Oscar Pistorius - Discussion Thread #65~ the appeal~

[mrjitty]

Mr fossil.

One further thing.

I believe my phone still has a gprs connection to the tower even when I have wifi connection at home

Rather my phone prefers the wifi but under my settings can switch to 3G If it needs to.

But I think I stay logged on the tower?

 

[sleuth-d-]

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).

bib
and what is the objective test in this case?

 

[sleuth-d-]

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.

bib
i assume you mean easy for the pt to confirm, as i imagine you would have already checked/confirmed if it was easy for anyone to do so.

 

[Interested Bystander]

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).

:tantrum:None of this would be important IF Judge Masipa had not erred in ignoring 4 witnesses who heard a woman screaming before the final shots. Had she properly taken note of the circumstantial evidence we would not have to try to sort out the *advertiser censored*-up she made of the Defence she prescribed for him to enable her to bring in a verdict of CH.

 

[mrjitty]

bib
and what is the objective test in this case?

Well this is where it gets potentially hairy.

My understanding is that OP's belief is subjectively tested - so what did he actually believe about an intruder and the nature of the attack.

However the reasonableness/necessity of the lethal force is objective within that context

So Masipa looked at his belief in the intruder, and at a stretch, the attack

But she did not appear to look at whether he can have believed that the force level was reasonable and that he was entitled to shoot.

This is why Leach was so interested in S v De Oliveira

In the circumstances there was prima facie proof that De Oliveira could not have entertained an honest belief that he was entitled to act in private defence.

This is certainly the case with normal self defence.

Say I am in the street in England and a youth shoves me - so I pull out a gun and shoot 10 times

I may have perceived a life threatening attack, but my response (by UK standards) would not be seen as reasonable or necessary.

Opinions differ as to what constitutes "reasonable force" but, in all cases, the defendant does not have the right to determine this because he would always maintain that he had acted reasonably and thus would never be guilty. The jury, as ordinary members of the community, must decide the amount of force reasonable in the circumstances of the case. It is relevant that the defendant was under pressure from imminent attack and may not have had time to make entirely rational decisions, so the test must balance the objective standard of a reasonable person by attributing some of the subjective knowledge of the defendant, including what he had believed about the circumstances, even if he was mistaken.

The problem as usual is Masipa's failure to address these critical questions.

But in my opinion, on the facts as OP perceived them, he cannot have genuinely and honestly believed firing 4 shots was justified

 

[Mr Fossil]

Mr fossil.

One further thing.

I believe my phone still has a gprs connection to the tower even when I have wifi connection at home

Rather my phone prefers the wifi but under my settings can switch to 3G If it needs to.

But I think I stay logged on the tower?

Yes, you're always connected to a tower whilst the phone has a phone signal. The network then knows where your phone is in order to route calls etc. to it. I'll dig out a third party reference for everything I've said as soon as I have time.

 

[Mr Fossil]

bib
i assume you mean easy for the pt to confirm, as i imagine you would have already checked/confirmed if it was easy for anyone to do so.

Easy for the PT. They can verify what data they have and what it means.

 

[mrjitty]

Still love the insanity of this from Masipa

Counsel for the state, correctly in my view, submitted that if the accused
never intended to shoot anyone, he cannot rely on a defence of putative
self defence.

Lucky Masipa realised he was lying on that point!

 

[mrjitty]

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

It came up via Justice Leach

The accused had intention to shoot at the person in the toilet but
states that he never intended to kill that person. In other words he
raised the defence of putative private defence.

As Leach pointed out - that doesn't raise PPD

When i read the judgement it gets worse every time.

In the PPD section, having made the error Leach identified

There is nothing in the evidence to suggest that this belief was
not honestly entertained.

She then completely fails to address the question of whether a person in OP's position could have believed such use of force was reasonable and necessary

That is just completely absent.

Then instead of saying "I find he acted in PPD" she actually says

There is no doubt that when the accused fired shots
through the toilet door, he acted unlawfully.

