Oscar Pistorius - Discussion Thread #65~ the appeal~

[lithgow1]

none of us will ever get the truth Colin, but if "we" get some justice from SCA, that's enough for me.
Let OP live with his self- destructive secrets....and his family too if they are aware.

Along with Roux's thoughts I would like to know who in the family knows what. We've discussed it before but, assuming that he did knowingly kill RS, I wouldn't be surprised if his uncle and brother know the truth. Carl because of being a sibling, Uncle A because I can see him demanding to know the truth and OP not being able to lie to him convincingly. I know this makes them sound amoral, but it could also be seen as a part of Uncle A's comment about wanting to save two lives. He strikes me as the very pragmatic type and his attitude could of been that jailing Oscar for life is not going to bring Reeva back so ... Plus he seems very into maintaining the family name and reputation and a violent murderer doesn't fit well with the upstanding image.

All total speculation of course and could be total BS too but it wouldn't be the first time someone has stood by and even lied for a murderer.

 

[Susza]

Seeing the video was interesting.

I would also be grateful to hear JJ & Fossil's view on this simply because they have spent so much time on this recently on their blog HOWEVER I appreciate they may not be able to comment until the matter is settled (without re-trial) by SCA

BBM
Hmm, I must have missed something. I was actually missing their comments in these last days. Why do they have to wait until the matter is settled?
TIA!

 

[cottonweaver]

BBM
Hmm, I must have missed something. I was actually missing their comments in these last days. Why do they have to wait until the matter is settled?
TIA!

You haven't missed anything Susza, honestly.
.
That was me just thinking out loud, I didn't they say they HAVE to do anything

As much as we try we can't really second-guess the outcome of the SCA decision.
So imagine SCA did say :Retrial
In that circumstance, would you want potentially valuable evidence out in the public domain ?
IDK as I say, it's only MO

So maybe it's better to "keep a lid" on all that temporarily, until decision is released, hopefully for just a simple upgrade to DE. ( I fully appreciate some want a re-trial and I respect that on one level)
That's all, it was purely speculation as I was posting about the double-taps post at that time.

 

[Deleted member 102539]

Which one is Cassidy again? I tend to agree with the poster (WilliamMunter I think) who suggested an argument stemming from his phone call with ex Jenna AKA 'babyshoes'. A long chat with an ex on Valentine's Day is maybe not the best way to kick off the night. Then there was her meeting up with her ex (the rugby player) that day or the one before (?). So add OP's bad meeting and the evidence of tensions in what should have been the 'everything is wonderful' stage of a new relationship and there are quite a few factors there that could have led to an argument. I also think that RS was a smart woman and was probably starting to realise that this guy was not the charmer she probably first thought he was. BTW, it might just be my cynicism but I find 'babyshoes' a kind of puke inducing nickname for a grown woman, similar to the `no, your'e smoochy' Seinfeld episode.

Her ex Warren L., a South African businessman - Reeva's meeting (not the Rugby player).

 

[Deleted member 102539]

Updated 29.10.2014

http://www.theguardian.com/sport/20...-live-coverage#block-51237c07b5796129ac9ed116

Magistrate Desmond Nair ruled that Pistorius should be charged with premeditated murder, a “category six” offence that will make it very difficult for the defendant to be granted bail. Pistorius must argue that there are “exceptional circumstances” that mean he should get bail. In his statement Pistorius stressed that he would not leave the country if granted bail and intended to stand trial. He said he would surrender his passport and would not interfere with witnesses, saying he knew of none in this case. Nair did suggest at one point that he may change his mind about categorising the offence as schedule six once he had heard all the evidence.

Remembering ....

 

[Deleted member 102539]

regarding 'lots to row about'.

rsbm
...........
lots of excuses not to be together, for a couple leading up to their first valentine's morning together.
almost like eventually agreeing to be together on that feb 13th night was a last resort.


also, does anyone know, who the 'friend' was, that op met for coffee at 10ish on the morning of the 13th?

op also refers to a 'mutual friend' that he and divaris were planning to have dinner with. 'the boys having dinner'... is it confirmed who this was?

:dunno: but perhaps any "Ryan" (SMS from OP, finished at "Ryan's") and dinner perhaps with his best friend Alex P. or his friend/neighbour CM, "who only heard thunder"? Nothing confirmed as I know.

 

[akp]

I have only just got to read this article - that someone posted way back- think I must be temporarily legalled- out.! ( See , can't even string a sentence together....)

Anyway if MR Jitty and Sherbert are still around, I would appreciate your opinions on the article.

http://www.dailymaverick.co.za/opin...out-intention-to-act-unlawfully/#.Vjshr67hA6j

........if you have the time.

