Oscar Pistorius - Discussion Thread #65~ the appeal~

[Trotterly]

William Booth says that he could get less than 15 years, he even goes as far as to say that the sentence could remain the same. This seems unlikely to me.

[video=youtube;VQ0BSry2-dk]https://www.youtube.com/watch?v=VQ0BSry2-dk[/video]

I don't know who this guy is but he didn't watch all the appeal because they made it quite clear that the matter would have to go back to the High Court for any sentencing.

 

[Trotterly]

He may not have abandoned it entirely.

On appeal - he cannot dispute Masipa's factual finding re the "intruder"

However if a new trial were ordered - then conceivably, all cards are back on the table.

Normally, if an error of law were found - we would expect a de novo trial (this is what the accused would get if the show was on the other foot) as the original trial would be viewed as compromised by the legal errors in the verdict.

However politically - I wonder if this is off the cards.

If the appeal is upheld the SCA could reconsider all the evidence and bring it back into play. If it goes back to the HC without reconsideration then the presence of Reeva cannot be considered in the sentence.

 

[cottonweaver]

I don't know who this guy is but he didn't watch all the appeal because they made it quite clear that the matter would have to go back to the High Court for any sentencing.

WmBooth - he has followed it closely.

I too thought I heard the SCA say it would return to HC for sentence but I was surprised then to find Ulrich Roux saying it still could.
The link and quote is on the previous page.

 

[janicelongbright]

Wouldn't that appear to contradict the much publicized version that in effect precludes proper grounds for appeal ? Eg the judge ignoring/refusing to address, when giving reasons for judgement, material facts of the trial ?
Incontrovertible evidence that pistorius did not fire through the door presented in court , was certainly ignored by all .
The transcript of Mangena and Wolmeran's testimony and written records are still available .
Wolmerans,( in answer to question of discrepency in bullet hole trajectory mismatch with their evidential damage at the other side of the door) Approx. "The nature of the wood may have deflected the passage of the bullet going through the door. "....Apart from the fact of his own written assertion that the bullets EXITED the door at a downward trajectory , the laws of physics just don't allow a bullet to travel downwards then upwards .
Similarly Mangena's written and photographic report has him stating the very fact , that the door was at odds with the crime scene evidence, " a bullet cannot exit at a downward trajectory and turn into an upward direction " , he writes . A photograph depicts him projecting a laser beam upwards from the bullet holelevel to the hit mark above the toilet cistern .These masterminds of forensic logic then testify that, the victim must have sat on the mag.rack ,after having her hip shot and her arm removed , in order to be high enough to accomodate being hit by the third bullet in the head .
There are many other material proofs that the victim was not shot through a door( not that one anyway)
How can anyone prosecute a case on the basis that the state has provided the murderer with a lifeline excuse ?

 

[Interested Bystander]

I don't know who this guy is but he didn't watch all the appeal because they made it quite clear that the matter would have to go back to the High Court for any sentencing.

Law Society of SA Chairman William Booth

 

[Sherbert]

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.

Yes, the state adduced compelling evidence of both objective and subjective foreseeability. But, in Masipa's opinion, OP's ability to foresee was completely extinguished by GAD/panic.

 

[Sherbert]

I have only just got to read this article - that someone posted way back- think I must be temporarily legalled- out.! ( See , can't even string a sentence together....)

Anyway if MR Jitty and Sherbert are still around, I would appreciate your opinions on the article.

http://www.dailymaverick.co.za/opin...out-intention-to-act-unlawfully/#.Vjshr67hA6j

........if you have the time.

Anyone else who feels up to it too, of course....

Spent far too long reading all the legal principles in August for me to dive back into it...

(PS read this one too,an easy read, linked by someone here again, apologise if I am repeating links. This says what we have all been saying here for soooo long. )
http://www.dailymaverick.co.za/article/2015-11-04-op-ed-dolus-eventualis-day/#.Vjsg_67hA6i

Hi Cottonweaver! Regarding Taitz's analysis, if it is correct that a verdict of DE requires the prosecution to prove beyond reasonable doubt that the killer was not in fear of his life, then, imo, the bar is raised too high, as this is almost an impossible task. It's like trying to prove that someone doesn't have a headache.

Of course, the irony is that this particular hurdle might have been circumvented if the State were seeking DD of Reeva rather than DE of the fictitious intruder, as the prosecution's focus would have been on proving that the 'I-thought-she-was-an-intruder story' was merely a subterfuge and that he'd shot and killed Reeva following an argument. And yet the majority view is that eventualis is the more achievable of the two.

I'd be worried if I weren't absolutely convinced that the SCA doesn't buy OP's story for one minute and is simply chomping at the bit to upgrade the verdict.

As an aside, if OP's evidence were to be entirely ignored on the basis of his being a shocking witness, then wouldn't DD of Reeva be proved beyond reasonable doubt?

