Oscar Pistorius - Discussion Thread #65~ the appeal~

[cottonweaver]

I wonder if Roux is now discussing with OP whether he wants to carry on to the Constitutional Court in the event of losing to the State.


And finally, finally we can say these judges know and said that Her Name Was Reeva Steenkamp and mentioned her by name a number of times today.

Whoopee the page loaded!
RSBM
Just on these 2 points.
3 cheers for humanity BIB Wasn't that refreshing , compared to Masipa.

First point CCourt - wonder if this is where they discuss the potential of the unfair trial based on media broadcast nonsense? Remember end of trial and Roux adds in at very end- some of my witnesses would not come and give evidence due to the strain of media furore.

Anyway he'll potentially have to discuss it with Arnold too? ( OP "broke". )

 

[mrjitty]

EWN Reporter ‏@ewnreporter 3 Std.Vor 3 Stunden
#OscarPistorius Leach reading case law to Roux showing that if the court misdirects itself it is in fact a question of law. BB

Yes - there has always been this wiggle room

For instance there can be findings of facts that are so unreasonable that they become legal errors.

 

[sleuth-d-]

I've been popping in but oh no I missed the big day. Ugh, duh. OK, I'll go back to page six and start reading to try and see what everyone's been saying to get a gist of the events, hope there's a YouTube link somewhere to the court?

Any kind of serious look at the legal process seems vital in SA, I've loosely followed a couple of other results and they seemed as confusing/head-scratching as Masipa's ruling on the smaller firearm/ware possession charges.

[video=youtube;50ph2UinK3o]https://www.youtube.com/watch?v=50ph2UinK3o[/video]
worth watching again with coffee/biscuits for the leach v roux section

 

[mrjitty]

This is pretty awesome.

Leach says the trial judge found Pistorius to be a “shocking” and “unreliable” witness, but then went on to accept his claim that he honestly believed his life was in danger, without evidence to support it.

Justice Leach demands Roux "show him the factual finding," Roux forced to page through his notes

Roux finds a reference in his notes. Leach says it does not support the defence argument that Masipa made a factual finding that Pistorius genuinely believed there was an intruder

http://www.theguardian.com/world/li...ius-appeal-state-seeks-murder-conviction-live

Rules out PPD

 

[soozieqtips]

There you go again trying to personalize things? You think you know my thoughts? You have not even come close.

All I can say is - read the judgement again.

I asked you a question. You didn't answer it. I think everyone's thoughts on this case are clear from the content of their posts - even yours.

As OP supporters have almost always denied they are supporters, rather they're 'interested in justice" - it will be interesting to see if a single one of them admits that today was a positive outcome for justice, in that the SCA are looking closely at the points Masipa ignored in her incorrect application of the law to make sure this doesn't happen again and to ensure the correct verdict is handed down.

If the verdict was wrong (and it will be down to the SCA to decide), and OP supporters get all upset about it, then this will never have been about justice, but about getting a murderer off just because he was a 'celebrity'.

 

[mrjitty]

- Are they ready to accept genuine belief his life in danger is not a factual finding of Masipa? Is it enough for Nel to reply in his final statement

"Yes if its a fact finding but we still need to deal with PPD, what was the alternative to him shooting? ( eg. escaping) , the court never asked these questions. And you SCA cant argue them cause there is "no version".

( Nel was not very convincing and clear then)

This is a critical point that we have discussed before on here, and Nel actually nails it

In the legal inquiry to (mistaken) self defence - which was Roux's main defence - you must show that use of lethal force was reasonable and excessive

Even if OP was mistaken, on the facts as he believed them to be, he had other more reasonable options - like to simply run away.

Masipa herself actually noted that.

By failing to work logically thru the test of PPD - she misdirected herself.

This is what Nel is getting at.

The Court has to apply the facts to the legal test and Masipa simply skipped that part.

What were her legal findings in relation to PPD? I still have no idea.

Prof Grant's analysis of this area is still very persuasive IMO.

