Oscar Pistorius - Discussion Thread #64 ~ the appeal~

[Interested Bystander]

Here's a classic that takes my breath away:

Defence Heads of Argument p.161

545. The psychiatrists appointed by the Court found that the Accused presented “with an adjustment disorder with mixed anxiety and depressed mood that developed after the alleged incident” (Psychiatrist Report, Exhibit PPP).

Alleged incident, really? Reeva was dead and had been cremated. It really says something about the quality of the psychiatrists and I think Roux had an absolute hide including that in his HoA.

I read the judgement again today and was quite horrified at how much of the rubbished Defence witness testimony that the judge believed.

 

[cottonweaver]

I read the judgement again today and was quite horrified at how much of the rubbished Defence witness testimony that the judge believed.

Yes you feel horrified and as per your previous post maybe some of those witnesses feel bitter, even angry?

In terms of Defence witnesses , going back to Derman again, if as Nel said that D should not have been allowed to give evidence against his own patient and supposedly should not be thus presenting as an impartial expert witness, once again I wonder ( in my naive legal experience perhaps) why professor D should have been allowed to continue/ Masipa should have deemed his evidence inadmissable in her judgments due to the conflict of interests/bias.

ie. She already belittled Sam Taylor's evidence due to having an axe to grind as an ex girlfriend / likely bias.
Next add in Dixon who was giving evidence on subjects he wasn't an expert in..... so those portions should have been disallowed.... you start filling your barrel of B.S
Next how can s.o diagnose GAD was present before an event when they are diagnosing many many months after an event based on a whole bunch of interviews with "conflicted" parties *and yet it makes into her judgment and ends up in defences Heads as a finding of fact.
I am sure these weaknesses keep a few Pistorian lurkers reassured when they are mining WS for info. and then at pains to dispute so much else.

* ie. Vorster's list of interviewees are here courtesy of J13, just needed to double check :
"Affidavits from Justin Devaris, Samantha Greyvenstein and Graham Binge (cousin).

•And then the people that she interviewed for collateral information: Diana Binge (aunt), Aimee (sister), Peet Van Zyl (manager), Alex Pilakoutas (friend), Carl (brother), and Ampie Louw (coach)."

Check out Lisa's presentiments further down :
"The totality of the evidence always tells the story. And the reason that we have this psychiatrist on the stand, days before the defense is due to rest, is because the defense team has hit the end of their road. Trust me, if psychological issues were at the heart of this case, it would have been dealt with LONG ago. Do not let your heart strings cloud your common sense in this matter."
https://juror13lw.wordpress.com/2014/05/26/oscar-trial-day-29-may-12-wolmarans-vorster/

 

[cottonweaver]

Tried a couple of times to edit my post - un-doable,too many bad ads onWS?
I meant "ends up in the Defence's Heads" not States.

 

[Interested Bystander]

Tried a couple of times to edit my post - un-doable,too many bad ads onWS?
I meant "ends up in the Defence's Heads" not States.

I too am having trouble with the website but have no idea why. Even though I am now typing my responses in Word and editing/correcting them there, once they become posted many of the spaces between words disappear, sometime alarmingly so, and my posts look as though they are written in gobbldegook.

 

[lithgow1]

Re the Kelly Phelps thing 'guys` I am glad you found that old YouTube video as I also saw it and wondered later how she could have done such a turnaround. She almost seemed to think he was up the creek, given the examples she gave in her explanation of the charge, defence etc. My personal theory a la Monty Python is it is a combo of her own opinion changing and also a change in tack to meet CNNs editorial slant/stance. I put that idea forward ages ago - during the trial - and few if any seemed to agree with it but I still think it plausible that the CNN powers that be liked the `hero shoots girlfriend in tragic accident` scenario more than the `gun obsessed short-fused man murders woman in classic DV case' storyline. But who knows - maybe she just felt sorry for him. Some of her other opinions on the case have been dismissed and even rubbished by other commentators so just because she is qualified in law doesn`t meant that she is particularly able.

 

[aftermath]

Maybe she simply changed her view as more details about the night came out?

ETA - mine definitely did

 

[lithgow1]

Maybe she simply changed her view as more details about the night came out?

ETA - mine definitely did

Given that below is what she said, she sure did change her mind to the point where she seemingly ignored her own explanations. OP met none of her initial criteria as far as I can see.

‘A person is acting in private defence when they are the victim of an unlawful attack against … themselves … and they then use force to try and repel that attack Three conditions ... relate to the attack and three … relate to the response … Conditions relating to the attack would be that there needs to be an unlawful attack … and the attack needs to be imminent or commenced … in terms of the response to the attack it needs to be directed at the attacker themselves, it needs to be necessary in the circumstances, and essentially what ‘necessary’ means is that there needs to be no other means available in order to avoid the harm, and lastly and very importantly it needs to be a reasonable response to the attack’.

