Oscar Pistorius - Discussion Thread #65~ the appeal~

[Interested Bystander]

For me the critical point is the corroboration between Mr & Mrs N and Dr & Mrs Stipp.

Especially because Mr & Mrs N are defence witnesses.

All 4 testified to having heard loud gunshots prior to the sequence of security calls. i.e in the moments prior to 3:15:51

Not one of these witnesses reported bangs after 3:15:51 - despite all being wide awake. Also none of them hear a women after this set of bangs.

Allowing time for Mr N to be woken by Mrs N - to listen, and then go make the call - IMO this shows as far more likely than not, that the final bangs were no later than 3:14am

This fits with the first timing of 3:02 (a time Masipa changes via pure speculation) and yet still allows the arterial bleed.

Otherwise we have to believe that Mr & Mrs N heard all of Oscar's screaming and yelling, but completely missed him breaking down the toilet door with a cricket bat

Thank you Mr Jitty. I absolutely agree with the time of the last shots, ie the gunshots, IMO. A link to Mr Fossil's timeline kindly has been posted which, as expected, was extremely helpful but I am not quite so sure the first shots were at 3:02 am. Mrs Stipp was already awake due to being fluish and suffering from a coughing bout. That she clearly implied in her testimony. The time of her waking up was not necessarily set at 02.58. That was the time she checked the clock and decided to get up. Of course one cannot be sure but if she had decided to get up so as not to wake her husband one wouldn't have thought she would left it another 4 minutes. She was sitting on the edge of the bed, I presume prior to getting the drink, when the first shots were heard. Only my opinion but it seems she did not check the time of the first shots. She could have sat up fairly quickly after 02.58, ie seconds. If there had been a gap of 4 minutes, I feel she would have rechecked the timing or she would have been elsewhere getting a drink. She was obviously someone who kept an eye on timing.

There are so many questions which could have been asked and were not. I think Nel thought he had the case sewn up, as did I, and most logically thinking people. He left a lot of questions unanswered. What I have not done yet is listen to Mrs Stipp's X. I know Roux was being very picky about timing and I need to refresh my memory whether any of it was how long she was awake in bed after deciding to get a drink. Sunday is never a good time for me to spend time on the computer. It may be late tonight before I can get round to listening to Mrs Stipp's X.

I have left a link for Mrs Stipp's Testimony so that anyone who is new to the forum or needs to refresh their memory can easily do so.

[video=youtube;9AzYslyjzmY]https://www.youtube.com/watch?v=9AzYslyjzmY[/video]

 

[akp]

Roux' ridiculous explanation about why masipa linked DE to Reeva was a big cop out! It's the only possible way he could describe her non-sensical explanation of why DE was no longer on the table. There is no other way to position it. DE is very clear and she absolutely, definitely made a mistake by referring to Reeva and letting him of the hook.
If you remember the judgement reading... There is an awkward pause....discussion with female assessor, break and suddenly it changes to ' the deceased.....or anyone else for that matter....' When talking about DE. She could hardly understand what she wa reading, as if it were foreign to her....which I believe it was! She put too much faith in the female assessor, possibly to even write her actual judgement. Shocking!

Here is that absolute gem from her judgement:

Clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door, let
alone the deceased, as he thought she was in the bedroom at the time.

Sent from my iPad using Tapatalk

 

[Sherbert]

Well we can't make up for an incompetent judge can we?

But now on appeal its a very big problem because its Roux who has to explain all this nonsense.

I've always maintained that the witness failing to come up to brief is a major problem in terms of case management.

it reveals instantly to the judge that the accused has departed from the essence of his own statement of defence and the trial strategy that Roux mapped up.

That should really have been fatal in terms of the insight it provided to the judge.

The question is, though, how do we get around the factual finding that he lacked dolus?

IMO, the SCA will either have to reverse it or depart from precedent.

 

[mrjitty]

The question is, though, how do we get around the factual finding that he lacked dolus?

IMO, the SCA will either have to reverse it or depart from precedent.

Because DE is a mixed question of fact and law.

If the Judge misdirects her self in applying the law of DE to the proven facts - the finding is invalid.

 

[akp]

The question is, though, how do we get around the factual finding that he lacked dolus?

IMO, the SCA will either have to reverse it or depart from precedent.

Here is Masipa's reasoning:

Clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door, let alone the deceased, as he thought she was in the bedroom at the time.

To find otherwise would be tantamount to saying that the accused's reaction after he realised that he had shot the deceased was faked; that he was play acting merely to delude the onlookers at the time.

Doctor Stipp, an independent witness who was at the accused's house minutes after the incident had occurred, stated that the accused looked genuinely distraught, as he prayed to God and as he pleaded with him to help save the deceased.

