Oscar Pistorius - Discussion Thread #65~ the appeal~

[Trotterly]

Leach said that Masipa found Pistorius to be a “shocking” and “unreliable” witness, but then went on to accept his claim that he honestly believed his life was in danger, without evidence to support it.

Have faith!

I feel I have to comment on this because it is just not correct.

It may be Leach's interpretation that OP was "unreliable" but - and this is the critical point in the first instance - Masipa never said OP was an "unreliable" witness. If she had done this then I would be queuing up to join the prosecution supporters. Relying on an unreliable witness is a definite no-no in this sort of situation.

In the first instance it is about Masipa's judgement.

She said he was a poor, evasive witness. So were other witnesses in the trial. The only untruth she mentioned was about his intention when he picked up the gun. A theme that continued when he claimed he had no intention to shoot when he heard the noise despite saying he did in the same sentence. Masipa judged (I think correctly) that this fell into an area of testimony for which she cited where an accused untruth may be evaluated as not critically affecting the overall reliability of his evidence.

 

[Marfa Lights]

I feel I have to comment on this because it is just not correct.

It may be Leach's interpretation that OP was "unreliable" but - and this is the critical point in the first instance - Masipa never said OP was an "unreliable" witness. If she had done this then I would be queuing up to join the prosecution supporters. Relying on an unreliable witness is a definite no-no in this sort of situation.

In the first instance it is about Masipa's judgement.

She said he was a poor, evasive witness. So were other witnesses in the trial. The only untruth she mentioned was about his intention when he picked up the gun. A theme that continued when he claimed he had no intention to shoot when he heard the noise despite saying he did in the same sentence. Masipa judged (I think correctly) that this fell into an area of testimony for which she cited where an accused untruth may be evaluated as not critically affecting the overall reliability of his evidence.

Technically incorrect perhaps, but would it be so far off to infer based on her description of him as a lying, evasive, and poor witness that his testimony could be considered "unreliable"?

 

[LemonMousse]

I feel I have to comment on this because it is just not correct.

It may be Leach's interpretation that OP was "unreliable" but - and this is the critical point in the first instance - Masipa never said OP was an "unreliable" witness. If she had done this then I would be queuing up to join the prosecution supporters. Relying on an unreliable witness is a definite no-no in this sort of situation.

In the first instance it is about Masipa's judgement.

She said he was a poor, evasive witness. So were other witnesses in the trial. The only untruth she mentioned was about his intention when he picked up the gun. A theme that continued when he claimed he had no intention to shoot when he heard the noise despite saying he did in the same sentence. Masipa judged (I think correctly) that this fell into an area of testimony for which she cited where an accused untruth may be evaluated as not critically affecting the overall reliability of his evidence.

Sorry, but I think this is a rather desperate reach.

A "poor and evasive" witness is, by definition, unreliable. She didn't have to actually use that word. It makes no material difference to what she actually meant.

A poor witness means an unreliable one. What else could it mean?

And "evasive" means "dishonest". Dishonest witnesses playing fast and loose with the truth are not reliable.

 

[soozieqtips]

Sorry, but I think this is a rather desperate reach.

A "poor and evasive" witness is, by definition, unreliable. She didn't have to actually use that word. It makes no material difference to what she actually meant.

A poor witness means an unreliable one. What else could it mean?

And "evasive" means "dishonest". Dishonest witnesses playing fast and loose with the truth are not reliable.

Hey lemon!! Great to see you. Yes, This 'unreliable' thing keeps cropping up. Who would have thought that anyone so focused on whether a single adjective was used accurately (despite it meaning virtually the same as 'poor' and 'evasive') - would allow so many of OP's lies and contradictions to go unchallenged.

 

[AW2B]

I agree with this. I can see why Masipa went with CH.

1. It's 3 AM in the morning, people aren't thinking correctly at this time, especially if they are just woken up (on OP's version).

