Oscar Pistorius - Discussion Thread #65~ the appeal~

[Deleted member 102539]

He also repeated that he fired because he thought he was being attacked.

He also said wtte "before I could think I fired because I thought they were coming out"

Here he is saying he didn't think and he did think in the same sentence. Legally this does not make sense but it is just the kind of thing anyone would say.

He says he did not want to shoot but he had taken a gun with him so he must have been prepared to use it. He may not have wanted to shoot but when scared by the noise he wanted to protect himself and fired. It is obvious that in the space between the noise and firing he must have "wanted" to shoot.

I would go so far as to say that OP could shoot at Reeva as soon as she was behind the toilet door. His "idea" of bringing an intruder into the game, when may it have flashed: before the shots, in the shooting, seconds after the shooting? That is the actual question, I think.

 

[jilly]

BBM -
That would have been a very good question! What would he have answered?
"...there was no need to waste the 6 bullets left as they are quite expensive " ?

When we know that it was probably because Reeva stopped screaming. That poor woman.

 

[Val1]

He also repeated that he fired because he thought he was being attacked.

He also said wtte "before I could think I fired because I thought they were coming out"

Here he is saying he didn't think and he did think in the same sentence. Legally this does not make sense but it is just the kind of thing anyone would say.

He says he did not want to shoot but he had taken a gun with him so he must have been prepared to use it. He may not have wanted to shoot but when scared by the noise he wanted to protect himself and fired. It is obvious that in the space between the noise and firing he must have "wanted" to shoot.

The point you didn't add was that he actually fired not just one that would likely have had devastating results on its own, but four shots, into a closed/locked door believing a "person" was behind it and as a result killed them, that's illegal.

As Nel pointed out,
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http://www.timeslive.co.za/local/2014/04/11/the-oscar-pistorius-murder-trial-day-21
""The hearing of a noise and the perception that you are being attacked is two different things," Nel said."
-------------
Add to that:
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http://www.cnn.com/2014/03/17/world/africa/pistorius-trial-third-week/

"Rens said Pistorius knew that it's not legal to shoot at unknown person seen breaking into your house, not legal to shoot at them if burglar bars separate you, but it is legal to shoot at them if there's no protection and they approach you with a weapon."

http://globalnews.ca/news/398548/ex...un-rules-exposing-himself-to-homicide-charge/

"“You can’t shoot through a closed door,” said Andre Pretorius, president of the Professional Firearm Trainers Council, a regulatory body for South African firearms instructors. “People who own guns and have been through the training, they know that shooting through a door is not going to go through South African law as an accident.”

“There is no situation in South Africa that allows a person to shoot at a threat that is not identified,” "
--------------

 

[Interested Bystander]

Hi Cottonweaver! Regarding Taitz's analysis, if it is correct that a verdict of DE requires the prosecution to prove beyond reasonable doubt that the killer was not in fear of his life, then, imo, the bar is raised too high, as this is almost an impossible task. It's like trying to prove that someone doesn't have a headache.

Of course, the irony is that this particular hurdle might have been circumvented if the State were seeking DD of Reeva rather than DE of the fictitious intruder, as the prosecution's focus would have been on proving that the 'I-thought-she-was-an-intruder story' was merely a subterfuge and that he'd shot and killed Reeva following an argument. And yet the majority view is that eventualis is the more achievable of the two.

I'd be worried if I weren't absolutely convinced that the SCA doesn't buy OP's story for one minute and is simply chomping at the bit to upgrade the verdict.

As an aside, if OP's evidence were to be entirely ignored on the basis of his being a shocking witness, then wouldn't DD of Reeva be proved beyond reasonable doubt?

It is good to read that you are confident about the outcome. I have lost all confidence that OP will get what he deserves.

 

[sleuth-d-]

The point you didn't add was that he actually fired not just one that would likely have had devastating results on its own, but four shots, into a closed/locked door believing a "person" was behind it and as a result killed them, that's illegal.

