Oscar Pistorius - Discussion Thread #65~ the appeal~

[mrjitty]

To conclude - interesting discussion around substituted verdicts.

I think the SC will accept it can substitute a verdict of murder where there is simply a clear error of application of the facts to the law

Will they do so in this case?

 

[mrjitty]

All Posters will await with baited breath....
Karyn Maughan's article on the Appeal in tomorrows Mail & Guardian ,you can see it's causing great anticipation

"It looks at how the state abandoned case that Pistorius meant to kill Reeva - now arguing he intended to kill person behind door"
Hopefully it will be more impartial now the SCA have been so caustic.

[video=twitter;662334009553387521]https://twitter.com/karynmaughan/status/662334009553387521[/video]

What?

How idiotic

The original indictment contained the alternate contention that it was murder, no matter who he thought was behind the door.

 

[mrjitty]

Thanks for that, cotton. I watched most of it on my laptop, which has one broken speaker, so missed some of the back and forth. Thought this exchange left Roux very flustered and nothing like the smooth talker he was in front of Masipa.


Leech- so its worse, her 2 pages , whole case turns on them, she never deals with anything effectively because he did not know it was she behind the door.

Roux: No , let me find it ( looks through her judgement )

Leech- her analysis of DE is wrong. It's that he knew someone was behind the door

Roux: Its not the issue

Leech :that is the issue

Roux: let me go back


Poor old Roux. Let me go back. In time??

His subsequent fudge of this was inventive but futile IMO.

AT least 2 of the justices seemed to be receptive to the idea that PDD can't fly.

Leach outright said he can't see it.

 

[cottonweaver]

To conclude - interesting discussion around substituted verdicts.

I think the SC will accept it can substitute a verdict of murder where there is simply a clear error of application of the facts to the law

Will they do so in this case?

BIB Following the exchanges that occurred that point seemed to be completely won by the State.

 

[soozieqtips]

To conclude - interesting discussion around substituted verdicts.

I think the SC will accept it can substitute a verdict of murder where there is simply a clear error of application of the facts to the law

Will they do so in this case?

BIB - I think (hope) they will. If they don't, an alarming precedent will be set whereby anyone who murders their partner can cite anxiety and fear as legitimate reasons for taking a life (just because they heard a noise and thought their 'loved ones' were in bed). It would be a serious travesty of justice to uphold a verdict based on Masipa's inability to understand what DE means. So, yes. I think they will upgrade OP to murderer from culpable homicider (!) otherwise those who so far haven't had the guts to kill their partner will now be able to do so with gay abandon!

 

[cottonweaver]

What?

How idiotic

The original indictment contained the alternate contention that it was murder, no matter who he thought was behind the door.

"COUNT 1 – MURDER …IN THAT … the accused did unlawfully and intentionally kill a person, to wit, REEVA STEENKAMP, a 29 year old female…."

Given that the crime of murder is the unlawful intentional killing of another human being, it is difficult to understand how this restricted the prosecution to having to prove that the accused knew it was Steenkamp behind the door. They name the human being that he did unlawfully kill.


Ulrich Roux saying the SCA still could sentence
"

We ask Ulrich what will happen if the SCA rules in the State’s favour – will Pistorius have to return to jail, what will happen to his sentence, and will there be a retrial?

“No. It could go back to the North Gauteng High Court for evidence to be led in aggravation and mitigation of sentence, but we will not see a trial start afresh – that was confirmed by the judges during the appeal.

“The Appeal Court could also sentence Pistorius should they wish to do so. The only other court Pistorius will be able to approach, will be the Constitutional Court. He will only be granted leave to approach the Constitutional Court in the event that he convinces the court that his constitutional rights have been infringed upon,” Ulrich says.