She then goes on to state that courts look at 2 elements: there ‘needs to be an element of proportionality … between the seriousness or gravity of the initial attack and the seriousness or forced used in order to repel that attack. The 2nd element is that of a warning so courts have generally required that the person trying to repel that unlawful attack has issued some kind of a warning …’

She then goes on to claim that an example would be a warning shot, dependant on circumstances.

 

[aftermath]

Doesn't that pretty much explain why it wasn't a case of private defence (which could in theory be lawful if certain conditions are met)? Instead, it was putative private defence... Which I think is always likely to be unlawful because of the mistake element?

 

[lithgow1]

Doesn't that pretty much explain why it wasn't a case of private defence (which could in theory be lawful if certain conditions are met)? Instead, it was putative private defence... Which I think is always likely to be unlawful because of the mistake element?

You are right except that I really cannot see how Pistorius` actions exclude dolus based on the particular circumstances of his case.

 

[soozieqtips]

Sorry CW I droned on a bit. I do know you feel very much the same. I feel more than irritated that Masipa can say that OP told lies and was evasive and in the next breath believe a very large amount of what he says. I really do think there was a concerted effort by the judiciary to get him off a murder charge (did they feel sorry for him?) and as for the judge's/adjudicators' précis of the evidence she/they seemed to me to be "off the planet" with their interpretations.

I really would love to know what the Stipps, Burgess and husband and Van der Merwe thought of the judge's summing up.

BIB - I bet they wonder why they were called to give evidence in the first place. Ignoring so much of it in order to give an 'unreliable' and 'evasive' witness the benefit of the doubt every time must have felt pretty insulting, not to mention unjust. The one person who had clear motive to lie (and who did lie, repeatedly) was given more credence than independent non-killing witnesses who had no motive to lie. Absolutely crazy.

 

[cottonweaver]

Re the Kelly Phelps thing 'guys` I am glad you found that old YouTube video as I also saw it and wondered later how she could have done such a turnaround. She almost seemed to think he was up the creek, given the examples she gave in her explanation of the charge, defence etc. My personal theory a la Monty Python is it is a combo of her own opinion changing and also a change in tack to meet CNNs editorial slant/stance. I put that idea forward ages ago - during the trial - and few if any seemed to agree with it but I still think it plausible that the CNN powers that be liked the `hero shoots girlfriend in tragic accident` scenario more than the `gun obsessed short-fused man murders woman in classic DV case' storyline. But who knows - maybe she just felt sorry for him. Some of her other opinions on the case have been dismissed and even rubbished by other commentators so just because she is qualified in law doesn`t meant that she is particularly able.

Thanks for sharing that insight- I didn't have a clue. Iv'e never really watched CNN so have missed this stuff - she stuck in my mind cause of the almost audible groan by you every time her & Curnow's name was mentioned. ( Bet you've cracked a few TV screens on this?)
Hope some of her studes at UCT play the video back to her in a seminar.

Seriously though WSers....Masipa decided that PPD was not an adequate defence. She decided it wasn't a Dermanesque startle reflex, but instead she constructed a defence for him ( she said he intended to shoot but did not foresee death ensuing)
This case must be sending me doolally because I cannot get my head around it and I do appreciate that some legal minds agree with her and that it isn't UK law etc. etc

 

[cottonweaver]

Doesn't that pretty much explain why it wasn't a case of private defence (which could in theory be lawful if certain conditions are met)? Instead, it was putative private defence... Which I think is always likely to be unlawful because of the mistake element?

Isn't it rather that it wasn't PD because the intruder simply did not exist. It became PPD because he subjectively believed it was.

ie. in front of Phelp's elements, as very helpfully typed out by Lithgow, you prefix them with "OP thought", as it were.

PPD isn't always "likely to be unlawful", it is in itself a legal/complete defence but it is potentially easy to abuse and as we have said here on WS endlessly, it may "open the doors" to similar false claims, like the ammo possession issue.

The irony is of course Masipa discounted PPD for all the reasons she listed, albeit badly, in that judgment.

Even if I were to take the view it was CH, it would be the gravest most aggravated kind of CH.

 

[Cherwell]

OP was a trained marksman who underwent strict gunlaw licence testing which included when he was/was not allowed to shoot at a person, let alone kill them. To me, due to his training, he had to know he was committing an illegal act. It doesn't matter who was in the toilet cubicle or whether or not anyone believes he did not know it was Reeva, he (with intent) shot 4 bullets into an enclosed space in the certain knowledge that even if the shots did not hit the occupant directly, the richochets would certainly have done so.

