Oscar Pistorius - Discussion Thread #66~ the appeal~

[Mr Fossil]

Posted on behalf of JJ

 

[JudgeJudi]

Posted on behalf of JJ

My hero. :tyou: :yourock:

 

[Trotterly]

Just like in Masipa's judgment, Roux keeps trying to say that he could not have intended to shoot the person behind the door because he thought Reeva was in the bedroom.

I think it would be easier to just leave Reeva's identity out of it.
Just stick to the intruder version which is apparently what we have to work with if you rule DD of Reeva out.

Even though I think it would be interesting to consider the application of DD to the intruder (if you can throw out his PPD claim as illegitimate under the circumstances), Nel has already discounted that as an option.

So we are left with DE of the intruder (forget Reeva-- he's just going to claim he thought she was in the bedroom)-- and you seem to go in circles back around to DD negated by his PPD claim and therefore DE is also ruled out. Not sure I get that logic.

You are correct that DE is not a second best alternative charge to DD, but in this instance of Error in Objecto, and his INTENT to shoot at the intruder and with his knowledge and foresight of what his weapon and those bullets were capable of, it's hard to argue that he did not understand the possibility of killing someone in the toilet cubicle by firing 4 rounds.

So forget Reeva, forget DD and you are just left with DE of the intruder. The only defense that might work here is when Oscar claimed he did not intend to fire... and that he did not intentionally pull the trigger (automatism defense) which negates his PPD claim of intentional self-defense. So here we go in circles.

It's just simple DE of the intruder based on the fact that he willfully approached the perceived threat, and without identifying the person behind the door, fired four rounds, knowing the consequences of his actions and proceeding regardless.

Wish I had more time to look back at your earlier posts and hash this out with you, but I have to get to work!!

Be back asap.

Neither Roux nor Masipa ever said that he could not have had intent (DE) because he thought Reeva was in the bedroom. That is an incorrect conclusion started by Prof Grant in his piece about justifying the verdict.

He had intent to shoot into the cubicle. That was accepted by Masipa, Roux and by Leach at the appeal. The important point is that he was found to be in fear for his life and acting in self defence and in this respect in the first instance he must have thought he was acting lawfully.

Therefore how could a non-person specific DE test be applied to unlawful intent for whoever was behind the door if it has already been found he acted lawfully (in his mind) towards an intruder? In those circumstances DE can only be tested against possible unlawful intent towards Reeva.

 

[Marfa Lights]

Neither Roux nor Masipa ever said that he could not have had intent (DE) because he thought Reeva was in the bedroom. That is an incorrect conclusion started by Prof Grant in his piece about justifying the verdict.

He had intent to shoot into the cubicle. That was accepted by Masipa, Roux and by Leach at the appeal. The important point is that he was found to be in fear for his life and acting in self defence and in this respect in the first instance he must have thought he was acting lawfully.

Therefore how could a non-person specific DE test be applied to unlawful intent for whoever was behind the door if it has already been found he acted lawfully (in his mind) towards an intruder? In those circumstances DE can only be tested against possible unlawful intent towards Reeva.

Aaah, I should be working! I think most people would conclude he shot into the cubicle with intent to kill, including Leach.

I will review Masipa's judgment later but I am pretty sure she stated something to the effect of how could he have intended to kill the person in the toilet when he thought Reeva was in the bedroom. You have to read her statements on both the first and second day.

Maybe re-read this article... I don't think it is 100% certain Masipa's judgment granted him the full protections of a PPD defense... Leach didn't seem certain either and nether does Pierre de Vos in this article. If they can't figure it out, I am not sure why I think I can.

http://constitutionallyspeaking.co....ntion-to-kill-someone-behind-the-toilet-door/

 

[Marfa Lights]

Neither Roux nor Masipa ever said that he could not have had intent (DE) because he thought Reeva was in the bedroom. That is an incorrect conclusion started by Prof Grant in his piece about justifying the verdict.

