Oscar Pistorius - Discussion Thread #64 ~ the appeal~

[Mr Fossil]

Karyn Maughan ‏@karynmaughan 15m15 minutes ago
Pistorius family statement on "Oscar's Diva Demands" story in Saturday Star @eNCA
[video=twitter;636131544411840512]https://twitter.com/karynmaughan/status/636131544411840512[/video]

Karyn Maughan ‏@karynmaughan 17m17 minutes ago
Pistorius family to lay complaint over "deeply misleading" report #OscarPistorius made "diva demands" in jail @eNCA

 

[JudgeJudi]

It`s not so much believing anything that he says as believing everything. I`ve never heard of a moominballoon BTW. What on earth is that?

One of my favourite books when I was a little girl was Finn Family Moomintroll. Moomins are Finnish trolls.

http://www.buzzfeed.com/robynwilder/things-you-may-not-know-about-the-moomins

 

[Sherbert]

Does anyone know anywhere where the States HoA has been legally analysed?

I am very interested in what the legal scholars make of it.

I agree that it would be very helpful to have a legal analysis of the Heads of Appeal, but, as far as I can see, there isn't much out there at the moment.

Here is a link to the 2014 court of Appeal case of Mkhize v S (16/2013) [2014] ZASCA 52 (14 April 2014):

http://www.saflii.org/za/cases/ZASCA/2014/52.html

The case is interesting because the appellant's murder conviction was set aside by the Appeal Court and replaced with a conviction for culpable homicide, despite his use of excessive force:

‘In the final analysis, a Court of appeal does not overturn a trial Court’s findings of fact unless they are shown to be vitiated by material misdirection or are shown by the record to be wrong.

[15] The test that applies, and what was required to be shown by the appellant in order to avoid a conviction on culpable homicide is that a reasonable person in the same circumstances in which he found himself would have believed that his life was in danger and would have acted as he did.[5] The only issue was whether the State had proved beyond reasonable doubt that the appellant did not, subjectively, entertain an honest belief that his life was in danger and thus not justified to act in putative private defence...

A further aspect that remains for determination is whether, despite the appellant’s subjective belief that if he did not react as he did he would have been killed, it was necessary for him to shoot the deceased three times. The first shot would, in all probability, have had the desired effect to ward off the unlawful attack on him. In my view, the appellant, especially as a long serving police officer with considerable experience in handling firearms, ought to reasonably have realised that he was using excessive force beyond the legitimate bounds of private defence. In the circumstances, he should have been convicted of culpable homicide. Counsel for the State fairly and correctly conceded that the evidence viewed in its totality, failed to establish that the appellant had the requisite intention to kill the deceased. The appeal against the conviction ought, for the aforesaid reasons, to succeed...'

So, although the appellant failed the three stage test for PPD, he still managed to avoid a murder conviction on appeal, as a result of the Appeal Court's finding that the State had failed to prove beyond reasonable doubt that the appellant did not entertain an honest belief that his life was in danger.

Quite why the State conceded that it had failed to establish that the appellant had the requisite intention to kill is unclear.

However, if the reasoning in Mkhize v S were to be adopted in S v Pistorius, the appellate court will need to reverse Masipa's finding that OP's intruder-belief story was reasonably possibly true in order for him to be found guilty of murder.

 

[Found]

True, but her mother was there every day for OP`s testimony so she also heard his version of the events along with all the defence witnesses. It is hard to say, but as a parent I think you would prefer to believe his version than the police`s, as it would seem to involve less fear for your child than the argument followed by a deliberate shooting scenario.

I disagree. The parents with the pain of losing their child will be angry. They want someone to blame. Not suggesting op innocence, just pointing out that I believe anger at their loss would more likely lead them to want an answer. An accident is not something you can hate or take your anger out on.


Sent from my iPhone using Tapatalk

 

[Interested Bystander]

Today I watched a terrific documentary "The Murder Trial" which won the award for the best single documentary at the 2014 British Academy Television Awards. I don’t want to spoil it by revealing details but if you want to watch it, it runs for 1:30. After having watched the entire OP trial, I’m sure you’ll find it more than fascinating.

Respectfully snipped.

Thank you JJ. Very interesting. I was a little surprised that the court case was actually 5 weeks long. It must have been extremely difficult to whittle that down to 1.5 hours and there must have been an enormous amount of important evidence omitted. I did eventually realise this film was as much to do with court procedures rather than providing a clear case for the onlooker to judge (I was half asleep there LOL).