And although the two judges seemed to be leaning towards the state’s point of view yesterday, Ulrich says the decision does not only lie with them."
“The majority verdict will be the verdict that is handed down by the court, so in other words if three of the five judges say that he should be convicted of murder, then that will be the finding of the court and the majority judgement. If the other two judges say that he should not, it will be regarded as the minority judgement,” he says.

http://www.destinyman.com/2015/11/04/will-gerie-nel-victorious-supreme-court-appeal/

nov4th

 

[cottonweaver]

James Grant ‏@JamesGrantZA Nov 3 Bloemfontein, South Africa
"For the mischief makers - check my TL - I've maintained that Masipa J is a smart Judge who deserves respect - but who, IMO, made a mistake."

Diplomatic

and on NOv 3rd Grant tweet
"Wow, our law is in good hands - razor sharp judges in the SCA. This morning was a very proud South African moment." ( Pandax doesn't agree though, of course.)

 

[soozieqtips]

Excerpt from an article over a year ago, and stuff we already know, but topical given the recent appeal.


So why did Judge Masipa, you might wonder, think the requirements of dolus eventualis was not met? Here it gets embarrassing I'm afraid. This test in law is a subjective one. We have to ask what Pistorius was thinking. Pistorius told us he thought Steenkamp was asleep in bed. Judge Masipa believes him and takes this as proof that Pistorius did not desire the death of someone behind that bathroom door.

But that is blatantly a misapplication of the law. Who cares if Pistorius sincerely believed Steenkamp was in the bedroom fast asleep? The question is whether he foresaw any human being behind that door - Xolani or Piet or Marita or nameless intruder - dying if he were to shoot at them through that door four times? So it's not legally relevant that Pistorius genuinely didn't think Steenkamp was in the bathroom. The murder charge holds so long as he believed SOMEONE was there, foresaw that four shots in that direction could kill them and reconciled himself to that outcome. And he did.

It gets worse: Pistorius' defence is that he intentionally shot at the door to neutralise a perceived threat. He just didn't think his voluntary shooting was unlawful. But by the standards of dolus eventualis, properly applied, he committed murder in South African law.

Nel can start filing his appeal papers. His prospects are surely good.

Judge Masipa won't be the last judge to have a verdict overturned.

http://www.iol.co.za/news/judge-masipa-got-it-wrong-1.1749695

 

[mrjitty]

"COUNT 1 – MURDER …IN THAT … the accused did unlawfully and intentionally kill a person, to wit, REEVA STEENKAMP, a 29 year old female…."

Yes exactly.

Of course Reeva is then named - because the prosecution do still have to make out the elements of the crime - i.e. they must prove that a person was killed.

It seems obvious but it is a technical requirement

 

[soozieqtips]

Am I having false memory syndrome, or did Masipa say at one point that just because OP should have foreseen he could kill/injure someone - it didn't mean he did foresee it? How would that make a difference in her eyes. Should have means ought to have - so she was saying it doesn't matter because should have doesn't mean did? I'm confusing myself now.

 

[Val1]

There's been some discussion here re 'premeditation'.

I found this article:

http://www.iol.co.za/dailynews/opinion/expert-clarifies-premeditated-murder-1.1573253#.VjvG6NKrT_w

......Mdunge gave the example of a person who had stabbed someone more than 20 times.

“If it wasn’t premeditated, the person would have stopped after stabbing the person the first time,” he said......

We had evidence that Oscar fired one shot, paused and then fired 3 more. Seems to me, in that instant after the first shot, he formed premeditation.

Seems to me that his doctor felt that OP's premeditation started before he got to the bathroom and that would have been based on what OP had told him.
-----------------
http://www.timeslive.co.za/local/2014/07/03/the-oscar-pistorius-murder-trial-day-37
""Walking down the passage, even in fight mode, with gun in hand his intention was to shoot. You agree?" Nel asked.

"That is correct," Derman said."
------------
"Nel put it to Derman that Pistorius wanted to kill the person who made that sound inside the toilet.

"He fired at the sound, I'm sure it was to nullify the threat," he told the court."
------------
"Nel also argued that Derman's inability to speak about the fight or flight response outside the circumstances of Pistorius's version of events, and not in objective terms, failed to give credence to his testimony as an expert."
------------------

 

[Sherbert]

Am I having false memory syndrome, or did Masipa say at one point that just because OP should have foreseen he could kill/injure someone - it didn't mean he did foresee it? How would that make a difference in her eyes. Should have means ought to have - so she was saying it doesn't matter because should have doesn't mean did? I'm confusing myself now.

