stay there without moving until help arrived, why did he leave the bathroom without being sure that it's safe to do so ?

Very true… this has been discussed at length some time ago

- OP stated that he proceeded to the bathroom to protect Reeva… ergo, in his mind, being in bedroom whilst intruders were in the bathroom was more dangerous than proceeding to the bathroom to confront intruders.

- OP stated that he was sure that an intruder was in toilet because he heard the toilet door slam shut.

- OP stated that he was sure an intruder had climbed up a ladder and entered the bathroom through the window because he heard the bathroom window slam open and the toilet door slam shut.

- OP stated that he kept shifting his attention between the window and the door because other intruders could be on the ladder.

- OP stated that he shot 4 times at the door after he heard "wood moving".

… but according to OP himself :

- he did not know if he killed or even wounded the intruder in the toilet.

- he did not know if more intruders were outside and proceeding up the ladder to the bathroom.

… basically, the circumstances were exactly the same as when he first heard the window open BUT, for no apparent reason and no explanation, now it is safer to retreat out of the bathroom and take refuge in the bedroom ?!?

 

[Colin de France]

Thanks for that. It just dosn't make sense and it dosn't feel right. Another example being how lucky for him the ladders were there ? Just when an excuse is needed one comes along .......

 

[Cherwell]

It doesn't matter whether there were ladders there or not. There were no intruders. Pistorius just needed to persuade the judge that he thought there were, and it follows that he could have "thought" there were ladders left outside as well - whether there were or not.

It's my belief that the whole intruder story was fabricated, of course.

 

[luvmygarden]

Thanks for that. It just dosn't make sense and it dosn't feel right. Another example being how lucky for him the ladders were there ? Just when an excuse is needed one comes along .......

My initial thought is Frank could have been told in haste to put a ladder by the bathroom window. Whoops did he go to the wrong window? OP was calling for personal help before he called for real help. Sorry I think OP LIES about everything whether he needs to or not. Sunroof, gun in Restaurant, ETC. his fear of everything at his convenience. Yet his family holds him up to be so determined and fearless.

 

[mrjitty]

What I find unbelievable (besides OP's version of events and Masipa's verdict) is the SA Justice system :

1. The presiding Judge can misunderstand, ignore or even fabricate out of thin air facts, evidence, factual findings and neither the State nor the Defence can appeal a verdict based on erroneous facts… so Masipa could have decreed that Reeva shot herself four times with OP's gun and no one could do anything about it according to SA Law !!

I don't know the law in SA but in the legal systems I am more familiar with, there are safeguards to the effect that the fact finder normally cannot reach an unreasonable finding not available on the evidence.

This becomes a procedural type error that can be appealed.

 

[mrjitty]

Entertaining the idea that Nel could possibly make OP "crack" under cross-examination is far-fetched to say the least, IMO.

+1

He did his job - which was to show the whole story was lies.

Unfortunately someone didn't do their job.

 

[mrjitty]

Thanks Lux! Regarding Directus, here's a trip down memory lane. Cringe.

'Significantly Ms Burger refused to concede that she could have missed hearing the first sounds – that is the shots – as she might have been asleep at the time and that what she heard was a cricket bat striking against the toilet door. The evidence of this witness as well as that of her husband, Mr Johnson, who sought to corroborate her evidence, was correctly criticised in my view as unreliable'.

I'm thinking that, as the trial was recorded, this has to place the Supreme Court judges in a more advantageous position than usual regarding findings of fact. With this in mind, I'm hoping - against all the odds - that they'll defy convention and bravely state that a thorough examination of the recorded evidence leaves them in some doubt as to the correctness of the trial court's factual findings.

This is what we're up against:

'In the absence of demonstrable and material misdirection by the trial court, its findings of fact are presumed to be correct and will only be disregarded if the recorded evidence shows them to be clearly wrong (Sv Hadebe and Others 1997 (2) SACR 641 (SCA) at 645e-f). This, in my view, is certainly not a
case in which a thorough reading of the record leaves me in any doubt as to the correctness of the trial court's factual findings. Bearing in mind the advantage that a trial court has of seeing,hearing and appraising a witness, it is only in exceptional cases that this court will be entitled to interfere with a trial court's evaluation of oral testimony...'

http://www.saflii.org/za/cases/ZASCA/2012/75.pdf

While I agree it would be a great development - I think an Appeal Court can simply take the more direct route.