Anyone else who feels up to it too, of course....

RSBM.
Interesting read.
As the author rightly points out, PPD is about state of mind. Where the author might be going off the mark though is when he says, while discussing his example of aliens:

Let us assume that he kills them all. If the State cannot prove that his mental state was anything, other than that he was being attacked by aliens who were taking him to the mothership, potentially to inflict serious or fatal harm to him, then the killer must succeed in this scenario, on a defence of putative self-defence to murder.

In a situation such as in this example, or the OP case where it is common cause that the accused has indeed killed the victim(s), and the defence is about the accused's state of mind, the onus of proof is largely with the accused, specially once medical/psychological analysis is carried out and any significant abnormality has been ruled out. If not, then one can turn this example around and exploit it to the full - basically one can then kill just about anyone he/she wants to and explain away by saying he/she was under such an illusion.

And if the onus is on the accused, his/her evidence becomes the single most important one for the defence, and it is here that OP fails miserably in the present case. His E-in-C and X makes it abundantly clear that he was lying, was being evasive, made contradictory statements. So the whole PPD defence would then break down, because there is no evidence, no matter how much emotion his lawyer brings in to his voice while defending his client during the trial.

I am not a legal expert - this is just my understanding of this scenario. I would love to hear from mrjitty or others with proper legal knowledge on this.

 

[Interested Bystander]

I am sure a lot of you will remember this cartoon. Prophetic !!

 

[mrjitty]

RSBM.
Interesting read.
As the author rightly points out, PPD is about state of mind. Where the author might be going off the mark though is when he says, while discussing his example of aliens:

In a situation such as in this example, or the OP case where it is common cause that the accused has indeed killed the victim(s), and the defence is about the accused's state of mind, the onus of proof is largely with the accused, specially once medical/psychological analysis is carried out and any significant abnormality has been ruled out. If not, then one can turn this example around and exploit it to the full - basically one can then kill just about anyone he/she wants to and explain away by saying he/she was under such an illusion.

And if the onus is on the accused, his/her evidence becomes the single most important one for the defence, and it is here that OP fails miserably in the present case. His E-in-C and X makes it abundantly clear that he was lying, was being evasive, made contradictory statements. So the whole PPD defence would then break down, because there is no evidence, no matter how much emotion his lawyer brings in to his voice while defending his client during the trial.

I am not a legal expert - this is just my understanding of this scenario. I would love to hear from mrjitty or others with proper legal knowledge on this.

I think a more realistic example than the aliens would be say as a Halloween prank, your wife dresses up as a slasher killer with hockey mask on and comes running into your bedroom swinging an axe to scare the **** out of you. You shoot her dead.

There is an evidential onus on the defence to prove some facts which bring PPD into play.

However the defence can point to 1) the disguise, 2) the axe, 3) only a split second to react, 4) surprise, 5) maybe there is low light etc etc

All these things make a belief of imminent harm very reasonable.

The problem for dear old Pistorius has been that he never could point to any objective facts that supported his belief.

It really was just his say so.

A noise of a window. A noise of a door. A noise in the toilet.

Weak!

 

[mrjitty]

I have only just got to read this article - that someone posted way back- think I must be temporarily legalled- out.! ( See , can't even string a sentence together....)

Anyway if MR Jitty and Sherbert are still around, I would appreciate your opinions on the article.

http://www.dailymaverick.co.za/opin...out-intention-to-act-unlawfully/#.Vjshr67hA6j

........if you have the time.

Anyone else who feels up to it too, of course....

Spent far too long reading all the legal principles in August for me to dive back into it...

(PS read this one too,an easy read, linked by someone here again, apologise if I am repeating links. This says what we have all been saying here for soooo long. )
http://www.dailymaverick.co.za/article/2015-11-04-op-ed-dolus-eventualis-day/#.Vjsg_67hA6i

Very high quality article.

A couple of comments.

1. I agree with the author (and Grant) that DE should not be relevant to this case. Only PPD. However in any murder case the prosecution must prove criminal intent. Given Masipa found no criminal intent for murder - clearly on appeal DE is absolutely the issue. The Prosecution must get the SC to reverse this legal finding.

2. Roux argues there is no intent via DE due to the mistake of identity. Again Masipa appeared to agree. So again the SC must reverse this for the Prosecution to succeed.

3. PPD

Putative self-defence is simply a scenario where there is objectively no real threat to a person’s life, but they perceive, for one reason or another, that there is such a threat, and therefore, subjectively, they believe that they are defending themselves against a fatal attack.

It's a pity that the author did not go on to discuss what facts would lead us infer that OP believed he faced a deadly attack.