 

[cottonweaver]

This is pretty awesome.



http://www.theguardian.com/world/li...ius-appeal-state-seeks-murder-conviction-live

Rules out PPD

here's an extract of that Leach Roux exchange, just from my paraphrased notes whilst watching ( Beware not verbatim, but gives a flavour of the sword-crossing

R – can I turn it around? Why was he shooting at 3am into a door? Of course he believed it
L – but was his action, but was his belief in his lawfulness correct?
R – yes, court found that. But if we say trial court you were wrong, we are saying the your factual finding is wrong!
L I'm not saying that was wrong. But where in the judgment is it found the “genuine belief life was in danger” I don't believe that a factual finding has actually been found on that. Show it to me...
R – I will find it bear with me ( weary voice)
L – I cannot find it. Closest to it is where it says “this was version and it hasn't been disproved by the state. But that isn't a positive finding esp as she has said he is a poor witness.
R Please bear with me, to find it in the judgement.

shuffle paper pause. (shot of K.Maughan who has gone brassy blonde. Not good look . natch!)

Roux – (he starts to read from masipa judgment, but never gets to finish, as L does it for him )
Leech reads it out and says
L- it doesn't follow, or do u say it follows logically? Its a misdirection
R – it is a misdirection ( check video - am fairly sure he said that)
L PPD is not the same. U can have intent to kill, why did he believe the person was coming out, the door did not open, he is there he can see, does not know if 12 year old child or person with sub machine gun in there
R – from time to time he vacillated on why he fired, and he was on stumps, he is anxious person, why else did he shoot?
L – cause he thought someone was in there

 

[mrjitty]

Justice Leach seems to be in the Prof Grant camp on the whole DE business

 

[Interested Bystander]

Justice Leach seems to be in the Prof Grant camp on the whole DE business

Was Prof Grant in attendance today? We know he was helping Nel. I could not watch the entire proceedings but did manage to don Bluetooth headphones (even though we had a visitor) so at least I heard it.

 

[Trotterly]

Was Prof Grant in attendance today? We know he was helping Nel. I could not watch the entire proceedings but did manage to don Bluetooth headphones (even though we had a visitor) so at least I heard it.

Yes he was.

 

[soozieqtips]

Finished?

What do you think of your comment below? Have you changed your mind since listening to this morning's proceedings?

I love to read all of the contorted legal argument about this case and I admire the state for having a go at the appeal but it really only depends on one thing, that Masipa believed his story was possible, that he was scared and careless and that he did act under those circumstances. Matters of fact not law.

Well, it does not only depend on one thing, that Masipa believed his story was possible. What matters is that OP was not entitled to shoot under those circumstances, no matter who was behind the door. Masipa (and supporters) appear to have overlooked this crucial fact given that Leach also pointed out OP wasn't in any danger and the person was behind a door in a restricted area with nowhere to hide when he fired 4 shots and killed them. It's murder and I hope he gets life.

 

[Trotterly]

How did today go for Oscar in your opinion? Happy with the way the five SCA judges handled the proceedings? Like the many pertinent questions they asked regarding what OP actually did that night?

It was pleased that attention was being focused on DE rather than DD but it was surprising that they seemed to have missed the point about the sequence of events that were heard. I see why Roux thought he needed the extra time for his argument and to place Maispa's comments about DE into the context of the dismissed DD.

If they have regard for the wider evidence then I don't see the appeal being successful. Either way one hopes that will be clear from their hopefully detailed decision.

 

[Colin de France]

....i think he did know the risk but fired anyway due to his anger......it's a fine line.....

 

[Trotterly]

What do you think of your comment below? Have you changed your mind since listening to this morning's proceedings?

Well, it does not only depend on one thing, that Masipa believed his story was possible. What matters is that OP was not entitled to shoot under those circumstances, no matter who was behind the door. Masipa (and supporters) appear to have overlooked this crucial fact given that Leach also pointed out OP wasn't in any danger and the person was behind a door in a restricted area with nowhere to hide when he fired 4 shots and killed them. It's murder and I hope he gets life.

Well there is a difference of opinion. Nel said that OP did not fire as in PPD and Leech cited Olivera which says firing without thinking is incompatible with PPD. But Leech disagreed with Nel when he said that OP fired at the noise. This is what Masipa believed.

 

[cottonweaver]

Well there is a difference of opinion. Nel said that OP did not fire as in PPD and Leech cited Olivera which says firing without thinking is incompatible with PPD. But Leech disagreed with Nel when he said that OP fired at the noise. This is what Masipa believed.

BIB I'm not sure that Leach said that to Nel. Can you be be more specific?

