Discussion Thread #60 - 14.9.12 ~ the appeal~

[Jake18]

Let me explain more then. There is a separation between the decision to shoot and what came before it. The problem with putting everything together is that you in effect assign intent to shoot through the door retrospectively - as though he planned it all the second he picked up the gun. This is not the case. There are two parts to his actions and the questions about how reasonable his beliefs or bahviour were must depend on what he knew at the time or what he could foresee imo:

Before hearing the noise in the toilet:
- He thought there was probably an intruder(s) in the bathroom as Reeva was in bed (so he thought)
- He had the opportunity to escape or do something else at that point
- He only intended to shoot to defend if necessary
- He had the right to go investigate, armed, in own home as long as the weapon was only used in the event of being attacked.
- He gave the intruder(s) warning that he was coming so he gave them the chance to run away and so sought to avoid a confrontation.
- He didn’t know for sure that there was someone there at all times.

On hearing the noise in the toilet:
- He knew there was an intruder and where he was
- He believed he was hearing the door move (it could have just been Reeva leaning on the door to hear better – the magazine rack wasn’t the only possibility)
- He didn’t see the handle turn
- He was very close to the perceived danger so there was little time and potentially great danger
- He wouldn’t have had a chance in a fight and couldn’t run away on stumps
- Householders are permitted to shoot if they believe that an attack is imminent – they don’t have to wait for an attack.

That is the first step and then we can move on to asking whether what he did was reasonable in the light of the above I think. ie Was it reasonable to think he was under attack? etc

The mistake you're making, I think, is in your assertion that it is the State's role to somehow prove that Oscar's "terror" of the intruder isn't true. It's not, in cases such as this, where there's unlawful killing where it's undisputed who committed the crime the onus is on the accused to show why they feared for their life. That's why Oscar needed to take the stand. Not the other way round. After Oscar's interesting cross examination, Judge Greenland commented that, had he been presiding over the case, he'd have discounted his whole testimony. Yet based on your assertion that the State needs to prove what Oscar was or wasn't really thinking, at every step of the way, this would actually be advantageous.

Consequently, Oscar's state of mind at every single point of every single step isn't really the point anymore, and neither is his disability. Masipa did not find it relevant in her decision. I agree that what he foresaw is the most important question we've but left the wood moving, door handling palaver behind. The main question is : when a criminally responsible, experienced fire arms owner, with another method of escape, shoots four times into a closed door at a person who was unable to escape and then says it was an accident and he didn't mean to kill anyone, is this reasonable? If he didn't mean to kill anyone, what did he foresee? And if a Judge decides that this is negligent rather than murder is this reasonable?

 

[GR_Turner]

The mistake you're making, I think, is in your assertion that it is the State's role to somehow prove that Oscar's "terror" of the intruder isn't true. It's not, in cases such as this, where there's unlawful killing where it's undisputed who committed the crime the onus is on the accused to show why they feared for their life. That's why Oscar needed to take the stand. Not the other way round. After Oscar's interesting cross examination, Judge Greenland commented that, had he been presiding over the case, he'd have discounted his whole testimony. Yet based on your assertion that the State needs to prove what Oscar was or wasn't really thinking, at every step of the way, this would actually be advantageous.

Consequently, Oscar's state of mind at every single point of every single step isn't really the point anymore, and neither is his disability. Masipa did not find it relevant in her decision. I agree that what he foresaw is the most important question we've but left the wood moving, door handling palaver behind. The main question is : when a criminally responsible, experienced fire arms owner, with another method of escape, shoots four times into a closed door at a person who was unable to escape and then says it was an accident and he didn't mean to kill anyone, is this reasonable? If he didn't mean to kill anyone, what did he foresee? And if a Judge decides that this is negligent rather than murder is this reasonable?

The onus is always on the State even in PPD cases. It's true that Oscar had to produce a version that was reasonably possibly true and that explained his actions but that doesn't shift the burden of proof to him. You are confusing two things: the fact that without any defense there would be no basis for a court to conclude that he was acting in PPD as this is judged subjectively (and he is the only one who can testify to his state of mind at the time) versus a shifting away from the State to the defense to prove their case beyond reasonable doubt. You can see that the onus has not shifted because Oscar's version is accepted as long as it is reasonably possibly true - it does not have to be true beyond reasonable doubt.

