Oscar Pistorius - Discussion Thread #65~ the appeal~

[Sherbert]

And finally a very interesting comment on thAt blog about the difference between the mistake of identity and the mistake re attack. Masipa just seemed to skip Analyzing the attack part.

3. Therefore, even when the accused is mistaken about some of the aspects of the ‘attack/attacker’, his defence stays one of justification.
Yes. If lawful force (albeit lethal force) is used to kill Bob (whom I think is Bob) but it transpires that in fact the deceased is Bill, the identity the deceased (Bob or Bill) is irrelevant as my belief was honest and is not affected by a mistake as to identity.
If the attack itself was a mistake (as happened with OP) that is a separate mistake than the “identity mistake”. The question is did the defendant have an honest belief that they were under imminent peril etc. and lethal force was needed? To answer that, an objective test has to be applied otherwise the defendant would always say they believed they had grounds and could never be found guilty of murder or manslaughter (culpable homicide).

I think the honest belief is a subjective test - it all boils down to the accused's credibility. I don't think it's a case of the Judge simply asking herself whether, in the perpetrator's shoes, a reasonable person would also have mistakenly thought there was an intruder and been scared for his life. Obviously, though, an objective test is helpful in assessing credibility.

 

[janicelongbright]

BIB - I don't remember her addressing this at all. When OP was telling Nel how he was always hearing of people breaking in and spraying the homeowners with Mace (which made him even more concerned with 'protecting' Reeva) I wondered how on earth someone so apparently paranoid about break ins could ever have felt safe enough to sleep with his balcony doors open.

As you said, he hadn't fixed the damaged windows, and he wasn't sure about the ladder or if the alarm sensors were in place. All this shows is someone who felt very safe and secure in his environment. When he was referring to home invasions being rife, they didn't apply to Silverwoods, hence why he was happy to leave doors open and windows unfixed. No wonder he had to invent an invisible shooter on the highway to try and give his paranoia some justification!

I only listened as far as the not guily of D.E. bit . But apart from conceding the' poor witness' , at which I was kind of willing her on , thinking finally she is getting to the prosecution case , It was as if she'd said ' his hair was a mess ' , because it was just the begining of a long long long sob story, from when he was a baby ..............

 

[Sherbert]

I forgot how much tailoring there was. The 'noise' that was unidentified in his affidavit was hugely elaborated on in his testimony.

The noise was loud, M'Lady. It was the window opening and sliding and then hitting the window frame. It was clear.

Now why wouldn't you mention in your sworn statement that you actually heard a window opening so you knew someone must be breaking in? After all, it was the 'noise' that started the whole sequence of events, yet he was extremely vague about what the noise was until he was giving testimony, when suddenly he knew the exact details??

Yes, and he doesn't say, I panicked and automatically fired, without thinking and without intending to. He just says, 'I fired'.

I guess that, at that stage, he may not have taken on board that four shots is too many for PPD.

 

[Sherbert]

Is that not true in a Prima facie case like this-- where the accused admits unlawfully killing the victim and therefore has to justify his actions??

OP needed to provide some evidence to support his claim that he shot because he thought he was about to be attacked by an intruder, but he wasn't required to prove this beyond reasonable doubt.

On the other hand, the burden was on the prosecution to prove beyond reasonable doubt that his story was fabrication.

 

[Interested Bystander]

After an appeal in the SCA, judgement is normally handed down the same day and usually published within 2 weeks. What did anyone make of Mpati changing his mind and reserving judgement? It is not very often this happens. Can anything at all be read into this and, if so, what?

On the face of it Roux was on the ropes and a couple of the judges seemed to be favouring Nel. It almost looked as though they had made a decision prior to the Appeal being heard. They had spent many days, if not weeks, looking at the trial evidence, no doubt discussing it and maybe coming to a conclusion. So what happened to change Mpati's mind about handing down the judgement?

 

[soozieqtips]

OP needed to provide some evidence to support his claim that he shot because he thought he was about to be attacked by an intruder, but he wasn't required to prove this beyond reasonable doubt.

On the other hand, the burden was on the prosecution to prove beyond reasonable doubt that his story was fabrication.

