Oscar Pistorius - Discussion Thread #65~ the appeal~

[lithgow1]

Mr F and JJ: I am so glad these are back up as I didn't have a chance to look at them before. The depth of work is truly impressive and many thanks to you both for sharing this.

Just two points: In the phone data analysis you state:

"The only times that the phone will show a GPRS connection are:

If the phone is switched off
If the mobile data connection is deliberately turned off by the user
If the phone signal is lost e.g. in areas of poor reception or due to network congestion
If a Wi-Fi connection is in place"

Shouldn't this read "The only times that the phone will not show a GPRS connection are:"? Or maybe I am confused.

Secondly, have you been able to do analysis on the damaged bath inspection panel or isn't there enough to go on? I believe this was hardly addressed in the trial but in my mind is entirely consistent with rage and frustration resulting from an argument with Reeva behind the door. I suspect it was probably kicked in before OP went off to fetch the cricket bat.

Yes, I would just like to second WilliamMunter's praise and thanks. I read it yesterday and was very impressed with the research you have both undertaken. I will now go back to looking for selfies of Pistorius and Kelly Phelp's quotes in tabloid newspapers.

 

[Mr Fossil]

Mr F and JJ: I am so glad these are back up as I didn't have a chance to look at them before. The depth of work is truly impressive and many thanks to you both for sharing this.

Just two points: In the phone data analysis you state:

"The only times that the phone will show a GPRS connection are:

If the phone is switched off
If the mobile data connection is deliberately turned off by the user
If the phone signal is lost e.g. in areas of poor reception or due to network congestion
If a Wi-Fi connection is in place"

Shouldn't this read "The only times that the phone will not show a GPRS connection are:"? Or maybe I am confused.

Secondly, have you been able to do analysis on the damaged bath inspection panel or isn't there enough to go on? I believe this was hardly addressed in the trial but in my mind is entirely consistent with rage and frustration resulting from an argument with Reeva behind the door. I suspect it was probably kicked in before OP went off to fetch the cricket bat.

Thanks William, my mistake. The posts had a bit of a makeover while they were down and in spite at least three people reading them before they were republished I managed to lose the 'not'! I take full responsibility and have corrected.

We agree that the bath panel was most probably hit in his rage. If I consider it with our cricket bat post, I wonder if he might have hit it first before then hitting the door twice? Although Vermeulens mentions a scratch on the plate this could easily have occurred at any time. All just conjecture as there really isn't enough to go on.

There are more posts to come before we share our version of what we think may have happened that night. We're holding back because we need to get the reappraisals of the evidence published and debated first. This should logically lead to an ability to reconstruct a version which makes sense. Most of the evidence stands alone, so it doesn't all have to be right - what is interesting is that as the version began to come together and make sense so too did we find more and more evidence which supported it. It was very much an iterative process.

Here's a thought: if Oscar knowingly killed Reeva and if, for instance, you think there is any merit in the cricket bat evidence we've posted to date (cricket bat 2 is still in my head but I'm working on it) then you have accepted that Oscar staged something. Ok, so if that was his mindset, we must ask what else might he have staged and why?

 

[janicelongbright]

Can you please provide the link for this?

It's 100% wrong.

Prosecution must prove Actus Reus and Mens Rea

Defence may try to establish legal justification or other defence which negates Mens Rea

The evidential burden in relation to a particular fact relies on the party trying to establish it.

So for example, it would be up to Pistorius to prove as a fact he screams like a women.

Strictly speaking this cannot be merely asserted.

Yes I'll try to find it later ,I think perhaps the confusion( that has beenperhaps intentionally created )

Might be because of the ' CASE of FACT ' basis on which there was a trial at all .Normally and very likely unprecedentedly! , where none of the facts are in dispute , there would be no grounds for a trial and the defendant would be well advised to plead guilty and hope for some mitigation in sentencing . Not least because in Cases of Fact ,the accused would be jusltly said to be wasting court time and receive a longer sentence as a consequence.