As Nel pointed out,
-------------
http://www.timeslive.co.za/local/2014/04/11/the-oscar-pistorius-murder-trial-day-21
""The hearing of a noise and the perception that you are being attacked is two different things," Nel said."
-------------
Add to that:
-------------
http://www.cnn.com/2014/03/17/world/africa/pistorius-trial-third-week/

"Rens said Pistorius knew that it's not legal to shoot at unknown person seen breaking into your house, not legal to shoot at them if burglar bars separate you, but it is legal to shoot at them if there's no protection and they approach you with a weapon."

http://globalnews.ca/news/398548/ex...un-rules-exposing-himself-to-homicide-charge/

"“You can’t shoot through a closed door,” said Andre Pretorius, president of the Professional Firearm Trainers Council, a regulatory body for South African firearms instructors. “People who own guns and have been through the training, they know that shooting through a door is not going to go through South African law as an accident.”

“There is no situation in South Africa that allows a person to shoot at a threat that is not identified,” "
--------------

that last paragraph should have been enough to wrap up the whole case... how did he get away with it?

 

[sleuth-d-]

BBM He was asked:

http://www.smh.com.au/world/oscar-p...ces-sixth-day-of-grilling-20140414-36nem.html

"8:59pm: Nel says he is now going to deal with the "double tap" suggestion. Pistorius denies double tap, says hefired in quick succession.

Nel: Why did you stop after firing four bullets?

Pistorius: I'm not sure.

Nel: Same here ... why not empty the magazine? Why not fire at the window?

Pistorius: Why would I fire at the window?

Nel: (quoting Pistorius' previous evidence) 'because there could be someoen there on the ladder?'

Pistorius: I thought there was someone in the toilet."

thanks for that.
vagueness, diversion and evasiveness. i am not sure, can't remember, don't know… seem to have been very useful phrases to combat any difficult spots.

i was surprised that he was allowed to use this tactic so often.

 

[jilly]

WmBooth - he has followed it closely.

I too thought I heard the SCA say it would return to HC for sentence but I was surprised then to find Ulrich Roux saying it still could.
The link and quote is on the previous page.

Well, I thought Booth made a lot of sense. It got confusing for me when they kept saying "retrial" but I'm happy to learn that this does not mean a rehash of the whole thing - just the sentencing.

It makes sense, to me, that the SCA would do the sentencing because they've got everything before them like Booth said and he mentioned "time", On the face of it, it seems it would be the most expeditious way of doing it.

Otoh, this sentencing could take a long time (knowing Roux) and we don't know what the schedule looks like for the SCA or the High Crt for that matter.

 

[janicelongbright]

My thoughts too . No matter the country , law is in fact no more than common sense . The posited facts were that Pistorius shot Reeva in circumstances where she could neither run away , nor the shooter miss her , he shot 4 times so accidental disharge was not a possibility . In those circumstances , no country in the world would dispute that if there was even the remotest unlikelihood that the act was not a deliberate killing , the burden of proof is on the defendant to convince otherwise by pleading insanity .
That the judge in addition declared clarevoyance in finding that she' believed in pistorius' mind he had no intention to kill ' only proves that the defence failed to provide any reason to doubt the factual reality of D.D
It sets a terrifying precedent for girlfriends and burglers alike .
Not least because as you say ,in dropping the D.D the prosecution paved the way for Masipa's let off. There was an abundance of material proof of premeditated murder , which was ignored in favour of a pretended 'circumstancial case'

 

[jilly]

My thoughts too . No matter the country , law is in fact no more than common sense . The posited facts were that Pistorius shot Reeva in circumstances where she could neither run away , nor the shooter miss her , he shot 4 times so accidental disharge was not a possibility . In those circumstances , no country in the world would dispute that if there was even the remotest unlikelihood that the act was not a deliberate killing , the burden of proof is on the defendant to convince otherwise by pleading insanity .
That the judge in addition declared clarevoyance in finding that she' believed in pistorius' mind he had no intention to kill ' only proves that the defence failed to provide any reason to doubt the factual reality of D.D
It sets a terrifying precedent for girlfriends and burglers alike .
Not least because as you say ,in dropping the D.D the prosecution paved the way for Masipa's let off. There was an abundance of material proof of premeditated murder , which was ignored in favour of a pretended 'circumstancial case'

:goodpost:

 

[janicelongbright]

....On the other hand according to the Guardian blog , Nel wanted the judges to read the entire transcript , Roux urged urged them to accept his own specially edited cut version : the judges chose the latter . Either extremely lazy , or perhaps not such 'justice seekers doing the right thing' as was to be hoped. Either way.....Also depressing perhaps , according to the video posted further on NEL's insistence with song and dance , to the judges that Massipa must determine any sentencing that may arise . The judges then state that there was never any other option in any case !!! Bizarre .