As Justice Leach correctly identified, Masipa held OP believed there was an intruder. But where was the finding that his life was at risk?

No attack had begun, and far from being surrounded by Aliens, his retreat was clear!

4. I tend to agree on what happened that night. A fight. Abusive personality. Fatal results. If OP were not famous, the case would not be remarkable.

 

[mrjitty]

The author also stated this in his previous article

Why is all of this relevant? Because if Pistorius intended to kill anyone who was behind that door, and also believed completely in his mind that whoever was behind that door was a threat to his life, then he has a successful defence to murder of putative self-defence.

This is what Leach was getting at.

Let's accept the intruder.

But where is the threat to life bit?

Masipa just seemed to assume this part.

 

[mrjitty]

Does anyone have a transcript of the Appeal?

Loving this part

Justice Stevan Majiedt was also concerned about Judge Masipa’s handling of Mangena’s evidence, saying he found it “very troubling”.

“What I find more troubling is how she dealt with Mangena’s evidence. And if you read the evidence, it’s quite impressive on the cold record."

"But then you don’t understand how she gets to where she does where she basically accepts what the accused said that if he wanted to kill her would have shot higher. That is completely contrary to Mangena’s evidence and his reconstruction,” he said.

 

[mrjitty]

I feel Roux is advocating bad law here

Responding to a barrage of questions from Leach, defense attorney Roux said there was a space behind a wall in the toilet cubicle that could have been safe from gunfire, but acknowledged that the "probable consequence" of Pistorius shooting through the door would have been injury or death. However, Roux said that did not contradict the defense argument that Pistorius, allegedly terrified that he was about to be attacked by an intruder, did not foresee that his actions would lead to someone's death.

Self defence is tightly controlled for policy reasons. (otherwise it would be too easy for murders to raise the defence).

Roux is effectively asking for a new type of defence of "being scared"

The trouble is, everyone knows what guns do. You don't forget just because you are scared.

And policy wise, you should be held responsible when you approach another person with a gun pointed at them!

As a trained firearms owner - how can you claim it is an accident when the obvious result is achieved?

Roux's interpretation essentially allows any gun owner to shoot to kill out of fear - even if there was no immediate threat.

 

[mrjitty]

[video=youtube;50ph2UinK3o]https://www.youtube.com/watch?v=50ph2UinK3o[/video]
worth watching again with coffee/biscuits for the leach v roux section

One great and delicious irony is that it ends up being Roux trying to make sense of Masipa's dreadful analysis

- especially at 1.50.00

Justice Leach is absolutely on the money. The trouble for Roux is even if he is right and that is what Masipa meant, it ought to be correct on the face of the judgement. The fact that Masipa penned objectively incorrect analysis is the very essence of mistake of law in my view.

 

[mrjitty]

Leach @1:54:00

"If you're going to come with the defence of putative self defence, and I think you'll be hardpressed to bring this case within putative self defence" !!!!

"if you do - it won't matter if its DD or Dolus indirectus"

"read what the judgement says"

LOL!

So basically Leach seems to say the DE thing won't fly and nor will PPD.

I so hope he writes the judgement!

ETA

Brownie points to Roux for perhaps the most inventive way yet of trying to explain what Masipa was on about!

 

[Susza]

Thank you, cottonweaver! I realize only now that my question was rather stupid. Sorry!
A bit of reflexion would have made it unnecessary

 

[mrjitty]

Leach

"did he believe he was entitled to shoot in those circumstances?"

Brilliant questioning from the Justice

Per Leach

1. He did not know who was behind the door
2. There is no finding of a belief his life was in danger
3. He could see the door did not open
4. He only heard a noise

... PPD is not going to be found to be established by the Court. I would stake my hat on it.

Trouble is Roux has really anchored the defence to it

 

[Trotterly]

Leach @1:54:00

"If you're going to come with the defence of putative self defence, and I think you'll be hardpressed to bring this case within putative self defence" !!!!

"if you do - it won't matter if its DD or Dolus indirectus"

"read what the judgement says"

LOL!

So basically Leach seems to say the DE thing won't fly and nor will PPD.

I so hope he writes the judgement!

ETA

Brownie points to Roux for perhaps the most inventive way yet of trying to explain what Masipa was on about!

Did you follow it?

 

[pandax81]

The only thing I learned from the hearing is that the SCA judges are just as stupid as Masipa, particularly the ones who talked the most. Maybe 2 wrongs will make a right!

 

[cottonweaver]

Thank you, cottonweaver! I realize only now that my question was rather stupid. Sorry!
A bit of reflexion would have made it unnecessary

You certainly do not need to apologise Susza, there is nothing to apologise for. We are all WSers, it comes naturally