Oscar Pistorius - Discussion Thread #65~ the appeal~

[Sherbert]

RSBM.

I think there is a problem with this reasoning. If an accused pleads a defence of PPD, then
1. he has admitted that he had intention, and
2. he claims that he had perceived that he was under a serious enough threat that justified his act.

When he attempts and fails to establish PPD, then
a) his admission that he had intention remains, but merely that
b) he failed to convince the Court that the perceived threat was serious enough to justify his act.
So he should not be able to go back and say now that he had had no intention.

In the present case, Roux's original strategy was to go for PPD. But OP messed up badly during his X; so Roux had to modify his defence and present it as PPD without (1) above. He succeeded with Masipa, but I am not sure if this is allowed under South African Law.

Yes, but SA caselaw supports a verdict of CH when a claim to PPD fails. (Apart from Oliveira).

The focus seems to be centred on whether or not the perpetrator's fear was genuine.

As a matter of logic, I still think that OP can legitimately say that he didn't intend to kill anyone unlawfully. He can also say that his intention was not to kill but that he panicked and fired without thinking because he thought he was under attack.

 

[soozieqtips]

Yes, but SA caselaw supports a verdict of CH when a claim to PPD fails. (Apart from Oliveira).

The focus seems to be centred on whether or not the perpetrator's fear was genuine.

Judge Leach seemed pretty convinced that there was no factual finding that OP believed his life was in danger. Even when Roux was desperately going through his notes to find the 'proof' - Leach dismissed it.

 

[Marfa Lights]

DE is all about subjective foresight. That definition is misleading. When I have more time, I'll dig out some caselaw!

Don't bother. The legal dictionary contradicted itself in the next paragraph and said it was subjective. No wonder people get confused!

 

[Interested Bystander]

I don't think she ignored Dr Stipp saying the light was on. She used the phone data times alongside witness testimony and worked out that it was more likely that the Dr saw Pistorius returning to the bathroom with the cricket bat, (after the earlier shots), around which time he (Pistorius) says he switched the light on.

Both Stipps saw the light on. If you think the first noises were the shots that killed RS (just before 3am according to Mrs Stipps). Her alarm read 3.02am and she said it was a few minutes fast. Both Stipps saw the light on and heard the second shots which IMO are the one's that killed RS. The Johnsons did not hear the first sounds. To me that says the sound of wood on wood did not carry as far as gunshots. It is therefore my firm belief that the second sounds were of the shots that killed RS. If you believe the first sounds were the shots that killed RS, do you never wonder why OP would have left such a long time before calling assistance at around 03.20. The timeline is not as accurate as you like to believe. The telephone calls maybe correct within a minute or two but the gap between the sounds was far greater than OP, Roux or Masipa would have you believe.

 

[Interested Bystander]

Thank you for all the excellent posting that is current. It is so good to see such knowledgeable people taking time to write posts which allow those of us who have no legal experience to understand the intricacies of the law with respect to the present situation.

 

[aftermath]

Both Stipps saw the light on. If you think the first noises were the shots that killed RS (just before 3am according to Mrs Stipps). Her alarm read 3.02am and she said it was a few minutes fast. Both Stipps saw the light on and heard the second shots which IMO are the one's that killed RS. The Johnsons did not hear the first sounds. To me that says the sound of wood on wood did not carry as far as gunshots. It is therefore my firm belief that the second sounds were of the shots that killed RS. If you believe the first sounds were the shots that killed RS, do you never wonder why OP would have left such a long time before calling assistance at around 03.20. The timeline is not as accurate as you like to believe. The telephone calls maybe correct within a minute or two but the gap between the sounds was far greater than OP, Roux or Masipa would have you believe.

I think the Stipps had their times wrong. I can't see that they would hear shots, go out on their balcony listening and watching for fifteen minutes before deciding to call security.

 

[lithgow1]

Yes!

That's exactly Roux's problem. The Witness refused to say he acted in PPD!

Do you think that was because he was rattled, and panicked and forgot the issues Roux would have covered with him? His legal team must have gone over this again and again so that he was completely aware of what his actual defence was and yet when it came to the crunch of cross examination he backed off into variations of 'I didn't mean to shoot'. Or maybe it was just a reflection of a personality that can't seem to admit to any liability on his part. Whatever the reason, it will be ironic IMO if his reluctance to say `I fired deliberately' is part of what leads to an upgrade to murder.