 

[Trotterly]

Yes, the state adduced compelling evidence of both objective and subjective foreseeability. But, in Masipa's opinion, OP's ability to foresee was completely extinguished by GAD/panic.

That's not what she said at all.

She said he did not foresee killing Reeva because he thought she was in the bedroom.

When he fired he thought he was firing at an intruder and as he feared the intruder may harm them his actions were self defensive and thus lacked unlawfulness. In this case "foreseeing" was foreseeing a lawful act.

So "ability to foresee" in the context of DE is irrelevant on the defence version.

 

[lithgow1]

That's not what she said at all.

She said he did not foresee killing Reeva because he thought she was in the bedroom.

When he fired he thought he was firing at an intruder and as he feared the intruder may harm them his actions were self defensive and thus lacked unlawfulness. In this case "foreseeing" was foreseeing a lawful act.

So "ability to foresee" in the context of DE is irrelevant on the defence version.

BIB - that is one of the reasons he gave for firing. The other was that he never meant to fire at all. I am just re-watching the appeal and funnily enough at the 25 minute mark that is exactly what Nel is discussing - his conflicting claim that he fired at the noise versus he never intended to fire. As Nel says, he said over and over and over again that he never voluntarilly fired. They then discuss De Olivera (sp?) and how the same 'excuse' was used and rejected as (in one of the judge's words) 'completely incompatible with a defence of PPD'.

[video=youtube;ChwcO_wnolQ]https://www.youtube.com/watch?v=ChwcO_wnolQ&list=PL3ZQ5CpNulQkS3pFC3Q183H2a-gc4pJ6H[/video]

 

[Val1]

agree with this. also, the gun held at least ten more bullets... there must have been some thinking around stopping firing? why was op not questioned on why he stopped firing at four shots?

BBM He was asked:

http://www.smh.com.au/world/oscar-p...ces-sixth-day-of-grilling-20140414-36nem.html

"8:59pm: Nel says he is now going to deal with the "double tap" suggestion. Pistorius denies double tap, says hefired in quick succession.

Nel: Why did you stop after firing four bullets?

Pistorius: I'm not sure.

Nel: Same here ... why not empty the magazine? Why not fire at the window?

Pistorius: Why would I fire at the window?

Nel: (quoting Pistorius' previous evidence) 'because there could be someoen there on the ladder?'

Pistorius: I thought there was someone in the toilet."

 

[Trotterly]

BIB - that is one of the reasons he gave for firing. The other was that he never meant to fire at all. I am just re-watching the appeal and funnily enough at the 25 minute mark that is exactly what Nel is discussing - his conflicting claim that he fired at the noise versus he never intended to fire. As Nel says, he said over and over and over again that he never voluntarilly fired. They then discuss De Olivera (sp?) and how the same 'excuse' was used and rejected as (in one of the judge's words) 'completely incompatible with a defence of PPD'.

[video=youtube;ChwcO_wnolQ]https://www.youtube.com/watch?v=ChwcO_wnolQ&list=PL3ZQ5CpNulQkS3pFC3Q183H2a-gc4pJ6H[/video]

He also repeated that he fired because he thought he was being attacked.

He also said wtte "before I could think I fired because I thought they were coming out"

Here he is saying he didn't think and he did think in the same sentence. Legally this does not make sense but it is just the kind of thing anyone would say.

He says he did not want to shoot but he had taken a gun with him so he must have been prepared to use it. He may not have wanted to shoot but when scared by the noise he wanted to protect himself and fired. It is obvious that in the space between the noise and firing he must have "wanted" to shoot.

 

[lithgow1]

He also repeated that he fired because he thought he was being attacked.

He also said wtte "before I could think I fired because I thought they were coming out"

Here he is saying he didn't think and he did think in the same sentence. Legally this does not make sense but it is just the kind of thing anyone would say.

He says he did not want to shoot but he had taken a gun with him so he must have been prepared to use it. He may not have wanted to shoot but when scared by the noise he wanted to protect himself and fired. It is obvious that in the space between the noise and firing he must have "wanted" to shoot.

My point really in replying to your post was at the same time as I read it they were discussing the very same thing on the appeal and seemed to come to the conclusion that by his own words he has thrown away his PPD defence. That is what one of the judges said anyway - 'completely incompatible with PPD'. Now whether they take into account the possibility of someone saying conflicting things under pressure I don't know, but as Nel said when he pounced during the trial, 'So what is your defence Mr Pistorius? You cannot have two'. IIRC it was something Roux hurried to try and clear up so it could prove to be an important factor in the SCA's ultimate decision.

 

[Giles]

For me the clearest explanation of DE of the perceived intruder still comes from James Grant's Original Pistorius Defence article: http://criminallawza.net/2014/03/03/the-pistorius-defence/

Firstly, Pistorius will have to convince a court that he genuinely believed that he was acting in self/private defence...

An accused who foresees the possibility that one or more of the requirements of private defence may not be satisfied, who reconciles to that risk and persists despite the risk, will be held to have intention in our law...

