Oscar Pistorius - Discussion Thread #65~ the appeal~

[Marfa Lights]

I think you're right and that he has continued this in the appeal by gambling that OP's state of mind makes no difference in this case.

Not so sure about that-- but I do think he is hopeful that the SCA judges understand how to make a proper inference based on circumstantial evidence.

 

[Interested Bystander]

Thanks , I have read the one by Botha and Guardian articles on how he was removed after he was found to be too rigorous in treating Pistorius as the prime suspect, ha ha .
This one is a psychologist or something , I think David someone , sorry to be so useless , I'm sure if You do a search on V. F. it shld be findable.........I made a note of it , but where is the note.......

Ahh, that is something I don't recall seeing. Sorry it was not the right link .

 

[mrjitty]

The Constitutional Court deals almost exclusively with constitutional matters. The very fact that the Defence agreed that the trial could be televised with certain provisos would appear to me to mitigate that it was unfair. You can't just appeal because you want to, you have to have grounds. If the Defence was of the view pre-trial that it was unfair, but then consented, how could they now say that it was unfair? I agree, they've had their kick at the can, but I'm not a lawyer. Hopefully mrjitty can clear this up.

I don't know anything about the Constitutional Court sorry!

Back in my day, the Court of Appeal was the Highest Court in NZ and once in a blue moon Counsel got to go to England to appeal to the Privy Council (basically the House of Lords).

Such appeals are quite rare and would inevitably be a rerun of critical legal points.

A famous recent example was murderer Mark Lundy who secured a retrial in 2013

Typically it is to do with the conviction being legally unsafe.

That is the kind of appeal I would expect (if we get so far)

 

[mrjitty]

In Post 1136 I mention freeing up the timing of the bat sounds. I must have been half asleep. There would have been no bat sounds if hitting the metal plate caused the initial sounds but it would permit the bat MARKS not sounds to be made after shooting through the door.

What's strange is the number of bat sounds don't appear to correspond with the number of shots heard just prior to 3:17!

 

[aftermath]

For the sake of argument, the contrary view is that you can fire because you are scared whilst also knowing that it is not lawful.

Was this put forward in court though? Could Masipa have found this to be the case if neither side had put it on the table as a possibility?

 

[mrjitty]

BIB - I think what it proved is that when he took the exam, and perhaps by extension, when thinking rationally and reasonably about it, Pistorius knew that shooting at an intruder was only acceptable if his life was in genuine danger. But in pistorius's case he says he did believe it was in danger, (even if we know in hindsight that it wasn't.) And if you lived in SA and heard an intruder in your house, metres away, at three in the morning, you may well believe you were in danger.

I know this is used as a shorthand - but believing your life is in danger is not enough.

In normal self defence, the danger and imminence of the attack must be proportional to the defensive measures employed

In PPD that becomes about belief.

So in other words, if I hear someone in my yard, I may believe my life is in danger. But because attack is not imminent - I must call the police, not blaze away with my replica AK47 at persons unknown, who then turn out to be the neighbours kids!

OP's case is closer to the line of course.

But you can see from Justice Leach's statements, that it might be difficult to claim PPD where you blaze away at persons unknown in a pre-emptive strike.

 

[Colin de France]

For the sake of argument, the contrary view is that you can fire because you are scared whilst also knowing that it is not lawful.

.....doesn't the reaction of self defense have to be in proportion to the attack ?.......

 

[mrjitty]

Was this put forward in court though? Could Masipa have found this to be the case if neither side had put it on the table as a possibility?

Well on appeal the shoe is rather on the other foot.

Justice Leach asked Roux to point out the specific findings establishing PPD.

Roux struggled to do that

You always come back to the same old problem with the poor technical quality of the document.

1. Masipa does not clearly state PPD was made out
2. Masipa does not clearly state all the factual findings in respect of PPD

 

[Mr Fossil]

Also - I don't think she could see him

As we know, the trajectories support him coming round the corner and firing, advancing and firing

I think she was probably listening

You may be right but there may not even have been time for that if she had only just returned to the toilet.

 

[mrjitty]

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.

In general, factual findings by the lower court cannot be changed. This is to avoid arbitrary decision making. The Judge (or the jury) saw the witnesses and is in the best position to rule on each fact. The Appeal Court should not substitute a different opinion where both opinions are possible.