2. The fact that he used Zombie stoppers is irrelevant because he didn't load his gun. This was the ammunition that he had in his gun at the time and he just grabbed his gun.

3. In terms of firing 4 shots, accidents happen. It's not like he fired the 4 shots over a 10 minute period and had lots of time to think between each shot. They were one after the other. Yes, some evidence says there was a small pause between two of the shots, but the key is they were fired one after the other.

4. Some say as a gun owner, he should have had foresight that shooting into a bathroom would kill someone. I say foresight is out the window at 3am in the morning. No one thinks straight at 3am. If this was 2pm in the afternoon, you might be thinking a little better.

5. Some say he could have run out the door. Yes, that was an option, but I think most people's natural instinct is to go investigate a noise. Isn't that the premise of all horror movies. Again, it is 3AM in the morning, people aren't weighing all of their options at this time of the day

BBM

Yes in movies, or in B movies, so the horror story/events can go on! In real life people would wake their loved ones up not just to ask them if they heard a noise but to make sure they are on their guard in case there were intruders..they also call the police before taking any action.

 

[cottonweaver]

Not been following today properly but nice to see Lemon Mousse here

What did just stand out for me is poster arguing that Oscar has just woken up , it's 3am etc etc

Masipa specifically argued against this in her judgment , in relation to another intruder scenario( although it was misconstrued at the time.)

here it is
I

t also has to be borne in mind that the determination of what is reasonable and what is not reasonable, would depend on the facts of this particular case. If the accused for example had awoken in the middle of the night and in darkness saw a silhouette hovering next to his bed and had in a panic grabbed his firearm and shot at that figure, only to find that it was the deceased, his conduct would have been
understandable and perhaps excusable.

Nowhere did M mitigate for his actions using any midst of night /post waking confusion on his part.
He had performed a range of tasks from "can you not sleep baba" to fans, to curtains, to picking up jeans and covering LED light

Read the Oscar testimony for after he woke, he talks it through over PAGES, step by step. He wasn't blurry-eyed or fuddle headed.

 

[Trotterly]

Sorry, but I think this is a rather desperate reach.

A "poor and evasive" witness is, by definition, unreliable. She didn't have to actually use that word. It makes no material difference to what she actually meant.

A poor witness means an unreliable one. What else could it mean?

And "evasive" means "dishonest". Dishonest witnesses playing fast and loose with the truth are not reliable.

Do you think the cases cited about handling untruthful evidence were not relevant or cited or used incorrectly?

If they were then we might have an area of the law to get our teeth into. But all this emotive gnashing over the witness as a "liar" is not going to wash with the majority of the bench.

Should the appeal ever get off the ground that is.

 

[Giles]

Anyone recall what she said in paragraph 32

"Perhaps on the facts it may have been a less controversial finding in the circumstances to hold that there was foresight of death but this was the courts factual finding and the accused would have been acquitted either way.126 Even on a finding of dolus eventualis indeterminatus, he would still have a putative defence on the basis of a genuine mistaken belief that he was under attack and acting under lawful self-defence. He would thus lack knowledge of unlawfulness, which would not be impacted by the error in objecto."

Link to pdf here:http://www.publiclaw.uct.ac.za/pbl/staff/kphelps

 

[Trotterly]

Not been following today properly but nice to see Lemon Mousse here

What did just stand out for me is poster arguing that Oscar has just woken up , it's 3am etc etc

Masipa specifically argued against this in her judgment , in relation to another intruder scenario( although it was misconstrued at the time.)

here it is
I

Nowhere did M mitigate for his actions using any midst of night /post waking confusion on his part.
He had performed a range of tasks from "can you not sleep baba" to fans, to curtains, to picking up jeans and covering LED light

Read the Oscar testimony for after he woke, he talks it through over PAGES, step by step. He wasn't blurry-eyed or fuddle headed.

That window noise woke him right up and focused his mind a treat.

