Oscar Pistorius - Discussion Thread #65~ the appeal~

[LemonMousse]

No. That's not PPD.

It's much, much more than "I was a bit scared so BANG".

Your missing out the rather important, "No other alternative" bit.

As I said before, self-defence isn't about what you are feeling, it's about what you do. Since feelings inform actions, it's not irrelevant, but the defence bit is an action.

Your action has to be justified under the circumstances.

Do you think ignoring all other options and then blasting through a door at a single noise is legally justified behaviour?

If you don't - then why isn't he a a murderer?

If you do - then why was he convicted of culpable homicide?

If he'd heard an intruder screaming through the door at him, "I have a gun and I'm going to shoot you," prompting Pistorius to fire, do you think he'd have been convicted of CH? Do you think he'd have even been put on trial - even if the intruder turned out not to have a gun at all?

No. Because PPD is a complete defence and he'd have been entirely acquitted.

 

[Trotterly]

UN

Whhhhaaaaatttt?

He intended harm but not death? The law does not make that distinction at all - certainly not when the object being used to inflict harm is a GUN! I am stunned that you are trying to!

All you are doing when you keep quoting Masipa and what she was trying to do is highlight her mistake over and over. And you can't seem to see why it was a mistake.

The actual identity of the person who died is irrelevant when considering DE. Blimey, enough of the judges on Tuesday pointed this out, and I would think they'd know, right?

DE is when you DON'T intend ANY person at all to be killed, but your actions are such that this is a risk. And because you don't intend ANY person to be killed then there is no identity to the object of your intention, because there is no intention!

If you name the person, or give identifying details, then it becomes a case if DD..

She was WRONG to consider DE in relation to any specified person at all. Simply wrong.

(Very sorry for caps...not shouting. Just emphasising the important words. No aggression intended).

The law may conclude that your legal intention was death if you fire to stop them?

I don't think I've made myself clear enough on DE and identity. It's a subtle distinction but here we go....

You are right that whomever was behind that door is irrelevant. If he foresaw, reconciled - all that good stuff then he is guilty of DE of a person.

Identity is not relevant.

When he fired he thought he was firing at an intruder so he was firing intending to, lets say kill, in self defence.

Of course it was Reeva for whom Masipa has already found he had no intention to kill directly and who in his mind is in the bedroom.

So there can be no DE of the intruder as it is lawful self defence and no DE of Reeva if she is in the bedroom.

However as it has to be either an intruder or Reeva in the cubicle and the intruder has already been dealt with she must also exclude that he was not 100% sure it was not Reeva. This is the reason for the distinction in the DE and the bulk of Masipa's DE explanation. She makes it clear that she has eliminated both persons from the DE right at the end where she says Reeva or anyone else.

The important part is that the determination of DE was not dependent on it being one or other person in the cubicle.

OK?

 

[Really?]

This *advertiser censored* better be in prison a sap...sorry , burnt my hand on a skillet handle .... No time for foolishness .

 

[Trotterly]

No. That's not PPD.

It's much, much more than "I was a bit scared so BANG".

Your missing out the rather important, "No other alternative" bit.

As I said before, self-defence isn't about what you are feeling, it's about what you do. Since feelings inform actions, it's not irrelevant, but the defence bit is an action.

Your action has to be justified under the circumstances.

Do you think ignoring all other options and then blasting through a door at a single noise is legally justified behaviour?

If you don't - then why isn't he a a murderer?

If you do - then why was he convicted of culpable homicide?

If he'd heard an intruder screaming through the door at him, "I have a gun and I'm going to shoot you," prompting Pistorius to fire, do you think he'd have been convicted of CH? Do you think he'd have even been put on trial - even if the intruder turned out not to have a gun at all?

No. Because PPD is a complete defence and he'd have been entirely acquitted.

But the PPD was raised in relation to the intruder so it cannot actually work as a complete defence?

 

[Really?]

Are there fans?

 

[Trotterly]

Are there fans?

Yes, Two of them.

 

[Really?]

Well, they say there is always one......now two...go figure

 

[Trotterly]

Well, they say there is always one......now two...go figure

Well I guess that depends on who you believe.

 

[Really?]

I rest my case....:jail:

 

[Trotterly]

I rest my case....:jail:

Thank God! I'm going to bed goodnight!

 

[LemonMousse]

The law may conclude that your legal intention was death if you fire to stop them?

I don't think I've made myself clear enough on DE and identity.

You are right that whomever was behind that door is irrelevant. If he foresaw fired and reconciled - all that good stuff then he is guilty of DE of a person.

Identity is not relevant.

When he fired he thought he was firing at an intruder so he was firing intending to, lets say kill, in self defence.

Of course it was Reeva for whom Masipa has already found he had no intention to kill directly and who in his mind is in the bedroom.

So there can be no DE of the intruder as it is PPD and no DE of Reeva if she is in the bedroom.

However as it can only be an intruder or Reeva in the cubicle and the intruder has already been dealt with she must also exclude that he was not 100% sure it was not Reeva. This is the reason for the distinction in the DE. She makes it clear that she has eliminated both persons from the DE right at the end where she says Reeva or anyone else.

OK?

Yes, that's clearer...and yes, I agree that that's what Masipa was trying to do. But she was still mistaken in a variety if ways, IMO, but I'll respond properly tomorrow. Just too tired now and my iPad hates this site.

BUT - can everyone ignore my two posts above about PPD. They are total balls, I'm afraid. I have wrongly conflated PD and PPD - something I used to do until someone legally minded put me straight about a year ago. Unfortunately I had completely forgotten this, mainly because I haven't thought about it until now.

PPD is a complete defence to murder, but you could still be "culpable" depending on the particular circumstances.