Then, incredibly, she's off to Dolus!

Then later - these findings about the use of force

However, there were other means
available to him to deal with what he considered a threat to his life.
Security personnel are there to deal with such stress or emergencies.
All the accused had to do was to pick up his cell phone to call security
or the police. He could have run to the balcony and screamed in the
same way he had screamed after the incident. He was able to call
security after the incident. There is no reason or no explanation why he
could not do so before he ventured into the bathroom with a loaded
firearm. Calling security, calling Stander and running to the balcony to
scream for help and to attract attention, probably would have taken as
much time, if not less, as it took to go to the bathroom and to discharge
those four shots.

And finally this factual finding.

I am of the view that the accused acted too hastily and used
excessive force.

So if the force was excessive even after allowing for the mistaken belief - the defence of PPD to murder must fail.

 

[mrjitty]

Yes, you're always connected to a tower whilst the phone has a phone signal. The network then knows where your phone is in order to route calls etc. to it. I'll dig out a third party reference for everything I've said as soon as I have time.

That was my understanding - that the GPRS connection is essentially the allocation of the phone to the tower, rather than continuous comms.

And for example what would end the connection, is turning off your phone, or going into airplane mode - because that causes your phone to say goodbye to the tower.

IMO the dark patches are actually the bigger tell.

How could the phone be off network for so long unless the antenna was off?

 

[Trotterly]

It came up via Justice Leach



As Leach pointed out - that doesn't raise PPD

When i read the judgement it gets worse every time.

In the PPD section, having made the error Leach identified



She then completely fails to address the question of whether a person in OP's position could have believed such use of force was reasonable and necessary

That is just completely absent.

Then instead of saying "I find he acted in PPD" she actually says



Then, incredibly, she's off to Dolus!

Then later - these findings about the use of force



And finally this factual finding.



So if the force was excessive even after allowing for the mistaken belief - the defence of PPD to murder must fail.

I'm not sure how to reproduce the embedded quotes.

The accused had intention to shoot at the person in the toilet but
states that he never intended to kill that person. In other words he
raised the defence of putative private defence.

As Leach pointed out - that doesn't raise PPD


I am aware of what PPD is and I don't follow that this does not raise PPD.

She had already found he had intention to shoot. OP "states" he never intended to kill. This is merely the start of an enquiry into whether he really did intend to kill.

Masipa uses this form of enquiry elsewhere which has caused confusion.

Also I cannot see how you get from Grant's comment to that part of the judgement.
Grant's piece on justification of the judgement contains several errors.

Such as his claim that

"the accused could not have foreseen the possibility of killing the deceased, or anyone else for that matter, because he thought the deceased was in the bedroom"

At no place in the judgement does Maips ever make his foresight of "anyone else" in the cubicle dependent on Reeva in the bedroom. It just is not there.

 

[mrjitty]

I'm not sure how to reproduce the embedded quotes.

The accused had intention to shoot at the person in the toilet but
states that he never intended to kill that person. In other words he
raised the defence of putative private defence.

As Leach pointed out - that doesn't raise PPD


I am aware of what PPD is and I don't follow that this does not raise PPD.

She had already found he had intention to shoot. OP "states" he never intended to kill. This is merely the start of an enquiry into whether he really did intend to kill.

Masipa uses this form of enquiry elsewhere which has caused confusion.

Also I cannot see how you get from Grant's comment to that part of the judgement.
Grant's piece on justification of the judgement contains several errors.

Such as his claim that

"the accused could not have foreseen the possibility of killing the deceased, or anyone else for that matter, because he thought the deceased was in the bedroom"

At no place in the judgement does Maips ever make his foresight of "anyone else" in the cubicle dependent on Reeva in the bedroom. It just is not there.

I must say I am sceptical of answering this - as I see the exact same issue was incorrectly raised on Digital Spy by Porky42

And this is the second time you are now asking me to find the reference when you could easily find it yourself

The quote was very widely reported.

But against my better judgement.