Namely to find that the Judge did not apply the test for PDD correctly, and that PDD can not apply.

At this point OP is guilty of murdering his girlfriend in cold blood, and it would certainly not be unheard of for a Court then to simply ignore the rest of Masipa's nonsense (now immaterial) and outline the requirement for a stuff sentence from the sentencing Court based on the shocking conduct of the accused (assuming the SC cannot sentence itself).

I do also hope that the Prosecution is successful in its submissions relating to the handling of circumstantial evidence

 

[jay-jay]

It doesn't matter whether there were ladders there or not. There were no intruders. Pistorius just needed to persuade the judge that he thought there were, and it follows that he could have "thought" there were ladders left outside as well - whether there were or not.

It's my belief that the whole intruder story was fabricated, of course.

BBM .. yes, absolutely. I did think at one time that it was damned lucky for OP that the ladders were there, but actually it doesn't matter whether they were or they weren't because all he had to do was 'think' they were there (or somewhere accessible by his perceived intruder). This is the thing with people like him, it doesn't matter what crops up, they will always have an answer or an excuse or some way of explaining something away.

 

[mrjitty]

i've been watching a whole bunch of programmes on the id channel the past few weeks, and i think we should all club together to enable judge masipa to have cable tv so that she can watch them too .. She would be amazed by how some of these killers (mainly partner homicide, but also sometimes family/children, etc) lie .. And their made up stories more often than not include (faked) hijacking of a car they were in (does that ring any bells with anyone re. Another recent case in sa?), intruders/burglars, 'accidents', or 'abductions' (that one rings some bells with another case, too). Those seem to be the main fabrications that killers will come up with, they really are the oldest ones in the book and i think that anyone citing that as a reason why a partner or a child, or a parent, has been killed need to be treated with the utmost suspicion and 'no stone left unturned' in collecting all the evidence together in order to bring that person to justice. They seem to be rather backward in sa in realising this, where the us and uk police agencies are not quite so easily fooled.

lmao!

 

[mrjitty]

BBM .. yes, absolutely. I did think at one time that it was damned lucky for OP that the ladders were there, but actually it doesn't matter whether they were or they weren't because all he had to do was 'think' they were there (or somewhere accessible by his perceived intruder). This is the thing with people like him, it doesn't matter what crops up, they will always have an answer or an excuse or some way of explaining something away.

I personally believe he had thought this scenario through in advance.

Perhaps in the abstract - as a fantasy - and then in the moments before the shooting.

He almost certainly knew of the previous cases.

 

[jay-jay]

I keep wondering what actually pushed him to grab his gun and kill her. One senario I was thinking about relates to the contract (Reeva's) that OP claims he went through that night. I was wondering if he was making changes that she was not happy about and this then sparked the argument.

In the book 'behind the door' it was stated that Reeva had been offered a role in the series 'strike back'. Her role was to play a topless waitress and that she had accepted this role. On the day of filming, just before filming, she left the set claiming that the nudity wouldn't be good for her as she was doing 'tropika' and the producers may not like it. The director claimed that Reeva knew all along that she had a partially nude role and was ok with it - they were shocked when she suddenly refused to it and left the production. It was suggested that OP had something to do with this ( from some of the messages between them ).

Perhaps he was arguing with her over similar things in this contract and forcing her to make changes. She may have been arguing back with him- an argument like this could go on for a long time and that is perhaps why they were delayed going to bed or why they hadn't eaten until late.

I find it strange that he was going through her contract. She really didn't need him to for the legal side of things. To me it seems more like he was trying to control what she was doing and this may have sparked a reaction from her (especially if he was the factor that caused her to walk out on her part in 'strike back').

