Oscar Pistorius - Discussion Thread #63 ~ the appeal~

[Colin de France]

When he wasn't in the situation of being in fear of his life because of an imminent attack - as he described - it was obvious to him or anyone else that firing in that space was extremely dangerous, but was he thinking it at the time? I think all his attention was on the intruder from the moment that window opened.

....this is neither here nor there......yes it was obvious with or without fear....

 

[GR_Turner]

The best thing about a new thread is the lovely food presentation! Thank you KarenUK.

I was looking online for any updates on the appeal and came across this older website/blog put together by a couple of U.S. law students. Thought I might post it for the wonderful photos of Reeva if nothing else.

https://spotlightonlaw.wordpress.com/dolus-eventualis-and-dumbass-eventualis-fully-explained/

Like everyone else, I am interested in clarifying Masipa's application of Dolus eventualis-- particularly regarding the distinction she might have been trying to make (and muddled up IMO) about the objective vs. subjective test that would apply to the correct legal determination.

Here's a twitter exchange from back in September of 2014 that explains what I mean:

Mandy Wiener
‏@MandyWiener
Dolus eventualis is 'did' foresee, culp is 'should have'. Masipa says she believes OP didn't foresee consequences. It's a subjective test.
5:38 AM - 11 Sep 2014

Wessel van Rensburg ‏@wildebees Sep 11
@MandyWiener correct, but she restricted the foresee question to Reeva, should apply to intruder as well @PikkieGreeff


So, is this really the essence of what happened with Masipa's ruling (maybe we could get some help from our legal eagles on here)-- did she make some kind of mash up in logic by ruling first that OP could not be guilty of DE because he could not have foreseen that the deceased (Reeva) was behind the toilet door because he believed she was in the bedroom, ergo NOT GUILTY OF DE (this would more appropriately apply to DD, I would think)?

And then she goes on to let him off on DE for the death of whoever was behind the door (the imaginary intruder in his version) by saying the State did not prove that Oscar subjectively DID FORESEE firing four Black Talon-type rounds into a toilet cubicle would likely result in the death of whoever was behind the door. So she apparently applied only the more objective test that he merely SHOULD HAVE FORESEEN which led to her verdict of CH.

Is this what happened? Did Masipa ultimately feel like the State failed to prove Oscar intended to kill the person behind the door?

Is this because she accepted his claims that he "fired without thinking"? Or because he felt vulnerable and he had an awful fright therefore he could not be held responsible for deliberately arming himself, approaching the noise, and firing off four rounds at an (assumed) intruder trapped in a tiny enclosed space?? Even though he SHOULD HAVE known this (CH) would likely result death, she finds that he DID NOT realize this (DE)??

Is this what it gets down to? Help enlighten me a little more, please because her determination whether or not the accused DID NOT KNOW or "COULD NOT HAVE FORESEEN" his actions would result in the death of the person behind the door continues to boggles the mind. I know the State has based their appeal in part on the claim that Masipa gave too much weight to his disability and vulnerability. How else could she have arrived at that decision?

Is this the crux of the appeal in your opinion?

You aren't the only one who is confused by DE. It seems a very thin line between CH - should have foreseen - and DE - did foresee. I'm totally unclear how the court resolves this. I have heard arguments that they should base this on the evidence ie - he fired 4 shots so he must have foreseen the possibility of killing whoever was there. But then how does this distinguish the accused' actual beliefs (what he actually did foresee) from those of the reasonable man (what he should have foreseen)? If the court can just accept the accused's statement that he didn't foresee it, then the state could never get a successful prosecution. Maybe it's one of those things like 'reasonable' doubt- a sliding scale and the court must decide at what point 'reasonable' ends, and in CH vs DE at what point 'should have known' becomes 'did know'.

 

[Colin de France]

Please don't tell me what to do. I said to lithgow1 that I would respond to his/her post in three parts- which I have now done.

.......i didnt tell you what to do....i said try ...unless i'm wrong you said you're looking for enlightment and confirmation of your position but at the same time you're being selective in what you want to discuss.......and unfriendly at that....

 

[Colin de France]

You aren't the only one who is confused by DE. It seems a very thin line between CH - should have foreseen - and DE - did foresee. I'm totally unclear how the court resolves this. I have heard arguments that they should base this on the evidence ie - he fired 4 shots so he must have foreseen the possibility of killing whoever was there. But then how does this distinguish the accused' actual beliefs (what he actually did foresee) from those of the reasonable man (what he should have foreseen)? If the court can just accept the accused's statement that he didn't foresee it, then the state could never get a successful prosecution. Maybe it's one of those things like 'reasonable' doubt- a sliding scale and the court must decide at what point 'reasonable' ends, and in CH vs DE at what point 'should have known' becomes 'did know'.

....well it was certainly forseen when in relation to himself.....

 

[lithgow1]

When he wasn't in the situation of being in fear of his life because of an imminent attack - as he described - it was obvious to him or anyone else that firing in that space was extremely dangerous, but was he thinking it at the time? I think all his attention was on the intruder from the moment that window opened.