Yes, she definitely said that he should have, but didn't. This is why she held culpable homicide and not DE.

 

[K.T]

Well, that was fascinating. just got through the youtube supreme court link.

I imagine the Supreme Court giving a ruling of DE. Though Masipa may give making another confused reasoning, if there is another sentence hearing on a DE conviction, to make some special exemption (which they appear to allow through special circumstances) to get less than the mand. minimum sentence.

This should be DE is by the logic of at least two of the supreme court judges questioning and statements.

But who knows!

I thought it was clear the high court could would give DE from the four shots, Pistorius bad witness testimony which cancelled out its own self-defense argument, plus the size of the cubicle. Well, I was completely wrong there

Groan, if there is a retrial. Even though I would love to see ‘babyshoes’ on the stand and that mysterious dead-sleep house manager. Reluctant witnesses can be extremely telling. Yet retrial seems less likely from the tone of the appeal hearing.

Thanks for all these interesting comments everyone. Whatever the result it was satisfying see the law in action, with hard questions to both counsel and the supplanting of Seekoi (sp).

 

[soozieqtips]

Yes, she definitely said that he should have, but didn't. This is why she held culpable homicide and not DE.

I can understand her saying that had it been someone unfamilar with guns and with the size of the toilet - but neither of those points applied to OP.

 

[kaos]

If this does go back for a retrial, I hope more is made of how he managed to group those shots in the dark. He claimed there was no light on in the bathroom from what I remember and yet no mention was ever made of muzzle flash and Mr Roux also contends that Reeva could have hid behind a wall in that toilet cubicle, yet Roux was the one who claimed that cubicle light never worked so poor Reeva would never have been able to see where she could hide.

Of course, that's all reliant on Pistorius' testimony being truthful, which it blatantly wasn't.

 

[Greater Than]

What?

How idiotic

The original indictment contained the alternate contention that it was murder, no matter who he thought was behind the door.

I think she's referring to the State's position during the trial - that he intentionally killed Reeva. Nel did say during the appeal hearing that he still maintains OP knew damn well who was behind that door, but that he's arguing that it doesn't matter whether he knew or not because he still committed murder.

After watching the hearing I'm cautiously optimistic. I hope these judges who appear to be true justice seekers do the right thing.

 

[Val1]

I can understand her saying that had it been someone unfamilar with guns and with the size of the toilet - but neither of those points applied to OP.

Even confronted with the evidence of the "zombiestopper" video she held fast to her opinion.... imo.

 

[jilly]

Even confronted with the evidence of the "zombiestopper" video she held fast to her opinion.... imo.

I thought about this too after watching the Appeal. Plus there was more evidence of Oscar's reckless behavior plus attitude and sense of entitlement such as letting a gun go off in a restaurant, boating accident, speeding and whatever else.

Now the defense is crying poor whittle oscar with an anxiety disorder. It's a heck of a lot more than that according to the evidence.

I can't see this Appeal being dismissed - way too many errors on Masipa's part. Otoh, I really don't want to see Oscar get a retrial either.

 

[saraomar]

.....if, one day the truth does come out and it turns out that he did fire on the door without thinking and seriously regretted his actions we will surely wonder why we didn't take that idea onboard beforehand......

If it were un-thinking, indiscriminate fire, to take your point, he would have sprayed the bathroom with fire, without the ricochet thought! He cannot state 'unthinking' and then land 4 bullets in such close grouping, into a target....I.e the door. Clearly there was thinking there!

 

[cottonweaver]

@Saromar

Hey Saromar, I remember you from back in the day and that you , as trial progressed, were convinced Masipa was going to decide not guilty on murder and you kind of, gave up posting as you were, rightly, feeling cynical.

Anyway .....getting to the point ...... how do you feel after watching the SCA hearing .....any more confident?