Once Oscar has produced a reasonably possibly true account that the court accepts to explain why he needed to act as he did, then the court looks at his conduct in the light of that version. They look at it to see to what extent they can accept the aspects that are relevant to the alleged offence - as Judge Masipa did when she concluded that Oscar couldn't have had no intention to shoot when he picked up the gun - and make their judgement based on the elements of that account.

 

[Colin de France]

Shooting someone dead without a legal justification is murder. So clearly Judge Masipa meant to accept Oscar's defense - it must have been the PPD as she excludes the others. I expect the State will argue as you do that this couldn't be PPD because he had other options and overstepped the mark. Which brings me back to asking whether the decision to go towards the danger armed indicates an intention at that point to shoot 4 times through the door or whether that intention was only formed in the second before the shooting because he believed he was about to be attacked. If it is the latter, then he at that moment had no other options. And I am far from sure that the State proved that he knew he was overstepping the mark at the time of shooting. It is not enough to ask - should he have known - they need to prove he did know. A difficult distinction I acknowledge.

Judge Masipa accepted that he was an anxious kind of person and that he is more vulnerable than an able bodied person. I don't think the defense ever intended to claim diminished responsibility on the basis of anxiety. I think they have a problem with the fact that the law in SA doesn't make allowances for the effects of a disability and were searching for a legal framework into which they could fit it. It seems obvious that a double amputee on his stumps wouldn't stand a chance against even an unarmed attacker (no pun intended!) once the attacker got close (and he was around 2m away) and that his could explain his belief that firing multiple shots was necessary to defend himself.

How does it matter what the size of the toilet was or that someone inside wouldn't have any way to escape? This is a redundant argument left over from the assumption that he knew it was Reeva in there imo. He thought the 'intruder' was about to open the door and come out and that's why he fired. What would an intruder coming out towards him do on finding him there I wonder?

I'm not sure that the defense did say he didn't intend to kill anyone. That was Judge Masipa's conclusion based on the downward trajectory of the shots. I have no idea whether that is a factual fact or a challengable legal fact though!

He not only thought the intruder was coming out of the toilet but he had already shouted for the intruder to do just that ....so where exactly was the danger ?

 

[Colin de France]

The mistake you're making, I think, is in your assertion that it is the State's role to somehow prove that Oscar's "terror" of the intruder isn't true. It's not, in cases such as this, where there's unlawful killing where it's undisputed who committed the crime the onus is on the accused to show why they feared for their life. That's why Oscar needed to take the stand. Not the other way round. After Oscar's interesting cross examination, Judge Greenland commented that, had he been presiding over the case, he'd have discounted his whole testimony. Yet based on your assertion that the State needs to prove what Oscar was or wasn't really thinking, at every step of the way, this would actually be advantageous.

Consequently, Oscar's state of mind at every single point of every single step isn't really the point anymore, and neither is his disability. Masipa did not find it relevant in her decision. I agree that what he foresaw is the most important question we've but left the wood moving, door handling palaver behind. The main question is : when a criminally responsible, experienced fire arms owner, with another method of escape, shoots four times into a closed door at a person who was unable to escape and then says it was an accident and he didn't mean to kill anyone, is this reasonable? If he didn't mean to kill anyone, what did he foresee? And if a Judge decides that this is negligent rather than murder is this reasonable?

....exactly, he hasn't shown why he feared for his life, you're quite right in bringing attention to that...in fact there is no evidence from anywhere to suggest that he may of been at risk at all....even if there had been an intruder.

 

[Colin de France]

When OP heard noise coming from the bathroom he went towards the danger, when he heard noise coming from the toilet suggesting the danger was coming towards him, he fired, if he fired because the danger was coming towards him he woudn't of gone towards the bathroom in the first instance because it's exactly the same action but in reverse.....in other words it's an contradiction of action, it's ok for him to go towards the danger but the danger is not allowed to go towards him, or he has no fear of going towards the bathroom but then has fear that the toilet door is opening ....that is disturbing and incoherent.