That is why many could not get their heads around why there was to be a trial , on the facts of what wasn't in dispute.

It was only when the poster . I can't remember which now , I read several references at the time, perhaps Cottonweaver ' provided the law pages , that I realized common sense did prevail in S.A. contrary to everything I'd heard which apperared to be so illogical .

The part relating to cases of fact , is further down ,or on , from the part quoted in the post , so it might have been missed .

There has been such a muddying of the waters over this case , that it is very confusing . But that in itself is a reason to doubt what has gone on, because it its extremely common consensus , that it started out as perfectly obviously and staightforwardly a D.V.
By the simple facts! Which the ridiculousness of the burden of proof being ,"nevertheless " on the prosecution is exasperating to say the least. You can fool some of the people etc.............

 

[mrjitty]

Thanks William, my mistake. The posts had a bit of a makeover while they were down and in spite at least three people reading them before they were republished I managed to lose the 'not'! I take full responsibility and have corrected.

We agree that the bath panel was most probably hit in his rage. If I consider it with our cricket bat post, I wonder if he might have hit it first before then hitting the door twice? Although Vermeulens mentions a scratch on the plate this could easily have occurred at any time. All just conjecture as there really isn't enough to go on.

There are more posts to come before we share our version of what we think may have happened that night. We're holding back because we need to get the reappraisals of the evidence published and debated first. This should logically lead to an ability to reconstruct a version which makes sense. Most of the evidence stands alone, so it doesn't all have to be right - what is interesting is that as the version began to come together and make sense so too did we find more and more evidence which supported it. It was very much an iterative process.

Here's a thought: if Oscar knowingly killed Reeva and if, for instance, you think there is any merit in the cricket bat evidence we've posted to date (cricket bat 2 is still in my head but I'm working on it) then you have accepted that Oscar staged something. Ok, so if that was his mindset, we must ask what else might he have staged and why?

Mr Fossil

Have you looked into the Apps which take an iphone in and out of airplane mode / initiate a GPRS connection?

I looked into it at one point and I think there are very few such Apps.

 

[Trotterly]

Still on this door thing, don't you find it troubling or puzzling that the first time he mentioned his perception of it opening due to a specific noise was during cross examination? It is one of the most critical factors, if not the most critical, in causing Reeva Steenkamp's death and yet what the noise was is not mentioned in his bail app, plea explanation or EIC.

He doesn't specify until he is pushed to do so. By his version this noise directly caused him to kill the 'love of his life' and yet he doesn't bother to even state what it was. You'd think he would have replayed that noise over and over in his head, trying to figure out why it led to him making such a terrible error, tried to explain to the court what it was so they would understand his reaction but nah. Just a noise.

Nel asked him to speculate on what the noise was as he said he did not know.

If Nel had stuck with OP's first guess of the door/frame he would have had a chance to show that OP knew the person was right behind the door when he fired. A point which has now become much more relevant.

 

[GR_Turner]

These are really great questions.

IMO the path way for state is that followed by Justice Leach - which is why I hope he writes the lead judgement.

At the moment there are 2 findings of the trial Court that the state needs reversed

Finding 1. The accused lacked the requisite Dolus/Intention for murder (DE)

Submission. The Judge asked the wrong question/misdirected herself.

IMO the State has a good chance here. The misdirection is on the face of the judgement. The Court can then strike out Masipa's application of the legal test and effectively say that is not the right question to ask here. Its obvious there must be foresight (even to a child!) and on top of that PPD is pleaded which implies foresight.


Finding 2. The accused acted in PPD

Submissions. The Judge found a genuine belief of an intruder. But there was no evidence/finding of an immediate threat or life in danger. The Judge did not correctly apply the test.

IMO this leg could have been difficult if Masipa had bothered to write a coherent judgement.

But again she actually failed to

a) State the PPD test correctly in relation to the facts
b) Outline all the facts relevant to the test

So while I agree the state has work to do, on the face of it - this is a very strong appeal - and the Justice's clearly recognise that

If it were weak sauce, you would have seen them challenging Nel on that - but instead they were challenging Roux on it.