So, sorry, sorry, sorry. Especially to Jilly for saying "thanks" to such an undeserving post

 

[Trotterly]

Yes, that's clearer...and yes, I agree that that's what Masipa was trying to do. But she was still mistaken in a variety if ways, IMO, but I'll respond properly tomorrow. Just too tired now and my iPad hates this site.

BUT - can everyone ignore my two posts above about PPD. They are total balls, I'm afraid. I have wrongly conflated PD and PPD - something I used to do until someone legally minded put me straight about a year ago. Unfortunately I had completely forgotten this, mainly because I haven't thought about it until now.

PPD is a complete defence to murder, but you could still be "culpable" depending on the particular circumstances.

So, sorry, sorry, sorry. Especially to Jilly for saying "thanks" to such an undeserving post

Hey no problem. Its 2.30 in the morning where I am and I'm talking some crap too in places I'm sure. Time for bed. I'm really shutting down now. I have made some tweaks to my original post to make it a bit clearer

 

[LemonMousse]

Well, they say there is always one......now two...go figure

Were you trying for cryptic and barbed? All you managed was odd and a bit silly.

Nevermind

 

[Jake18]

If I recall correctly Nel - somewhat sneeringly - referred to Oscar's "main" defence (not the, "I didn't mean to shoot one") as a sort of "provoked PDD". Not enough for PDD as there was no imminent threat so an additional special set of Oscar related factors to hopefully convince Masipa that his actions were justifiable.

These included his personality of going towards the danger, even though there were panic buttons and an escape route available and his so called anxiety disorder, even though (as Baartman alluded to) this does not diminish his criminal responsibility. And of course his disability, although why that made him walk towards the danger in an unstable stump less fashion rather than leave through the door was never made clear. (I'm ignoring the Aussie released recording from the Evidence Room where he took many seconds to put his stumps on because that involved 4 inner stump socks - I'm all for stump health but you'd probably forgo that in an emergency situation, they weren't necessary for prosthetic placement. The prosthetics themselves could've been on in seconds). Add in the whole "two startle" nonsense and this was supposed to add up to unique circumstances where Oscar was justified in killing the "intruder" even though there was no actual threat.

 

[Sherbert]

Interesting Roux seems to have settled on the submission that Masipa did in fact find PPD

I'm pretty sure that she did accept PPD - on the basis that OP lacked dolus.

And, once she accepted PPD, a verdict of DE was pretty much out of the question.

 

[Val1]

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.

As per the actual testimony which explains their actions... they heard the first set of "shots" then screaming, while inside, at which point they went out on their balcony to try to tell the source, then they heard the second set of "shots" while trying to contact security.:

http://ewn.co.za/2014/03/24/Oscar-Pistorius-trial-Stipps-wife-testifies

"Stipp said she and her husband attempted to call the police as they were out on the balcony trying to establish the source of the screams.

“I eventually got through to security and alerted them to the incident. After the first set of shots I could definitely hear a woman screaming. Just before the second set of shots there was a male voice.”"

 

[Val1]

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.

http://www.pod702.co.za/Eyewitnessnews/docs/140915OPJudgment.pdf

The first thing that caught my eye as not being in accordance with what I believe was the PT's case, or the evidence, was this statement, followed shortly by her opinion due to what I believe an inaccurate statement of the evidence:
----
"It was also not contradicted that the shots were fired first and that the striking of the
door, using a cricket bat, followed thereafter."
----
"The shots were fired in quick succession. In my view, this means that the deceased
would have been unable to shout or scream, at least not in the manner described by those witnesses who
were adamant that they had heard a woman scream repeatedly."
----

 

[JudgeJudi]

If Masipa were to keep the sentence the same, even if the verdict is changed to murder - she would really be showing bias in OP's favour. If her decision gets overturned, she should accept that as proof she got it wrong, and stop protecting OP from being punished as other murderers are punished. I would be very surprised if she has the gall to keep his sentence the same.

Masipa does have some discretion but the State can appeal under certain circumstances, e.g. far too lenient. I'd like to think that after the way her judgment was so publicly discredited during the appeal that she wouldn't go down that path again.

During the trial Masipa said she "didn't want to punish him twice". Hopefully she'll have to eat her words and do just that.

Everything you wanted to know about sentencing.

http://www.loc.gov/law/help/sentencing-guidelines/southafrica.php

 

[JudgeJudi]

As per the video Giles posted, it is not really clear. On the one hand you have a minimum sentence but then it also seems that that is not compulsory. Perhaps extenuating circumstances might come into play? I agree with you that she would give him the minimum, but perhaps if the verdict is upped the new sentence will not include this (essentially) serve one year of a five year sentence. I am also not 100% sure that she is the one who will necessarily do the sentencing. TBH, my preferred option would be for the SCA to be able to impose sentence, as per William Booth's comments. Going by their questions, they do not seem as sympathetic to him as she did. However it turns out, it is at least comforting to know that he is not likely to be enjoying his 'house arrest' as much as he was this time last week.

His time served will come off any new sentence imposed. What a pity.

 

[JudgeJudi]

If OP's conviction is overturned by the SCA to murder and he decides to appeal to the Constitutional Court, no doubt he'll want bail. In the event that his conviction is changed to dolus directus (a schedule six offence, i.e. intentional murder), he would have to prove reasons why he should be allowed to go free. As in his bail application, he would have to show exceptional circumstances, the difference being however that now he has been found guilty of murder.

If the conviction is changed to dolus eventualis, (a schedule five offence, i.e. foresaw the possibility of killing a human being, accepted this risk and proceeded regardless of the consequences), he will have to prove that it is in the interests of society.

Somehow I think he'll be sent straight back to the big house.

The most likely ground on which he would appeal to the Constitutional Court would be that he feels that his right to a fair trial was violated by the case being televised.