Oscar Pistorius - Discussion Thread #66~ the appeal~

[mrjitty]

BIB can you explain this for me if you have the time? I'm not sure I understand it.

Murder is the criminal offence.

The criminal offence requires a physical action (the taking of life by unlawful act) and intention.

Intention obviously includes deliberately killing someone. (i.e. DD)

But the law in most countries broadens intention to include cases where the intention was indirect but the death was a natural consequence that was foreseen

Exactly where the line is drawn varies country to country and in practice there tends to be a lot of overlap between murder and manslaughter.

In any event - it is no lesser murder to be convicted via DE rather than DD in respect of the intruder. Its the same fact set either way.

I actually prefer the law of England, where murder includes "intent to kill or cause grievous bodily harm (GBH)".

So in other words if you intentionally shoot someone - it will obviously fall under the intent for murder straight away.

SA law should in practice give the same result - but Masipa doesn't seem to understand the law of DE properly.

 

[mrjitty]

I have had a quick look at a few Appeals but they are generally against sentence by a lower court and if the SC think there is a case to answer there is a retrial but under a different judge.

I haven't yet seen anywhere a case where it is the State who is appealing for different verdict. I will have a look at a few more later this evening (UK time) to see if I can find anything that equates with the current Appeal.

It's not that unusual for an Appeal Court to reach a result by a different route, or to state that a different legal finding was also possible.

In this case they can only confirm the verdict of culpable homicide, or upgrade it to murder, or order a retrial.

They can't reach a different verdict that the ones under discussion.

 

[Interested Bystander]

It's not that unusual for an Appeal Court to reach a result by a different route, or to state that a different legal finding was also possible.

In this case they can only confirm the verdict of culpable homicide, or upgrade it to murder, or order a retrial.

They can't reach a different verdict that the ones under discussion.

Thank you Mr Jitty. I understand what you are saying. There appear to be no SCA cases during 2015 that bear any resemblance to the one we are currently discussing. However, I do recall Nel quoting a few cases in support of his theory or am I wrong? I need to listen again to the Appeal to see what it was he said.

 

[jilly]

It's not that unusual for an Appeal Court to reach a result by a different route, or to state that a different legal finding was also possible.

In this case they can only confirm the verdict of culpable homicide, or upgrade it to murder, or order a retrial.

They can't reach a different verdict that the ones under discussion.

I just don't believe they'll confirm culpable homicide. I'd be happy with the upgrade.

 

[Noisy Fan]

Don't make this complicated when it is not.

The guy most likely shot his girlfriend while trying to protect her from home invaders.

Remember it was his own home and it was 3 in the morning.

He had warned the intruder(s) to get out and heard nothing back.

He gave them time to leave before advancing, putting himself between Reeva and the threat.

He was unbalanced on his stumps. He was scared moving the gun from the window to the toilet door and back again.

Still there was no surrender or indication that the threat had diminished.

Most likely it was Reeva locking the door that he fired at.

She did not answer him because the whole thing was moving towards her and she didn't know he had mistaken her for the intruder. She probably thought they had come in from the balcony as Oscar was closing up the bedroom.

Do you really want to sacrifice this young man for trying to protect his girlfriend in his own home at 3 in the morning?

He made a mistake. Simple. People make mistakes. Read the news.

He fired 4 quick shots from a gun that held 17 shots at a noise that startled him.

He did not fire at a person. He fired at a noise. He did not fire at a person because he did not see a person. There was a door in the way. He fired at the noise. It was a reflex action to a sudden movement from a perceived threat.

I do not believe that young man Oscar knew just exactly why he fired. His inability to articulate why he fired exactly should not be held against him. He is not an expert in how humans react to stress. What is being labeled as multiple defenses is nothing more than his attempt to articulate what he (and many others) do not understand.

If you are serious about learning about adrenaline and stress with guns, research police shootings.

 

[Tortoise]

Murder is the criminal offence.

The criminal offence requires a physical action (the taking of life by unlawful act) and intention.

Intention obviously includes deliberately killing someone. (i.e. DD)

But the law in most countries broadens intention to include cases where the intention was indirect but the death was a natural consequence that was foreseen

Exactly where the line is drawn varies country to country and in practice there tends to be a lot of overlap between murder and manslaughter.

In any event - it is no lesser murder to be convicted via DE rather than DD in respect of the intruder. Its the same fact set either way.

I actually prefer the law of England, where murder includes "intent to kill or cause grievous bodily harm (GBH)".

So in other words if you intentionally shoot someone - it will obviously fall under the intent for murder straight away.

SA law should in practice give the same result - but Masipa doesn't seem to understand the law of DE properly.

Thank you. I think my difficulty in understanding your post is because there are different grades of murder - DD is a more serious offence and carries a harsher penalty. The intent can be differentiated in relation to the intruder, it is having direct intent to kill under DD, rather than foreseeing the person will probably be killed, DE.