So in summary - I do actually think that the excessive and unreasonable force proven at trial, is actually sufficient for the state to rely on.

I always return to a simple legal substitution argument.

If we open the door and there is an intruder in the toilet - could self defence succeed?

Legally not IMO.

(of course practically speaking , if you open the toilet and there is a man with a gun in there, this case never goes to trial!)

Your last few points are interesting. I expect he'd have been allowed a plea bargain for ch if it really had been an armed intruder. But if so, isn't he being punished not for shooting an intruder but for shooting Reeva by mistake?

And are you sure your simple substitution of whether sd would have succeeded if it had been an intruder is correct? Isn't the approach rather for the court having rejected sd to then consider ppd. Ie could he have thought he was acting lawfully. Maybe that would fail to, but I'm not sure what you say above is entirely right.

 

[Mr Fossil]

Mr Fossil

Have you looked into the Apps which take an iphone in and out of airplane mode / initiate a GPRS connection?

I looked into it at one point and I think there are very few such Apps.

Yes, I have. You also have to consider the available Apps as at early 2013 under iOS 6 and the fact that the iPhone wasn't jail broken (when many things become possible).

The other key question I needed to explain was why Moller, a knowledgeable person in this field, said what he said in court. I am now happy that Vodacom's April 2013 statement (see the phone data post) can explain this: it isn't normal to get all the location information on the call data records so perhaps he didn't realise precisely what he had been sent when he loaded it all into I2 Analyst Notebook. His explanation would have been perfect if the call data had excluded non-usage records but it's abundantly clear from Reeva's phone data that he had the full cell tower location data too.

I'd add one other point. When I was reading up on this, the many papers I read all talked about tracing where people were when they made calls, sent SMS text messages etc. There are lots of mobile phone forensic analysis papers out there and I couldn't find one that used the call data records in the way I have: to say when someone was activating and deactivating the signal and yet, if you look on the Apple forums, you'll see there are a lot of people that use Airplane mode for this very purpose. I guess it's an unusual angle to come from.

Whilst I can't say I'm 100% certain I'm correct, I do have some mobile telephony and I.T. experience, have done plenty of research and not found any reasonable alternative explanation, so I'm happy with what we've said. And, of course, as with everything, we've shared it with the SAPS including Moller himself and NPA but I can't comment on any response we may have received (and nor should anything be read into this).

 

[janicelongbright]

Yes, I have. You also have to consider the available Apps as at early 2013 under iOS 6 and the fact that the iPhone wasn't jail broken (when many things become possible).

The other key question I needed to explain was why Moller, a knowledgeable person in this field, said what he said in court. I am now happy that Vodacom's April 2013 statement (see the phone data post) can explain this: it isn't normal to get all the location information on the call data records so perhaps he didn't realise precisely what he had been sent when he loaded it all into I2 Analyst Notebook. His explanation would have been perfect if the call data had excluded non-usage records but it's abundantly clear from Reeva's phone data that he had the full cell tower location data too.

I'd add one other point. When I was reading up on this, the many papers I read all talked about tracing where people were when they made calls, sent SMS text messages etc. There are lots of mobile phone forensic analysis papers out there and I couldn't find one that used the call data records in the way I have: to say when someone was activating and deactivating the signal and yet, if you look on the Apple forums, you'll see there are a lot of people that use Airplane mode for this very purpose. I guess it's an unusual angle to come from.

Whilst I can't say I'm 100% certain I'm correct, I do have some mobile telephony and I.T. experience, have done plenty of research and not found any reasonable alternative explanation, so I'm happy with what we've said. And, of course, as with everything, we've shared it with the SAPS including Moller himself and NPA but I can't comment on any response we may have received (and nor should anything be read into this).

=mrjitty;12175801]You'll have to link me to what you are talking about - as there have been many things linkedin the past days[/QUOTE]

I know , apologies ! I read loads of pages and references this morning trying to catch up ,I ve searched now and I can't find it .I'm beginning to doubt my own sanity, too .
I can't find anything about ,cases of fact ,mens rea ,or English law , tst, I'll have now to prove I'm not insane, ha ha..