 

[mrjitty]

What matters is that OP was not entitled to shoot under those circumstances, no matter who was behind the door. Masipa (and supporters) appear to have overlooked this crucial fact given that Leach also pointed out OP wasn't in any danger and the person was behind a door in a restricted area with nowhere to hide when he fired 4 shots and killed them. It's murder and I hope he gets life.

Yes!

Also in reply to cottonweaver above.

Justice Leach has seized upon an important point with the application of legal tests to facts.

The critical question is - did Pistorius mistakenly believe he was acting with lawful justification?

Much discussion centred on the mistake - but Masipa really made a mess of the justification part.

The starting point is that Shooting people is not allowed. Self defense is an exception to that.

Having dealt with the factual nature of the mistake the Judge should have done 2 things.

1. Outline the tests for lawfulness given the mistake

2. Reviewed the proven facts which showed that the test for lawfulness was met.

If the test was not met - it must, logically be murder.

So the main questions were

1. Did he use lethal force against an imminent threat?

2. Was the force not excessive?

3. Was the course of action reasonable? (e.g. did he have obvious non-lethal options)

Per Justice Leach the next point is the evidential onus is on the defence to prove facts which bring SD into play.

And as Leach has identified - here is where the shabby judgement really kicks in

1. Imminent threat? Where is the finding on this?

2. Force not excessive. Ditto???

3. Course of action reasonable? Masipa seems to find the opposite???!!??

These are clear legal errors on the face. So PDD really has not been found.

So then you are left with the obvious problem that OP does not have any other defence.

 

[mrjitty]

here's an extract of that Leach Roux exchange, just from my paraphrased notes whilst watching ( Beware not verbatim, but gives a flavour of the sword-crossing

R – can I turn it around? Why was he shooting at 3am into a door? Of course he believed it
L – but was his action, but was his belief in his lawfulness correct?
R – yes, court found that. But if we say trial court you were wrong, we are saying the your factual finding is wrong!
L I'm not saying that was wrong. But where in the judgment is it found the “genuine belief life was in danger” I don't believe that a factual finding has actually been found on that. Show it to me...
R – I will find it bear with me ( weary voice)
L – I cannot find it. Closest to it is where it says “this was version and it hasn't been disproved by the state. But that isn't a positive finding esp as she has said he is a poor witness.
R Please bear with me, to find it in the judgement.

shuffle paper pause. (shot of K.Maughan who has gone brassy blonde. Not good look . natch!)

Roux – (he starts to read from masipa judgment, but never gets to finish, as L does it for him )
Leech reads it out and says
L- it doesn't follow, or do u say it follows logically? Its a misdirection
R – it is a misdirection ( check video - am fairly sure he said that)
L PPD is not the same. U can have intent to kill, why did he believe the person was coming out, the door did not open, he is there he can see, does not know if 12 year old child or person with sub machine gun in there
R – from time to time he vacillated on why he fired, and he was on stumps, he is anxious person, why else did he shoot?
L – cause he thought someone was in there

This is just shambolic from Masipa

 

[mrjitty]

Leach is my hero at this stage.

Nel's point has always been that there never was any reliable evidence that OP believed his life was in danger.

Evidential onus was on the defence on these points.

 

[mrjitty]

Roux refers to OP's anxiety and concedes negligence.

SCA did he believe he was entitled to shoot?

Roux: there is nothing to suggest this belief was not honestly entertained - that's a factual finding....that excludes dolus...

This submission is obviously and clearly incorrect.

Leach: did he have a genuine belief that her was entitled to shoot through the door?

The entitlement (legal justification) needed to include consideration of perceived threat+excessiveness+other options

The fact that Masipa forgot to address those points renders who judgement legally broken

 

[lithgow1]

I know Roux is by no means a Lionel Hutz but his 'I'm gonna lose' comment does remind me of a Simpsons episode where Mr Hutz says much the same thing. Ms Phelps chimes in in the link below and as per usual tries to put the best light on things. She may well be right, but even so I imagine long faces at the Pistorius residence tonight.

Legal analysts said the outcome was unpredictable. “A lot of people were focussing on how gruelling the interrogation on Roux was, and drawing an inference from that. But having one or two vocal judges doesn’t give you an indication into what the other three are thinking,” said Kelly Phelps, law professor at the University of Cape Town.

“Simply because they argue vociferously with one side, doesn’t mean they necessarily agree or disagree with that side. We can’t know where this stands right now.”

http://www.theguardian.com/world/20...s-appeal-lawyer-barry-roux-i-am-going-to-lose