For Pistorius, this means that, having conceded that he acted unlawfully, if the state can show that he foresaw the possibility (and reconciled himself to the risk)... that he was not acting against the supposed attacker, that force was not necessary, or that the extent of force used was not necessary and reasonable... he may be regarded as having intended to act unlawfully and can be convicted of murder.

So, there are three important questions to ask.

1. Did he foresee the possibility (and reconciled himself to the risk) that the supposed attacker was not behind the door?

2. Did he foresee the possibility (and reconciled himself to the risk) that force was not necessary?

3. Did he foresee the possibility (and reconciled himself to the risk) that the extent of force was not necessary and reasonable?

 

[Val1]

Does anyone recall if the PT ever asked OP if it was RS and what she could do to his brand that was the real threat that night?

 

[Trotterly]

The fact that you cannot have more than one defence was a new one on me.

Would you say that if a layman represents themselves and has no knowledge of the law and unknowingly offers two defences that they are for the high jump? Of course not. They give their evidence and the judge sorts it out. Now OP had top notch lawyers so he will be given less latitude but nevertheless because he decides to insist on his own line of defence does not mean it should be invalidated.

Ultimately of course there can be no overlap in defences and the judge must chose or if appropriate decide on a completely new one. The judge acts in the interests of justice at all times to ensure that the accused is only convicted when the evidence meets the necessary standard.

 

[Sherbert]

That's not what she said at all.

She said he did not foresee killing Reeva because he thought she was in the bedroom.

When he fired he thought he was firing at an intruder and as he feared the intruder may harm them his actions were self defensive and thus lacked unlawfulness. In this case "foreseeing" was foreseeing a lawful act.

So "ability to foresee" in the context of DE is irrelevant on the defence version.

BBM

No, she definitely said that his conduct was unlawful.

You have to read the judgement as a whole:

1. First of all, she accepts that a person with an anxiety disorder such as that described by Dr Vorster would get anxious very easily.

2. She next holds that, although he intended to shoot, OP did not forsee the possibility of killing the person behind the door.

2. She then finds that he ought to have done because it was forseeable that he would kill the person behind the door.


If you disagree with me, on what basis would you say that she exempted OP from the ability to forsee to be expected of a man of reasonable fortitude, if not due to panic/his nervous disposition?

 

[lithgow1]

The fact that you cannot have more than one defence was a new one on me.

Would you say that if a layman represents themselves and has no knowledge of the law and unknowingly offers two defences that they are for the high jump? Of course not. They give their evidence and the judge sorts it out. Now OP had top notch lawyers so he will be given less latitude but nevertheless because he decides to insist on his own line of defence does not mean it should be invalidated.

Ultimately of course there can be no overlap in defences and the judge must chose or if appropriate decide on a completely new one. The judge acts in the interests of justice at all times to ensure that the accused is only convicted when the evidence meets the necessary standard.

I think the point is that OP offered conflicting defences rather than overlapping ones. You can't say you shot at a perceived threat and also that you never meant to do that. You either did or you didn't, at least in the eyes of the law. That is what they seemed to be saying in the appeal and they also seemed to indicate that that is a problem though I may have misinterpreted them.

Re the fact that you can't have more than one defence, that seems to be the law. Are you arguing against that claim or just saying you didn't know that? I didn't know it until this case. I do recall at the time of the trial that commentators were saying he had two defences open to him - PPD, which on the face of it he was going for, or involuntary action, which they said is usually only applicable to people with mental or physical disability issues*. Under cross examination he seemed to fall back on involuntary in terms of 'I never meant to shoot. It just happened', which as the judges said is incompatible with PPD.

* Don't think his particular disability would come under that. Was more things like epilepsy. Included some medications too IIRC.

 

[Susza]

agree with this. also, the gun held at least ten more bullets... there must have been some thinking around stopping firing? why was op not questioned on why he stopped firing at four shots?

BBM -
That would have been a very good question! What would he have answered?
"...there was no need to waste the 6 bullets left as they are quite expensive " ?

 

[Deleted member 102539]

Does anyone recall if the PT ever asked OP if it was RS and what she could do to his brand that was the real threat that night?

:dunno: I think, not (unfortunately).

 

[Trotterly]

BBM

No, she definitely said that his conduct was unlawful.

You have to read the judgement as a whole:

1. First of all, she accepts that a person with an anxiety disorder such as that described by Dr Vorster would get anxious very easily.

2. She next holds that, although he intended to shoot, OP did not forsee the possibility of killing the person behind the door.

2. She then finds that he ought to have done because it was forseeable that he would kill the person behind the door.


If you disagree with me, on what basis would you say that she exempted OP from the ability to forsee to be expected of a man of reasonable fortitude, if not due to panic/his nervous disposition?

Yes you are right and I was meaning the element of the DE.

Why did he need to foresee if he knew Reeva was in the bedroom?