 

[janicelongbright]

Im going back to bed to lie down. Wrong person addressed ........

 

[saraomar]

Does anyone know if prof saayman's autopsy report and testimony will ever be made public? I know there is an autopsy report but pistorius paid for one of his own, and that doctor didn't testify for some reason.
Are the police files/ photos that we haven't seen, I.e Reeva body positioning, other photos ever going to be released?

 

[janicelongbright]

I have found the following , which strongly !? might suggest I wasn't imagining reading a reference that wasn't there .Even though I can't find the original. I can't do the direct links thing , but this is where it says S. A. law is the same as English law on the burden of proof relating to responsibility resting on the defence. ( Elsewhere there is the intention issue also ,which also requires the burden of proof to be on the defence )

The source is Wikipedia , but does have references ;

Onus of proof ..... S.A. has adopted English law on these matters.
78. Every person is presumed to be responsible ...... until the contrary can be proved on the balance of probabilities .

In terms of 78 , whenever criminal responsibility is raised,the burden of proof will be on the party who raises it, almost always on the accused . Sect 78(1A)of the CPA; Sevt. 78(1) ; 78(1B)

The law on mens rea , is exactly the same , and a prima facie case for mens rea defence has to be proven in court by the DEFENCE , before it can even be introduced into trial . If the court accepts there is a case , the burden of proof ,shifts to the prosecution . However , there has to be a prima facie case , for mens rea to be accepted as admissable at trial .

 

[Interested Bystander]

Does anyone know if prof saayman's autopsy report and testimony will ever be made public? I know there is an autopsy report but pistorius paid for one of his own, and that doctor didn't testify for some reason.
Are the police files/ photos that we haven't seen, I.e Reeva body positioning, other photos ever going to be released?

His name is Reggie Perumal and he is supposed to be the best there is. His report won't ever be made public. It is said he refused to testify because he agreed with the State's findings. Here is a link which explains what the thinking was at the time.

http://www.news24.com/SouthAfrica/O...t-hired-by-Oscar-wont-testify-report-20140417

Re Reeva's body, OP carried her downstairs so there is no evidence to show where she was in the toilet cubicle or elsewhere in the bathroom, other than by the bloodstains. OP did make a film of some of the events of the evening which included retrieving RS from the bathroom which was intended to be used in his defence but it does depict him in the position that he found Reeva, ie slumped over the toilet basin, which corresponds exactly with the State's theory.

EDIT I don't know if the State will ever divulge the entire contents of the report or whether we heard it all during the trial. You can watch Prof Saayman's testimony on YouTube if you missed it.

NB On reflection, I have a feeling that Prof Saayman's broadcast testimony may have been withheld. I will need to double check. Apologies

Here is the link to show what happened in court.
https://www.youtube.com/watch?v=x83TWTSJI7I

It was later agreed to release an abridged version of Prof Saayman's testimony but I cannot find it anywhere. Someone reading this may well know how to find it.

The following links are from Lisa's Blog (Juror 13) where she describes Professor Saayman's testimony.

https://juror13lw.wordpress.com/2014/03/10/oscar-pistorius-trial-day-6/

https://juror13lw.wordpress.com/2014/03/11/oscar-pistorius-trial-day-7/

 

[mrjitty]

I have found the following , which strongly !? might suggest I wasn't imagining reading a reference that wasn't there .Even though I can't find the original. I can't do the direct links thing , but this is where it says S. A. law is the same as English law on the burden of proof relating to responsibility resting on the defence. ( Elsewhere there is the intention issue also ,which also requires the burden of proof to be on the defence )

The source is Wikipedia , but does have references ;

Onus of proof ..... S.A. has adopted English law on these matters.
78. Every person is presumed to be responsible ...... until the contrary can be proved on the balance of probabilities .