BIB - I think OP did that very well on his own :smile:

 

[JudgeJudi]

RSBM

Could it go back to Masipa - apparently possible. Lets say it does. So she has sentence guidelines for DE murder, guideline is minimum 15 years unless there is a compelling argument against it.

At sentencing Pros will argue for a strong sentence, Defence will provide mitigating arguments. ( will those be much different to what they already stated when Masipa originally gave the 5 years.?) They could have more substantial arguments, he could now be really psychologically damaged (!) and has come out and risk of returning, his psych might say, is enough to break a broken man ( Err?) IDK what they will use, could it be "substantial" grounds to go under 15 years? ( I would need to research what that might be)

Anyway, if they produce something substantial they could get it below the 15 yrs minimum.

Whatever the next judge/Masipa gives is not added to what he already has. He has 5 years already. So if she gave him 10, 10 +5 does not equal 15. It would be 5 +(5 already serving). But let's say she DID give 10 for DE, he wouldn't spend all the extra 5 in jail and he would still be entitled to house arrest. I can't remember if the 1/6th rule still applies to murder, I vaguely recollect a higher proportion . ( She sentence him on CH under a special section of law that allows 1/6th before)

My understanding is that if the verdict is changed to one of murder, the original sentence will be reversed. It will perhaps be referred back to the High Court for a new sentencing hearing where aggravation and mitigation will be argued.

The judge has some degree of latitude even when dealing with a minimum sentence of 15 years for DE. Regardless of how many years he is sentenced to, the one year he has already served will come off that sentence.

If the High Court then sentenced him to what the State considers to be a "shockingly inappropriate" sentence, this can be reversed on appeal.

"The Criminal Procedure Act provides that a court, after it convicts a person for a crime for which a prescribed minimum sentence is applicable, may suspend up to five years of the prescribed sentence on the basis of various conditions, including compensation, community service, submission to correctional supervision, good behaviour, or any other condition that it deems fit.[64]"

 

[JudgeJudi]

To protect himself, in other words he intended to fire to neutralize what he perceived as a threat.

What he perceived doesn't come into it at all. The threat has to be imminent or commenced. Even if he saw an intruder in his house, unless that intruder was armed with a gun or knife and was advancing towards him, he was not entitled to shoot. In his firearms competency test which is governed by the Firearms Control Act one of the questions regarding the use of lethal force was:

"There is no security gate between you and the burglars. They are armed and they advance towards you. Can you discharge your firearm because you fear for your life?" Pistorius answered yes.

End of story and OP's and your perceptions.

 

[Interested Bystander]

What he perceived doesn't come into it at all. The threat has to be imminent or commenced. Even if he saw an intruder in his house, unless that intruder was armed with a gun or knife and was advancing towards him, he was not entitled to shoot. In his firearms competency test which is governed by the Firearms Control Act one of the questions regarding the use of lethal force was:

"There is no security gate between you and the burglars. They are armed and they advance towards you. Can you discharge your firearm because you fear for your life?" Pistorius answered yes.

End of story and OP's and your perceptions.

Like you that is what I thought but I am sure I have read recently that OP only needs to "honestly think" he is going to be attacked. If that were really to be the case OP could be home and dry. I shall be horrified if that proves to be true because, to me, it seems fairly evident he has been coached by the DT that it is his "best shot" ( oh dear, no pun intended). What an unholy mess this case is! It is good, at least, that the Hippo has been exterminated, if nothing else!

I have everything crossed that he will be found guilty but it is making it very difficult for me to walk and see where I am going, let alone hold a knife and fork .

 

[mhiforme]

After an appeal in the SCA, judgement is normally handed down the same day and usually published within 2 weeks. What did anyone make of Mpati changing his mind and reserving judgement? It is not very often this happens. Can anything at all be read into this and, if so, what?

On the face of it Roux was on the ropes and a couple of the judges seemed to be favouring Nel. It almost looked as though they had made a decision prior to the Appeal being heard. They had spent many days, if not weeks, looking at the trial evidence, no doubt discussing it and maybe coming to a conclusion. So what happened to change Mpati's mind about handing down the judgement?

BIB, I guess it is all speculation, but could it mean that maybe the judges are split, some think it is murder and some think CH. Perhaps they need more time to review the case and see if they can bring in a unanimous verdict, one way or the other.