There is room to move however.

Typically factual findings which are clearly unreasonable can be struck out. However this has not be raised in this case I don't think.

Of more importance are inferences and findings which are a mix of fact and law, as well as application of legal tests to facts.

So for example, with the circumstantial evidence the Court should rule factually on each point as to whether it accepts the fact, so

1. EVDM - said she heard two people arguing ESTABLISHED

2. Gastric evidence - ESTABLISHED as most likely Reeva ate late

3. Crime scene photos - ESTABLISHED therefore accused version prior to shooting unreliable.

If Maispa then proceeds to speculate on individual circumstantial points, and refuses to analyse the complete circumstantial net this is clearly a legal error.

This would open the door to the Appeal Court to look at all the circumstantial points together and draw a different inference.

This is what Nel has asked for.

The accused's case turns on critical factual assertions as to how Reeva got in the bathroom unseen.

If there is no reliable evidence of that AND the circumstantial web supports a different inference, the Trial Court is not allowed to speculate that the mistake nevertheless happened some other way.

IMO this shows Masipa's intellectual laziness in believing it would be OK for the Court to fail to rule on lots of critical points, and to fail to consider what inference should be drawn

Its the same with DE

DE is a legal standard and involves mixed questions of fact and law.

Where the SC believes the judge misdirected herself as to how the law applies to the facts - the SC may re-apply the law correctly to the facts

 

[soozieqtips]

BIB - I think what it proved is that when he took the exam, and perhaps by extension, when thinking rationally and reasonably about it, Pistorius knew that shooting at an intruder was only acceptable if his life was in genuine danger. But in pistorius's case he says he did believe it was in danger, (even if we know in hindsight that it wasn't.) And if you lived in SA and heard an intruder in your house, metres away, at three in the morning, you may well believe you were in danger.

I also think, that had he thought reasonably and rationally about it at the time, he would have realised that an attack on his life had not actually begun. However, I don't think he was thinking rationally and reasonably, (Just like Boshoff,and just like Mdunge)- instead, the panic and fear from the belief of an intruder, would have impacted on his ability to think calmly and clearly.

If he believed there was an intruder, it is understandable that he believed his life to be in danger.
If he then heard a noise, believed the door was opening and that an attack was beginning, that would have confirmed his belief that his life was in danger and so in responding by firing, he might (wrongly) have believed he was still defending himself within the law.

BIB - except if OP was genuinely in fear of intruders, he would have slept with the balcony doors closed, fixed the broken window, and checked for ladders outside. His own actions (inaction) go to show he wasn't that bothered about break ins, just like the other residents who slept with doors and windows open. Don't forget that OP's building was considered very very safe and had only had one minor incident in about 5 years. OP was never at the same risk of home invasion as people who were not in his position, ie, able to afford to live in a high-security complex with electric fences, armed guards and security cameras.

 

[janicelongbright]

That's the problem for OP, there is no valid reason. As for why he would take the chance... money talks and as for how he may have come up with his "plan"... http://www.news24.com/SouthAfrica/News/Man-who-shot-wife-in-error-can-sympathise-with-Oscar-20140407 gives a pretty good blueprint, something he would likely have been aware of since it was said he was big into murder mysteries et al.

Perhaps you would like to supply the reason that millions of women are murdered by their 'loving' partners every second of the day and night all over the world . What do you think ?

 

[Mr Fossil]

Following on from your last post mrjitty:

1. EvdM heard one person, a female, arguing. She didn't hear the other side.

Picking up your legal points re. Masipa's 'intellectual laziness' and 'misdirecting herself'. If the SCA finds in favour of the State aren't they also challenging Masipa's competence and, if so, how can it be right to return the case to her to re-sentence?

 

[Interested Bystander]

Carte Blance video (11mins) summarizing the appeal.

Nothing new for most posters here except for a brief interview with retired High Court Judge Fred Beckley at the 8:40min mark.

http://carteblanche.dstv.com/player/955964

Makes me feel better about the outcome of the Appeal when I hear a learned judge suggesting the SCA may rule against OP.