There was nothing to gainsay that observation and this court has not been given any reason to reject it and we accept it as true and reliable. It follows that the accused's erroneous belief that his life was in danger excludes dolus. The accused therefore cannot be found guilty of murder dolus eventualis.

She has got her reasoning all wrong here, even if you grant her the factual findings that OP was distraught, and he thought RS was in the bedroom.

 

[pandax81]

Roux's attempted explanation of Masipa's framing of D.E is exactly what James Grant wrote before the verdict

http://criminallawza.net/2014/03/03/the-pistorius-defence/

even if Pistorius was genuinely mistaken in respect of all of the requirements of the attack, he may also be convicted of murder if he foresaw the possibility that one of the requirements of the response may not have been satisfied. He can be convicted of murder if the state can show that he foresaw the possibility (and reconciled himself to that risk) that he was not acting against the supposed attacker.

Edit: Grant is hopelessly wrong on this though too. Once one believes one is under attack and is entitled to act in self defence, that is the end of the matter, and the courts have upheld this view. Foresight that one may not be under attack does not negate the genuine belief or mean that one should refrain from acting and take the burden of risk upon themselves.

 

[mrjitty]

Here is Masipa's reasoning:



She has got her reasoning all wrong here, even if you grant her the factual findings that OP was distraught, and he thought RS was in the bedroom.

Exactly

A misdirection is the only real explanation for the judge's finding

Because there are no other factual findings as to how he could shoot 4 times and not foresee the possibility of death.

Even Roux could not really explain it away having had months to think about it.

 

[mhiforme]

I know it's been said unpteen times by umpteen people, but I am going to stick this here before going to bed.

PD/PPD.

There are not many circumstances when you are legally justified in killing someone, but self-defence is one of them. The main one, probably.

It is not unlawful to kill someone if your life is under threat if you don't. You are absolved of all blame and culpability. The law considers your actions justified.

The law takes into account that there are some circumstances where you may be given very, very good reasons to suppose your life is in danger even though it turns out that it's not. Someone pointing a gun at you that turns out not to be loaded etc.

In both cases, the onus is on you to show that your life really was in danger or you had a very good reason to sincerely believe it was. Not only that, the circumstances were such that any reasonable person, in the same boat, would have reached the same conclusion and done the same thing.

If you successfully pursuade a court of either of the above, you will be fully acquitted. PD and PPD are both complete defences against any charge of unlawful killing, whether murder or homicide.

What Pistorians are trying to suggest is that Masipa basically said: "I accept your plea of PPD. Under the circumstances the law considers you legally justified in your actions - any reasonable person in a similar situation would have done the same thing you did. However, you still shouldn’t have done it - even though I accept your defence of legal justification - so go to prison for five years anyway".

No. A conviction of anything in relation to the death he caused is proof that she did not accept his PPD defence.

She might have believed he was scared and anxious, but she did not see this as legal justification for what he did which is what acquittal on the basis of PPD would have meant.

BIB, to add to this, I believe Roux recognized that Masipa didn't accept PPD. However, the next step was intent and since there was no intent, Masipa went for CH.

What the PT did was they adjusted their complaint and said that there was error in objecto and the fact that it wasn't Reva in the bathroom, doesn't make a difference, OP still planned on killing whoever was in there and that's why it's murder.

So essentially, we need to determine what was OP's intent that night and that's tough. What was his exact intent the moment he was standing right in front of the door.

There is nothing that can say beyond a reasonable doubt what was going through his mind in terms of intent. To me, the bullets loaded in the gun don't make a difference, what's to say he wasn't going tomorrow to shoot some more watermelons with his friends the next day? Nel never asked him AFAIK.

Yes, if he stood in front of the door for a few minutes before shooting, then he should have had the foresight that his actions could have killed someone, but as Roux explained it in his closing when he slammed his hand on the table, he said there was a noise, OP got startled and shot.

 

[Trotterly]

Roux' ridiculous explanation about why masipa linked DE to Reeva was a big cop out! It's the only possible way he could describe her non-sensical explanation of why DE was no longer on the table. There is no other way to position it. DE is very clear and she absolutely, definitely made a mistake by referring to Reeva and letting him of the hook.
If you remember the judgement reading... There is an awkward pause....discussion with female assessor, break and suddenly it changes to ' the deceased.....or anyone else for that matter....' When talking about DE. She could hardly understand what she wa reading, as if it were foreign to her....which I believe it was! She put too much faith in the female assessor, possibly to even write her actual judgement. Shocking!

Yes definitely the determination of DE cannot depend on who the accused shoots or on who the accused thinks they are shooting.

Because he seems to claim self defence that means he felt threatened by whoever was in the cubicle. That includes an intruder, a boy, a tramp in fact any human being except for Reeva who he thought was in the bedroom.