I note there was a "cable" rather than a "mosaic". Whilst understanding fully what was meant, I confess to thinking at the time that Nel's mosaic was a slightly odd way (in a legal sense) to describe his opinion of the evidence but having the "cable" introduced in this case made it seem less so and I also wondered, part way through, whether Hector Dick's testimony might have been a little more significant in some way.

I have since found a Wiki page for this trial and sure enough Hector Dick did play quite a significant role in the story. A good read, once one has viewed the film. It can be found here:-

https://en.wikipedia.org/wiki/Murder_of_Arlene_Fraser

Being in the UK, and finding I couldn't view via the options that JJ kindly listed, I watched this on the Channel Four site which can be found here.

http://www.channel4.com/programmes/the-murder-trial

One does need to complete a simple registration.

 

[Trotterly]

It`s not so much believing anything that he says as believing everything. I`ve never heard of a moominballoon BTW. What on earth is that?

I don't know either.

 

[Viper]

I agree that it would be very helpful to have a legal analysis of the Heads of Appeal, but, as far as I can see, there isn't much out there at the moment.

Here is a link to the 2014 court of Appeal case of Mkhize v S (16/2013) [2014] ZASCA 52 (14 April 2014):

http://www.saflii.org/za/cases/ZASCA/2014/52.html

The case is interesting because the appellant's murder conviction was set aside by the Appeal Court and replaced with a conviction for culpable homicide, despite his use of excessive force:

‘In the final analysis, a Court of appeal does not overturn a trial Court’s findings of fact unless they are shown to be vitiated by material misdirection or are shown by the record to be wrong.

[15] The test that applies, and what was required to be shown by the appellant in order to avoid a conviction on culpable homicide is that a reasonable person in the same circumstances in which he found himself would have believed that his life was in danger and would have acted as he did.[5] The only issue was whether the State had proved beyond reasonable doubt that the appellant did not, subjectively, entertain an honest belief that his life was in danger and thus not justified to act in putative private defence...

A further aspect that remains for determination is whether, despite the appellant’s subjective belief that if he did not react as he did he would have been killed, it was necessary for him to shoot the deceased three times. The first shot would, in all probability, have had the desired effect to ward off the unlawful attack on him. In my view, the appellant, especially as a long serving police officer with considerable experience in handling firearms, ought to reasonably have realised that he was using excessive force beyond the legitimate bounds of private defence. In the circumstances, he should have been convicted of culpable homicide. Counsel for the State fairly and correctly conceded that the evidence viewed in its totality, failed to establish that the appellant had the requisite intention to kill the deceased. The appeal against the conviction ought, for the aforesaid reasons, to succeed...'

So, although the appellant failed the three stage test for PPD, he still managed to avoid a murder conviction on appeal, as a result of the Appeal Court's finding that the State had failed to prove beyond reasonable doubt that the appellant did not entertain an honest belief that his life was in danger.

Quite why the State conceded that it had failed to establish that the appellant had the requisite intention to kill is unclear.

However, if the reasoning in Mkhize v S were to be adopted in S v Pistorius, the appellate court will need to reverse Masipa's finding that OP's intruder-belief story was reasonably possibly true in order for him to be found guilty of murder.

All of your questions are answered by the words that appear at your link. The material is irrelevant to the Pistorius murder though, OP was threatened by a "wood" noise behind a locked toilet door, not actual assailants actually attacking him and actually threatening to kill him. Big difference.

From your link:
[FONT=Verdana, Arial, Tahoma, Calibri, Geneva, sans-serif][8] The appellant testified that the deceased and his group found him at the bar. A scuffle erupted between Dennis and the security guard on duty. He intervened. The deceased and Dennis turned on him and assaulted him severely. Whilst he was on the floor the deceased approached him, with his hand in his pocket, uttering the words ‘let us kill this *advertiser censored*’. As he got up from the floor, with the deceased more or less ten metres from him, he pulled out his firearm and shot the deceased in quick succession until the latter turned around and fled out of the bar. As he was in a state of shock, confusion and drunkenness he fled the scene. Later, he handed himself over to the police at the local police station. His version was supported in all its material details by Mbanjwa.[/FONT]
[FONT=Verdana, Arial, Tahoma, Calibri, Geneva, sans-serif][9] The defence also adduced evidence of an ex-police officer and a ballistics expert, Mr Jacobus Steyl. Steyl testified that the deceased was within very close proximity to the appellant when he shot him. He based this on the gun powder residue found on the deceased’s body. He testified further that, given the circumstances the appellant could not have had time to reflect on his actions once he started to shoot. According to Steyl, a Z88 9mm Parabellum expels bullets in rapid succession. Once the trigger is pressed, the pistol will fire after which the recoil operation automatically extracts, ejects and reloads the chamber until all rounds are fired.[1] Thus the appellant could not have paused in between the shots to deliberately and intentionally shoot the deceased."[/FONT]

 

[Sherbert]

All of your questions are answered by the words that appear at your link. The material is irrelevant to the Pistorius murder though, OP was threatened by a "wood" noise behind a locked toilet door, not actual assailants actually attacking him and actually threatening to kill him. Big difference.