Oscar's attempt of controlling her may have been building up and it may have been getting to Reeva - especially if she felt like it was affecting her career. ( which it was )

She may have been standing her ground this time and that's why the argument dragged out for hours and the neighbour heard a woman arguing in the early hours of the morning. Oscar doesn't seem the type to back off and maybe this time Reeva wasn't going to give in.

I could see that this type of thing could spark rage in him. If he didn't get his way.

It also mentions in the book that whilst she was at the Myers home, Oscar would call non-stop if they had an argument (he would ring Gina if Reeva didn't answer and Reeva would tell Gina to tell Oscar she was asleep). One time Reeva got off the phone with Oscar and was crying. She said to Gina Myers that she had never ever in her life been spoken to so rudely and disgustingly.

From the whatsapp messages you can see that Reeva is the type to express how she feels.

She may have done that that night and that's what caused him to lose his temper, throw things around, kick the bath plate in and damage it and then finally shoot her.

Just something I was thinking about.

.. just going back to this post .. whilst I think there may be something in that with regard to what they were arguing about (possibly those contracts of Reeva's) I don't really see how the contract was connected to her role in 'Strike Back' because how could she already been on the film set (which she apparently walked off the set .. and in that book even the reason for that seems to be contradictory .. one minute it is because she herself doesn't agree with it and hadn't expected it, and then the next they are saying it is because she was under pressure not to do it because of OP) .. so if she'd already been on the set, filming, and then walked off, then why would she be in the process of drawing up a contract for it .. she would've had the contract before any filming started, surely?

 

[AJ_DS]

It doesn't matter whether there were ladders there or not. There were no intruders. Pistorius just needed to persuade the judge that he thought there were, and it follows that he could have "thought" there were ladders left outside as well - whether there were or not.

It's my belief that the whole intruder story was fabricated, of course.

Indeed.

My guess is that OP shot Reeva in a fit of rage… a few seconds later he realized what he had done and the consequences that would soon follow.

The intruder story was his ONLY possible way to explain away what he had done.

Reeva was shot and killed on the second floor of his house in master bedroom's en suite bathroom… there is no way he could successfully stage the intruder story somewhere else in the house… therefore the bathroom window was the ONLY possible entry point for the alleged intruders.

OP opened the bathroom window (or it was already open) and that was enough to establish the alleged entry point… no one could ever establish when the bathroom window was opened : i.e. hours before the gunshots or moments before the gunshots or moments after the gunshots.

The ladders outside underneath his balcony were just a "bonus" that would garnish his fabricated story.

The alleged locked toilet door and the required breaking down of said door were necessary to camouflage the obvious domestic violence evidence in the bathroom.

The gun, found on the bathroom floor, was a problem that manifested itself much later when the reenactment was conducted :

- If the intruder story was true, OP would have left the gun in the bedroom when he realized Reeva was nowhere to be found… when he realized it must have been Reeva in the toilet, he would not have carried the gun around with him… The realization that there were never any intruders had to occur in the bedroom, therefore the self-defense fear dissipated in the bedroom BUT the gun was found in the bathroom… this is why the whole gun-toting story post-shooting is so ridiculous because he had to keep the gun with him long enough because of fear of intruders (until he determined it had to be Reeva in the toilet) AND make sure the gun ended up on the bathroom floor… On his version, one can picture OP running to the bathroom with the cricket bat in his left hand determined to break down the door to save Reeva's life AND the gun in his right hand for absolutely no reason other than the gun must end up in the bathroom.

- If the intruder story is fabricated, OP would have had no reason to carry the gun once he had shot Reeva… panic would have set in, time was of the essence, neighbors would have called the police, security would be arriving shortly… panicked and pressed for time, either OP could not think it would serve his fabricated story better to stage the gun in the bedroom OR he made a mistake thinking it would be better to stage it in the bathroom.

 

[AJ_DS]

I don't know the law in SA but in the legal systems I am more familiar with, there are safeguards to the effect that the fact finder normally cannot reach an unreasonable finding not available on the evidence.

This becomes a procedural type error that can be appealed.