He had intent to shoot into the cubicle. That was accepted by Masipa, Roux and by Leach at the appeal. The important point is that he was found to be in fear for his life and acting in self defence and in this respect in the first instance he must have thought he was acting lawfully.

Therefore how could a non-person specific DE test be applied to unlawful intent for whoever was behind the door if it has already been found he acted lawfully (in his mind) towards an intruder? In those circumstances DE can only be tested against possible unlawful intent towards Reeva.

Okay, this is my last post this morning.

From Masipa's judgment:

His erroneous belief that his life or property was in danger may well (depending on the precise circumstances) exclude dolus in which case the liability for the persons death based on intention will also be excluded.... The court is however entitled to look at the evidence as a whole and the circumstances of the case to determine the presence or absence of intention at the time of the incident.
(p. 3326 of Masipa's judgment)

I now deal with dolus eventualis or legal intent. The question is:
1. Did the accused subjectively foresee that it could be the deceased behind the toilet door and
2. Notwithstanding the foresight did he then fire the shots, thereby reconciling himself to the possibility that it could be the deceased in the toilet.
The evidence before this court does not support the state’s contention that this could be a case of dolus eventualis. On the contrary the evidence shows that from the onset the accused believed that, at the time he fired shots into the toilet door, the deceased was in the bedroom while the intruders were in the toilet. (p. 3327 of Masipa's judgment.)

Trotterly-- I need to read more of the judgment again, but it still appears to me that she failed to apply the test of DE to the intruder.

 

[Interested Bystander]

Just adding to this.

Stipps both report 3 shots - and then they spend several mins trying to work out where it is coming from.then screams that go on for several mins

Even if this is at 3:12 ( a full 10 mins change in Stipp's evidence - i.e. wild speculation), Dr Stipp has to talking to security by 3:15:51 - so now this is all happening in 3-4 mins at most AND we have to believe that Dr Stipp speaks to security BEFORE he hears more shooting. But if that happened, when security arrived, wouldn't he tell them there had been further shooting?

At the same time as this absurdity - Mr and Mrs N who are right next door don't hear the further bangs or any screams at all, yet do hear Oscar, and yet Johnson much further away hears them and calls security???!!??

Meanwhile mr and mrs N don't report 5 mins of screaming - it really needs to be more like a couple at most to work for them as Mr N needs to be on the phone by 3:16:13

But actually Mr N doesn't hear any screaming? Rather crying?



So where did the cricket bats go? At this time the Stipps & Johnson are hearing screaming ended by bangs according to Roux?

oh dear



Of course the most natural conclusion is that Mike N is simply a witness to what happened after the second bangs - collaborated by his wife.

No screams heard! No 2nd shots heard!

BIB

Dr Stipp heard three shots followed immediately by 3 to 4 screams. He did not hear any more screams because he was on the phone. However, when he put his phone down he went back onto the balcony and heard the second sounds which his wife "clocked" at 03.17 (this could have been nearer 03.18 as no seconds were observed or at least included in her testimony but we will never know - making the real time O3.13-03.14 + extra seconds??).

I think he did tell Security of the extra shots when they turned up at hishouse but they were included in a general statement. He said that there were "shots and screams from OP's house and theymust go and investigate". I take that to mean he was describing both sets ofsounds and the screaming he heard after the first sounds. His wife seems to have heard a lot more screaming whilst he was on the phone.

I agree the timing is a nightmare. I tend to exclude what the neighbours either side heard as it seems fairly obvious they woke up after the last shot or just before the last shot in one case. The phone log registers N's call at 03.16.13. I don't think they would have waited around to ring security. The biggest problem is Johnson's timing but nobody seems to have checked his provider telephone log (or that of Stipp's for that matter). I find that strange. The clocks in our house all say different times within 1-4 minutes at any given time. Surely his provider log would have recorded his calls to the wrong security number and indicated that the shooting had to be before this. The time on his phone may be irrelevant as on many phones the time is not automatically updated but this too could have been checked against a time signal. I suppose with so much going on a lot of this wasn't followed up.

