Oscar Pistorius - Discussion Thread #65~ the appeal~

[mrjitty]

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"

You miss the point.

Counsel is not there to read out his pleadings.

This is the deep end of the pool - for the big kids.

Justice Leach interrupts counsel repeatedly because Counsel was refusing to give a direct and precise answer to his questions regarding the mistatement of the law of DE

Counsel's insistence on beginning his answer by quoting a passage re PPD did not impress the Justice, nor assist Counsel's client.

 

[Colin de France]

Apart from the fact that the defence admitted that fact?

...he admitted to firing at the intruder in the intruder version, for the Reeva version we know very little and certainly no proof of intent ......just because he admitted to firing with intent on the intruder doesn't mean that he did the same with Reeva....one of the problems with mixing up versions which should all be kept apart and distinct.....

 

[Colin de France]

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.

...he admitted to firing at the intruder in his intruder version.......to convict someone for murder i would expect at least some proof....

 

[mrjitty]

Sometimes discussion here gets a bit surreal.

 

[mrjitty]

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 ...

Ok - then don't keep me in suspense!

Per your last other post - which version of the cricket bat do you favour?

I also agree other aspects of the crime scene are staged - especially the removal of the body from the toilet

My favoured version

Bats around 3.02
Shots around 3.14 (i.e. in the moments before the security call)
Lever out panel - body straight out (this is how he sees Reeva die)

I suspect it was necessary to break in to the toilet in order to recover at least one phone.

 

[Colin de France]

Sometimes discussion here gets a bit surreal.

...that's what happens when versions get mixed up.......one can't transpose an action in one version within that of another version......just because it suits ....

 

[Mr Fossil]

Ok - then don't keep me in suspense!

Per your last other post - which version of the cricket bat do you favour?

I also agree other aspects of the crime scene are staged - especially the removal of the body from the toilet

My favoured version

Bats around 3.02
Shots around 3.14 (i.e. in the moments before the security call)
Lever out panel - body straight out (this is how he sees Reeva die)

I suspect it was necessary to break in to the toilet in order to recover at least one phone.

When you ask which version of the cricket bat I favour I'm not clear what you mean or whether I may have misled you.

 

[mrjitty]

...that's what happens when versions get mixed up.......one can't transpose an action in one version within that of another version......

I realise everyone is allowed their own opinion and all... but lets try to keep discussion reality based!

There are well established and understood rules of legal evidence

We have pretrial procedure, where evidence is disclosed and agreed facts identified.

The defence admitted this fact in their own statement of defence.

As such it does not have to be proved by the prosecution, nor can it be contested. It applies in every version.

Especially the accused cannot admit an action in one version and deny it in another.

 

[mrjitty]

When you ask which version of the cricket bat I favour I'm not clear what you mean or whether I may have misled you.

Sorry - to be clearer

What do you believe was staged precisely in respect of the bat/door?

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?

What other thing are you thinking of?

IMO it was necessary to move the body - but I am not sure why.

 

[Colin de France]

I realise everyone is allowed their own opinion and all... but lets try to keep discussion reality based!

There are well established and understood rules of legal evidence

We have pretrial procedure, where evidence is disclosed and agreed facts identified.

The defence admitted this fact in their own statement of defence.

As such it does not have to be proved by the prosecution, nor can it be contested. It applies in every version.

Especially the accused cannot admit an action in one version and deny it in another.

....no that's incorrect.....what applies to one version does not apply to all.......to keep it simple i think most of us agree that the intruder version is a lie, that being the case one can not take elements out of the lie and apply them to another version which is highly probable to be the truth......just because he admitted to shooting the intruder with intent does not on any account say that the same applies in the Reeva version...one can not cross-over elements to back up an opinion....the intruder version and the Reeva version are totally and completely apart......

 

[Trotterly]

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.

That's great thanks.

 

[Interested Bystander]

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.

Point taken.

