Oscar Pistorius - Discussion Thread #65~ the appeal~

[Sherbert]

You would have read the other questions in the firearms competency test, one of which was if he saw a person in his house stealing furniture etc, would he be entitled to shoot. OP answered correctly "No". I believe you're putting too much reliance on the word "think". You would think someone was going to attack you if they were running towards you with a weapon. You can't think someone is going to attack you unless the attack has commenced or is imminent, and if someone shouts "I'm going to kill you" or whatever, has a knife in his hand and is running towards you, then you would correctly think you were about to be attacked and have a complete defence if you then shot and killed that person, i.e. PPD.

Yes - clearly, OP wasn't entitled to shoot.

However, the question is whether or not a verdict of DE is compatible with Masipa's highly dubious findings of fact regarding OP's state of mind.

Caselaw would suggest not.

However, I remain confident that the SCA is intent upon upgrading the verdict, by whatever means necessary.

Justice should manifestly and undoubtedly be seen to be done and, like most of us on this website, they fully appreciate that this was no case of mistaken identity.

 

[Colin de France]

Obviously they were a beginner in the art of stealthy home intrusions as well. Dead of night, all is quiet in the guarded estate and then 'Whallop!', open the window with a loud bang. No wonder their next act was to scurry into the toilet and lock the door. Had it really been an intruder they probably would have sat there, head in hands, thinking 'I am really really bad at this'.

PS They were half OK though - they had managed to drag a ladder into place, position it up against a wall and climb it without making a sound. Perhaps that gave them a sense of over confidence.

.....and all in the dark as well ......

 

[Sherbert]

If I might refer the learned Sherbert to the comments of Justice Leach ;-)

Yes the inquiry is a subjective one compared to normal self defence.

The Court must ask whether OP honestly and genuinely believed he was entitled to fire in the circumstances he found himself in.

However that must be bona fides.

It is not sufficient for the accused to simply testify to this point. Rather the Court must examine the facts that have been objectively established in order to infer what the accused must have known.

Hence per Justice Leach, the accused had no knowledge of who was in the toilet. He could see that the door had not opened. He had other options. It follows that the accused could not have believed that firing the 4 shots was reasonable, and necessary, and instead the accused must have known that the force was excessive.

I must say, this is particularly the case when the accused own firearms training had taught the accused this very point!

RBBM

:wink: I agree with this.

It's very clear that the conditions for PPD are not met.

Do you think that the SCA will need to conclude that OP's story that he was scared of an intruder was fabrication in order to get to DE?

A potential problem with this is that the Prosecution case now revolves around the presence of the intruder.

 

[Sherbert]

After an appeal in the SCA, judgement is normally handed down the same day and usually published within 2 weeks. What did anyone make of Mpati changing his mind and reserving judgement? It is not very often this happens. Can anything at all be read into this and, if so, what?

On the face of it Roux was on the ropes and a couple of the judges seemed to be favouring Nel. It almost looked as though they had made a decision prior to the Appeal being heard. They had spent many days, if not weeks, looking at the trial evidence, no doubt discussing it and maybe coming to a conclusion. So what happened to change Mpati's mind about handing down the judgement?

I think it would have been tricky to hand down judgement on the same day, given that it wasn't clear until the Hearing whether or not the State was going for DD of Reeva.

Also, of course, the Judgement will be subjected to much scrutiny all over the world, not to mention on the Websleuths forum, so the Justices will be keen to ensure that all holes are plugged and that everything is absolutely correct and above criticism.

I'm sure Masipa wishes she'd been a bit more careful now.

 

[cottonweaver]

I'm sure Masipa wishes she'd been a bit more careful now.

RSBM

Masipa won't be half as regretful as OP is right now!

Ah the disadvantages of "getting lucky" with a inexperienced Judge.

Still ...we know OP can smile in adversity....( apparent from the wedding snaps link posted upthread. )

 

[soozieqtips]

Ah the disadvantages of "getting lucky" with a inexperienced Judge.