The most telling of all is the fact that if the first shots were at 3am or before, he did not call Stander, an ambulance, or Security until after 03.19. It makes much more sense that the shots were later because of the arterial spurts. I don't believe the time OP calculated he spent holding RS and all the toing and froing to try to attempt to create an alibi. I also think the first sounds were him bashing the door or bath panel with the cricket bat to frighten RS. At times I have thought he could easily have shot through the balcony window before chasing her to the bathroom (that would explain the screaming coming nearer). There was plenty of open land across the road, to the right of his balcony, in which to fire but I think maybe the neighbours would have woken earlier if that were the case and he would have to hide the spent cartridges. The fact that one of the bullet holes was split could easily have happened when he was prizing the door open and creating pressure across the door which had been greatly weakened by a severe battering during the first sounds.

 

[mrjitty]

Neither Roux nor Masipa ever said that he could not have had intent (DE) because he thought Reeva was in the bedroom. That is an incorrect conclusion started by Prof Grant in his piece about justifying the verdict.

I already found the quote for you before when you asked for it. Then you ignore that she did in fact say it. Then you say this again? Even after Justice Leach made the exact same objection as Prof Grant in Court?

He had intent to shoot into the cubicle. That was accepted by Masipa, Roux and by Leach at the appeal.

Incorrect.

The important point is that he was found to be in fear for his life and acting in self defence and in this respect in the first instance he must have thought he was acting lawfully. Therefore how could a non-person specific DE test be applied to unlawful intent for whoever was behind the door if it has already been found he acted lawfully (in his mind) towards an intruder? In those circumstances DE can only be tested against possible unlawful intent towards Reeva.

Pre Justice Leach - not held at all.

So how do you so boldly claim it?

 

[mrjitty]

Aaah, I should be working! I think most people would conclude he shot into the cubicle with intent to kill, including Leach.

I will review Masipa's judgment later but I am pretty sure she stated something to the effect of how could he have intended to kill the person in the toilet when he thought Reeva was in the bedroom. You have to read her statements on both the first and second day.

Maybe re-read this article... I don't think it is 100% certain Masipa's judgment granted him the full protections of a PPD defense... Leach didn't seem certain either and nether does Pierre de Vos in this article. If they can't figure it out, I am not sure why I think I can.

http://constitutionallyspeaking.co....ntion-to-kill-someone-behind-the-toilet-door/

Leach said he didn't think the case came within PPD.

 

[Trotterly]

Okay, this is my last post this morning.

From Masipa's judgment:





Porky-- I need to read more of the judgment again, but it still appears to me that she failed to apply the test of DE to the intruder.

Why would she have to apply the DE test to the intruder if she had already found he directly intended to harm the intruder? It's redundant.

If you like you can look at it in terms of OP being guilty of DE intruder except for the lawfulness element, which was eased by the finding he was shooting in fear of losing his life.

 

[lithgow1]

Here's a newspaper story to rouse the ire of those who think OP is treated unfairly by the press. Oh wait, it was his aunt who released the photo via twitter.

http://www.dailymail.co.uk/news/art...led-murdering-girlfriend-Reeva-Steenkamp.html

 

[mrjitty]

BIB

Dr Stipp heard three shots followed immediately by 3 to 4 screams. He did not hear any more screams because he was on the phone. However, when he put his phone down he went back onto the balcony and heard the second sounds which his wife "clocked" at 03.17 (this could have been nearer 03.18 as no seconds were observed or at least included in her testimony but we will never know - making the real time O3.13-03.14 + extra seconds??).

I think he did tell Security of the extra shots when they turned up at hishouse but they were included in a general statement. He said that there were "shots and screams from OP's house and theymust go and investigate". I take that to mean he was describing both sets ofsounds and the screaming he heard after the first sounds. His wife seems to have heard a lot more screaming whilst he was on the phone.