The only other thing is maybe they are working more than one case and need time to address the other matters before they address the OP case. I believe there were a few times where Masipa had to look at her calendar and inform Nel and Roux about other cases when they were scheduling activities.

What I didn't know what that the SCA usually renders the verdict on the same day, percentage wise, do you know how often that occurs?

 

[Mr Fossil]

That was my understanding - that the GPRS connection is essentially the allocation of the phone to the tower, rather than continuous comms.

And for example what would end the connection, is turning off your phone, or going into airplane mode - because that causes your phone to say goodbye to the tower.

IMO the dark patches are actually the bigger tell.

How could the phone be off network for so long unless the antenna was off?

Which, of course, it wasn't because Reeva's phone is connected throughout the period and is physically in the same location as Oscar's.

I agree that the 'darker patches' are the bigger tell. They are explainable when he is travelling because at that time, in a car, he is occasionally losing signal - either because of the terrain, congestion or tower density. We even get a 'CF' code (call failed). I'd imagine he'd be familiar with how poor the signal can get on that route and would avoid making calls in known bad patches. This is certainly something I am familiar with in a couple of areas when driving. However, when he is at home and the phone is in the same vicinity as Reeva's, which has no problem getting a continuous connection, his has the 'dark patches'. And they are at meaningful times. Note that the phone has a continuous connection from the moment it disappears e.g. the person who now has the phone doesn't disconnect the signal.

 

[Mr Fossil]

I forgot how much tailoring there was. The 'noise' that was unidentified in his affidavit was hugely elaborated on in his testimony.

The noise was loud, M'Lady. It was the window opening and sliding and then hitting the window frame. It was clear.

Now why wouldn't you mention in your sworn statement that you actually heard a window opening so you knew someone must be breaking in? After all, it was the 'noise' that started the whole sequence of events, yet he was extremely vague about what the noise was until he was giving testimony, when suddenly he knew the exact details??

We'll be covering the development of this testimony in 'the bathroom window'. As Nel would say, 'it cannot be' as the evidence doesn't appear to support it.

 

[Mr Fossil]

Could the phone activity not have been Reeva?

Yes, it could have been Reeva between 22:30 and 01:53. No one can say who was using the phone because it was wiped so any traces of what it was being used for were wiped (e.g. if it was a WhatsApp from X at a given time that would strongly support the assertion that it was X using the phone). However, the person using the phone appears to know the technique for switching the phone signal off and on, a trait we see throughout the periods pre-22:30 and post-01:53 when we know it was Oscar using the phone.

 

[JudgeJudi]

Like you that is what I thought but I am sure I have read recently that OP only needs to "honestly think" he is going to be attacked. If that were really to be the case OP could be home and dry. I shall be horrified if that proves to be true because, to me, it seems fairly evident he has been coached by the DT that it is his "best shot" ( oh dear, no pun intended). What an unholy mess this case is! It is good, at least, that the Hippo has been exterminated, if nothing else!

I have everything crossed that he will be found guilty but it is making it very difficult for me to walk and see where I am going, let alone hold a knife and fork .

You would have read the other questions in the firearms competency test, one of which was if he saw a person in his house stealing furniture etc, would he be entitled to shoot. OP answered correctly "No". I believe you're putting too much reliance on the word "think". You would think someone was going to attack you if they were running towards you with a weapon. You can't think someone is going to attack you unless the attack has commenced or is imminent, and if someone shouts "I'm going to kill you" or whatever, has a knife in his hand and is running towards you, then you would correctly think you were about to be attacked and have a complete defence if you then shot and killed that person, i.e. PPD.

 

[cottonweaver]

I forgot how much tailoring there was. The 'noise' that was unidentified in his affidavit was hugely elaborated on in his testimony.

The noise was loud, M'Lady. It was the window opening and sliding and then hitting the window frame. It was clear.

Now why wouldn't you mention in your sworn statement that you actually heard a window opening so you knew someone must be breaking in? After all, it was the 'noise' that started the whole sequence of events, yet he was extremely vague about what the noise was until he was giving testimony, when suddenly he knew the exact details??