I'm no attorney but this case has certainly blurred the lines…

Factual evidence : e.g. Reeva was a woman ; the door was shot 4 times…

...this evidence is hard to deny or contest.

Expert evidence : e.g. The distance/height/angle between OP and the door when he fired the shots ; the approximate time of the last meal prior to TOD…

...this evidence can be contested and the Judge can decide (apparently without much if any justification) whether she accepts it or not…. or simply ignore it altogether

Witness evidence : e.g. A woman screamed in life threatening terror moments prior to and as gunshots were fired…

...apparently this evidence too can be dismissed by the Judge without much if any justification.

Common sense evidence : e.g. The large fan cannot reach the front of the bed without the multi-plug moving forward AND the multi-plug will never retreat backwards when the fan is moved back… when pulling on a string, the string will uncoil and straighten following the direction of the pulling force… when pushing a string, the string will coil on itself perpendicular to the direction of the pushing force… either way the multi-plug could NEVER be in the position it was in if OP's story was true ; The small fan was not functioning because it was not plugged in anywhere because there were no available outlets…

…again this evidence can be ignored by the Judge without much if any justification.

Factual findings : e.g. OP did not intend to kill the person behind the toilet door ; Reeva was never heard screaming because she was already dead therefore all the screams had to come from OP...

…these factual findings can be made by the Judge by combining bits of evidence and ignoring others

Once the Judge has ruled on all these types of facts (except factual evidence perhaps), they cannot be challenged on appeal… How ludicrous is that !!!!!!!!

 

[AJ_DS]

+1

He did his job - which was to show the whole story was lies.

Unfortunately someone didn't do their job.

Indeed.

Worst, it was not just that someone did not do their job BUT instead that they had to work very hard not to do it… IMO

 

[jay-jay]

I personally believe he had thought this scenario through in advance.

Perhaps in the abstract - as a fantasy - and then in the moments before the shooting.

He almost certainly knew of the previous cases.

BBM .. I think so, too.

 

[Cherwell]

.. just going back to this post .. whilst I think there may be something in that with regard to what they were arguing about (possibly those contracts of Reeva's) I don't really see how the contract was connected to her role in 'Strike Back' because how could she already been on the film set (which she apparently walked off the set .. and in that book even the reason for that seems to be contradictory .. one minute it is because she herself doesn't agree with it and hadn't expected it, and then the next they are saying it is because she was under pressure not to do it because of OP) .. so if she'd already been on the set, filming, and then walked off, then why would she be in the process of drawing up a contract for it .. she would've had the contract before any filming started, surely?

I think the suggestion was that there may have been a row over a subsequent contract. The 'Strike Back' one being cited as an earlier example. (I'd never heard about that episode, btw.)

 

[Colin de France]

The ladders may of been on his mind due to the security risk before the killing, they may well be the basis of the intruder story, just a question of elaboration and filling the gaps for the rest. I don't know about the contract but i've always felt she ran to the toilet with his phone i'm just wondering if that was the case what could have been on there, was it wiped off later ?

 

[Sherbert]

While I agree it would be a great development - I think an Appeal Court can simply take the more direct route.

Namely to find that the Judge did not apply the test for PDD correctly, and that PDD can not apply.

At this point OP is guilty of murdering his girlfriend in cold blood, and it would certainly not be unheard of for a Court then to simply ignore the rest of Masipa's nonsense (now immaterial) and outline the requirement for a stuff sentence from the sentencing Court based on the shocking conduct of the accused (assuming the SC cannot sentence itself).

I do also hope that the Prosecution is successful in its submissions relating to the handling of circumstantial evidence

Yes, but, even if PPD is rejected on the grounds that OP's response was disproportionate, we remain likely to be stuck with murder of 'the intruder'. As I see it, the only way we will ever get to the intentional murder of Reeva is if Masipa's findings of fact in relation to the screams' evidence are ruled unreliable.

I realise that, after the CH verdict, many would be happy to settle for DE of the intruder, but this will still involve accepting OP's lie that it hadn't dawned on him that Reeva might be in the bathroom.