Oscar Pistorius - Discussion Thread #65~ the appeal~

[james83]

Hey james :seeya: I have missed your humor.

Hi Mate, sorry for delay missed your post earlier, hope you are good, and hope we get the right ending this time.

 

[james83]

And if DE is ruled, do you think OP would immediately (within 48 hours) return to prison or would he remain at AP's home until and if a further appeal (Constitutional Court) gets underway? How long would that be likely to take? Years?

Earlier on during a round up of today's events Sky News reporter Alex Crawford said "The state wants him convicted of murder which would almost certainly mean he goes straight back to prison for a much longer jail term".

 

[lithgow1]

Earlier on during a round up of today's events Sky News reporter Alex Crawford said "The state wants him convicted of murder which would almost certainly mean he goes straight back to prison for a much longer jail term".

I assume that if the State win this one, Pistorius will immediately appeal and re-apply for bail on similar grounds to what he was granted before. From what I have read, I also assume that since she will be the one to pass sentence the bail hearing will involve Masipa making the decision. Perhaps though the State would have stronger grounds for opposing it on the basis that he could do a flier to Mozambique given the alternative long prison sentence he would be facing. But I am putting my cart before the horses and all. It would be a strange situation though wouldn't it for Pistorius to have to front up before her again, with him facing at least 15 years and her knowing that her prior verdict has been overturned. Neither would be happy I don't reckon, though him much more so than her of course.

PS Have done a lot of assuming above but I am sure someone will let me know if I am partially or completely wrong.

 

[Jake18]

Why, then, did a very experienced prosecution not ask for DD? Even I, an old lady(!!), thought I could pick up that that the SC judges would have considered DD!

This isn't really answering your question but I remember that at the time of the trial a number of legal commentators (including JG) said that only a confident judge would go for DD due to the circumstances of the crime, although I got the impression that JG would've. This was echoed in the post trial commentary. I definitely got the impression that Leach, at least, would've been one of those confident judges. Shame, really.

I assumed that DD wasn't pushed at the appeal as it wasn't clear whether the SCA would accept that the mishandling (non handling) of the circumstantial evidence would be accepted as an error of law or that of fact. Again, though, I think leach, at least, would've gone with the former. That said, it doesn't explain why the CE mishandling was in the appeal in the first place then - maybe just to emphasise what an overall shoddy job Masipa had done?

 

[soozieqtips]

I assume that if the State win this one, Pistorius will immediately appeal and re-apply for bail on similar grounds to what he was granted before. From what I have read, I also assume that since she will be the one to pass sentence the bail hearing will involve Masipa making the decision. Perhaps though the State would have stronger grounds for opposing it on the basis that he could do a flier to Mozambique given the alternative long prison sentence he would be facing. But I am putting my cart before the horses and all. It would be a strange situation though wouldn't it for Pistorius to have to front up before her again, with him facing at least 15 years and her knowing that her prior verdict has been overturned. Neither would be happy I don't reckon, though him much more so than her of course.

PS Have done a lot of assuming above but I am sure someone will let me know if I am partially or completely wrong.

BIB - remember how reluctant she was to punish him 'twice'? Imagine her having to hand down a much stiffer sentence because she messed up the first time. I wonder if she watched the proceedings this morning and cringed!

 

[mrjitty]

Yes, and this is what Judge Greenland said in that prog I linked to recently. ( radio sittingbourne, kent , DJ interview link, a few pages back, radio chatter?)
JGrrenland remarked that as he sat on the Carte Blanche he wondered to himself "Am I going crackers? This DD, whoever t is. The court has confused itself over Dolus Eventualis. ( Due to error in objecto, so i completely agree with you sleuth-d.)

Well part of it is just pragmatic.

DE is a lower hurdle to get over.

And also in this case of mistaken identity- it is hard for the prosecution to prove OP directly intended to kill the person behind the door.

Of course he might have - but its a lower standard to prove only that he must have realised the possibility.

I still find the point to be rather a different one, as per OP's original statement of defence.

In self defence cases, the question is not one of intention but of justification.

DE is a red herring. Of course he either meant to kill the person, or must have realised they would die.

The question is rather, did he kill in self defence?

 

[Trotterly]

Even though Nel is going for DE, could the SC judges make a decision of DD? Absolutely appreciate all wonderful comments and insight posted here ... thank you all!

There's nothing stopping them if that's the way the evidence points. But it doesn't.