I agree the timing is a nightmare. I tend to exclude what the neighbours either side heard as it seems fairly obvious they woke up after the last shot or just before the last shot in one case. The phone log registers N's call at 03.16.13. I don't think they would have waited around to ring security. The biggest problem is Johnson's timing but nobody seems to have checked his provider telephone log (or that of Stipp's for that matter). I find that strange. The clocks in our house all say different times within 1-4 minutes at any given time. Surely his provider log would have recorded his calls to the wrong security number and indicated that the shooting had to be before this. The time on his phone may be irrelevant as on many phones the time is not automatically updated but this too could have been checked against a time signal. I suppose with so much going on a lot of this wasn't followed up.

The most telling of all is the fact that if the first shots were at 3am or before, he did not call Stander, an ambulance, or Security until after 03.19. It makes much more sense that the shots were later because of the arterial spurts. I don't believe the time OP calculated he spent holding RS and all the toing and froing to try to attempt to create an alibi. I also think the first sounds were him bashing the door or bath panel with the cricket bat to frighten RS. At times I have thought he could easily have shot through the balcony window before chasing her to the bathroom (that would explain the screaming coming nearer). There was plenty of open land across the road, to the right of his balcony, in which to fire but I think maybe the neighbours would have woken earlier if that were the case and he would have to hide the spent cartridges. The fact that one of the bullet holes was split could easily have happened when he was prizing the door open and creating pressure across the door which had been greatly weakened by a severe battering during the first sounds.

Mr N does in fact spend a bit of time checking the house.

I reread his summary on Lisa's site.

Neither Mr or Mrs N hear any screaming after they wake up. Nor do they hear any further shots. Mr N calls at 03.16.13.

IMO this proves beyond any doubt that it was the second bangs they heard and that there is no screaming or bangs after 3.13/3.14

Therefore Stipp called security after the 2nd shots - just like he said.

Roux's timeline is simply impossible

The Ns are such critical witnesses because they are defence witnesses yet corroborate Stipp perfectly

 

[mrjitty]

Why would she have to apply the DE test to the intruder if she had already found he directly intended to harm the intruder? It's redundant.

If you like you can look at it in terms of OP being guilty of DE intruder except for the lawfulness element, which was eased by the finding he was shooting in fear of losing his life.

Except none of this is what the judgement says - which is precisely why we have an appeal on points of law.

You can't just ignore Justice Leach's questioning.

You have to explain how he got it wrong.

 

[Marfa Lights]

Why would she have to apply the DE test to the intruder if she had already found he directly intended to harm the intruder? It's redundant.

If you like you can look at it in terms of OP being guilty of DE intruder except for the lawfulness element, which was eased by the finding he was shooting in fear of losing his life.

I don't know... maybe because it's the law and her judgment should address it?

If you like, you can look at it in terms of OP being guilty of DE intruder because his claim of putative private defense was negated or undermined because his actions failed to meet the standards for a lawful private defense.

I believe the SCA will find that his perceptions of an imminent threat were not justifiable under the circumstances, and he failed to take advantage of other options open to him and chose instead to respond with totally disproportionate response. (You can't shoot someone for slapping you nor can you shoot someone for just being in your house or stealing your possessions-- they have to represent a direct threat of impending or actual bodily harm.)

It's not just being negligent and causing an accident-- he decided to kill whoever was behind the door and did so effectively.

 

[Marfa Lights]

Oh, Trotterly... I forgot to add this part of Masipa's judgment from the very next page -- I believe this was on Day 2 of the Judgment proceedings after she clarified things with the addition of phrases such as "or anyone else for that matter" and "let alone the deceased":

Re: Dolus eventualis

The question is: Did the accused foresee the possibility of the resultant death, yet persisted in his deed reckless whether death ensued or not? In the circumstances of this case the answer has to be no.
How could the accused reasonably have foreseen that the shots he fired would kill the deceased? 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. (from p. 3328 of Masipa's judgment)

Make sense yet?

 

[mrjitty]

Oh, Trotterly... I forgot to add this part of Masipa's judgment from the very next page -- I believe this was on Day 2 of the Judgment proceedings after she clarified things with the addition of phrases such as "or anyone else for that matter" and "let alone the deceased":

Re: Dolus eventualis



Make sense yet?