This.

Well summed up.

 

[cottonweaver]

Not trying to stoke up a debate about sexism nor create more axes to be grinding for the S4OP crew but I think this UK article is interesting in relation to the diversity policy in SA and appointments of women to highest posts in the SCA. ( As a woman and a "non-card carrying feminist" I think I dare post this!)

This is Lord Sumpton from UK Supreme Court speaking about positive discrimination policies here to promote gender balance. Maybe he is at level of Roux ( with exception that Sumpton has been labelled the "Brain of Britain"!) he was certainly one of best paid UK barristers 'til he retired and moved to Supreme Court . His career is interesting and reputedly his last big case as a barrister in 2012 earned him £5million.

In UK "In total, about 25% of judges are women. The proportion drops higher up in the judicial system, with women taking 21 of 106 high court positions........“What we have in this country is a long cultural tradition which is genuinely based on public service, people feeling that at the end of a successful career at the bar [becoming a judge] is something that you ought to be willing to do. That’s a terrific public asset.
“It takes time. You’ve got to be patient. The change in the status and achievements of women in our society, not just in the law but generally, is an enormous cultural change that has happened over the last 50 years or so. It has to happen naturally. It will happen naturally. But in the history of a society like ours, 50 years is a very short time.”

“It’s a tradition which you can destroy very easily and never recreate, not without waiting for a very long time. It would be very unfortunate.”The concern he expressed was against introducing any form of positive discrimination to the judicial appointments system without careful analysis of the full range of potential consequences.”
Sumpton was also saying that lack of range of class and colour on the UK benches was obviously as equal a problem.

http://www.theguardian.com/law/2015...fession-supreme-court-judge-jonathan-sumption

http://www.theguardian.com/law/2015/aug/06/jonathan-sumption-brain-of-britain

 

[Interested Bystander]

I know I have banged on about this before but it is so important if there is a retrial, especially in the light of what Judge Masipa et al wrote about it not being possible to hear the screams. Why on earth does she think the Johnsons drew their information from various reports in the press etc? They wrote their statements before any of the details were known. I feel more and more exasperated when I read her judgement.

To refresh my memory I have been re-reading the Judgement and both HOAs and have come to the conclusion that if Nel gets a retrial I hope he ensures he introduces new evidence, particularly in respect of sound. It shouldn't be too difficult for him to produce evidence that the Johnsons would have been able to hear the screams. I am sure the weather conditions are available for that night, in particular the difference between ground and air temperature. He should then find a knowledgeable sound scientist to explain to him all about temperature inversion affecting the distance noise travels at night.

If he did that, the judge would have to accept it would be possible to hear from the Johnsons' balcony, end of story. Why was the Prosecution team not aware of this phenomenon escapes me and also echos from the rocky outcrop next to the estate? Surely, in Africa, where it is known animal noises travel huge distances at night, it is something that should have been known. It happens when the ground cools and the upper air remains warm. I hope somebody has now made him aware of this well known phenomenon. I was quite staggered to hear the Defence produce a sound engineer who did not mention this - or was he encouraged not to include it in his report??

Below are just three of many articles on temperature inversion affecting sound.


https://sites.google.com/site/kundaparkneighbours/news-about-noise

..when an inversion layer is present (for example early in the morning when ground-level air temperatures are cool, and high-level air temperatures are warmer), if a sound or explosion occurs at ground level, the sound wave can get totally reflected from the warmer upper layer (in which the sound travel faster, i.e. the air has lower acoustic refractive index, so the sound can undergo total internal reflection) and return back to ground level; the sound is therefore heard much further than normal.

At night or during periods of dense cloud cover, a temperature inversion occurs; the temperature of the air increases with elevation, and sound waves are refracted back down to the ground. Temperature inversion is the reason why sounds can be heard much more clearly over longer distances at night than during the day—an effect often incorrectly attributed to the psychological resultof...


http://www.sfu.ca/sonic-studio/handbook/Sound_Propagation.html

Sound propagationUnder conditions of a temperature inversion (temperature increasing with increasing height), the sound waves will be refracted downwards, and therefore may be heard over larger distances. This frequently occurs in winter and at sundown. For instance, the Nine O'Clock Gun in Vancouver has been heard up to 45 miles away under the proper atmospheric conditions.

 

[Interested Bystander]

Re my post 715 which I am unable to edit. I ought make it clear that the judge was referring to the Johnson's not hearing RS screaming but that in her opinion they heard OP not Reeva. A competent scientist IMO would come to a completely different conclusion.