 

[GR_Turner]

....exactly, he hasn't shown why he feared for his life, you're quite right in bringing attention to that...in fact there is no evidence from anywhere to suggest that he may of been at risk at all....

I think the logic is that if an intruder was coming out of the toilet then Oscar would be in danger. Is there any precedent for courts in SA agreeing that this is CH on the basis of PPD?

Yes - there have been other cases in which householders have shot through a door (or in a recent case a roof) and their plea that they acted because they believed they were in imminent danger was accepted. They also couldn't be sure that they would be attacked or even who was behind the door. In the case of the 'intruder' on the roof, the danger wasn't even in the house.

There could be a problem given that the door didn't open and he didn't see the handle turn. Though on the face of it he had much better reason to be worried than the person who shot through his roof (I know you must be careful with comparisons without all the facts however).

I really don't know how all this will be viewed.

 

[GR_Turner]

When OP heard noise coming from the bathroom he went towards the danger, when he he heard noise coming from the toilet suggesting the danger was coming towards him, he fired, if he fired because the danger was coming towards him he woudn't of gone towards the bathroom in the first instance because it's exactly the same action but in reverse.....in other words it's an contradiction of action, it's ok for him to go towards the danger but the danger is not allowed to go towards him ....that is disturbing and incoherent.

I can see why you think that. It does seem illogical. But remember that he was shouting at them to get out and he gave them time to get out so he was trying to avoid confrontation. But as he was in his own home he had the right to go investigate as far as I know, whereas the intruder had no right to be there and could have chosen to leave or if he couldn't for some reason he could have just stayed put in the toilet. Bear in mind also that cases like this have happened before (not identical but similar) - take the man who shot his pregnant wife through a door: he did exactly that - go towards the perceived danger, and that didn't stop him being convicted of CH not murder.

 

[Colin de France]

I can see why you think that. It does seem illogical. But remember that he was shouting at them to get out and he gave them time to get out so he was trying to avoid confrontation. But as he was in his own home he had the right to go investigate as far as I know, whereas the intruder had no right to be there and could have chosen to leave or if he couldn't for some reason he could have just stayed put in the toilet. Bear in mind also that cases like this have happened before (not identical but similar) - take the man who shot his pregnant wife through a door: he did exactly that - go towards the perceived danger, and that didn't stop him being convicted of CH not murder.

...if he was trying to avoid confrontation he wouldn't of gone down the corridor.

 

[Colin de France]

I think the logic is that if an intruder was coming out of the toilet then Oscar would be in danger. Is there any precedent for courts in SA agreeing that this is CH on the basis of PPD?

Yes - there have been other cases in which householders have shot through a door (or in a recent case a roof) and their plea that they acted because they believed they were in imminent danger was accepted. They also couldn't be sure that they would be attacked or even who was behind the door. In the case of the 'intruder' on the roof, the danger wasn't even in the house.

There could be a problem given that the door didn't open and he didn't see the handle turn. Though on the face of it he had much better reason to be worried than the person who shot through his roof (I know you must be careful with comparisons without all the facts however).

I really don't know how all this will be viewed.

...but in these cases was the intruder asked to come out beforehand and if so what does that make the shooting afterwards ? If you ask someone to get out and you shoot them whilst they were doing just that, what"s that called ! ........

 

[Colin de France]

First BIB Not according to his original bail statement

The athlete woke up in the early hours of 14 February, he added, and went onto the balcony to bring a fan in and close the sliding doors, blinds and curtains. "I heard a noise and realised that someone was in the bathroom

"and realised someone was in the bathroom", this realisation so absolute, positive and sure is the basis for all that followed, it could of been anything, it could of been the wind due to him closing the doors, etc, but no, it was the realisation "someone" was there....let's not kid ourselves OP knows how to use confusion to his advantage, he falls back on it just when he needs it, but in this case he clearly states "realised", it's this jumping back and forth which needs to be broken down....

 

[Sherbert]

You can see that the onus has not shifted because Oscar's version is accepted as long as it is reasonably possibly true - it does not have to be true beyond reasonable doubt.

RSBM

Yes - good point. So, are you saying that you accept that it is reasonably possibly true that Oscar believed there was an intruder in the toilet?