According to him he was. He was asked why he didn`t do a certain thing and he proceeded to give a reason as to why. I know that you have been trying to make out that it was a later thought, or that Nel pushed him into it, which makes it a bit hard to analyse what he said on the stand if there is always going to be excuses offered for his most self-damning statements. He said it so it should be accepted as his thought at the time and then the implications of that thought explored IMO.

 

[Marfa Lights]

Befuddling...

FROM PAGE 3327 of Masipa's Judgment:
"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."

FROM PAGE 3328:

"The question is: Did the accused foresee the possibility of the resultant death, yet persisted in his deed reckless whether death ensued or not? In the circumstances of this case the answer has to be no.
How could the accused reasonably have foreseen that the shots he fired would kill the deceased? Clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door, let
alone the deceased, as he thought she was in the bedroom at the time."


FROM PAGE 3329:
[B]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. That however, is not the end of the matter, as culpable homicide is a competent verdict.[/I][/B]

 

[aftermath]

.......i didnt tell you what to do....i said try ...unless i'm wrong you said you're looking for enlightment and confirmation of your position but at the same time you're being selective in what you want to discuss.......and unfriendly at that....

You told me to ' try taking on the issues of post 11' That's an imperative - a command verb. I was polite- I said please. No need for the persistent tone in your responses to me.

 

[lithgow1]

Befuddling...

FROM PAGE 3327 of Masipa's Judgment:
"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."

FROM PAGE 3328:

"The question is: Did the accused foresee the possibility of the resultant death, yet persisted in his deed reckless whether death ensued or not? In the circumstances of this case the answer has to be no.
How could the accused reasonably have foreseen that the shots he fired would kill the deceased? Clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door, let
alone the deceased, as he thought she was in the bedroom at the time."


FROM PAGE 3329:
[/I][/B]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. That however, is not the end of the matter, as culpable homicide is a competent verdict.

Colour me stupid but I don`t get it. Why does the answer have to be no? She has no more idea what was going through his head at the moment he fired those shots than we do.

 

[Colin de France]

FROM PAGE 3328:

"The question is: Did the accused foresee the possibility of the resultant death, yet persisted in his deed reckless whether death ensued or not? In the circumstances of this case the answer has to be no.
How could the accused reasonably have foreseen that the shots he fired would kill the deceased? Clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door, let
alone the deceased, as he thought she was in the bedroom at the time."

........after that one could ask .....what was the point in firing then ? ............

 

[soozieqtips]

According to him he was. He was asked why he didn`t do a certain thing and he proceeded to give a reason as to why. I know that you have been trying to make out that it was a later thought, or that Nel pushed him into it, which makes it a bit hard to analyse what he said on the stand if there is always going to be excuses offered for his most self-damning statements. He said it so it should be accepted as his thought at the time and then the implications of that thought explored IMO.

BIB - exactly. If he wasn't thinking about it at the time - then he could have just said it didn't occur to him because he was in panic mode (or whatever). But he very clearly gave a reason for not firing a warning shot at the time he was in the bathroom. Even when the killer damns himself with his own carefully chosen words, his supporters will still find a way to negate it.

 

[Colin de France]

You told me to ' try taking on the issues of post 11' That's an imperative - a command verb. I was polite- I said please. No need for the persistent tone in your responses to me.

............as you want......so what then is your opinion of post 11 ?..............

 

[aftermath]

Befuddling...

FROM PAGE 3327 of Masipa's Judgment:
"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."

FROM PAGE 3328:

"The question is: Did the accused foresee the possibility of the resultant death, yet persisted in his deed reckless whether death ensued or not? In the circumstances of this case the answer has to be no.
How could the accused reasonably have foreseen that the shots he fired would kill the deceased? Clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door, let
alone the deceased, as he thought she was in the bedroom at the time."


FROM PAGE 3329:
[B]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. That however, is not the end of the matter, as culpable homicide is a competent verdict.[/I][/B]

Is there a definitive explanation for 'dolus', as it has varied slightly in different descriptions I have read? Isn't it linked to the principle of something being unlawful?

 

[Colin de France]

.....taking into consideration his statements looking back at the time ...... can we safely say firing towards the cubicle wasn't a warning shot ?..........i think we can because there were four shots.....

 

[cottonweaver]

For what it's worth some of the reasons I find myself posting are because the topic interests me enough to want to discuss it with others who share that interest. And because I find it both fascinating and worrying that so many people can't/won't see the reasonable doubt. And because the pervasive influence of the media and social media needs to have a countering balance somewhere. (because 'justice for reeva' does not mean the public enjoyment of the demolition of a man. It means finding out the the truth and holding him to account for it) And because it is interesting how people can read/watch the same things and come to such different interpretations. And because - since the defence version is unlikely (but not impossible) in places, - assessing and reassessing my own views against those who don't agree with me is a good test for the validity of the conclusions I have drawn.