In terms of 78 , whenever criminal responsibility is raised,the burden of proof will be on the party who raises it, almost always on the accused . Sect 78(1A)of the CPA; Sevt. 78(1) ; 78(1B)

The law on mens rea , is exactly the same , and a prima facie case for mens rea defence has to be proven in court by the DEFENCE , before it can even be introduced into trial . If the court accepts there is a case , the burden of proof ,shifts to the prosecution . However , there has to be a prima facie case , for mens rea to be accepted as admissable at trial .

You seem to be quoting the law of incapacity? This is a defence - which I agree needs certain facts to be established by the defence

These sorts of defences negate Mens Rea

Mens Rea is what the prosecution proves.

Absence or negation of what Mens Rea is what the defence tries to prove.

 

[mrjitty]

Yes, I have. You also have to consider the available Apps as at early 2013 under iOS 6 and the fact that the iPhone wasn't jail broken (when many things become possible).

The other key question I needed to explain was why Moller, a knowledgeable person in this field, said what he said in court. I am now happy that Vodacom's April 2013 statement (see the phone data post) can explain this: it isn't normal to get all the location information on the call data records so perhaps he didn't realise precisely what he had been sent when he loaded it all into I2 Analyst Notebook. His explanation would have been perfect if the call data had excluded non-usage records but it's abundantly clear from Reeva's phone data that he had the full cell tower location data too.

I'd add one other point. When I was reading up on this, the many papers I read all talked about tracing where people were when they made calls, sent SMS text messages etc. There are lots of mobile phone forensic analysis papers out there and I couldn't find one that used the call data records in the way I have: to say when someone was activating and deactivating the signal and yet, if you look on the Apple forums, you'll see there are a lot of people that use Airplane mode for this very purpose. I guess it's an unusual angle to come from.

Whilst I can't say I'm 100% certain I'm correct, I do have some mobile telephony and I.T. experience, have done plenty of research and not found any reasonable alternative explanation, so I'm happy with what we've said. And, of course, as with everything, we've shared it with the SAPS including Moller himself and NPA but I can't comment on any response we may have received (and nor should anything be read into this).

I suspect airplane mode is used by people who don't have a flat rate data plan?

It might also be the case if they don't want to be bothered (instead of turning phone off). I just put mine or silent personally.

In any event I agree that airplane note is by far the most likely explanation.

Given this is an evidential point (i.e, does not need to be proved beyond reasonable doubt) it should have been easy for the prosecution to establish this as a fact. And at the very least for the defence to show how this connection pattern might have happened autonomously?

IMO you cracked the case wide open with this point.

 

[mrjitty]

Your last few points are interesting. I expect he'd have been allowed a plea bargain for ch if it really had been an armed intruder. But if so, isn't he being punished not for shooting an intruder but for shooting Reeva by mistake?

And are you sure your simple substitution of whether sd would have succeeded if it had been an intruder is correct? Isn't the approach rather for the court having rejected sd to then consider ppd. Ie could he have thought he was acting lawfully. Maybe that would fail to, but I'm not sure what you say above is entirely right.

Its just a law school type analytical trick you can use.

First assume everything that OP said is true. For all intents and purposes there really is an intruder who is locked in the toilet.

In such circumstances, would shooting the intruder 4 times have met the test of self defence?

If not, then clearly OP cannot succeed on PPD. If yes - then the next question is whether the belief was genuine

This is sort of how Grant approaches it.

I was making a different point - more a pragmatic one. If he really dropped an armed intruder in the toilet - I highly doubt any police officer would have charged him.

Such are the inconsistencies.

 

[mrjitty]

This impacts her entire ruling, IMO. Coherent logical reasoning is a necessary ingredient in a judgement - if the glaring error in the quoted portion is recognised by the SCA, then they should put Masipa's entire judgement under thorough scrutiny. In particular, `factual findings' that require drawing of an inference, that are arrived at using wrong logic or wrong application of legal principles, or giving no explanation at all should be discarded.

Here, where is the factual finding that OP believed that he was under attack?