From your link:
[FONT=Verdana, Arial, Tahoma, Calibri, Geneva, sans-serif][8] The appellant testified that the deceased and his group found him at the bar. A scuffle erupted between Dennis and the security guard on duty. He intervened. The deceased and Dennis turned on him and assaulted him severely. Whilst he was on the floor the deceased approached him, with his hand in his pocket, uttering the words ‘let us kill this *advertiser censored*’. As he got up from the floor, with the deceased more or less ten metres from him, he pulled out his firearm and shot the deceased in quick succession until the latter turned around and fled out of the bar. As he was in a state of shock, confusion and drunkenness he fled the scene. Later, he handed himself over to the police at the local police station. His version was supported in all its material details by Mbanjwa.[/FONT]
[FONT=Verdana, Arial, Tahoma, Calibri, Geneva, sans-serif][9] The defence also adduced evidence of an ex-police officer and a ballistics expert, Mr Jacobus Steyl. Steyl testified that the deceased was within very close proximity to the appellant when he shot him. He based this on the gun powder residue found on the deceased’s body. He testified further that, given the circumstances the appellant could not have had time to reflect on his actions once he started to shoot. According to Steyl, a Z88 9mm Parabellum expels bullets in rapid succession. Once the trigger is pressed, the pistol will fire after which the recoil operation automatically extracts, ejects and reloads the chamber until all rounds are fired.[1] Thus the appellant could not have paused in between the shots to deliberately and intentionally shoot the deceased."[/FONT]

Which questions? Anyway, I disagree with your opinion that the material is irrelevant - it relates to PPD, excessive force and the distinction between murder and culpable homicide.

Obviously, many of the facts are different, but the legal principles remain the same.

 

[lithgow1]

I disagree. The parents with the pain of losing their child will be angry. They want someone to blame. Not suggesting op innocence, just pointing out that I believe anger at their loss would more likely lead them to want an answer. An accident is not something you can hate or take your anger out on.


Sent from my iPhone using Tapatalk

Have you seen any of their public comments prior to this statement? They have been the opposite of angry - amazingly forgiving actually, which I put down to their religious faith. All along they have said that however OP is punished, it will not bring their daughter back so I stand by my original post.

 

[Viper]

Which questions? Anyway, I disagree with your opinion that the material is irrelevant - it relates to PPD, excessive force and the distinction between murder and culpable homicide.

Obviously, many of the facts are different, but the legal principles remain the same.

I disagree entirely. That case was sort of funny on it's face, sort of like the old "Two guys walk in to a bar..." jokes. The court found that the shooter was wrong to have killed but had no intention to kill just to defend himself although he overstepped PPD, so culpable homicide it was. OP armed himself and set off to kill the intruder he believed was in his toilet or more likely Reeva, and he succeeded. He was not under attack, he had not identified who was behind the door or if they were armed or dangerous, but still he attacked them by firing bullets at them. That is murder not culpable homicide. If you will recall, in SA even criminals have a right to life, you can't kill them just for breaking in to your toilet, they have to present a real threat to your life to justify lethal force.

The original question regarded a request for any "scholarly reviews" of the State's appeal. Since it was coauthored by Professor Grant, one of the best sources for insight on it is definitely Professor Grant, he wrote about it extensively prior to crafting it with Nel and the prosecutors office.

Unsuccessful Attempts to Justify Judge Masipa’s Errors (Revised & Expanded)

http://criminallawza.net/2014/09/28...ustify-judge-masipas-errors-revised-expanded/

 

[aftermath]

I disagree entirely. That case was sort of funny on it's face, sort of like the old "Two guys walk in to a bar..." jokes. The court found that the shooter was wrong to have killed but had no intention to kill just to defend himself although he overstepped PPD, so culpable homicide it was. OP armed himself and set off to kill the intruder he believed was in his toilet or more likely Reeva, and he succeeded. He was not under attack, he had not identified who was behind the door or if they were armed or dangerous, but still he attacked them by firing bullets at them. That is murder not culpable homicide. If you will recall, in SA even criminals have a right to life, you can't kill them just for breaking in to your toilet, they have to present a real threat to your life to justify lethal force.