 

[Fuskier]

FYI
from Australia
http://www.news.com.au/sport/sports...torius-of-murder/story-fno61i58-1227594298373
Prosecutors ask South Africa’s Supreme Court to convict Oscar Pistorius of murder
NOVEMBER 4, 2015
"...Prosecutors say the North Gauteng High Court erred in convicting Pistorius of the lesser charge, and that the double-amputee Olympian should have known that someone could be killed when he fired four times into a locked toilet cubicle in his home..."
"... in a bad sign for Pistorius ... some of the Supreme Court judges suggested he could have known he would kill someone, whether his girlfriend or a possible intruder, by firing his pistol..."

The judges had already studied the tens of thousands of pages of court transcript from Pistorius’ trial.
The panel of five judges, three men and two women, can reach a decision through a simple majority.
After Tuesday’s session, the judges retired to consider their judgment.
... there is no time frame ... although the court has said it would aim to release a decision by the end of this month.

 

[L2L]

Recalling Judge Greenland's interview with Lisa:

https://juror13lw.files.wordpress.com/2014/09/judge-greenland-interview-transcript-part-12.pdf

JG:
You know, let me say to you, Lisa, that I as a judge... I would have rejected the whole of Oscar's defense.
I think
that for any number of reasons especially on critical issues, I would have said to Oscar:
"You have not taken this court
in good confidence.
All the court can find is that you pointed a gun knowing you're
pointing at a human being and you pulled the trigger four times in to the human being in a hail of bullets.
That's all this
court can safely accept, the rest the court i
s still confused about.
So I am not going to accept your version as to why you
killed her.
And that being the case, there isn't a noble excuse that you have advanced for this killing.
You are guilty of
murder.

 

[jilly]

BIB - remember how reluctant she was to punish him 'twice'? Imagine her having to hand down a much stiffer sentence because she messed up the first time. I wonder if she watched the proceedings this morning and cringed!

Oh yes....I'd forgotten.

I can't see her cringing today....more like oblivious because remember how some of us figured that she didn't even write her reasons for Judgment? She stumbled the whole way through it. I still think that female assessor wrote it for her.

 

[sleuth-d-]

Yes, and this is what Judge Greenland said in that prog I linked to recently. ( radio sittingbourne, kent , DJ interview link, a few pages back, radio chatter?)
JGrrenland remarked that as he sat on the Carte Blanche he wondered to himself "Am I going crackers? This DD, whoever t is. The court has confused itself over Dolus Eventualis. ( Due to error in objecto, so i completely agree with you sleuth-d.)

ty for that, just listened, and liking what he has to say, especially about having time to step back from the 'confusion' of the immense detail of the case.

in the same way that i imagine the 5 judges today were able to look at the case with fresh eyes, and managed to cut straight to the core of it.

here's the link again, if anyone else is interested:
https://radiochatter.wordpress.com/...-greenland-discusses-oscar-pistorius-release/

 

[jilly]

FYI
from Australia
http://www.news.com.au/sport/sports...torius-of-murder/story-fno61i58-1227594298373
Prosecutors ask South Africa’s Supreme Court to convict Oscar Pistorius of murder
NOVEMBER 4, 2015
"...Prosecutors say the North Gauteng High Court erred in convicting Pistorius of the lesser charge, and that the double-amputee Olympian should have known that someone could be killed when he fired four times into a locked toilet cubicle in his home..."
"... in a bad sign for Pistorius ... some of the Supreme Court judges suggested he could have known he would kill someone, whether his girlfriend or a possible intruder, by firing his pistol..."

The judges had already studied the tens of thousands of pages of court transcript from Pistorius’ trial.
The panel of five judges, three men and two women, can reach a decision through a simple majority.
After Tuesday’s session, the judges retired to consider their judgment.
... there is no time frame ... although the court has said it would aim to release a decision by the end of this month.

Well, that sounds better than another newspaper article I read saying it could take months.

I think Nel did a masterful job today and I'm happy for Reeva's family.

I was happy to read it will be a majority decision rather than unanimous which is less of a hurdle for the prosecution.

 

[Ochre Blue]

Can you remind me please, what is PPD? Thanks!

 

[sleuth-d-]

Well part of it is just pragmatic.

DE is a lower hurdle to get over.

And also in this case of mistaken identity- it is hard for the prosecution to prove OP directly intended to kill the person behind the door.

Of course he might have - but its a lower standard to prove only that he must have realised the possibility.

I still find the point to be rather a different one, as per OP's original statement of defence.

In self defence cases, the question is not one of intention but of justification.