Here is Grant's original rebuttal of Snyman and now Roux's submissions

Pistorius was not actually under attack, and therefore he could not rely on the defence of private defence. He could however, and did, rely on a defence of putative private defence. This defence was the original defence raised by Pistorius and persisted in by his defence team in the alternative. This defence required that Masipa asked whether the accused foresaw the possibility that his conduct could unlawfully kill.

The problem is that, after specifically stating that she was turning her attention to this defence (of putative private defence), Masipa erroneously states that the question is whether the accused foresaw that his conduct could kill [full stop]. As discussed, this is not the right question.

It does not make her decision right to say, as many commentators have,[12] that if Masipa had asked the right question, she would have (possibly) arrived at the same or right conclusion. We cannot know what conclusion she would have come to if she had asked a different question.

http://criminallawza.net/2014/09/28...ustify-judge-masipas-errors-revised-expanded/

 

[mrjitty]

And finally a very interesting comment on thAt blog about the difference between the mistake of identity and the mistake re attack. Masipa just seemed to skip Analyzing the attack part.

3. Therefore, even when the accused is mistaken about some of the aspects of the ‘attack/attacker’, his defence stays one of justification.
Yes. If lawful force (albeit lethal force) is used to kill Bob (whom I think is Bob) but it transpires that in fact the deceased is Bill, the identity the deceased (Bob or Bill) is irrelevant as my belief was honest and is not affected by a mistake as to identity.
If the attack itself was a mistake (as happened with OP) that is a separate mistake than the “identity mistake”. The question is did the defendant have an honest belief that they were under imminent peril etc. and lethal force was needed? To answer that, an objective test has to be applied otherwise the defendant would always say they believed they had grounds and could never be found guilty of murder or manslaughter (culpable homicide).

 

[Mr Fossil]

I suspect airplane mode is used by people who don't have a flat rate data plan?

It might also be the case if they don't want to be bothered (instead of turning phone off). I just put mine or silent personally.

In any event I agree that airplane note is by far the most likely explanation.

Given this is an evidential point (i.e, does not need to be proved beyond reasonable doubt) it should have been easy for the prosecution to establish this as a fact. And at the very least for the defence to show how this connection pattern might have happened autonomously?

IMO you cracked the case wide open with this point.

Airplane Mode isn't specifically to control data: it suspends all signalling (cellular and WiFi) on the phone, disabling calls, texts, emails, everything except the local functions. There is a separate option on an iPhone to control cellular data specifically. There is now an option to turn WiFi on whilst in Airplane Mode.

The difference between switching to silent and Airplane Mode is that in silent mode calls, texts, WhatsApp messages, emails etc. still arrive and therefore may still display on the screen. Not good if you happen to leave your phone anywhere visible and don't wish others to see these communications. And Airplane Mode in fact allows you to leave your phone visible as if you have nothing to hide: it even appears to be on when you go to use it (except it takes a couple of taps to get the communications going again). It is considerably faster than switching the phone on or off.

The problem was that both sides accepted Moller's explanation about what the GPRS connections meant. I don't and yes, it would be easy to get this confirmed as a fact (or not).

In which case it would also be a fact that someone was awake. Moller has the exact times of all the GPRS connections which may correlate with other events, although none would be as damning as someone being awake at 01:48-01:53, just before the one sided argument heard by EvdM. This simply cannot be coincidence IMO.

 

[mrjitty]

It proves beyond argument he was awake imo.

The factor in the gastric evidence. EVDM. The state of the room.

Four huge circumstantial points!

 

[Trotterly]

Here is Grant's original rebuttal of Snyman and now Roux's submissions

The problem is that, after specifically stating that she was turning her attention to this defence (of putative private defence), Masipa erroneously states that the question is whether the accused foresaw that his conduct could kill [full stop]. As discussed, this is not the right question

http://criminallawza.net/2014/09/28...ustify-judge-masipas-errors-revised-expanded/

I don't think she does say this. Do you know where this appears in the judgement?