 

[LemonMousse]

Hey lemon!! Great to see you. Yes, This 'unreliable' thing keeps cropping up. Who would have thought that anyone so focused on whether a single adjective was used accurately (despite it meaning virtually the same as 'poor' and 'evasive') - would allow so many of OP's lies and contradictions to go unchallenged.

Hi Soozie (and others)!

Yes...it's really most peculiar.

A "witness" is someone who testifies to the truth of something based on their experiences or observations.

A "poor" one is obviously not doing a very good job of testifying to the truth of something based on their knowledge and experience. What else is that except "unreliable".

Even worse...she basically called him a liar and pointed out that he was more bothered about what his answers meant for him than in telling the whole truth.

Really, she should have struck out the whole of his testimony. As Judge Greenland said, he hadn't taken the court into his confidence.

 

[LemonMousse]

Do you think the cases cited about handling untruthful evidence were not relevant or cited or used incorrectly?

If they were then we might have an area of the law to get our teeth into. But all this emotive gnashing over the witness as a "liar" is not going to wash with the majority of the bench.

Should the appeal ever get off the ground that is.

Honestly, I think it's much more serious than whether she thought he lied up there or not.

This will come down to whether she applied the correct legal guidelines when evaluating the circumstantial evidence and whether she asked the wrong questions when deciding DE. Oh, and she also seemed to misapply the requirements of PPD.

Pistorius's whinging, deceitful testimony really is the least of it.

 

[cottonweaver]

Sorry, but I think this is a rather desperate reach.

A "poor and evasive" witness is, by definition, unreliable. She didn't have to actually use that word. It makes no material difference to what she actually meant.

A poor witness means an unreliable one. What else could it mean?

And "evasive" means "dishonest". Dishonest witnesses playing fast and loose with the truth are not reliable.

BIB Especially since this point has already been made and rebutted several times over on the other "British OP forum" ( as per forum pointed out by Lithgow1 yesterday. ) :facepalm:
I know cause I am just ploughing through some of it at the moment and saw the very same unconvincing argument.

 

[LemonMousse]

That window noise woke him right up and focused his mind a treat.

No, it didn't focus his mind one iota.

People with focused minds don't unthinkingly fire four times into a door behind which the only other human being in the house stood*.

*Except Frank.

 

[lithgow1]

Do you think the cases cited about handling untruthful evidence were not relevant or cited or used incorrectly?

If they were then we might have an area of the law to get our teeth into. But all this emotive gnashing over the witness as a "liar" is not going to wash with the majority of the bench.

Should the appeal ever get off the ground that is.

It's off the ground, into the courtroom and being deliberated. And who is being 'emotive'? Nothing emotive about calling a liar a liar. He lied about being shot at on the highway and the gun in Tasha's for starters. Probably about the ammo he claimed was his father's too. As for what will and will not wash with the majority of the bench we will have to wait and see. I don't know how they will judge Pistorius as a witness and somehow doubt you do either.

 

[saraomar]

@Saromar

Hey Saromar, I remember you from back in the day and that you , as trial progressed, were convinced Masipa was going to decide not guilty on murder and you kind of, gave up posting as you were, rightly, feeling cynical.

Anyway .....getting to the point ...... how do you feel after watching the SCA hearing .....any more confident?

Hi, no I am very much here, clicking refresh every hour to see if there is anything new, am fascinated! Have been following undisclosed podcast and Richard gossip so been engrossed!

Coming back to your question, I think there may be hope but am cautious in saying so. The SCA exchange was brilliant, I think nel did well with his hands tied behind his back, as he did in the original trial, but here due to the factual findings having been made in the actual trial. Roux did his usual emphatic pleading, much the same as the trial about poor Oscar blah blah, and I really hope these sharp minds saw through that.
I would like to think, the SCA should deliver a just substitute verdict of murder, it's been clear to many for a long time. how far are they willing to go, remains to be seen. Let me put it this way, if they uphold the original verdict, it would not shock me.....really hope I am wrong for once and Reena steenkamp receives the justice she deserves!