DE is a red herring. Of course he either meant to kill the person, or must have realised they would die.

The question is rather, did he kill in self defence?

re: self-defence

i am reading that the right to life is weighed against the right to defend self and property in south africa... the controlling principle on the right to use force to defend one’s self or one’s property is proportionality: the defensive act may not be more harmful than necessary to ward off the attack. is this correct?

if so, the query would be: weigh up what the perceived intruder did to warrant such a high level of aggression in return? noisily entering the house, then noisily retreating into a small toilet cubicle with no other means of escape, and then allowing the noisy owner to get within a few feet of that only means of escape. almost tantamount to surrender.

having said that, the notion of right to life versus risk, for an intruder is also an interesting side issue. as is the perceived threat for oscar that the door possibly separated him from another person with gun - who could have shot him though the door too at any time.

lots to take in and weigh up in the dead of night, and on the spur of the moment*


*assuming this is what actually happened in the op case - which i seriously doubt.

 

[akp]

I assume that if the State win this one, Pistorius will immediately appeal and re-apply for bail on similar grounds to what he was granted before. From what I have read, I also assume that since she will be the one to pass sentence the bail hearing will involve Masipa making the decision. Perhaps though the State would have stronger grounds for opposing it on the basis that he could do a flier to Mozambique given the alternative long prison sentence he would be facing. But I am putting my cart before the horses and all. It would be a strange situation though wouldn't it for Pistorius to have to front up before her again, with him facing at least 15 years and her knowing that her prior verdict has been overturned. Neither would be happy I don't reckon, though him much more so than her of course.

PS Have done a lot of assuming above but I am sure someone will let me know if I am partially or completely wrong.

Assuming the verdict is overturned and DE is handed out, for sentencing, it would go back to the High Court, yes, but is it necessary that it goes back to the same judge?
After the kind of shocker Masipa has handed out in this case, if and when her mistake is officially recognised by SCA, should she be allowed to continue as a High Court judge at all? Incompetent people sitting in important positions of the justice system is a far bigger danger to the society than ordinary criminals.


Sent from my iPad using Tapatalk

 

[elfie]

....i think he did know the risk but fired anyway due to his anger......it's a fine line.....

He fired in a blind rage disregarding any outcome. His argument that he fired unbeknownst to himself fits with blind rage. But this would be going to DD and not what the State is arguing.

 

[atthelake]

He fired in a blind rage disregarding any outcome. His argument that he fired unbeknownst to himself fits with blind rage. But this would be going to DD and not what the State is arguing.

Ergo the difficulties and questions we have been asking for months

 

[Fuskier]

All that speculation about OP's anxiety, OP's vulnerability on stumps etc pales in recognition that any experienced gun handler, holding a gun loaded with Black Talon bullets in his hands would most likely feel less afraid, more sure and powerful. IMHO. He had the arsenal to do damage, so he had the 'power' in that situation. Hypothetically, even if the alleged intruder came rushing out, he had the power in that situation. The person hiding in the toilet cubicle had no power in that situation. Hope the five judges see it this way. My opinion only.

 

[L2L]

Assuming the verdict is overturned and DE is handed out, for sentencing, it would go back to the High Court, yes, but is it necessary that it goes back to the same judge?
After the kind of shocker Masipa has handed out in this case, if and when her mistake is officially recognised by SCA, should she be allowed to continue as a High Court judge at all? Incompetent people sitting in important positions of the justice system is a far bigger danger to the society than ordinary criminals.


Sent from my iPad using Tapatalk

Yes, that's what I couldn't get my head around! Going back to Masipa! The HC but another judge. Have a 'funny' feeling someone said 'Masipa' in the SC hearing yesterday, but I have to be wrong!

 

[jilly]

All that speculation about OP's anxiety, OP's vulnerability on stumps etc pales in recognition that any experienced gun handler, holding a gun loaded with Black Talon bullets in his hands would most likely feel less afraid, more sure and powerful. IMHO. He had the arsenal to do damage, so he had the 'power' in that situation. Hypothetically, even if the alleged intruder came rushing out, he had the power in that situation. The person hiding in the toilet cubicle had no power in that situation. Hope the five judges see it this way. My opinion only.

That's a very good way of putting it.

Oscar is a control freak with a short fuse. There was another time when he heard a noise, got his gun and went into 'combat mode'. Turns out it was his washing machine. He's got some serious psychological issues going on there and should never have been able to get a license for a gun.

The fact that he's now pleading an anxiety issue is a real bad joke.