Do you have a link to Masipa's published judgement handy by the way?

It was just a week or 2 ago Trotterly claimed that Masipa never said this and Grant had it all wrong.

You and I both posted this quote

Now here we are again.

 

[mrjitty]

I don't know... maybe because it's the law and her judgment should address it?

If you like, you can look at it in terms of OP being guilty of DE intruder because his claim of putative private defense was negated or undermined because his actions failed to meet the standards for a lawful private defense.

I believe the SCA will find that his perceptions of an imminent threat were not justifiable under the circumstances, and he failed to take advantage of other options open to him and chose instead to respond with totally disproportionate response. (You can't shoot someone for slapping you nor can you shoot someone for just being in your house or stealing your possessions-- they have to represent a direct threat of impending or actual bodily harm.)

It's not just being negligent and causing an accident-- he decided to kill whoever was behind the door and did so effectively.

This is the key question IMO

Self defence has tests both as to the imminent attack, and also as to the reasonableness of the defence.

In the case of PPD, the belief also has to cover both aspects.

You must perceive an attack so imminent and deadly, that you believed you could lawfully use lethal force.

It's not enough to believe in an intruder, and be scared that your life is in danger.

For example, i might here some people outside my bedroom window and believe my life is in danger - but i can't just start shooting! I should call the police!

He needed to believe that there was an imminent attack such that shooting 4 times would be justified.

its difficult to see how he could have thought his actions were justified.

 

[Marfa Lights]

Do you have a link to Masipa's published judgement handy by the way?

It was just a week or 2 ago Trotterly claimed that Masipa never said this and Grant had it all wrong.

You and I both posted this quote

Now here we are again.

I usually get it off of Juror 13's site:

https://juror13lw.files.wordpress.com/2014/09/pistorius-trial-judgement.pdf

 

[mrjitty]

I think most of the problems in discussing the law in this case relate to Masipa's very poor judgement.

There should not have been any legal questions arising. It should have been decided only on the facts.

She had one job. To write the judgement up properly.

But once questions of law do arise - then you are getting into a highly technical area.

Some points of note.

Normally the judge would make all the factual findings first, then make related inferences, and only then apply the law.

So for example

1. The accused believed there was an intruder in the toilet HELD per Masipa
2. The accused was in fear for his life HELD per Masipa

The important thing to note is that finding 1 rules out the intentional murder of Reeva. But it is Reeva who is actually murdered.

It doesn't make sense to inquire about DE in respect of identity = Reeva - the Judge already ruled that fact pattern out.

Roux was really swinging and hoping on that one

 

[foxbluff]

If so, is that doc avail to us? tia

 

[sleuth-d-]

Mr N does in fact spend a bit of time checking the house.

I reread his summary on Lisa's site.

Neither Mr or Mrs N hear any screaming after they wake up. Nor do they hear any further shots. Mr N calls at 03.16.13.

IMO this proves beyond any doubt that it was the second bangs they heard and that there is no screaming or bangs after 3.13/3.14

Therefore Stipp called security after the 2nd shots - just like he said.

Roux's timeline is simply impossible

The Ns are such critical witnesses because they are defence witnesses yet corroborate Stipp perfectly

aaah, the defence timeline.
some things that dr stipp said were used. but the order changed.

masipa kept them in her timeline, in so doing demonstrating that she didn't check the defence timeline against the evidence given.
e.g.
stipp had begun his call to security after hearing the second noises. [3:16]
stipp had already called security before seeing op in the bathroom.
stipp heard help, help, help after hearing both sets of noises.


looking at the masipa timeline... where did op make his calls from? and how did he fit it all in...

3:17 'second sounds were heard'
3:19:03 op calls stander

two minutes to:
break away door panels
lean over door
retrieve key
unlock door
sit over reeva and cry (for some time)
pull reeva out of the toilet area
pull bathroom carpet under reeva’s head
try her phone but it was passcode-locked
run to the bedroom to fetch 2 phones (why 2?)
run back to reeva
dial stander

doesn’t appear to be much, if any, time to sit with reeva?