 

[Marfa Lights]

BIB - I think what it proved is that when he took the exam, and perhaps by extension, when thinking rationally and reasonably about it, Pistorius knew that shooting at an intruder was only acceptable if his life was in genuine danger. But in pistorius's case he says he did believe it was in danger, (even if we know in hindsight that it wasn't.) And if you lived in SA and heard an intruder in your house, metres away, at three in the morning, you may well believe you were in danger.

I also think, that had he thought reasonably and rationally about it at the time, he would have realised that an attack on his life had not actually begun. However, I don't think he was thinking rationally and reasonably, (Just like Boshoff,and just like Mdunge)- instead, the panic and fear from the belief of an intruder, would have impacted on his ability to think calmly and clearly.

If he believed there was an intruder, it is understandable that he believed his life to be in danger.
If he then heard a noise, believed the door was opening and that an attack was beginning, that would have confirmed his belief that his life was in danger and so in responding by firing, he might (wrongly) have believed he was still defending himself within the law.

I appreciate that some people are willing to give Oscar the benefit of the doubt-- and that on paper his story appears to be reasonably possibly true. But it is a pretty low standard to accept an accused's claim that "I had a fright and accidentally blew someone away. So sorry. My mistake." His actions that night failed to meet the legal standards for a lawful self-defense claim, putative or actual. Masipa, however, found he lacked intent but still convicted him of Culpable Homicide as a result of his negligence.

Someone willing to use a lethal weapon (4X) against another human bears a greater burden to make sure their actions don't result in deadly consequences. That's the purpose of the required training and licensing exam. If he had at a minimum attempted to identify his target ("Who goes there?") then this all would have been avoided. That should be the lesson here-- not "oh poor Oscar, what a terrible mistake but punishing him can't bring Reeva back." Any gun owner bears the responsibility to act reasonably and rationally with a gun in their hand. If Oscar was not capable of that, then he perhaps should have pushed the panic alarm, alerted security, grabbed Reeva and ran out the door to avoid the attackers locked in his bathroom.

I take it you are arguing for letting Masipa's verdict of CH stand-- that he was merely negligent in all his actions that night. He just jumped the gun so to speak. Although in truth he made a deliberate, offensive action-- a pre-emptive strike against the perceived intruder. Not what I would consider justifiable homicide. Even in the US where there are increasingly more lenient "Stand your Ground" laws with no duty to retreat either inside or outside your own dwelling, "(p)reemptive self-defense, in which one kills another on suspicion that the victim might eventually become dangerous, is considered criminal." (https://en.wikipedia.org/wiki/Justifiable_homicide)

IMO Oscar made a clear and determined decision to exterminate the person behind the door. Was it justified? Did the circumstances of hearing a noise in his bathroom that night make it justifiable? He crossed the line I think. I think the SCA will think so too.

 

[Colin de France]

every second of the day and night all over the world.

.....slight exageration there...no ?

 

[Colin de France]

That's the problem for OP, there is no valid reason. As for why he would take the chance... money talks and as for how he may have come up with his "plan"... http://www.news24.com/SouthAfrica/News/Man-who-shot-wife-in-error-can-sympathise-with-Oscar-20140407 gives a pretty good blueprint, something he would likely have been aware of since it was said he was big into murder mysteries et al.

....i think the time has gone for new theories on what may have happenend to bridge the gap between the violent dispute and the shooting as much as i would like to discuss them .....

 

[janicelongbright]

I think you have really hit on something here, Val. If she were pulling on the door handle with all her might to prevent him from entering the cubicle it explains why she was not in the only corner that would have provided any limited protection or on the phone or smashing the window open with the magazine rack, and why she was in front of the door.

According to other C.S. photos , only one narrow panel had been removed , about 15 cms or so wide ? In which case you would not be able to reach through it , to pick up a key lying on the floor .
The arm /shoulder would take up all the gap , and pistorius' arm length INC. holding the gun , was put at 2ft (4 or 6 inches ) either way ,quite a bit shorter without the gun extension .
I don't know how high the bottom section with cross board were , but the calculations weren't made to test his story.
I cant see the bottom section being less than than 2ft high.

 

[janicelongbright]

.....slight exageration there...no ?

Semantics . I'm still waiting......

 

[Marfa Lights]

This might be of interest-- includes one reference to Judge Leach on another case.


http://news.acts.co.za/blog/2015/02/should-you-stand-your-ground-or-flee-when-attacked