But I can understand that if, as you say, they cannot deviate from what is sought by the State, an upgrade to DD is not on the cards.

 

[Jake18]

Don't make this complicated when it is not.

The guy most likely shot his girlfriend while trying to protect her from home invaders.

Remember it was his own home and it was 3 in the morning.

He had warned the intruder(s) to get out and heard nothing back.

He gave them time to leave before advancing, putting himself between Reeva and the threat.

He was unbalanced on his stumps. He was scared moving the gun from the window to the toilet door and back again.

Still there was no surrender or indication that the threat had diminished.

Most likely it was Reeva locking the door that he fired at.

She did not answer him because the whole thing was moving towards her and she didn't know he had mistaken her for the intruder. She probably thought they had come in from the balcony as Oscar was closing up the bedroom.

Do you really want to sacrifice this young man for trying to protect his girlfriend in his own home at 3 in the morning?

He made a mistake. Simple. People make mistakes. Read the news.

He fired 4 quick shots from a gun that held 17 shots at a noise that startled him.

He did not fire at a person. He fired at a noise. He did not fire at a person because he did not see a person. There was a door in the way. He fired at the noise. It was a reflex action to a sudden movement from a perceived threat.

I do not believe that young man Oscar knew just exactly why he fired. His inability to articulate why he fired exactly should not be held against him. He is not an expert in how humans react to stress. What is being labeled as multiple defenses is nothing more than his attempt to articulate what he (and many others) do not understand.

If you are serious about learning about adrenaline and stress with guns, research police shootings.

BIB This is oxymoronic.

 

[JudgeJudi]

RSBM

This is the first photo I've seen since OP was released from prison. (I recall someone posting a photo here soon after his release, but I was unable to access it.) He really looks rough... unkept... sideburns, scruffy beard, hairy chest... not at all the style we're accustomed to seeing, imo.

He's certainly lost a huge amount of weight, not to mention muscle.

I hope Lois has started stockpiling food. She may need a warehouse.

Here's a screen grab: http://www.theguardian.com/world/20...s-first-day-of-community-service-south-africa

 

[Marfa Lights]

Don't make this complicated when it is not.

The guy most likely shot his girlfriend while trying to protect her from home invaders.

Remember it was his own home and it was 3 in the morning.

He had warned the intruder(s) to get out and heard nothing back.

He gave them time to leave before advancing, putting himself between Reeva and the threat.

He was unbalanced on his stumps. He was scared moving the gun from the window to the toilet door and back again.

Still there was no surrender or indication that the threat had diminished.

Most likely it was Reeva locking the door that he fired at.

She did not answer him because the whole thing was moving towards her and she didn't know he had mistaken her for the intruder. She probably thought they had come in from the balcony as Oscar was closing up the bedroom.

Do you really want to sacrifice this young man for trying to protect his girlfriend in his own home at 3 in the morning?

He made a mistake. Simple. People make mistakes. Read the news.

He fired 4 quick shots from a gun that held 17 shots at a noise that startled him.

He did not fire at a person. He fired at a noise. He did not fire at a person because he did not see a person. There was a door in the way. He fired at the noise. It was a reflex action to a sudden movement from a perceived threat.

I do not believe that young man Oscar knew just exactly why he fired. His inability to articulate why he fired exactly should not be held against him. He is not an expert in how humans react to stress. What is being labeled as multiple defenses is nothing more than his attempt to articulate what he (and many others) do not understand.

If you are serious about learning about adrenaline and stress with guns, research police shootings.

Really? None of the circumstantial evidence gave you pause for thought? Dismissed all of it??
What do you think should be the consequences for making such a "mistake"?

 

[soozieqtips]

Don't make this complicated when it is not.

The guy most likely shot his girlfriend while trying to protect her from home invaders.

Remember it was his own home and it was 3 in the morning.

He had warned the intruder(s) to get out and heard nothing back.

He gave them time to leave before advancing, putting himself between Reeva and the threat.

He was unbalanced on his stumps. He was scared moving the gun from the window to the toilet door and back again.

Still there was no surrender or indication that the threat had diminished.

Most likely it was Reeva locking the door that he fired at.

She did not answer him because the whole thing was moving towards her and she didn't know he had mistaken her for the intruder. She probably thought they had come in from the balcony as Oscar was closing up the bedroom.

Do you really want to sacrifice this young man for trying to protect his girlfriend in his own home at 3 in the morning?

He made a mistake. Simple. People make mistakes. Read the news.

He fired 4 quick shots from a gun that held 17 shots at a noise that startled him.

He did not fire at a person. He fired at a noise. He did not fire at a person because he did not see a person. There was a door in the way. He fired at the noise. It was a reflex action to a sudden movement from a perceived threat.