Still ...we know OP can smile in adversity....( apparent from the wedding snaps link posted upthread. )

Yes. Doesn't he look happy and jolly! Not unlike during his distraught and broken phase when he was checking out Reeva lookalikes a few weeks after he killed Reeva ...

 

[cottonweaver]

Yes. Doesn't he look happy and jolly! Not unlike during his distraught and broken phase when he was checking out Reeva lookalikes a few weeks after he killed Reeva ...

Hasn't learned - oscar the smart phone camera is not your friend. No selfies now, avoid posing. ( appreciate some were group photos of the wedding celebration)

I posted the "selfie with mate" a while ago but the Admin removed weblink to it as appropriately it came from an f b page.
The friend has been very loyal and protective of OP to date ( not going to argue with that ) but will now have to consider which of their close group sold out their wedding pix?
( That doesn't look like the work of an official wedding photographer to me so how else could these have been leaked? )

Occurred to me , doesn't every celeb wedding stipulate no mobiles? ( This couple are celebs over there) If I was his friend, that's what I would have done........so eventually I concluded this must be somehow intentional.... ( you can guess what I am inferring- brazen it out, show the world, who cares etc...night club jaunt)


More importantly - has it stopped raining for others in UK ? It's unreal here - days of it! Wettest November on record apparently.

 

[mrjitty]

RBBM

:wink: I agree with this.

It's very clear that the conditions for PPD are not met.

Do you think that the SCA will need to conclude that OP's story that he was scared of an intruder was fabrication in order to get to DE?

A potential problem with this is that the Prosecution case now revolves around the presence of the intruder.

No i don't.

PPD has two halves. The first is the belief in the attack The second is the belief that the defensive actions are lawful.

Masipa only made a finding in respect of the intruder. And arguably that he was scared for his life.

However she made no finding as to whether OP could have believed the force level was justified

IMO it clearly could not be.

He could see no attack commenced. He made no effort to verify the target. He did not explore simply leaving.

 

[Interested Bystander]

You would have read the other questions in the firearms competency test, one of which was if he saw a person in his house stealing furniture etc, would he be entitled to shoot. OP answered correctly "No". I believe you're putting too much reliance on the word "think". You would think someone was going to attack you if they were running towards you with a weapon. You can't think someone is going to attack you unless the attack has commenced or is imminent, and if someone shouts "I'm going to kill you" or whatever, has a knife in his hand and is running towards you, then you would correctly think you were about to be attacked and have a complete defence if you then shot and killed that person, i.e. PPD.

Yes I remember the test well and how he passed with ease. However, I have read learned comment on more than one occasion recently that it has only to be an honest belief that one was in mortal danger was the tipping point. OP was only ever going to appear petrified before the judge. He had been well schooled methinks. Perhaps those reported acting lessons were fact and carried the day.

 

[lithgow1]

A question for Sherbet or Mr Jitty or anyone else who knows for that matter. Are the SCA judges obliged to accept the issues that Masipa ruled on as matters of fact? I understand that the State cannot appeal against them, but does it then follow that if she accepted something then they must too. I suppose I am asking if in essence they can deem him an unreliable witness when it comes to their looking at his evidence. TIA.

 

[Interested Bystander]

I think it would have been tricky to hand down judgement on the same day, given that it wasn't clear until the Hearing whether or not the State was going for DD of Reeva.

Also, of course, the Judgement will be subjected to much scrutiny all over the world, not to mention on the Websleuths forum, so the Justices will be keen to ensure that all holes are plugged and that everything is absolutely correct and above criticism.

I'm sure Masipa wishes she'd been a bit more careful now.

I do agree but his comment right at the end of the appeal led me to believe he had said earlier that day that the judgement would be handed down. Did you catch what he said immediately before he left the court? I did wonder if Roux's robust performance had given rise for him to think the judges needed to take a deeper look.