These are the quotes Masipa paraphrases in reading her judgement

The accused has not admitted that he had the intention to shoot
and kill the deceased or any other person for that matter. On the
contrary, he stated that he had no intention to shoot and kill the
deceased.

it could not be said that he foresaw that either the
deceased or anyone else, for that matter, might be killed when he fired
the shots at the toilet door.

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.

And then her oral summary

“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.”

Reported on many news sites, and of course by Prof Grant. Many people published analysis based on the oral summary.

http://www.bbc.com/news/world-africa-29143540

 

[soozieqtips]

I've just been going back over Nel grilling OP about how come Reeva didn't confirm she'd also heard this 'noise', or how OP didn't think it odd when he was sitting right next to her on the bed that she didn't utter a word, and that he didn't even look in her direction, and didn't think it odd she didn't say a word after being asked to call the police - or respond after OP yelled several times for her to call the police. Or how she didn't make a sound when he went charging down the passage towards her in the toilet. After asking 'Can't you sleep, Baba?' Reeva never uttered another word. Not one. Even stranger (IMO) is that OP didn't whisper/talk in a low tone to Reeva and ask if she'd heard the same noise he had. That's just an automatic reaction when you're sharing a bed and one of you hears a possible invisible intruder noise to ask the other person "Did you hear that?"

 

[janicelongbright]

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.

Masipa's ruling was based on these elements ?

1. She accepted that he was not responsible for killing because she accepted that he had a history of' Gad ' Whatever ,she cited a mental health condition as evidence of' not- murder'. Yes /no ?

There is only one law for defence of mental illness /insanity , That is the law of responsibility .
Necessarily , responsibility is presumed by the facts ,therefore non -responsibility is the onus of the defendant to prove .

The defence of mental illness or insanity was not even raised as a defence : And in those circumstances the presumption of responsibily remains proven .: The judge is not entitled to impose defence pleas on the court.

2. She ruled out murder on the basis that the prosecution had not proven that Pistorius intended to "kill or cause grievous bodily harm/
severe injury " IE . That is the definition of mens rea in both S.A. and English law .

In serious cases the mens rea , is already proven by FACT of trial ( the EVIDENTIALburden of proof) Eg. The defendant intended to kill his wife he went to the kitchen got a sharp knife and killed her) ON THE FACTS. Like responsibility.

Where the defendant then says that DESPITE the CASE of FACT , he nevertheless wishes to raise a defence of mens rea .IE NO INTENT to kill / seriously harm. The burden of proof , that there is an evidential , prima facie case TO RAISE in court , is on the defendant .
The court must then rule on whether an evidential proof of mens rea has been made and can be raised as defence in court .

IN S.A. as in England , there must be evidentially provable reason on the facts of the case , and must be confined to the incident itself and the time itself : There is no defence on merely speculation, belief , or assertion. And the facts raised must hold up in the context of the entirety of the evidence .

So when was a defence of mens rea even raised by the defence ? As far as I remember the defence was,' having shot the wrong person' ,mainly because pistorius had said so shortly after the event .

Anyway , it seems yet again that Masipa raised a defence of mens rea , without citing the law by name . I think she IMPLIED but didn't cite any laws at all ? Not by name anyway.

 

[janicelongbright]

I've just been going back over Nel grilling OP about how come Reeva didn't confirm she'd also heard this 'noise', or how OP didn't think it odd when he was sitting right next to her on the bed that she didn't utter a word, and that he didn't even look in her direction, and didn't think it odd she didn't say a word after being asked to call the police - or respond after OP yelled several times for her to call the police. Or how she didn't make a sound when he went charging down the passage towards her in the toilet. After asking 'Can't you sleep, Baba?' Reeva never uttered another word. Not one. Even stranger (IMO) is that OP didn't whisper/talk in a low tone to Reeva and ask if she'd heard the same noise he had. That's just an automatic reaction when you're sharing a bed and one of you hears a possible invisible intruder noise to ask the other person "Did you hear that?"

