Oscar Pistorius - Discussion Thread #65~ the appeal~

[lithgow1]

Judge Greenland's latest offering.

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

This puzzles me too but I didn't want to ask a stupid question! If Pistorius armed himself and went to where he though an intruder was and then fired four shots at them, why is that not a direct intention to kill them? He claims that he knew there was an intruder in there, not thought but knew, and then proceeded to shoot them on the flimsiest of excuses. Couldn't Nel have appealed on the basis of DD towards the intruder?

 

[JudgeJudi]

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.

Agreed. The same with him saying the bedroom was pitch black and he had his back turned the entire time while bringing in the fans and repositioning them in order to provide an explanation why he couldn't see Reeva.

 

[Trotterly]

Absolutely and crime scene photographs show that it didn't hit the frame. You need to look at the ER animation too. Actually, listen to it and the commentary (which is clearly recorded later than the animation). Listen out for the 'screech'. You won't hear it.

Do you have a link to the full length ER video please?

 

[mrjitty]

This puzzles me too but I didn't want to ask a stupid question! If Pistorius armed himself and went to where he though an intruder was and then fired four shots at them, why is that not a direct intention to kill them? He claims that he knew there was an intruder in there, not thought but knew, and then proceeded to shoot them on the flimsiest of excuses. Couldn't Nel have appealed on the basis of DD towards the intruder?

Its to do with burden of proof IMO

If OP deliberately shoots Reeva - the only reasonable interpretation is he wanted her dead = DD

If OP deliberately shoots the "intruder" - the defence can argue his intention was not to kill the intruder but simply to stop them.

This is why the law expands the definition of murder to include scenarios where you must have foreseen death - to make it easier for the Prosecution.

DE is not a downgrade on DD - its actually a lower bar to jump over.

 

[mrjitty]

When's the next Mr Fossil and JJ post?

I am addicted now!

 

[lithgow1]

Agreed. The same with him saying the bedroom was pitch black and he had his back turned the entire time while bringing in the fans and repositioning them in order to provide an explanation why he couldn't see Reeva.

All of it just goes against logic and human nature. While he is getting the fans and tossing the jeans over an LED light she noiselessly moves across the bed and makes her way down the dark hallway. So far, quiet as a cat. Then she opens the window so forcefully as to slam it and make a loud noise. Now if my partner was awake and moving around and I did that, I would call out 'Sorry' or 'Oops' or something! Not saying that she should have done that but it just seems the natural, normal thing to do, just as checking with her when he heard the noise would of been. This totally silent Reeva, even when shot, is unbelievable IMO but of course she must be mute or he is a murderer.

 

[JudgeJudi]

This puzzles me too but I didn't want to ask a stupid question! If Pistorius armed himself and went to where he though an intruder was and then fired four shots at them, why is that not a direct intention to kill them? He claims that he knew there was an intruder in there, not thought but knew, and then proceeded to shoot them on the flimsiest of excuses. Couldn't Nel have appealed on the basis of DD towards the intruder?

I'm sure he could have, hence the comment from Majiedt. However IIRC Nel said words to the effect that that would bring in the ear witnesses having heard screams, and as Masipa had rejected that, he didn't want to go down that route. That would open the door for Roux to say he was arguing the facts, not the law. Nel was on much safer ground going with DE. In my opinion both Leach and Majiedt would have agreed with DD, as do I. I said this a long time ago and I'm far more convinced of it now.

 

[lithgow1]

Its to do with burden of proof IMO

If OP deliberately shoots Reeva - the only reasonable interpretation is he wanted her dead = DD

If OP deliberately shoots the "intruder" - the defence can argue his intention was not to kill the intruder but simply to stop them.

This is why the law expands the definition of murder to include scenarios where you must have foreseen death - to make it easier for the Prosecution.

DE is not a downgrade on DD - its actually a lower bar to jump over.

Thanks for that MrJitty. Re the BIB, I guess if the defence argued that then the prosecution could argue that one shot yes, four shots he must have meant to kill? Dunno if you saw my earlier question but can the SCA choose to deem as unreliable portions of OP's evidence or are they bound to accept those elements that Masipa found as fact? Thanks. Again!

 

[mrjitty]

Thanks for that MrJitty. Re the BIB, I guess if the defence argued that then the prosecution could argue that one shot yes, four shots he must have meant to kill? Dunno if you saw my earlier question but can the SCA choose to deem as unreliable portions of OP's evidence or are they bound to accept those elements that Masipa found as fact? Thanks. Again!

I think they can find that OP was a unreliable witness, and thus ignore his testimony as unsafe.

As with the circumstantial evidence, I think this relates more to the fact that the judge should not have picked out a defence for him that managed to negate DE

 

[Colin de France]

I think they can find that OP was a unreliable witness, and thus ignore his testimony as unsafe.

As with the circumstantial evidence, I think this relates more to the fact that the judge should not have picked out a defence for him that managed to negate DE

.......if he goes down for murder on the basis that the judges don't believe his testimony about the intruder, i can't see him having any other choice than to appeal, unless of course he did murder her with intent......i think there's no other way out than to have another trial but this time with all the evidence on the table....he's admitted to shooting at the intruder he hasn't admitted to shooting at Reeva, for a murder conviction to feel right there needs to be evidence to back it up .....if he goes down for murder with nothing to back it up, this is going to go on forever.....

 

[Mr Fossil]

Do you have a link to the full length ER video please?