 

[Marfa Lights]

From September 2014 James Grant's analysis of how Masipa (mis)handled the questions of DE & PPD in her judgment:

http://criminallawza.net/2014/09/13/pistorius-remains-in-jeopardy-of-a-murder-conviction/

She also summarised her findings and, in reference to dolus eventualis, said that “this court has already found that the accused cannot be guilty of murder dolus eventualis on the basis that, from his belief and conduct, it could not be said that he forsaw that either the deceased, or anyone else for that matter, might be killed when he fired the shots at the toilet door.” Regretably this takes things no further because it is a bare conclusion without the all important reasons for this statement. We are left having to rely on the reason she provided previously in her judgement – that he did not forsee killing “the deceased or anyone else for that matter” because, as she said previously, the accused thought that the deceased was in the bedroom. As discussed above, a belief that the deceased was in the bedroom does not exclude someone else being in the toilet and this is exactly what he believed, on his own version.

What is also revealing is that, on a defence of putative private defence, even if a court accepts that the accused acted in putative private defence (mistakenly believed he was under attack and was entitled to resort to force in defence), the problem of how much force in defence arises. It is not the question of whether the extent of force actually used was allowed, because, given that there was no attack, no force at all would be allowed. The question – a very necessary question – becomes, did the accused foresee that he was not allowed to resort to that extent of force. Masipa ought to have asked, if she engaged properly with a defence of putative private defence, whether, not only was the accused mistaken, but was he so mistaken that he could have believed he was entitled to fire four shots through a door at an intruder. The court could have gone either way on this, but that is not the point. The point is that this is another reason to think the Court did not properly engage with the defence of putative private defence.

(Note: emphasis mine)

 

[lithgow1]

This bit of the judgement snipped from your post I really don't understand. If he didn't foresee that someone might be killed, what did he foresee? A few damaged tiles?

“this court has already found that the accused cannot be guilty of murder dolus eventualis on the basis that, from his belief and conduct, it could not be said that he forsaw that either the deceased, or anyone else for that matter, might be killed when he fired the shots at the toilet door.”

 

[Sherbert]

This bit of the judgement snipped from your post I really don't understand. If he didn't foresee that someone might be killed, what did he foresee? A few damaged tiles?

“this court has already found that the accused cannot be guilty of murder dolus eventualis on the basis that, from his belief and conduct, it could not be said that he forsaw that either the deceased, or anyone else for that matter, might be killed when he fired the shots at the toilet door.”

I feel that this is one of those factual findings that is so obviously wrong that the SCA is at liberty to correct it. The objective facts simply do not support it.

 

[Sherbert]

From September 2014 James Grant's analysis of how Masipa (mis)handled the questions of DE & PPD in her judgment:

http://criminallawza.net/2014/09/13/pistorius-remains-in-jeopardy-of-a-murder-conviction/

(Note: emphasis mine)

To be fair to Masipa, I'm not sure how far she could have been expected to engage with PPD, as OP never claimed that he thought he was entitled to fire four shots through the door. As we know, he denied intention to shoot altogether. His was a kind of hybrid PPD, based on fear, but lacking in foresight.

 

[lithgow1]

I feel that this is one of those factual findings that is so obviously wrong that the SCA is at liberty to correct it. The objective facts simply do not support it.

I hope you are right. Can you recall if when she says 'on the basis (of) ... his conduct' she is referring to his demeanor after the shooting? As I said, I just cannot get my head around what she was thinking in making such a comment/conclusion.

 

[Marfa Lights]

Quote Originally Posted by lithgow1
This bit of the judgement snipped from your post I really don't understand. If he didn't foresee that someone might be killed, what did he foresee? A few damaged tiles?

“this court has already found that the accused cannot be guilty of murder dolus eventualis on the basis that, from his belief and conduct, it could not be said that he forsaw that either the deceased, or anyone else for that matter, might be killed when he fired the shots at the toilet door.”

I feel that this is one of those factual findings that is so obviously wrong that the SCA is at liberty to correct it. The objective facts simply do not support it.