You would .If you believed you were sitting right next to someone you would instintively , look at them , or try to if it was too dark to see them , because its a universal reflex, a ' wot's that? did you hear that? gesture .

 

[lithgow1]

You would .If you believed you were sitting right next to someone you would instintively , look at them , or try to if it was too dark to see them , because its a universal reflex, a ' wot's that? did you hear that? gesture .

Yes, it is just natural behaviour as both you and soozieqtips say to ask 'Did you hear that?', not just from him but from her as well. Pistorius was the big brave bloke with a gun, so it is likely the noise would frighten Reeva more than him and she would ask both for confirmation and some sort of reassurance. It is also an issue that I notice is raised by many many people if you read comments on newspaper articles. A lot of the commentators make it clear that they didn't follow the trial beyond the headlines but will raise this exact same point - 'Why didn't he ask her?' and variations on that.

Can you recall if Masipa ever made any mention of the disconnect between his 'genuine fear' of intruders and his slack attitude to home security? One of the things with this case is that thinking about one implausibility always seems to lead to another, such as going to bed with open or damaged windows and doors and not even being sure if there was a ladder outside his house and if the external alarm sensors were in place.

 

[soozieqtips]

Yes, it is just natural behaviour as both you and soozieqtips say to ask 'Did you hear that?', not just from him but from her as well. Pistorius was the big brave bloke with a gun, so it is likely the noise would frighten Reeva more than him and she would ask both for confirmation and some sort of reassurance. It is also an issue that I notice is raised by many many people if you read comments on newspaper articles. A lot of the commentators make it clear that they didn't follow the trial beyond the headlines but will raise this exact same point - 'Why didn't he ask her?' and variations on that.

Can you recall if Masipa ever made any mention of the disconnect between his 'genuine fear' of intruders and his slack attitude to home security? One of the things with this case is that thinking about one implausibility always seems to lead to another, such as going to bed with open or damaged windows and doors and not even being sure if there was a ladder outside his house and if the external alarm sensors were in place.

BIB - I don't remember her addressing this at all. When OP was telling Nel how he was always hearing of people breaking in and spraying the homeowners with Mace (which made him even more concerned with 'protecting' Reeva) I wondered how on earth someone so apparently paranoid about break ins could ever have felt safe enough to sleep with his balcony doors open.

As you said, he hadn't fixed the damaged windows, and he wasn't sure about the ladder or if the alarm sensors were in place. All this shows is someone who felt very safe and secure in his environment. When he was referring to home invasions being rife, they didn't apply to Silverwoods, hence why he was happy to leave doors open and windows unfixed. No wonder he had to invent an invisible shooter on the highway to try and give his paranoia some justification!

 

[Sherbert]

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!)

Why, thank you, Mr Jitty!

Judging by the questions raised by the SCA, the question of dolus is very much on the agenda.

IMO, the Justices are minded to find:

1. That OP must have known that he might kill the person behind the door. (This is where Masipa's infamous misdirection should come in handy).

2. That OP must have known that he wasn't entitled to shoot, let alone shoot four times.

3. That there was insufficient evidence to support his claim that he was 'really scared'.

The third one is a little tricky, imo, given that the Prosecution is now seeking DE of the intruder. Obviously, had there really been an intruder, OP would be likely to have been pretty scared.

Perhaps, they will find that, because of the number of bullets fired, he had dolus vis a vis the intruder, even though he may have been scared?

 

[soozieqtips]

I forgot how much tailoring there was. The 'noise' that was unidentified in his affidavit was hugely elaborated on in his testimony.

The noise was loud, M'Lady. It was the window opening and sliding and then hitting the window frame. It was clear.

Now why wouldn't you mention in your sworn statement that you actually heard a window opening so you knew someone must be breaking in? After all, it was the 'noise' that started the whole sequence of events, yet he was extremely vague about what the noise was until he was giving testimony, when suddenly he knew the exact details??

 

[Trotterly]

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).

Could the phone activity not have been Reeva?