Yes I can totally see why BIB1 is an concern, from your perspective. ( As I asked GRT before though last pages of thread 62, this in itself is interesting- is it effective, could it even have backfired already on OP in PR terms.)

BIB2 - Yes, but it does follow, as you agree, that if you are interested in the truth, you have to engage, scrutinise the Defence's case genuinely. Anything else is simply paying "lip-service". And typical replies of: well the Defence "won", the Defence don't need to prove that, insert the next - are irrelevant if you (again you plural) are actually interested in finding truths.

PS. An incidental but one of the most frequent mainstream journalists specialising in the OP case, who has been quoted on here many many times is a friend of the OP family and is acknowledged as favourable by Pistorians themselves. Now normally I would provide some links and name but........

 

[Colin de France]

....on the intruder version we must never forget that he had already shouted for the intruder to "get out"....it was in the middle of the night, there was no noise, no reason whatsoever for him to of not warned the intruder that he was armed......to a point the excuse of panic can be discredited due to the precision of the shots......

 

[soozieqtips]

I remember the Guardian being extremely biased in favour of OP in their reporting. I don't know why practically every supporter bemoans the negative reporting, when there was a lot of defence for OP at the time.

As you say, it's only paying lip service to repeat over and over that the defence 'won' their case so it doesn't need to be scrutinised. Those who are genuinely interested in the truth would acknowledge that guilty people have often been found innocent thanks to a good defence team. Just because OP was found innocent of murder doesn't mean he was innocent. And surely looking at the massive craters in the defence would go some way towards trying to find out the real truth?

However, I doubt very much that the small 'group' of supporters care about the truth, despite their protestations otherwise, or else they'd be curious about all the lies, and they're not. They merely justify them with whatever excuse comes up at the time.

Sorry Cotton - this was a reply to your post, but I must have forgotten to hit 'reply with quote'.

 

[soozieqtips]

....on the intruder version we must never forget that he had already shouted for the intruder to "get out"....it was in the middle of the night, there was no noise, no reason whatsoever for him to of not warned the intruder that he was armed......to a point the excuse of panic can be discredited due to the precision of the shots......

Posted this before many threads ago, but will post again as it's relevant to your point.

Martin Hood (Sky News) - South African legal expert

The evidence has been that Oscar was shooting one handedly from a position where the gun was at his waist level, and in my experience, and I own more than one firearm, in order to shoot a group like that, you have to have a very firm grip on the firearm, and normally that group is with two hands. And the fact that the group is relatively small, shows that Oscar knew how to hold the fiream properly, and in all probability in my view, and if I were called to be an expert,

I would say this - he held it with two hands, and he held it very deliberately to get that grouping at that level.

When you're holding a firearm with one hand, and you're in that very excited state of mind that Pistorius said he was in, you're going to have a lot of shake, and you're not going to get such a small group as that. It's going to be all over the place. The fact that it isn't, in my view suggests that he had far more control than he actually is prepared to admit.

 

[aftermath]

Yes I can totally see why BIB1 is an concern, from your perspective. ( As I asked GRT before though last pages of thread 62, this in itself is interesting- is it effective, could it even have backfired already on OP in PR terms.)

BIB2 - Yes, but it does follow, as you agree, that if you are interested in the truth, you have to engage, scrutinise the Defence's case genuinely. Anything else is simply paying "lip-service". And typical replies of: well the Defence "won", the Defence don't need to prove that, insert the next - are irrelevant if you (again you plural) are actually interested in finding truths.

PS. An incidental but one of the most frequent mainstream journalists specialising in the OP case, who has been quoted on here many many times is a friend of the OP family and is acknowledged as favourable by Pistorians themselves. Now normally I would provide some links and name but........

Of course the defence case needs to be scrutinised - there are plenty of people doing that on here and other forums. I have considered many of the questions being asked about the defence/experts/witnesses before considering any alternative. However the alternative is underrepresented and my questions Re the defence are usually aleady articulately expressed by other posters. I do try to make sure I acknowledge points against the defence version by saying 'that's one possible explanation '. The thing is, sometimes posters suggest that the defence's failure to do something (eg prove the content of the netcare calls,) is in itself suspicious - but since it was never questioned in court, 'the defence don't need to prove thst' is an appropriate response. That's just one specific example, of course, but it illustrates perhaps some of the gaps that tend to be quickly filled with negative speculation.

 

[cottonweaver]

just a quickie before I read the responses and replies properly later....

Thanks for jogging my memory posters. ..
Another key journalist who was absolutely unbiased in his reporting - Andrew Harding, covered it all for BBC, as I recollect the Africa corresp for BBC.

We used to have some posters with media analysis background on WS....
Anyway, my point is, now I come to think of it , if we really scrutinised this "media bias" argument ( and I'm not suggesting that time is spent doing that) I'm not sure that it would actually hold water - like so many other assertions.

Marfa - I will come back to dolus e- but after thread 61 I am temporarily dolused out!

 

[Colin de France]

.....another element to take into consideration is if there was an intruder in the toilet would it of been surprising if they had made a noise..........normally that would of been expected.......