 

[atthelake]

Sorry - to be clearer

What do you believe was staged precisely in respect of the bat/door?



What other thing are you thinking of?

IMO it was necessary to move the body - but I am not sure why.

Something just came to mind that I had never thought of until this post.

I have been the first person who found somebody who had passed, and they were holding on to something when they were standing up when they suddenly died. This item was found clutched in their hand after they were found on the floor deceased.

Apparently if someone dies suddenly, whatever they were holding on to is clutched on to even more so? I read up about it at the time and found it that does happen. Could she have been holding something in her hands like a phone..his phone ? And he wanted to change the scene ?

Sorry I am jumping in and haven't been here lately but I'm trying to catch up and why the body was moved perhaps was to get something out of her hand? To change the clutch in position of her hand?

I hate posting this but it just came to mind.

 

[Trotterly]

You miss the point.

Counsel is not there to read out his pleadings.

This is the deep end of the pool - for the big kids.

Justice Leach interrupts counsel repeatedly because Counsel was refusing to give a direct and precise answer to his questions regarding the mistatement of the law of DE

Counsel's insistence on beginning his answer by quoting a passage re PPD did not impress the Justice, nor assist Counsel's client.

I was thinking about when Roux was looking for where Masipa found he was in fear and Leach repeatedly asked questions whilst Roux was looking for the references. It was unnecessary. The others managed it. Anyway that's not important.

Do you understand my point about the question Roux stumbled on which was Masipa emphasizing that the DE was in this case a matter of OP not knowing who he was actually shooting at?

 

[Mr Fossil]

Sorry - to be clearer

What do you believe was staged precisely in respect of the bat/door?

What other thing are you thinking of?

IMO it was necessary to move the body - but I am not sure why.

As per the rationale sections in the conclusion of 'The cricket bat': If you think the evidence suggests that the marks on the toe end of the face of the bat are prise marks from levering out the toilet door panel and you think they are made in blood then Oscar must have used the bat to stage the opening of the door. This means that in all probability the door wasn't locked and he used the bat a second time after shooting Reeva to stage the opening of the door (e.g. to explain the other bat marks already on the door).

We're not putting our version up yet but ...

Other staging: I'm thinking of anything post shooting Reeva and a few unexplained bits before. A lot of things make more sense if you think of how you would expect him to have reacted if he was going to deny responsibility. He had very little time to think and we think he may have made a host of mistakes in what he did next but was very lucky because Nel pursued very little of that part of his version and didn't recall Van der Nest.

The whole thing in the toilet doesn't make sense because the blood spatter doesn't appear to support his version and nor does Van der Nest's re-enactment. If he held her as he says, with her bloody head on his left shoulder as he sat with his back against the wall by the door opening, where is the blood on the floor? And if he moved Reeva as he describes (see ER video for his re-enactment) how did the blood on the floor in the far right corner of the toilet get there?

So what is this all about? If it's not true was he perhaps justifying why he moved Reeva? If he says he believes she was dead (wasn't breathing - which he only adds at trial but also re-enacts in a supporting sequence of the ER video - she was alive when he found her in the bail affidavit) then no one is too concerned why he doesn't call an ambulance first. After all, what can they do if she's dead? So he says he sits there, he doesn't know how long. Then she breathes and he has no choice but to move her because she's on top of him, so he moves her out of the toilet. If this version if correct no one would later ask why he moved her. And remember, this version only came out months after the event (perhaps ~Sep 2013 when he met Scott Roder's team). Of course, if it's not true, it doesn't answer why he moved her in the first place.

 

[sleuth-d-]

As per the rationale sections in the conclusion of 'The cricket bat': If you think the evidence suggests that the marks on the toe end of the face of the bat are prise marks from levering out the toilet door panel and you think they are made in blood then Oscar must have used the bat to stage the opening of the door. This means that in all probability the door wasn't locked and he used the bat a second time after shooting Reeva to stage the opening of the door (e.g. to explain the other bat marks already on the door).

