Oscar Pistorius - Discussion Thread #65~ the appeal~

[AW2B]

I agree in that if the bullets are legal, then there is no issue in him keeping them.

But, they are irrelevant to DE because they do more damage.

That's like saying a drunk driver is more guilty of killing someone because he was driving a truck instead of a sub-compact car. The type of car used is irrelevant, it is the other facts that are important.

BBM

Sorry..that's not a valid analogy!

A "truck" is a used to drive..vs. a "loaded gun" which is used to harm/injure/kill someone. When the drunk person is driving his truck his intention is to get from one location to another...he was not driving a truck to kill. On the other hand..when OP was using his loaded gun with deadly bullets..his intention was to inflict the most serious damage..his intention was to use a deadly force..his intention was to kill.

 

[soozieqtips]

I come back to his words which sum up his testimony about firing:

"I did not have time to think, I heard this noise and I thought it was somebody coming out of to attack me, so I fired..."

He did not have time to think but he thought. Clearly illogical but not an unreasonable thing to say if you did not want to shoot at anyone unless you had to.

Nel would ask him if he wanted to shoot. If you shoot in self defence you may feel you "have" to shoot but does that mean you "want" to shoot? I think he exploited this distinction in his testimony.

I think OP knew full well he had killed Reeva illegally and wasn't about to make a present to Nel by admitting he had intended to shoot her. He must have seen the danger of even admitting he intended to fire (in self defence) when Nel was insisting he knew it was Reeva all along and was hitting him with evidence of an argument and Reeva screaming which we now know is discredited.

What was obvious from his testimony, as Leach pointed out, he fired at the noise and in fear I believe he fired at the intruder.

BIB - Oh yeah. That's right. OP was running round screaming like a woman moments before a woman was shot dead. Now if only there were a way for technology to record him screaming like a woman and for it to be produced in court. Oh wait...

 

[DexterMorgan]

Fact. Reeva went to the bathroom. He yelled Get Out Of My House and then shot 4 times.

Now if that's not murder than i don't know what is.

 

[Trotterly]

Do you appreciate that the specific identity of the victim is completely irrelevant when it comes to DE. That, indeed, this is what differentiates it from DD?

OK - so she's absolved him of the direct intention to kill Reeva.

It's then beholden on her to address what his intention was to the human being that he testified to knowing was in the toilet.

At this stage, it's no longer about Reeva. Therefore Roux's excuse that Masipa was then asking herself whether OP didn't stop to wonder whether it was Reeva just highlights the mistake Masipa made.

She should have been asking questions about Pistorius's intention towards the intruder. People forget that it's also illegal, and potentially murder, to gun down intruders without a very good reason. So Masipa should have been addressing whether he murdered the intruder that he (supposedly) thought was there.

Even if he didn't know it was Reeva, he knew a human being was in the toilet. He acknowledged that.

Did he know that shooting at them through the door could harm them?
Did he accept the risk and reconcile himself to that by continuing to shoot?
Did he think he was legally justified?

None of these questions related to Reeva's specific identity. So the answers Masipa gave were nonsensical in relation to DE.

He didn't intend to shoot the intruder because he thought Reeva was in bed? He didn't intend to shoot the intruder because he was upset when he saw he'd shot Reeva?

According to him, he shot BECAUSE he thought Reeva was in bed....he was upset BECAUSE it was not the "intruder" that he'd shot, but Reeva instead.

Surely you see the problem?

First I think you should watch or re watch Roux's argument about the DD-DE because with respect you're all over the place here.

 

[aftermath]

BIB - Oh yeah. That's right. OP was running round screaming like a woman moments before a woman was shot dead. Now if only there were a way for technology to record him screaming like a woman and for it to be produced in court. Oh wait...

No- he was screaming after a woman was shot dead and some people misinterpreted his screams as those of a woman. On his version.

 

[mrjitty]

C) The "zombie stoppers" are relevant because he'd demonstrated in the video that he knew exactly what they could do to human flesh. This partly answers the DE question of "Did he know he'd hurt or kill the person in the toilet?"

Exactly.

It indicates planning and preparation.

If you keep a gun for self defence, not only do you foresee shooting someone, you have actively prepared for it.

From that a Court should make natural and obvious inferences.