Some of my favorite passages excerpted from Masipa's judgment (read 'em and weep):

From pp. 3326-3327:

"In the present case, on his own version the accused suspected that an intruder had entered his house through the bathroom window. His version was that he genuinely, though erroneously, believed that his life and that of the deceased was in danger. There is nothing in the evidence to suggest that this belief was not honestly entertained. I say this for the following reasons: The bathroom window was indeed open, so it was not his imagination at work when he thought he heard the window slide open."

From p. 3327:

"There is no doubt that when the accused fired shots through the toilet door, he acted unlawfully. There was no intruder. In fact, the person behind the door was the deceased and she was dead.
I now deal with dolus eventualis or legal intent. The question is:
1. Did the accused subjectively foresee that it could be the deceased behind the toilet door and
2. Notwithstanding the foresight did he then fire the shots, thereby reconciling himself to the possibility that it could be the deceased in the toilet.
The evidence before this court does not support the state’s contention that this could be a case of dolus eventualis.
On the contrary the evidence shows that from the onset the accused believed that, at the time he fired shots into the toilet door, the deceased was in the bedroom while the intruders were in the toilet."

From page 3328:

"The question is: Did the accused foresee the possibility of the resultant death, yet persisted in his deed reckless whether death ensued or not? In the circumstances of this case the answer has to be no.
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 alone the deceased, as he thought she was in the bedroom at the time. To find otherwise would be tantamount to saying that the accused’s reaction after he realised that he had shot the deceased was faked; that he was play acting merely to delude the onlookers at the time."

Re: my BIB above-- it's hard to get the right answers if you don't ask the right questions.

 

[Interested Bystander]

I think the Stipps had their times wrong. I can't see that they would hear shots, go out on their balcony listening and watching for fifteen minutes before deciding to call security.

I think you may have forgotten that the State Pathologist said the injury to RS head would not permit her to draw more than a few breaths before she died, ie she would have been dead for as much as 18-20 minutes if the first sounds were the shots before the Standers arrived. He stated that even after 5 minutes RS would have been dead. We know from Carice that OP was carrying RS down the stairs and that Carice said RS was still making gurgling sounds. OP's story is just so impossible.

As far as the Stipps not calling help before really makes no difference to when the two sets of sounds were registered.

Oscar Pistorius: I know what really happened. Gripping analysis from trial observer
By Ros Godlovitch Chappell http://sumo.ly/cneQ via @biznewscom

“There was a 12 to 14 minute interval between the sets of “shots”. But according to the state pathologist, Reeva died very quickly after the shot to the head. She only breathed a few times, and the defence agreed.

If Pistorius shot her just after 3:00, she COULD NOT have been alive when he pulled her out of the toilet at about 3:15, let alone a bit later when she was struggling to breathe and he put her head down softly on the carpet.

When Roux examined his client on the witness stand, he may have had an inkling of this problem; Pistorius stated that the interval between the two sets of bangs was about five minutes.
But this doesn’t help. Reeva could not have been alive even on this timeline. And it creates another anomaly: Four witnesses heard the second noises, argued to be the cricket bat, but NO ONE heard gunshots 5 minutes before the cricket bat bangs. And Mrs Stipp must have been psychic: she imagined the first set of bangs which then occurred (unheard) about 8 minutes later.”

 

[JudgeJudi]

RSBM

The other link is to a (quite good) in The Week and as an added bonus it has more of Kelly Phelps' thoughts!

http://www.theweek.co.uk/oscar-pist...rius-cannot-escape-murder-verdict-appeal-live

We can always count on Kelly Phelps. I just loved the response to Roux's comment:

Roux: I've referred you to a very instructive article by Phelps at paragraph 32, and if I may just go there.
Leach: Yes. Well, I think the learned author got some things wrong there.

She's not done her reputation any good with her comments, not to mention bias, re this trial. A comment like this from a top tier SCA judge will make her cringe.

 

[aftermath]

I think you may have forgotten that the State Pathologist said the injury to RS head would not permit her to draw more than a few breaths before she died, ie she would have been dead for as much as 18-20 minutes if the first sounds were the shots before the Standers arrived. He stated that even after 5 minutes RS would have been dead. We know from Carice that OP was carrying RS down the stairs and that Carice said RS was still making gurgling sounds. OP's story is just so impossible.

As far as the Stipps not calling help before really makes no difference to when the two sets of sounds were registered.