DE does not care who is in the cubicle so it is legitimate to only consider one person in isolation. In this case since every other human has been accounted for by the self defense claim Masipa looks at the DE of Reeva to see if he could have the slightest thought it may be her in the cubicle.

That is a perfectly legitimate approach in this case.

 

[mrjitty]

Roux's attempted explanation of Masipa's framing of D.E is exactly what James Grant wrote before the verdict

http://criminallawza.net/2014/03/03/the-pistorius-defence/



Edit: Grant is hopelessly wrong on this though too. Once one believes one is under attack and is entitled to act in self defence, that is the end of the matter, and the courts have upheld this view. Foresight that one may not be under attack does not negate the genuine belief or mean that one should refrain from acting and take the burden of risk upon themselves.

hmm

bit too heavy paraphrasing?

websleuths won't let me paste the full quote.

roux was clearly asked about DE in respect of the intruder. A point he could not answer.

clearly Pistorius defence to murder depends on PPD.

what did you think of RouX's arguments on PPD?

 

[mrjitty]

roux clearly submitted Masipa did hold PPD

he had to.

If he loses on that point he is toast.

 

[mhiforme]

BBM

Sorry..that's not a valid analogy!

A "truck" is a used to drive..vs. a "loaded gun" which is used to harm/injure/kill someone. When the drunk person is driving his truck his intention is to get from one location to another...he was not driving a truck to kill. On the other hand..when OP was using his loaded gun with deadly bullets..his intention was to inflict the most serious damage..his intention was to use a deadly force..his intention was to kill.

It's all about intention. You can't just look at a gun, see it loaded with deadly ammunition and say yup, he was going to kill someone with this. How do you know he wasn't going to shoot watermelons tomorrow?

I don't recall any arguments on this but I suspect OP probably loaded his gun regularly with these special bullets but he never killed anyone in the past with them and he's been a gun owner for years.

Now, if there was evidence to say that every night, OP had is gun loaded with regular bullets but on this night, he loaded it with special bullets, then the type of bullets used is relevant. That's not the case. This was his ammunition of choice.

 

[lithgow1]

Why is that a pity, we do that for every other criminal?

It's why I'm saying that there are to many people that have a vendetta against OP and don't like Masipa's ruling because they were expecting something different. CH was correct because the PT did a poor job in explaining their case and the DT did the best they could in muddying the water. The fact that people still are arguing about the specifics of this case just go to show this.

Hence reasonable doubt.

Your post seems to suggest that justice is best served by 'muddying the water' whereas I'd of thought as crystal clear a view as possible is the more desirable option. Of course that is difficult when the only witness to the events is the perpetrator, who is naturally enough out to save his own skin and more than willing to lie to do so.

I don't consider it a vendetta if people dislike the fact that in their view a murderer has 'gotten away with it'. That is why they are hoping that the SCA ruling will go some way towards redressing that. Personally, I consider the sentence he received to be shockingly light given the circumstances and would think that most people who are not 'fans' of the killer would agree. I also think that similar sentences given out in similar cases are too light. Human life is undervalued enough in the world without sentences such as this one devaluing it even further. On the merits of this case only, do you consider 10 months in prison an appropriate length of time for what he did?

 

[Giles]

It's all about intention. You can't just look at a gun, see it loaded with deadly ammunition and say yup, he was going to kill someone with this. How do you know he wasn't going to shoot watermelons tomorrow?

I don't recall any arguments on this but I suspect OP probably loaded his gun regularly with these special bullets but he never killed anyone in the past with them and he's been a gun owner for years.

Now, if there was evidence to say that every night, OP had is gun loaded with regular bullets but on this night, he loaded it with special bullets, then the type of bullets used is relevant. That's not the case. This was his ammunition of choice.

During the SCA hearing, Justice Majiedt said in regard to Dolus Eventualis:

"...bearing in mind that the accused is familiar with firearms, he also uses ammunition, to his knowledge, which does great damage to bodily tissue. Those are factors we must consider."

 

[saraomar]

Yes definitely the determination of DE cannot depend on who the accused shoots or on who the accused thinks they are shooting.

Because he seems to claim self defence that means he felt threatened by whoever was in the cubicle. That includes an intruder, a boy, a tramp in fact any human being except for Reeva who he thought was in the bedroom.

DE does not care who is in the cubicle so it is legitimate to only consider one person in isolation. In this case since every other human has been accounted for by the self defense claim Masipa looks at the DE of Reeva to see if he could have the slightest thought it may be her in the cubicle.

That is a perfectly legitimate approach in this case.