A gun has a designed function, which is clear to its owner. The risks involved with shooting another person are also inherently understood.

This is something that OP must instinctively have known.

You don't take 5 mins out to do a analysis

 

[soozieqtips]

No- he was screaming after a woman was shot dead and some people misinterpreted his screams as those of a woman. On his version.

At least 3 state witnesses testified to hearing a woman screaming before and during the shots. Saayman said it would be abnormal for Reeva not to have screamed after being shot in the hip. It would have been an involuntary action. Since OP denies any female screamed that night, then OP must have been running around screaming like a woman. The witnesses heard a woman screaming - and then a woman was shot dead. Simple, really.

 

[cottonweaver]

Yes, I remember that being said, but I don't recall the context exactly. There were a few references to the "retrial". Booth says that the Appeal Court could ask where the sentencing should be and then receive arguments. Not hard to know who would be arguing what. lol

The part that gets me is that Booth said that if the SCA rules it was murder, the sentence could be the same as what Masipa gave. So what would be the point of this Appeal?

If this goes back to Masipa for sentencing, can she rule that time has been served?

Can you (or someone) explain this to me, please?

Hi Jilly, sorry was hoping someone more knowledgeable would answer this with confidence.

I haven't actually watched the William Booth interview and I am no expert as I have not been "reading around it" ( sentence) so much as I did the Appeal issues, so really someone more knowledgeable should answer you or correct this.

I will have a bash ....... let's say, if, Op get's DE murder....
AFAIK it's uncertain whether SCA will sentence OP or refer back to High Court. What the SCA seemed to be saying on the day is they probably would not , BUT they have the powers to sentence. ( IMO that would be preferable)

Could it go back to Masipa - apparently possible. Lets say it does. So she has sentence guidelines for DE murder, guideline is minimum 15 years unless there is a compelling argument against it.

At sentencing Pros will argue for a strong sentence, Defence will provide mitigating arguments. ( will those be much different to what they already stated when Masipa originally gave the 5 years.?) They could have more substantial arguments, he could now be really psychologically damaged (!) and has come out and risk of returning, his psych might say, is enough to break a broken man ( Err?) IDK what they will use, could it be "substantial" grounds to go under 15 years? ( I would need to research what that might be)

Anyway, if they produce something substantial they could get it below the 15 yrs minimum.

Whatever the next judge/Masipa gives is not added to what he already has. He has 5 years already. So if she gave him 10, 10 +5 does not equal 15. It would be 5 +(5 already serving). But let's say she DID give 10 for DE, he wouldn't spend all the extra 5 in jail and he would still be entitled to house arrest. (maybe thus 2.5 more yrs inside? for a 10 year murder sentence)

I can't remember if the 1/6th rule still applies to murder, I vaguely recollect a higher proportion . ( She sentence him on CH under a special section of law that allows 1/6th before) May be as much as 1/2.

BUT IMO I cannot see under any circumstances she will say 5 years for murder after all this ...for the reason that you gave, it's a more serious charge, it makes no sense as you say. A line needs to be drawn under this, I don't see them bending over backwards to give something that lenient, justice needs to be seen to be done. I don't think 5 years would be seen as a just sentence. And I'm not 100% that Masipa would be asked to do it.

Again, I don't really know enough on this to be sure. Sorry . If someone can correct this or add to it for Jilly...?

 

[LemonMousse]

First I think you should watch or re watch Roux's argument about the DD-DE because with respect you're all over the place here.

With respect, I'm really not.

And, to be perfectly frank, I don't have a lot of time for people who say "You're wrong" without specifying exactly how. It usually means that I'm not.

 

[aftermath]

At least 3 state witnesses testified to hearing a woman screaming before and during the shots. Saayman said it would be abnormal for Reeva not to have screamed after being shot in the hip. It would have been an involuntary action. Since OP denies any female screamed that night, then OP must have been running around screaming like a woman. The witnesses heard a woman screaming - and then a woman was shot dead. Simple, really.

Check the phone call times against all the witnesses and not just the state witnesses. Two of those witnesses who claim to have heard a woman screaming heard gunshots first then screaming then more gunshots. They were certainly capable of misinterpreting sounds as there were not two sets of shots.