Here you go, it's broken into 3 parts:
https://www.youtube.com/playlist?list=PLvwE8629Z9tGnUugp3RId4W0RJ2OTPjFJ

If you're restricted from watching in your country then use http://www.clipconverter.cc/ to download the parts.

 

[Mr Fossil]

When's the next Mr Fossil and JJ post?

I am addicted now!

Sorry, I can't give a date for the next post. I'm a little busy over the next couple of weeks so my work rate is going to slip. Mrs Fossil is moving home and I'd like to move with her ...

 

[Interested Bystander]

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.

Lithgow1, I know you feel OP's testimony is nonsensical all the way through, much like 97 per cent of us who follow the case. I find it hard to believe to get a conviction Nel is having to Appeal on Law BUT that is the law, so to speak. An Appeal on facts really should be allowed in the SCA (it is in some other African countries) but I can see it might open the floodgates. What the appeal should have been about is his quite obvious mendacity and manner of execution of poor Reeva with no proof there ever was an intruder.

 

[Trotterly]

LOL

Perhaps if Counsel would answer the Justices questions

He answered all of them except the one where she found that he could not be guilty of murder dolus eventualis as having found that he thought he was killing an intruder and could not have foreseen who he was actually killing:

"This court has already found that the accused cannot be guilty of murder dolus eventualis either, on the basis that from his belief and his conduct, 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. It also cannot be said that he accepted that into the bargain"

 

[lithgow1]

Lithgow1, I know you feel OP's testimony is nonsensical all the way through, much like 97 per cent of us who follow the case. I find it hard to believe to get a conviction Nel is having to Appeal on Law BUT that is the law, so to speak. An Appeal on facts really should be allowed in the SCA (it is in some other African countries) but I can see it might open the floodgates. What the appeal should have been about is his quite obvious mendacity and manner of execution of poor Reeva with no proof there ever was an intruder.

I know IB, but it is frustrating. It is also mindboggling IMO that Masipa came to the conclusion that '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'. So WTF did he foresee would happen? The deceased was killed (obviously) and so would the inept intruder have been so what other outcome can he possibly have foreseen? IMO no one has satisfactorily explained that 'logic'.

 

[Colin de France]

Lithgow1, I know you feel OP's testimony is nonsensical all the way through, much like 97 per cent of us who follow the case. I find it hard to believe to get a conviction Nel is having to Appeal on Law BUT that is the law, so to speak. An Appeal on facts really should be allowed in the SCA (it is in some other African countries) but I can see it might open the floodgates. What the appeal should have been about is his quite obvious mendacity and manner of execution of poor Reeva with no proof there ever was an intruder.

.....how about a trial based on the facts/evidence......we're still waiting....if you look at it in depth we don't even "know" if it was Pistorius who fired the gun which killed Reeva......

 

[JudgeJudi]

I hope mrjitty can help me out here. A number of SA lawyers have said that if OP had been convicted of murder at the trial he would have appealed to the SCA. The same lawyers are now saying that if the State wins this appeal, the Defence may well take it to the Constitutional Court, probably on the basis that it was an unfair trial because it was televised.

However going back to the very beginning when the Defence were arguing against it being televised as it would be unfair to their client, they eventually consented on the basis that their witnesses, including OP, only be heard and not seen in the High Court. How could the Defence now take it to the ConCourt on that ground after their request was granted.

I'm uncertain as to whether the ConCourt would allow an appeal grounded on this basis. I would add that I've checked a number of years and you'd be lucky to find more than one or two criminal matters like murder that reach that court. Of those that have, all the ones I've seen have failed.

 

[Interested Bystander]

.....how about a trial based on the facts/evidence......we're still waiting....if you look at it in depth we don't even "know" if it was Pistorius who fired the gun which killed Reeva......

I am not sure I am following you. Pistorius stated he did fire the gun that killed her. Evidence is inherent in finding facts which would have have given the SCA something to get their teeth into. At the moment their hands are pretty much tied by only allowing appeals on law. I probably did not make myself very clear.

I don't think the SCA, assuming they were allowed to try on facts, would be dissecting the whole case again. I obviously have areas that I find really troubling - his dishonesty and the fact that he killed Reeva, it seems without much thought. What sort of person fires four killer bullets through a door without thinking that he might kill whomever was behind it. Apart from that it is the lies that I would love to have seen completely trashed in attempt to find the real truth. There were so many. Mr Fossil is well on the way to disproving so much but unfortunately it will all be too late. I know it is an exercise for him and he is truth seeking fairly obviously because he disbelieved the evidence brought forward in court.

 

[mrjitty]

.....how about a trial based on the facts/evidence......we're still waiting....if you look at it in depth we don't even "know" if it was Pistorius who fired the gun which killed Reeva......

Apart from the fact that the defence admitted that fact?

 

[mrjitty]

Lithgow1, I know you feel OP's testimony is nonsensical all the way through, much like 97 per cent of us who follow the case. I find it hard to believe to get a conviction Nel is having to Appeal on Law BUT that is the law, so to speak. An Appeal on facts really should be allowed in the SCA (it is in some other African countries) but I can see it might open the floodgates. What the appeal should have been about is his quite obvious mendacity and manner of execution of poor Reeva with no proof there ever was an intruder.

Having sat thru the Amanda Knox case - i actually prefer the common law system where facts cannot normally be re-litigated on appeal

Yes it's annoying if you get the wrong result, but I find the Italian system very inefficient where the appeal Court essentially hears key evidence all over again.