The original question regarded a request for any "scholarly reviews" of the State's appeal. Since it was coauthored by Professor Grant, one of the best sources for insight on it is definitely Professor Grant, he wrote about it extensively prior to crafting it with Nel and the prosecutors office.

Unsuccessful Attempts to Justify Judge Masipa’s Errors (Revised & Expanded)

http://criminallawza.net/2014/09/28...ustify-judge-masipas-errors-revised-expanded/

BIB - that's a massive leap though. How can you be so certain he armed himself intending to kill the intruder and not that he armed himself prepared to defend himself if necessary?(not the same thing)

 

[Viper]

BIB - that's a massive leap though. How can you be so certain he armed himself intending to kill the intruder and not that he armed himself prepared to defend himself if necessary?(not the same thing)

You really should visit the link that I posted sometime, all of this is discussed.

Did you watch the trial? It seems that the neighbors hearing a woman screaming before and during the shooting have been lost on more people than just Masipa, amoung other things.

The questions now really relate to Masipa's interpretation and application of the law, which appears flawed.

 

[GR_Turner]

You really should visit the link that I posted sometime, all of this is discussed.

Did you watch the trial? It seems that the neighbors hearing a woman screaming before and during the shooting have been lost on more people than just Masipa, amoung other things.

The questions now really relate to Masipa's interpretation and application of the law, which appears flawed.

How does this answer the posters
question? Either he knew it was Reeva or thought it was an intruder. If the screams were Reeva's he must have known it was her. If not, then it's much less clear. The screams evidence isn't lost on anyone. The interpretation of it differs.

 

[mrjitty]

I agree that it would be very helpful to have a legal analysis of the Heads of Appeal, but, as far as I can see, there isn't much out there at the moment.

Here is a link to the 2014 court of Appeal case of Mkhize v S (16/2013) [2014] ZASCA 52 (14 April 2014):

http://www.saflii.org/za/cases/ZASCA/2014/52.html

The case is interesting because the appellant's murder conviction was set aside by the Appeal Court and replaced with a conviction for culpable homicide, despite his use of excessive force:

‘In the final analysis, a Court of appeal does not overturn a trial Court’s findings of fact unless they are shown to be vitiated by material misdirection or are shown by the record to be wrong.

[15] The test that applies, and what was required to be shown by the appellant in order to avoid a conviction on culpable homicide is that a reasonable person in the same circumstances in which he found himself would have believed that his life was in danger and would have acted as he did.[5] The only issue was whether the State had proved beyond reasonable doubt that the appellant did not, subjectively, entertain an honest belief that his life was in danger and thus not justified to act in putative private defence...

A further aspect that remains for determination is whether, despite the appellant’s subjective belief that if he did not react as he did he would have been killed, it was necessary for him to shoot the deceased three times. The first shot would, in all probability, have had the desired effect to ward off the unlawful attack on him. In my view, the appellant, especially as a long serving police officer with considerable experience in handling firearms, ought to reasonably have realised that he was using excessive force beyond the legitimate bounds of private defence. In the circumstances, he should have been convicted of culpable homicide. Counsel for the State fairly and correctly conceded that the evidence viewed in its totality, failed to establish that the appellant had the requisite intention to kill the deceased. The appeal against the conviction ought, for the aforesaid reasons, to succeed...'

So, although the appellant failed the three stage test for PPD, he still managed to avoid a murder conviction on appeal, as a result of the Appeal Court's finding that the State had failed to prove beyond reasonable doubt that the appellant did not entertain an honest belief that his life was in danger.

Quite why the State conceded that it had failed to establish that the appellant had the requisite intention to kill is unclear.

However, if the reasoning in Mkhize v S were to be adopted in S v Pistorius, the appellate court will need to reverse Masipa's finding that OP's intruder-belief story was reasonably possibly true in order for him to be found guilty of murder.

Hi Sherbert

Thanks so much for posting some real legal meat for us to analyze!

I agree this case is right on point and Roux will no doubt use it.

I believe the State will argue that Mkhize v S can be distinguished for the following reason.

Where the accused mistakenly but unreasonably uses excessive force, then I agree - that is a complete defence to murder provided the rest of the PPD tests are met. Obviously the accused is still liable to a charge of CH as the killing would be by definition negligent.

However in this case OP was not subjectively mistaken as to the level of force that would be reasonable. Rather his mistake applied only to the existence of a threat. At all times he knew he could simply leave. And on his own version he saw no evidence of an actual attack justifying that force level. Only a lurking but unknown threat. So in other words, on the facts as OP believed them to be, his life was not in danger to such an extent that he could have believed his actions to be justified.