 

[lithgow1]

BIB Especially since this point has already been made and rebutted several times over on the other "British OP forum" ( as per forum pointed out by Lithgow1 yesterday. ) :facepalm:
I know cause I am just ploughing through some of it at the moment and saw the very same unconvincing argument.

Yes, it is like deja vu over there isn't it.

One thing I was thinking of in terms of Pistorius' conflicting defences is, if he was telling the truth in Version Mark 1 (that he thought there was an intruder in the toilet and that potential threat was emerging towards him and so he fired) then IMO he wouldn't have gotten caught up in the whole 'I wasn't thinking, I just fired before I knew it' shambles. He would of stuck to that because that would be what happened. The fact that he got so twisted up over why he did what he did suggests to me that it is not what happened whatsoever. Oh what a tangled web he weaved and all that.

 

[Trotterly]

It's off the ground, into the courtroom and being deliberated. And who is being 'emotive'? Nothing emotive about calling a liar a liar. He lied about being shot at on the highway and the gun in Tasha's for starters. Probably about the ammo he claimed was his father's too. As for what will and will not wash with the majority of the bench we will have to wait and see. I don't know how they will judge Pistorius as a witness and somehow doubt you do either.

I'm sure I heard something about a hippo in the courtroom and errors of law and so forth. Anyhoo I'm surprised that what I was lead to believe was a respected HC judge could have been making so many poor decisions in all her previous appearances. I saw several SA legal experts extolling her virtues before the trial started and come the verdict she's gone completely feral and started becoming the worse judge ever.

Could it be that people just didn't get the result they wanted for such an obviously open and shut case?

 

[LemonMousse]

I'm sure I heard something about a hippo in the courtroom and errors of law and so forth. Anyhoo I'm surprised that what I was lead to believe was a respected HC judge could have been making so many poor decisions in all her previous appearances. I saw several SA legal experts extolling her virtues before the trial started and come the verdict she's gone completely feral and started becoming the worse judge ever.

Could it be that people just didn't get the result they wanted for such an obviously open and shut case?

Well, actually, almost all legal professionals have made it very, very clear that they still hold Masipa in the highest regard but feel that she simply made a mistake on this occasion. All human beings do this from time to time. James Grant was very particular about making this point.

 

[Interested Bystander]

BBM

Yes in movies, or in B movies, so the horror story/events can go on! In real life people would wake their loved ones up not just to ask them if they heard a noise but to make sure they are on their guard in case there were intruders..they also call the police before taking any action.

Which is what he did when Samantha Taylor was living with him. She also said that he never kept his gun under the bed! More dissembling from a prize liar methinks. He was very lucky he had a week to work out his defence (with help, of course) before appearing at the Bail Hearing. Even then he changed his story by the time he reached trial. In his case it is "once a liar, always a liar" IMO. Masipa should have rejected virtually all of his testimony.

 

[lithgow1]

I'm sure I heard something about a hippo in the courtroom and errors of law and so forth. Anyhoo I'm surprised that what I was lead to believe was a respected HC judge could have been making so many poor decisions in all her previous appearances. I saw several SA legal experts extolling her virtues before the trial started and come the verdict she's gone completely feral and started becoming the worse judge ever.

Could it be that people just didn't get the result they wanted for such an obviously open and shut case?

So there was nothing in her judgement that struck you as off kilter? You must therefore agree that displaying grief and anxiety after the fact means you never meant to commit the crime? That having ammunition in your possession that you should not have is not a crime if you didn't intend to have it (or whatever her thinking was there)? That he couldn't have foreseen that firing four bullets into that cubicle could result in the death of whoever was in there? That it is sensible to believe key parts of the evidence given by a defendent that you yourself have labelled as poor and evasive? That a generally well respected judge cannot make a bad ruling? Makes me wonder why you are so willing to support her unless it is because you got the result you wanted.

Remember too Trotterly it is not just us here criticising her judgement. Many legal commentators did (many more than supported it) along with at least two of the SCA judges the other day.