 

[jilly]

....On the other hand according to the Guardian blog , Nel wanted the judges to read the entire transcript , Roux urged urged them to accept his own specially edited cut version : the judges chose the latter . Either extremely lazy , or perhaps not such 'justice seekers doing the right thing' as was to be hoped. Either way.....Also depressing perhaps , according to the video posted further on NEL's insistence with song and dance , to the judges that Massipa must determine any sentencing that may arise . The judges then state that there was never any other option in any case !!! Bizarre .

Neither, imo. They would more likely focus on the appellate issues provided by both parties. To ask them to read the entire transcript was a ballsey moment for Nel, imo.

 

[Marfa Lights]

For me the clearest explanation of DE of the perceived intruder still comes from James Grant's Original Pistorius Defence article: http://criminallawza.net/2014/03/03/the-pistorius-defence/



So, there are three important questions to ask.

1. Did he foresee the possibility (and reconciled himself to the risk) that the supposed attacker was not behind the door?

2. Did he foresee the possibility (and reconciled himself to the risk) that force was not necessary?

3. Did he foresee the possibility (and reconciled himself to the risk) that the extent of force was not necessary and reasonable?

With respect, I am not sure these are the right questions about foreseeability-- I think they relate more to the requirements for determining a lawful self defense claim, which is worth a revisit itself.

This article "When Can I Fire?" (although it is more about defense of property) outlines the specific requirements that must be met before a defensive act can be considered lawful. If I understand correctly, these same tests must be met for Putative as well as actual Private Defense.

https://www.issafrica.org/pubs/CrimeQ/No.8/duPlessis.htm

One important note mentioned in the article above is that an attack must be imminent or underway and any PRE-EMPTIVE action is NOT a legal response.

So, in reference to the post above, please allow me to rephrase these questions for purposes of determining a lawful claim of PPD:

1. Did the defendant ascertain or verify the identity of the person before firing on them?

2. Was an attack underway or was he in danger of imminent bodily harm? (Or are we to accept that simply hearing a noise, or even a series of noises, in your house at night to be equated with a perceived attack?)

3. Were his defensive actions necessary to thwart an attack, were other options available to him and was the force employed reasonable and proportional to save him from bodily harm?

Masipa's judgment was such a muddled mess, I could not tell if she ever even subjected his supposed PPD claim to these requirements. Still, I don't think Leach was buying it for a minute.

As to foreseeability for determining intent with Dolus eventualis I think we only need to ask if Oscar objectively foresaw the consequences of firing four 9mm Black Talon type bullets at a perceived intruder inside the confined space of his toilet cubicle.

 

[Val1]

Neither, imo. They would more likely focus on the appellate issues provided by both parties. To ask them to read the entire transcript was a ballsey moment for Nel, imo.

Otoh, the whole problem from the PT's pov stems from Masipa disregarding or ignoring some of the evidence and simply taking the DT and OP's word/version as truth. Under these circumstances I can see the judges not wanting or simply not having the time to review everything, but to opt for the DT's edited version seems wrong imo. Hopefully the PT was at least able to add whatever evidence/testimony was relevant to counter the DT's edited version.

 

[mhiforme]

It was 3AM in the morning, pitch dark and I heard a noise. I grabbed my gun, went to the bathroom. At this point, I heard a noise, got scared and started firing my gun in an absolute panic. After 4 shots, I realized what had happened and stopped firing. It was an accident and I never meant to shoot anyone.

I wonder if Pistorius could have gotten away with this if he kept it simple and just went with the above story.

Thoughts?

 

[mhiforme]

I heard that the judgement should come before the end of the month as the judges are going on recess.

Anyone heard anything as to how this occurs. Do the judges come to a decision and then tell Nel and Roux that we'll meet next week to give our verdict?
Does Pistorius have to be at the verdict?
If it is a guilty verdict, does he go straight to jail or is he out until the court decides on an appropriate punishment

 

[DexterMorgan]

It was 3AM in the morning, pitch dark and I heard a noise. I grabbed my gun, went to the bathroom. At this point, I heard a noise, got scared and started firing my gun in an absolute panic. After 4 shots, I realized what had happened and stopped firing. It was an accident and I never meant to shoot anyone.