 

[cottonweaver]

I am trying to hav ea look

here is a DE sentence reduced on appeal ,2011.

https://en.wikipedia.org/wiki/S_v_Combrink "its significance lies primarily in the area of punishment and sentencing."

The appellant, a farmer, had fired two shots at an unidentified person walking across farmland, who had not responded to his calls. The second shot struck and killed that person. The farmer was convicted of murder by a single judge in the circuit court of the North Gauteng High Court and sentenced to fifteen years' imprisonment, five of which were suspended on the usual conditions. An appeal to the full bench of that court was dismissed in respect of the conviction but upheld in respect of sentence, the court substituting the trial court's sentence with one of ten years' imprisonment.

I know that is only one case...... but it's quite interesting because

The court held that, given the public incense with sentences which appeared to favour a particular group in society, courts had to be conscious and sensitive to cases which appeared to have racial or discriminatory connotations, especially when dealing with the question of sentence. Public interest was one of the essential considerations in determining an appropriate sentence. The public interest against discrimination was not necessarily in discrimination between black and white but rather between people in general, who perceive others, with prejudice, to be different or inferior to them.

 

[lithgow1]

Trotterly, a question if I may. In your opinion, what was Pistorius' intention towards the person behind the door when he fired four bullets at them?

 

[cottonweaver]

This 2013 SCA Appeal is of interest too and Majedt sat on this one. Obviously circumstances of this and OP case differ and it is nothing to do with intruders, more a bar fight that went wrong and Def did not, incredibly, "know who pulled the trigger" in the armed scuffle which had elements of self defence and he had fired a warning shot before, there were credibility issues with Def....

But Dolus E , the issues of "substantial and compelling" circumstances to mitigate against a prescribed 15 year min for DE are discussed in it too. In this case sentence of 15 years upheld. Appeal was dismissed.

Also gives an idea of scope and length of the written judgment to be expected from SCA

http://www.justice.gov.za/sca/judgments/sca_2013/sca2013-034.pdf

ETA -Janice you read my mind, here is one,

 

[Trotterly]

Trotterly, a question if I may. In your opinion, what was Pistorius' intention towards the person behind the door when he fired four bullets at them?

To protect himself, in other words he intended to fire to neutralize what he perceived as a threat.

 

[Deleted member 102539]

I think Mr Fossil gauged the first shots must have been a little later than Stipps timing but I am unsure why he needed to delay from the timing in Mrs Stipps testimony. I think there maybe some argument that she was awake due to being 'fluey' but the shots may have been a little later. I really need to look at Mr Fossil's timeline again and his reasons for delaying Mrs Stipps timing. I don't recall anything in her testimony suggesting she did not hear the shots very soon after waking, ie 2.58-3am or thereabouts. Do you have a link to Mr Fossil's timeline please? Or am I missing something obvious (quite possible).

Time for me to move on anyway. Really the interest is in the discussion about the appeal.

EDIT I find Mr Fossil's work incredibly well researched and detailed which makes me think I could have missed something. I note that Dr Stipps was getting dressed when he registered the clock indicating 3.17 (ie 3.13-14 in real time). As he was still getting dressed one might assume he took another couple of minutes or he would not have stated he was getting dressed. He would have said he was dressed. After this Mrs Stipps tried to make some more calls which is when they heard the second set of noises (shots).

Mr Fossil

https://onedrive.live.com/view.aspx...=file,xlsx&app=Excel&authkey=!AP15bEJh--E96sg

https://onedrive.live.com/view.aspx...=file,xlsx&app=Excel&authkey=!AAwAEdcqEAjjPU4

 

[cottonweaver]

Long, acadamic treatise .... not going to attempt to skim this, but page 6- 7 is relevant

"Courts have a discretion, in all these instances, to depart
from the prescribed sentences when satisfied that there are ‘substantial and
compelling circumstances’ justifying a lesser sentence. A substantial body
of case law has developed around the practical application of the substantial
and compelling circumstances test. The classic judgment is S v Malgas.

In terms of this judgment, the court is required to take into account all relevant
aggravating and mitigating factors in deciding whether substantial and
compelling circumstances exist. Courts are also expected to impose sentences
that would be just. When they depart from the prescribed sentences, the
courts must impose sentences based on the general sentencing principles
mentioned earlier.
The courts have departed from the prescribed sentences in many cases"

Sentencing murder and the ideal of equality
http://uir.unisa.ac.za/bitstream/handle/10500/8826/Terblanche.pdf?sequence=1

 

[lithgow1]

To protect himself, in other words he intended to fire to neutralize what he perceived as a threat.