Window frame. When that moronic "party at Oscar's every weekend" video was released, by the new tenants, I tried to ascertain the type of bathroom window, heard the noise when the guy opened it and then went back to check the photos.
For the life of me I couldn't see how the window could "hit the frame". I could only see that the sliding window would reach the end of it's sliding runner, rather than contact any other part of the structure.

 

[Mr Fossil]

Window frame. When that moronic "party at Oscar's every weekend" video was released, by the new tenants, I tried to ascertain the type of bathroom window, heard the noise when the guy opened it and then went back to check the photos.
For the life of me I couldn't see how the window could "hit the frame". I could only see that the sliding window would reach the end of it's sliding runner, rather than contact any other part of the structure.

Absolutely and crime scene photographs show that it didn't hit the frame. You need to look at the ER animation too. Actually, listen to it and the commentary (which is clearly recorded later than the animation). Listen out for the 'screech'. You won't hear it.

 

[lithgow1]

I forgot how much tailoring there was. The 'noise' that was unidentified in his affidavit was hugely elaborated on in his testimony.

The noise was loud, M'Lady. It was the window opening and sliding and then hitting the window frame. It was clear.

Now why wouldn't you mention in your sworn statement that you actually heard a window opening so you knew someone must be breaking in? After all, it was the 'noise' that started the whole sequence of events, yet he was extremely vague about what the noise was until he was giving testimony, when suddenly he knew the exact details??

Obviously they were a beginner in the art of stealthy home intrusions as well. Dead of night, all is quiet in the guarded estate and then 'Whallop!', open the window with a loud bang. No wonder their next act was to scurry into the toilet and lock the door. Had it really been an intruder they probably would have sat there, head in hands, thinking 'I am really really bad at this'.

PS They were half OK though - they had managed to drag a ladder into place, position it up against a wall and climb it without making a sound. Perhaps that gave them a sense of over confidence.

 

[cottonweaver]

Absolutely and crime scene photographs show that it didn't hit the frame. You need to look at the ER animation too. Actually, listen to it and the commentary (which is clearly recorded later than the animation). Listen out for the 'screech'. You won't hear it.

Yes Fossil, that was my next call - the Evidence Room excerpts, to observe that window.

At the end of looking this window fallacy I just assumed, ah well Oscar would reply, he was paraphrasing, it was a language issue, he didn't quite mean the frame as such, noise is relative etc

Fortunately you two have more persistence to pursue in depth, regardless.

Should the SCA upgrade to DE this month, I still think what you are doing is most valid and can think of score of reasons as to why you should complete the project, but I won't blabber on about those now.

 

[Mr Fossil]

Yes Fossil, that was my next call - the Evidence Room excerpts, to observe that window.

At the end of looking this window fallacy I just assumed, ah well Oscar would reply, he was paraphrasing, it was a language issue, he didn't quite mean the frame as such, noise is relative etc

Fortunately you two have more persistence to pursue in depth, regardless.

Should the SCA upgrade to DE this month, I still think what you are doing is most valid and can think of score of reasons as to why you should complete the project, but I won't blabber on about those now.

Our objective is to see if we can get to the truth regardless of the court process.

 

[mrjitty]

I think the honest belief is a subjective test - it all boils down to the accused's credibility. I don't think it's a case of the Judge simply asking herself whether, in the perpetrator's shoes, a reasonable person would also have mistakenly thought there was an intruder and been scared for his life. Obviously, though, an objective test is helpful in assessing credibility.

If I might refer the learned Sherbert to the comments of Justice Leach ;-)

Yes the inquiry is a subjective one compared to normal self defence.

The Court must ask whether OP honestly and genuinely believed he was entitled to fire in the circumstances he found himself in.

However that must be bona fides.

It is not sufficient for the accused to simply testify to this point. Rather the Court must examine the facts that have been objectively established in order to infer what the accused must have known.

Hence per Justice Leach, the accused had no knowledge of who was in the toilet. He could see that the door had not opened. He had other options. It follows that the accused could not have believed that firing the 4 shots was reasonable, and necessary, and instead the accused must have known that the force was excessive.

I must say, this is particularly the case when the accused own firearms training had taught the accused this very point!