'He felt threatened by whoever was in the cubicle'
He felt threatened by what, what??? What exactly? A noise? That is an absurd suggestion. The noise freaked him out so much that even in that state he managed to fire 4 shots so tightly grouped together? C'mon! Ok even if he did get so freaked out, over sensitive that he is, even though his lounge window downstairs had a big hole in it and that did t bother him so much, his patio doors were wide open and so were his neighbours.,but he blissfully went to bed at 10pm. Does that give him the right to shoot at the source of the noise? Not once but 4 times? It 'cannot be'!! He had the gun, he had the power, it was his house, he knew the bathroom, the cubicle, it was HIS choice to confront, so HE must the accept responsibility to the fullest for his action which he did not.

So we all look at what he did and why and didn't do.

How about Reeva? Can you Honestly believe she went through him going nuts, screaming, without saying a word????

Silent.....mute.....even died in silence????? That's crazy, and not believable.... And that too with a phone in her possession and on Valentine's Day? No coincidence there?

 

[mrjitty]

This is the full quote from Prof Grant that I couldn't post from my mobile

For Pistorius, this means that, having conceded that he acted unlawfully, if the state can show that he foresaw the possibility (and reconciled himself to the risk) that

1. he was not under attack,
2. that any supposed attack had not actually commenced and was not imminent,
3. or that no legally protected interest was truly under threat, he may be regarded as having intended to act unlawfully and can be convicted of murder.

Alternatively, even if Pistorius was genuinely mistaken in respect of all of the requirements of the attack, he may also be convicted of murder if he foresaw the possibility that one of the requirements of the response may not have been satisfied. He can be convicted of murder if the state can show that he foresaw the possibility (and reconciled himself to that risk)

4. that he was not acting against the supposed attacker,
5. that force was not necessary,
6. or that the extent of force used was not necessary and reasonable.

So as we can see - Roux was trying to focus on point 4

But he was clearly being asked by Justice Leach, as to wether he foresaw the possibility of killing the "intruder in the toilet" as a precursor to the PPD inquiry.

Leach also said that he thought Roux would be hardpressed to make out PPD on these facts - presumably because of points 2, 5 and 6

 

[mrjitty]

It's all about intention. You can't just look at a gun, see it loaded with deadly ammunition and say yup, he was going to kill someone with this. How do you know he wasn't going to shoot watermelons tomorrow?

I don't recall any arguments on this but I suspect OP probably loaded his gun regularly with these special bullets but he never killed anyone in the past with them and he's been a gun owner for years.

Now, if there was evidence to say that every night, OP had is gun loaded with regular bullets but on this night, he loaded it with special bullets, then the type of bullets used is relevant. That's not the case. This was his ammunition of choice.

With respect - this argument doesn't hold much water at law.

The accused knows what ammunition his gun is loaded with, and planned to have that loaded gun available for self defence.

These are proven facts which are relevant to what the accused foresaw and intended.

 

[mrjitty]

During the SCA hearing, Justice Majiedt said in regard to Dolus Eventualis:

"...bearing in mind that the accused is familiar with firearms, he also uses ammunition, to his knowledge, which does great damage to bodily tissue. Those are factors we must consider."

Exactly.

Inferences are drawn from the complete factual matrix.

 

[Sherbert]

She has got her reasoning all wrong here, even if you grant her the factual findings that OP was distraught, and he thought RS was in the bedroom.

RSBM

Yes, she definitely did misdirect herself as far as her reference to his belief that Reeva was in the bedroom was concerned.

But I don't see how that impacts upon her factual finding that OP lacked dolus vis a vis the intruder.

Even if OP did everything else wrong, surely her acceptance of his belief that he was under attack saves him from DE?

Do you think that excessive force and subjective foresight of death is all that the State needs to prove to win the Appeal?

 

[elfie]

I think many people on this board are upset with Masipa and calling her incompetent because the board members didn't get the verdict that they wanted....murder.

Masipa had a tough job in front of her. This was probably one of the toughest cases in S. African history. It was a dream team of defence lawyers, it was the first broadcast trial and there was a famous defendant. This was no different that the OJ trial where OJ was found not guilty. We never called Judge Lance Ito incompetent.

With thousands of pages of testimony to sift through and much of it highly technical, it's easy to get sidetracked.

For those that call her incompetent and demand that she should be fired, remember this is just one case in her career and you can't judge her on just this one case. If we measured everyone on this forum by the same yard stick that we measured Masipa, we'd all be incompetent in our careers and deserve to be fired. People make mistakes, we're human and that's why there is an appeal process.

OJ murder trial was a JURY trial--big difference (lay persons not necessarily fully informed in the law except for what is presented & allowed at the trial). The judge determines what evidence will and will not be allowed, and makes certain that procedural law is adhered to. The jury comes back with the verdict.