Thanks but the question wasn't why he shot, it was what was his intention towards the recipient of his shots. But well done in avoiding the use of the word 'kill' by substituting a military euphemism such as 'neutralize'. Shame that Reeva Steenkamp turned out to be the collateral damage of his commando op eh.

 

[cottonweaver]

Actually guys if you type in "substantial compelling dolus eventualis", loads of cases come up.

Here's a summary that may be useful. (Too late for me to read this now.)
http://www.criminalpleading.com/category/compelling-and-substantial-circumstances/

What is becoming clear since I replied to Jilly, is that it actually isn't all about what OP could present about his changed circumstances etc - it's also still the "aggravating factors" of the existing crime, as we know it.

Probation reports, victim impact report etc will still feature. I would start at the previous sentencing details and see what was there already.

 

[jilly]

Hi Jilly, sorry was hoping someone more knowledgeable would answer this with confidence.

I haven't actually watched the William Booth interview and I am no expert as I have not been "reading around it" ( sentence) so much as I did the Appeal issues, so really someone more knowledgeable should answer you or correct this.

I will have a bash ....... let's say, if, Op get's DE murder....
AFAIK it's uncertain whether SCA will sentence OP or refer back to High Court. What the SCA seemed to be saying on the day is they probably would not , BUT they have the powers to sentence. ( IMO that would be preferable)

Could it go back to Masipa - apparently possible. Lets say it does. So she has sentence guidelines for DE murder, guideline is minimum 15 years unless there is a compelling argument against it.

At sentencing Pros will argue for a strong sentence, Defence will provide mitigating arguments. ( will those be much different to what they already stated when Masipa originally gave the 5 years.?) They could have more substantial arguments, he could now be really psychologically damaged (!) and has come out and risk of returning, his psych might say, is enough to break a broken man ( Err?) IDK what they will use, could it be "substantial" grounds to go under 15 years? ( I would need to research what that might be)

Anyway, if they produce something substantial they could get it below the 15 yrs minimum.

Whatever the next judge/Masipa gives is not added to what he already has. He has 5 years already. So if she gave him 10, 10 +5 does not equal 15. It would be 5 +(5 already serving). But let's say she DID give 10 for DE, he wouldn't spend all the extra 5 in jail and he would still be entitled to house arrest.

I can't remember if the 1/6th rule still applies to murder, I vaguely recollect a higher proportion . ( She sentence him on CH under a special section of law that allows 1/6th before)

BUT IMO I cannot see under any circumstances she will say 5 years for murder after all this ...for the reason that you gave, it's a more serious charge, it makes no sense as you say. A line needs to be drawn under this, I don't see them bending over backwards to give something that lenient, justice needs to be seen to be done. I don't think 5 years would be seen as a just sentence. And I'm not 100% that Masipa would be asked to do it.

Again, I don't really know enough on this to be sure. Sorry . If someone can correct this or add to it for Jilly...?

Well, first of all, cw, thank you very much for taking the time to respond. I 'get it' now! Believe me, I'm with you on preferring that the SCA does the sentencing. I had no idea that Masipa found a special section for the 1/6. It seems she went out of her way. I don't think she'll like it if she's overturned on the CH.

I have continuously heard about this 15 yr minimum sentence but then Booth said it could be less and now you have confirmed confirmed that. It seems a little contradictory to me....but what do I know.lol

I found this:
http://www.dcs.gov.za/Services/CorrectionalSupervisionandParoleBoards.aspx

It doesn't sound to me that he would get any house arrest out of it.

Once again...thank you!

 

[Trotterly]

Thanks but the question wasn't why he shot, it was what was his intention towards the recipient of his shots. But well done in avoiding the use of the word 'kill' by substituting a military euphemism such as 'neutralize'. Shame that Reeva Steenkamp turned out to be the collateral damage of his commando op eh.

And I gave you his intention, to neutralize the perceived threat. Why does that have to mean killing?

Masipa said that she considered that he raised PPD and he clearly shot in order to protect himself from a perceived threat