 

[Trotterly]

After an appeal in the SCA, judgement is normally handed down the same day and usually published within 2 weeks. What did anyone make of Mpati changing his mind and reserving judgement? It is not very often this happens. Can anything at all be read into this and, if so, what?

On the face of it Roux was on the ropes and a couple of the judges seemed to be favouring Nel. It almost looked as though they had made a decision prior to the Appeal being heard. They had spent many days, if not weeks, looking at the trial evidence, no doubt discussing it and maybe coming to a conclusion. So what happened to change Mpati's mind about handing down the judgement?

It was obvious from the questions raised that they now have a lot to think about. They were not up to speed with Roux's arguments at all and I think that is why he originally wanted much more court time.

The unclear judgement was going to need explanation especially in reference to DE Reeva. After Roux's explanation, which was not helped by interruption by Leach, it was obvious that Mpati still did not get it.

I was originally expecting a decision within a week or two but now I think it will be much longer.

 

[Interested Bystander]

Hasn't learned - oscar the smart phone camera is not your friend. No selfies now, avoid posing. ( appreciate some were group photos of the wedding celebration)

I posted the "selfie with mate" a while ago but the Admin removed weblink to it as appropriately it came from an f b page.
The friend has been very loyal and protective of OP to date ( not going to argue with that ) but will now have to consider which of their close group sold out their wedding pix?
( That doesn't look like the work of an official wedding photographer to me so how else could these have been leaked? )

Occurred to me , doesn't every celeb wedding stipulate no mobiles? ( This couple are celebs over there) If I was his friend, that's what I would have done........so eventually I concluded this must be somehow intentional.... ( you can guess what I am inferring- brazen it out, show the world, who cares etc...night club jaunt)


More importantly - has it stopped raining for others in UK ? It's unreal here - days of it! Wettest November on record apparently.

BIB

. I am in Surrey and we have had only one week of real sunshine this year. Gloom everywhere and more to come, it seems.

 

[Marfa Lights]

I know, I know, another long post from me... but someone on here was asking for more case law references and I wanted to suggest looking at the list at the bottom of the State's HOA for the appeal.

https://juror13lw.files.wordpress.com/2015/08/states-appeal-document-oscar-pistorius-2015.pdf

I looked up one reference at random: http://repository.up.ac.za/bitstream/handle/2263/37009/Carstens_Revisiting_2013.pdf?sequence=2

It focuses on the distinction between intent (Dolus) and negligence (Culpa) mostly as it relates to several well known cases of vehicular homicide, Humphreys in particular. However, there is some good language about how the court should and should not infer subjective intention and the "two-leg test" for Dolus eventualis (sorry, there is also some extra complicated reference to Luxuria or conscious negligence, that I am not going to entertain right now-- although you are welcome to it for extra credit!)


RE: THE FIRST LEG: Did the defendant subjectively foresee the possibility of killing someone?
"On a cautionary note, the court warned that one should also avoid the flawed process of deductive reasoning that, because the appellant should have foreseen the consequences, it could be concluded that he did. Such reasoning, according to the court, would conflate the different tests for dolus and negligence. On the other hand, like any other fact, the court confirmed that subjective foresight could be proven by inference (at paras [12] to [13]). In consideration of the trial court’s line of inferential reasoning, in the context of the question whether the appellant subjectively foresaw the death of his passengers as a possible consequence of his conduct (in compliance with the first leg of the test for dolus eventualis), the court ruled that it could confidently be accepted that no person in their right mind could avoid recognition of the possibility that a collision between a motor vehicle and an oncoming train might have fatal consequences for the passengers of the vehicle."