Oscar Pistorius: I know what really happened. Gripping analysis from trial observer
By Ros Godlovitch Chappell http://sumo.ly/cneQ via @biznewscom

“There was a 12 to 14 minute interval between the sets of “shots”. But according to the state pathologist, Reeva died very quickly after the shot to the head. She only breathed a few times, and the defence agreed.

If Pistorius shot her just after 3:00, she COULD NOT have been alive when he pulled her out of the toilet at about 3:15, let alone a bit later when she was struggling to breathe and he put her head down softly on the carpet.

When Roux examined his client on the witness stand, he may have had an inkling of this problem; Pistorius stated that the interval between the two sets of bangs was about five minutes.
But this doesn’t help. Reeva could not have been alive even on this timeline. And it creates another anomaly: Four witnesses heard the second noises, argued to be the cricket bat, but NO ONE heard gunshots 5 minutes before the cricket bat bangs. And Mrs Stipp must have been psychic: she imagined the first set of bangs which then occurred (unheard) about 8 minutes later.”

I don't think there was a 12-15 minute gap between the shots and the bats. More like 5 minutes. Reeva most probably was dead when Pistorius reached her. He may not have realised, may not have wanted to accept it, or he blood and any sounds of final breathing etc may have initially convinced him otherwise.
ETA - Rouc was very clear when cross examining Dr Stipp I think, that the defence put the shots nearer to 3:12. It wasn't something he had to coble together while Pistorius was on the stand

 

[lithgow1]

RSBM


We can always count on Kelly Phelps. I just loved the response to Roux's comment:

Roux: I've referred you to a very instructive article by Phelps at paragraph 32, and if I may just go there.
Leach: Yes. Well, I think the learned author got some things wrong there.

She's not done her reputation any good with her comments, not to mention bias, re this trial. A comment like this from a top tier SCA judge will make her cringe.

He he. I didn't realise that was Ms Phelps they were referring to so thanks for that. Must say I like the veneer of respect they pay each other - 'learned author', 'my learned friend' and so on. Kind of reminds me of Jane Austen and Edith Wharton novels were characters essentially tell one and other to get #$^%#@ without ever saying it. We may have swear words that we can use but nothing beats those gentile but withering put-downs IMO.

 

[lithgow1]

Another gem: Clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door, let alone the deceased, as he thought she was in the bedroom at the time. To find otherwise would be tantamount to saying that the accused’s reaction after he realised that he had shot the deceased was faked; that he was play acting merely to delude the onlookers at the time.

She must be right. Never in the history of crime has a criminal faked anguish and grief in an attempt to cover up their crime. Well except for Scott Petersen. And that woman who killed her children. And umpteen husbands and wives. And never has someone deliberately murdered someone in the heat of the moment only to be instantly consumed by regret and fear over what they have done. Well except for ...

 

[JudgeJudi]

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.

It is not correct to say that the judge must choose what the defence is or choose a new one. That is not the role of a judge. Masipa should have asked Roux what OP's defence was. Even after this very long trial no-one ever knew. Roux probably never addressed the issue because his client kept changing his story as and when he saw fit. I believe Roux was caught off-guard by the evolving storyline on a number of occasions, e.g. the double taps. Senior counsel would never present anything in court other than on the instructions of his client. Double taps changed to quick succession after hearing Mangena's testimony.

 

[Marfa Lights]

To be fair to Masipa, I'm not sure how far she could have been expected to engage with PPD, as OP never claimed that he thought he was entitled to fire four shots through the door. As we know, he denied intention to shoot altogether. His was a kind of hybrid PPD, based on fear, but lacking in foresight.

Well, one can see in her judgment that she appears to have accepted his claim of putative private defense as legitimate but then she never subjected it to any of the tests normally required of a PPD or PD claim (items below from the "When Can I Fire" article posted earlier):

https://www.issafrica.org/pubs/CrimeQ/No.8/duPlessis.htm

The attack must be:

• commenced or imminent;

• against a legally recognised interest; and unlawful.

The action made in defence must be:

• necessary to avert the attack;

• reasonable in terms of the amount of force used; and directed against the attacker.

OP may have never explicitly stated that he felt entitled to blast away at the toilet door, but I think that justification was inherent in asserting PPD. To me it seemed like he wanted enhance his testimony and maybe impress Roux with what an artful dodger he could be claiming that he "fired without thinking" and did not intend to shoot, perhaps not realizing that he just negated Roux's carefully wrought PPD claim.