We're not putting our version up yet but ...

Other staging: I'm thinking of anything post shooting Reeva and a few unexplained bits before. A lot of things make more sense if you think of how you would expect him to have reacted if he was going to deny responsibility. He had very little time to think and we think he may have made a host of mistakes in what he did next but was very lucky because Nel pursued very little of that part of his version and didn't recall Van der Nest.

The whole thing in the toilet doesn't make sense because the blood spatter doesn't appear to support his version and nor does Van der Nest's re-enactment. If he held her as he says, with her bloody head on his left shoulder as he sat with his back against the wall by the door opening, where is the blood on the floor? And if he moved Reeva as he describes (see ER video for his re-enactment) how did the blood on the floor in the far right corner of the toilet get there?

So what is this all about? If it's not true was he perhaps justifying why he moved Reeva? If he says he believes she was dead (wasn't breathing - which he only adds at trial but also re-enacts in the ER video - she was alive when he found her in the bail affidavit) then no one is too concerned why he doesn't call an ambulance first. After all, what can they do if she's dead? So he says he sits there, he doesn't know how long. Then she breathes and he has no choice but to move her because she's on top of him, so he moves her out of the toilet. If this version if correct no one would later ask why he moved her. And remember, this version only came out months after the event (perhaps ~Sep 2013 when he met Scott Roder's team). Of course, if it's not true, it doesn't answer why he moved her in the first place.

one thing to consider post shooting, from op's point of view… although he has fired four shots into the confined space, he cannot be 100% certain that Reeva is alive or not until he opens the door/enters the cubicle.

if the version is that there has been an argument - this appears to be the version you are proposing - then he would enter the toilet with some trepidation, knowing she may still be alive [and if she is, will fight to remain so], and also knowing that he cannot allow her to survive. for this reason, i have considered whether it was likely that he took the gun with him into the toilet. note in the ER clip how he lifts her out of the toilet. note where his hand is, right in the centre of her back. the filming shows both left and right hand in this position. also consider, if one hand was holding the gun, that would correspond to where the two [gun grip*] marks are on her back.

*your piece regarding the gun grip pattern is a compelling argument.

 

[Sherbert]

As per the rationale sections in the conclusion of 'The cricket bat': If you think the evidence suggests that the marks on the toe end of the face of the bat are prise marks from levering out the toilet door panel and you think they are made in blood then Oscar must have used the bat to stage the opening of the door. This means that in all probability the door wasn't locked and he used the bat a second time after shooting Reeva to stage the opening of the door (e.g. to explain the other bat marks already on the door).

We're not putting our version up yet but ...

Other staging: I'm thinking of anything post shooting Reeva and a few unexplained bits before. A lot of things make more sense if you think of how you would expect him to have reacted if he was going to deny responsibility. He had very little time to think and we think he may have made a host of mistakes in what he did next but was very lucky because Nel pursued very little of that part of his version and didn't recall Van der Nest.

The whole thing in the toilet doesn't make sense because the blood spatter doesn't appear to support his version and nor does Van der Nest's re-enactment. If he held her as he says, with her bloody head on his left shoulder as he sat with his back against the wall by the door opening, where is the blood on the floor? And if he moved Reeva as he describes (see ER video for his re-enactment) how did the blood on the floor in the far right corner of the toilet get there?

So what is this all about? If it's not true was he perhaps justifying why he moved Reeva? If he says he believes she was dead (wasn't breathing - which he only adds at trial but also re-enacts in a supporting sequence of the ER video - she was alive when he found her in the bail affidavit) then no one is too concerned why he doesn't call an ambulance first. After all, what can they do if she's dead? So he says he sits there, he doesn't know how long. Then she breathes and he has no choice but to move her because she's on top of him, so he moves her out of the toilet. If this version if correct no one would later ask why he moved her. And remember, this version only came out months after the event (perhaps ~Sep 2013 when he met Scott Roder's team). Of course, if it's not true, it doesn't answer why he moved her in the first place.