Personally, I think it was possibly true, but not reasonably possibly true.

I think it very unlikely indeed that he believed this.

I also think the State proved beyond reasonable doubt that he intended to kill the person behind the door.

 

[Cherwell]

I can see why you think that. It does seem illogical. But remember that he was shouting at them to get out and he gave them time to get out so he was trying to avoid confrontation. But as he was in his own home he had the right to go investigate as far as I know, whereas the intruder had no right to be there and could have chosen to leave or if he couldn't for some reason he could have just stayed put in the toilet.

BIB 1: But he didn't give the occupant time to get out, did he?

BIB 2: And either way be shot dead.

 

[Colin de France]

BIB 1: But he didn't give the occupant time to get out, did he?

BIB 2: And either way be shot dead.

...no, he didn't give the intruder time but what is important is that he said it, according to him, is this just simply him trying to get ahead of any accusation of having shot without giving a warning but didn't realise the mistake ?

 

[GR_Turner]

BIB 1: But he didn't give the occupant time to get out, did he?

BIB 2: And either way be shot dead.

He shouted in the corridor to give them time to get out.

They could once they heard the shouting have chosen to leave the way they came. And if for some reason they couldn't and they went into the toilet, they could have just stayed there. He didn't shoot till he thought the intruder was coming out.

 

[GR_Turner]

...no, he didn't give the intruder time but what is important is that he said it, according to him, is this just simply him trying to get ahead of any accusation of having shot without giving a warning but didn't realise the mistake ?

Yes, he did. What was all the shouting as he moved slowly down the corridor if not an attempt to give the intruder(s) time to escape? I don't see what you mean at all.

 

[GR_Turner]

RSBM

Yes - good point. So, are you saying that you accept that it is reasonably possibly true that Oscar believed there was an intruder in the toilet?

Personally, I think it was possibly true, but not reasonably possibly true.

I think it very unlikely indeed that he believed this.

I also think the State proved beyond reasonable doubt that he intended to kill the person behind the door.

BiB 1: Yes, of course, on the evidence presented. That's what the court decided too. If you can't explain the phone time discrepancies, then you can't say the State proved their case.

BiB 2: I don't know that they did as they spent all the time on the primary charge and barely addressed the competent verdicts. And again, Judge Masipa disagreed with that conclusion in her judgement though there was no explanation of why. And why does it matter even, if he did if he believed it was in lawful self-defense?

 

[GR_Turner]

...but in these cases was the intruder asked to come out beforehand and if so what does that make the shooting afterwards ? If you ask someone to get out and you shoot them whilst they were doing just that, what"s that called ! ........

Didn't he just say he shouted for Reeva to call the police at that point? Moreover, he didn't know whether there was anyone in the toilet until he heard the noise.

 

[GR_Turner]

...if he was trying to avoid confrontation he wouldn't of gone down the corridor.

That's one way of looking at it. But a householder doesn't have to retreat from an intruder though it's more sensible to at the least to avoid being accused of murder.

 

[GR_Turner]

"and realised someone was in the bathroom", this realisation so absolute, positive and sure is the basis for all that followed, it could of been anything, it could of been the wind due to him closing the doors, etc, but no, it was the realisation "someone" was there....let's not kid ourselves OP knows how to use confusion to his advantage, he falls back on it just when he needs it, but in this case he clearly states "realised", it's this jumping back and forth which needs to be broken down....

I think this is just semantics. It doesn't alter anything. He thought that either someone was entering the bathroom or had entered the bathroom.

 

[AJ_DS]

Even if one completely disregards the nonsensical aspects of OP's version, the contradictions, the tailoring, the omissions, etc…

One must still realize that OP was extensively coached and prepped for over 1 year to deliver his version on the stand…

… this included a full second by second reenactment whose sole purpose was to create real memories of the events for OP's benefit.

… it took into account the State's evidence

… it took into account SA Law in regards to what is required for PPD

Therefore, stating :

- OP acted in a manner which is consistent with PPD and inconsistent with Dolus

or

- OP version provides an alternate explanation to murder without entirely contradicting State witnesses

… is utterly pointless and ridiculous since OP's version was designed by professionals to do exactly that !!!