 

[Trotterly]

I know I have banged on about this before but it is so important if there is a retrial, especially in the light of what Judge Masipa et al wrote about it not being possible to hear the screams. Why on earth does she think the Johnsons drew their information from various reports in the press etc? They wrote their statements before any of the details were known. I feel more and more exasperated when I read her judgement.

To refresh my memory I have been re-reading the Judgement and both HOAs and have come to the conclusion that if Nel gets a retrial I hope he ensures he introduces new evidence, particularly in respect of sound. It shouldn't be too difficult for him to produce evidence that the Johnsons would have been able to hear the screams. I am sure the weather conditions are available for that night, in particular the difference between ground and air temperature. He should then find a knowledgeable sound scientist to explain to him all about temperature inversion affecting the distance noise travels at night.

If he did that, the judge would have to accept it would be possible to hear from the Johnsons' balcony, end of story. Why was the Prosecution team not aware of this phenomenon escapes me and also echos from the rocky outcrop next to the estate? Surely, in Africa, where it is known animal noises travel huge distances at night, it is something that should have been known. It happens when the ground cools and the upper air remains warm. I hope somebody has now made him aware of this well known phenomenon. I was quite staggered to hear the Defence produce a sound engineer who did not mention this - or was he encouraged not to include it in his report??

Below are just three of many articles on temperature inversion affecting sound.


https://sites.google.com/site/kundaparkneighbours/news-about-noise

..when an inversion layer is present (for example early in the morning when ground-level air temperatures are cool, and high-level air temperatures are warmer), if a sound or explosion occurs at ground level, the sound wave can get totally reflected from the warmer upper layer (in which the sound travel faster, i.e. the air has lower acoustic refractive index, so the sound can undergo total internal reflection) and return back to ground level; the sound is therefore heard much further than normal.

At night or during periods of dense cloud cover, a temperature inversion occurs; the temperature of the air increases with elevation, and sound waves are refracted back down to the ground. Temperature inversion is the reason why sounds can be heard much more clearly over longer distances at night than during the day—an effect often incorrectly attributed to the psychological resultof...


http://www.sfu.ca/sonic-studio/handbook/Sound_Propagation.html

Sound propagationUnder conditions of a temperature inversion (temperature increasing with increasing height), the sound waves will be refracted downwards, and therefore may be heard over larger distances. This frequently occurs in winter and at sundown. For instance, the Nine O'Clock Gun in Vancouver has been heard up to 45 miles away under the proper atmospheric conditions.

BIB They wrote their statements weeks after the event!

How could they be objective about hearing the screams once they had been spoon-fed the states version for weeks

Burger was so hung up on this version that she went as far as testifying about events that happened when she was asleep. Her testimony was null and void following that howler.

 

[lithgow1]

BIB They wrote their statements weeks after the event!

How could they be objective about hearing the screams once they had been spoon-fed the states version for weeks

Burger was so hung up on this version that she went as far as testifying about events that happened when she was asleep. Her testimony was null and void following that howler.

BIB Perhaps the state's version aligned with their memories of what they heard much more closely than Pistorius' version of events. They had nothing to gain and lots to lose from perjuring themselves whereas for Golden Boy it was the opposite.

 

[GR_Turner]

BIB Perhaps the state's version aligned with their memories of what they heard much more closely than Pistorius' version of events. They had nothing to gain and lots to lose from perjuring themselves whereas for Golden Boy it was the opposite.

They went to the police precisely because what they heard didn't tally with OP's version at the bail hearing. It's ironic then that their evidence about the 3 helps during the screaming and the timing of the second bangs actually supported the defense and not the state version.

Your post misrepresents why burgers evidence is suspect. No one suggests that she made it all up. Rather that she exaggerated in her descriptions of what she heard to help the state because she believed so strongly in their case. But really it's the combination of her evidence with that of the other witnesses that damaged the state's case, supported OP's version and led the court to conclude that they couldn't reject his version despite the problems with his testimony. There is no direct comparison between burgers and OP's evidence.

 

[Interested Bystander]

BIB They wrote their statements weeks after the event!

How could they be objective about hearing the screams once they had been spoon-fed the states version for weeks

Burger was so hung up on this version that she went as far as testifying about events that happened when she was asleep. Her testimony was null and void following that howler.

As far as I recall there was limited information released during the Bail Hearing but nothing about the sequence of shots and Pistorius claimed there was no screaming from Reeva. Do you have a link where it has been stated that they were spoon-fed the state's version for weeks. I don't recall that at all or is it just your opinion.

Also it would be interesting to have a link where she testified about events when she was asleep. I have today listened to the whole of her testimony again and have not been able to pin down anything about this statement of yours. Perhaps you would be kind enough to give me a link.