Maybe, he moved her because there was already blood elsewhere in the house and this could not be explained if he left her in the toilet?

 

[Sherbert]

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.

Yes, that's the test for DE.

But, as per Taitz's article discussed previously, the correct question could be, 'Did he intend to kill unlawfully?' and not 'Did he intend to kill?'

http://www.dailymaverick.co.za/opinionista/2015-11-05-its-still-not-about-dolus-eventualis-but-about-intention-to-act-unlawfully/#.VkI7X7fhDIU

 

[Trotterly]

As per the rationale sections in the conclusion of 'The cricket bat': If you think the evidence suggests that the marks on the toe end of the face of the bat are prise marks from levering out the toilet door panel and you think they are made in blood then Oscar must have used the bat to stage the opening of the door. This means that in all probability the door wasn't locked and he used the bat a second time after shooting Reeva to stage the opening of the door (e.g. to explain the other bat marks already on the door).

We're not putting our version up yet but ...

Other staging: I'm thinking of anything post shooting Reeva and a few unexplained bits before. A lot of things make more sense if you think of how you would expect him to have reacted if he was going to deny responsibility. He had very little time to think and we think he may have made a host of mistakes in what he did next but was very lucky because Nel pursued very little of that part of his version and didn't recall Van der Nest.

The whole thing in the toilet doesn't make sense because the blood spatter doesn't appear to support his version and nor does Van der Nest's re-enactment. If he held her as he says, with her bloody head on his left shoulder as he sat with his back against the wall by the door opening, where is the blood on the floor? And if he moved Reeva as he describes (see ER video for his re-enactment) how did the blood on the floor in the far right corner of the toilet get there?

So what is this all about? If it's not true was he perhaps justifying why he moved Reeva? If he says he believes she was dead (wasn't breathing - which he only adds at trial but also re-enacts in a supporting sequence of the ER video - she was alive when he found her in the bail affidavit) then no one is too concerned why he doesn't call an ambulance first. After all, what can they do if she's dead? So he says he sits there, he doesn't know how long. Then she breathes and he has no choice but to move her because she's on top of him, so he moves her out of the toilet. If this version if correct no one would later ask why he moved her. And remember, this version only came out months after the event (perhaps ~Sep 2013 when he met Scott Roder's team). Of course, if it's not true, it doesn't answer why he moved her in the first place.

You may be interested in this forensic analysis of what OP said:

http://forensictranscription.com.au/what-is-oscar-pistorius-saying/

 

[Sherbert]

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.

RBBM

Wasn't the verdict of CH recognition that he should have known that the force was excessive?

IMO, this area is a little tricky. Here are a couple of extracts from Mkhize:

'His erroneous belief that his life or property was in danger may well (depending upon the precise circumstances) exclude dolus in which case liability for the person’s death based on intention will also be excluded; at worst for him he can then be convicted of culpable homicide'.

'A further aspect that remains for determination is whether, despite the appellant’s subjective belief that if he did not react as he did he would have been killed, it was necessary for him to shoot the deceased three times. The first shot would, in all probability, have had the desired effect to ward off the unlawful attack on him. In my view, the appellant, especially as a long serving police officer with considerable experience in handling firearms, ought to reasonably have realised that he was using excessive force beyond the legitimate bounds of private defence. In the circumstances, he should have been convicted of culpable homicide'.

If you recollect, Mkhize is the case where the verdict was downgraded from murder to CH.

We could, of course, argue that OP did know - as opposed to ought to have realised that he was using excessive force - but the difficulty is that Masipa has found that he didn't foresee death and didn't intend to kill.

I just don't see how you get to DE without getting rid of those findings.

Here is a link to Mkhize:

http://www.saflii.org/za/cases/ZASCA/2014/52.html