I wonder if Pistorius could have gotten away with this if he kept it simple and just went with the above story.

Thoughts?

The neighborhood heard yelling and screams though. So all the judge had to ask was why he didn't tell reeva to call the cops before just yelling Get Out Of My House.

Or why he didn't wake reeva up and asked if she heard a noise. Since he did have time to get the gun.

None of the judges brought this up though. Jmo

 

[Marfa Lights]

It was 3AM in the morning, pitch dark and I heard a noise. I grabbed my gun, went to the bathroom. At this point, I heard a noise, got scared and started firing my gun in an absolute panic. After 4 shots, I realized what had happened and stopped firing. It was an accident and I never meant to shoot anyone.

I wonder if Pistorius could have gotten away with this if he kept it simple and just went with the above story.

Thoughts?

You mean if he had not given conflicting and mutually destructive defenses such as:

1. I heard a noise and got my gun and confronted what I perceived to be an intruder. I heard a second noise and thought someone was coming out to attack me so in self defense I deliberately fired four rounds in the direction of the perceived intruder. Although I am confrontational by nature when faced with a fight or flight situation, there are two of me, and my disabled twin is frightened easily and is highly vulnerable. That justifies my unlawful behavior. Plus you all know how bad crime is in South Africa, and besides Reeva really should have said something and all this could have been avoided.

2. I heard a noise, got my gun, and went to investigate. I was so scared that when "startled" by a second noise, I involuntarily fired my gun (albeit in a relatively tight pattern focused directly at the target.) I did not intend to kill anyone however. That was an accident. I was mistaken. I do not understand why I am even being charged with a crime.

This is how I see it-- neither of these versions meets the requirements for a lawful self defense (PPD or PD). Hence at a minimum, guilty of negligence and convicted of Culpable Homicide.

However, there is a higher standard of accountability to which he should be held. Did his actions exceed mere negligence? Did he make too many assumptions and act with reckless disregard for another human being's life without even bothering to identify them? Was he not able to foresee the consequences of using lethal force (X4) in such a confined space? Or do you believe the nature of the perceived threat was so overwhelming that he was justified in acting on instinct without any self-control?

Can't wait to see what the at least 3 out of 5 judges think!

 

[janicelongbright]

Otoh, the whole problem from the PT's pov stems from Masipa disregarding or ignoring some of the evidence and simply taking the DT and OP's word/version as truth. Under these circumstances I can see the judges not wanting or simply not having the time to review everything, but to opt for the DT's edited version seems wrong imo. Hopefully the PT was at least able to add whatever evidence/testimony was relevant to counter the DT's edited version.

That is what I mean, having the entire transcript doesn't mean you are obliged to read it entirely ! Having the complete evidence is a matter of being seen to have come to a just conclusion with regard to all the evidence available .IE Objective as opposed to the pre-processed part- version of the objective evidence . The entire transcript has to be available for reference , because the submissions by opposing counsels, give opposing(hand-picked) transcript versions.

 

[janicelongbright]

It was 3AM in the morning, pitch dark and I heard a noise. I grabbed my gun, went to the bathroom. At this point, I heard a noise, got scared and started firing my gun in an absolute panic. After 4 shots, I realized what had happened and stopped firing. It was an accident and I never meant to shoot anyone.

I wonder if Pistorius could have gotten away with this if he kept it simple and just went with the above story.

Thoughts?

I haven't heard of any details about the 'pitch dark' claim, which also relates to the excuse given for Reeva having taken her phone to the toilet ,as a torchlight.
Nothing appears to have been said about whether blinds /curtains were drawn in the bathroom /toilet , and it would seem highly unlikely to be 'dark' at all in a street-lit / high security complex ,except perhaps for reading purposes, unless there were blinds down and even then they would need to be 'blackout' type.

 

[lithgow1]

I have been reading some posts on the appeal on digitalspy. It is quite interesting - there are even a few familiar posters there, if not by name, by post and style. One poster has claimed that in South Africa the State has never lost an appeal that has been heard by the SCA. Don't know if that is true, but if so it's a precedent I like the sound of!