RE: THE SECOND LEG: Did the defendant reconcile him self with this possibility and proceed anyway?
"Having ruled that the first element of dolus eventualis had been established, the court had to assess the appellant’s compliance or not to the second element of dolus eventualis, namely that of reconciliation with the foreseen possibility. In this regard, the court relied upon the following explanatory dictum by Jansen JA in S v Ngubane supra at 685A-H:
‘A man may foresee the possibility of harm and yet be negligent in respect of that harm ensuing, eg by unreasonably underestimating the degree of possibility or unreasonably failing to take steps to avoid that possibility ... The concept of conscious (advertent) negligence (luxuria) is well known on the Continent and has in recent times often been discussed by our writers... . Conscious negligence is not to be equated with dolus eventualis. The distinguishing feature of dolus eventualis is the volitional component: the agent (the perpetrator) “consents” to the consequence foreseen as a possibility, he “reconciles himself” to it, he “takes it into the bargain”... . Our cases often speak of the agent being “reckless” of that consequence, but in this context it means consenting, reconciling or taking into the bargain ... and not the “recklessness” of the Anglo American systems nor an aggravated degree of negligence. It is the particular, subjective, volitional mental state in regard to the foreseen possibility which characterises dolus eventualis and which is absent in luxuria.’"



Combining both legs of the test for DE gives you this one basic question: Did the defendant subjectively foresee the consequences of his actions and did he reconcile himself with the possible outcome?


I think Oscar knew fully well the possible consequences of firing 4X into his toilet and that he not only accepted the outcome as part of the bargain, I think he clearly intended it.

 

[Interested Bystander]

It was obvious from the questions raised that they now have a lot to think about. They were not up to speed with Roux's arguments at all and I think that is why he originally wanted much more court time.

The unclear judgement was going to need explanation especially in reference to DE Reeva. After Roux's explanation, which was not helped by interruption by Leach, it was obvious that Mpati still did not get it.

I was originally expecting a decision within a week or two but now I think it will be much longer.

I agree that it may well be that Roux has caused a pause for thought. I have looked at the records of appeals and it is normal to hand the judgement down on the day but not to release the report for a couple of weeks. I have always found that a bit strange. It almost says that the judgement is made before the Appeal takes place. Two weeks is the norm before the judgement is publicised but you may well be right in thinking this is going to take longer.

 

[mrjitty]

They were not up to speed with Roux's arguments at all...

After Roux's explanation, which was not helped by interruption by Leach...

LOL

Perhaps if Counsel would answer the Justices questions

 

[Interested Bystander]

I have just had a quick look at a few cases and I am not sure I am right in thinking that judgements are handed down on the day. I have seen in print somewhere, and a forum member kindly posted a link, that this was normal for the SCA. So I must retract what I said and apologise. If I can find the link that was posted I will repost it. It seems Mpati actually said "Contrary to what he heard earlier in the day that the judgement would be delivered today, judgement is reserved" not as I thought he said which was "said" (not heard). Time for a hearing aid .

 

[JudgeJudi]

Judge Greenland's latest offering.

Chris N Greenland ‏@Chrisng53 · Nov 7
#ReevaSteenkamp a dolus directus versus dolus eventualis check.

 

[JudgeJudi]

Obviously they were a beginner in the art of stealthy home intrusions as well. Dead of night, all is quiet in the guarded estate and then 'Whallop!', open the window with a loud bang. No wonder their next act was to scurry into the toilet and lock the door. Had it really been an intruder they probably would have sat there, head in hands, thinking 'I am really really bad at this'.

PS They were half OK though - they had managed to drag a ladder into place, position it up against a wall and climb it without making a sound. Perhaps that gave them a sense of over confidence.

I'm not too sure many intruders would slam the door shut either in the dead or night. You're right, they were obviously novices.

 

[lithgow1]

PPS Add after the underlining, "slam the door shut", something most intruders wouldn't do in the dead of night.

Yes and even though OP heard the door shut, he didn't hear it being locked. See there is another 'oddity'. IIRC, on his evidence he is alternating between screaming and silence as he makes his way down the hallway towards the bathroom. Wouldn't you be as quiet as possible so you can hear what is happening in there, any sounds of voices, movement etc, especially since sounds are the only things he has to judge by. `But no, he moved stealthily but all the while signalling his approach. It is either nonsensical or necessary, in order to explain the screams that were heard.