Think of it this way

If there really had been an intruder - exactly as OP believed - then Masipa held he should not have fired, and should simply have left via the bedroom door - because he both subjectively & objectively knew that the option of shooting was excessive given his other options. So in other words self defence test not met equals murder.

OP does not get into a better position due to merely to a mistake of identity.

Masipa herself made this clear.

If OP had perceived an imminent threat - e.g. a shadow looming over him in bed and shot in a panic - that would arguably be an honest mistake as to the level of force he needed to deploy because he believed he was under immediate attack with no other options.

What do you think of that argument?


As usual these discussions are difficult because what Masipa actually found is not made clear by the judgement text.

Indeed reviewing the judgement again - Masipa herself does not really seem to address these issues at all - having already excluded dolus because

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
20 alone the deceased, as he thought she was in the bedroom at the time.

Masipa then goes on to find the actions were not reasonable - for example OP was nearer the balcony at the time and could have taken other actions.

The accused had reasonable
time to reflect, to think and to conduct himself reasonably

But given OP subjectively knew all this - how is murder excluded?

Even if we give him the benefit of the doubt on every aspect of his version, and a real dead intruder was revealed behind the door - the test for self defence is not met.

That's the ongoing problem I have with this judgement, as per the states original docs at the opening of the trial.

If there really had been an intruder - surely this was still murder.

You are not allowed to speculatively gun people down on the thinnest of justification

 

[mrjitty]

I once again came across this strange statement from Masipa

Counsel for the state, correctly in my view, submitted that if the accused
never intended to shoot anyone, he cannot rely on a defence of putative
self defence.

So strangely - by finding against the accused's own version the defence became available?

I don't see how that can be correct

“You never purposefully fired into the door?”
The answer was:
“No M'Lady I did not.”
The question:
“So you never wanted to shoot at robbers, intruders
coming out of the toilet?”
The answer was:
10 “That is correct.”

The weirdness is that if on his own testimony as to his subjective state of mind - the accused did not act in PPD - how can the defence be made out?

Such a dog's breakfast

 

[Viper]

How does this answer the posters question? Either he knew it was Reeva or thought it was an intruder. If the screams were Reeva's he must have known it was her. If not, then it's much less clear. The screams evidence isn't lost on anyone. The interpretation of it differs.

The answer can be found at the link, but the short version is: a person is dead because of OPs willful actions, it doesn't matter that the person is Reeva and not a blood thirsty intruder.

[url]http://criminallawza.net/2014/09/28/unsuccessful-attempts-to-justify-judge-masipas-errors-revised-expanded/

[/URL]The discussions here seem to have lost the concept of transferred intent that was widely discussed and understood during the trial. Personally I believe that Masipa messed up big time, fortunately I have a South African law professor that agrees with me.

 

[lithgow1]

Re post 155. So does this quote from Masipa mean that the only defence he had, and the one she accepted, was that of involuntary action? Which was not his stated defence until he got all confused at Nel`s questioning and started saying he never meant to shoot anyone, the gun just went off etc etc?

Counsel for the state, correctly in my view, submitted that if the accused never intended to shoot anyone, he cannot rely on a defence of putative self defence.

 

[mrjitty]

Re post 155. So does this quote from Masipa mean that the only defence he had, and the one she accepted, was that of involuntary action? Which was not his stated defence until he got all confused at Nel`s questioning and started saying he never meant to shoot anyone, the gun just went off etc etc?

Counsel for the state, correctly in my view, submitted that if the accused never intended to shoot anyone, he cannot rely on a defence of putative self defence.

No.

Masipa held he did intend to shoot someone. Contrary to his own evidence.

Therefore bizarrely his pleaded defence came into play.

This is one of the illogical aspects the state is appealing against.

How can the state be expected to rule out PPD when the accused himself does not come up to brief during EIC?

 

[mrjitty]

The question can be summarized like this.

What was OP subjectively mistaken about?

A threat in the toilet? Held yes.

An imminent threat justifying lethal force? Arguably not.

 

[aftermath]

The answer can be found at the link, but the short version is: a person is dead because of OPs willful actions, it doesn't matter that the person is Reeva and not a blood thirsty intruder.

[url]http://criminallawza.net/2014/09/28/unsuccessful-attempts-to-justify-judge-masipas-errors-revised-expanded/

[/URL]The discussions here seem to have lost the concept of transferred intent that was widely discussed and understood during the trial. Personally I believe that Masipa messed up big time, fortunately I have a South African law professor that agrees with me.

I am in agreement with a South African law professor too:
http://www.bdlive.co.za/opinion/2014/09/17/masipas-decision-to-acquit-oscar-of-murder-justified