I do not believe that young man Oscar knew just exactly why he fired. His inability to articulate why he fired exactly should not be held against him. He is not an expert in how humans react to stress. What is being labeled as multiple defenses is nothing more than his attempt to articulate what he (and many others) do not understand.

If you are serious about learning about adrenaline and stress with guns, research police shootings.

Your post clearly shows you bought everything OP said in court, despite the fact he was deemed a 'poor' and 'unreliable' witness who was happy to let others take the blame for his previous misdeeds (read the news...).

 

[Marfa Lights]

In response to Noisy Fan's post, itemizing the defense team's position of the events that night, I think it is time to resurrect the famous post by Donmack on Digital Spy that was reprinted here:

https://phil51089.wordpress.com/2014/04/26/interesting-pistorius-timeline-as-offered-by-donmack/

Offered by donmack

[modsnip]

And I have one more curiosity to add-- if he believed she was awake and still in bed, why would Oscar not expect Reeva to have ALSO heard the window slam open in the bath and why then would she not have asked him "what was that noise?" We are told she was awake, but NEITHER one of them checked with each other to confirm a noise in the middle of the night.

 

[JudgeJudi]

This was an interesting case before the SCA.

Supreme Court of Appeal
Director of Public Prosecutions v Mtshweni
Case No. 52/06

… If the error is one on which the acquittal of an accused turns then there is a grave irregularity in the proceedings and the court of appeal is bound to order a retrial on the same or amended charges. Question of law reserved answered in favour of the State, and institution of retrial ordered.

[32] It is clear, therefore, that there is no argument before this court that where a trial court has erred on a question of law, the institution of a new trial will infringe s 35(3)(m). The possibility of double jeopardy does not arise. And, as the State argues, there will be a serious miscarriage of justice should a proper trial not ensue. It is not only an accused whose interests must be protected by the criminal justice system. There must be fairness to the public, represented by the State, as well. There must be fairness to the victims of the crime and their families. In S v Jaipal17 the Constitutional Court said:

‘The right of an accused to a fair trial requires fairness to the accused as well as fairness to the public as represented by the State. It has to instil confidence in the criminal justice system with the public, including those close to the accused, as well as those distressed by the audacity and horror of crime.’

Paras. 28-34 are all well worth reading.

http://www.saflii.org/za/cases/ZASCA/2006/165.html

 

[Interested Bystander]

This was an interesting case before the SCA.

Supreme Court of Appeal
Director of Public Prosecutions v Mtshweni
Case No. 52/06

… If the error is one on which the acquittal of an accused turns then there is a grave irregularity in the proceedings and the court of appeal is bound to order a retrial on the same or amended charges. Question of law reserved answered in favour of the State, and institution of retrial ordered.

[32] It is clear, therefore, that there is no argument before this court that where a trial court has erred on a question of law, the institution of a new trial will infringe s 35(3)(m). The possibility of double jeopardy does not arise. And, as the State argues, there will be a serious miscarriage of justice should a proper trial not ensue. It is not only an accused whose interests must be protected by the criminal justice system. There must be fairness to the public, represented by the State, as well. There must be fairness to the victims of the crime and their families. In S v Jaipal17 the Constitutional Court said:

‘The right of an accused to a fair trial requires fairness to the accused as well as fairness to the public as represented by the State. It has to instil confidence in the criminal justice system with the public, including those close to the accused, as well as those distressed by the audacity and horror of crime.’

Paras. 28-34 are all well worth reading.

http://www.saflii.org/za/cases/ZASCA/2006/165.html

Good find.

 

[JudgeJudi]

In response to Noisy Fan's post, itemizing the defense team's position of the events that night, I think it is time to resurrect the famous post by Donmack on Digital Spy that was reprinted here:

https://phil51089.wordpress.com/2014/04/26/interesting-pistorius-timeline-as-offered-by-donmack/

Offered by donmack



And I have one more curiosity to add-- if he believed she was awake and still in bed, why would Oscar not expect Reeva to have ALSO heard the window slam open in the bath and why then would she not have asked him "what was that noise?" We are told she was awake, but NEITHER one of them checked with each other to confirm a noise in the middle of the night.

I still have that saved. It's too good to ever go into the trash can.

Another curiosity is that he told the court that after the shooting he returned to the bedroom and felt the bed and Reeva wasn't there. Huh??? All that screaming, get the **** out of my house, shouting, shooting and he thought she was still in bed. Right. Probably looking for her favourite cars on the iPad.

 

[aftermath]

Really? None of the circumstantial evidence gave you pause for thought? Dismissed all of it??
What do you think should be the consequences for making such a "mistake"?

A CH conviction and a 5 year sentence?

 

[Marfa Lights]

A CH conviction and a 5 year sentence?

Would not be inappropriate if he actually had to serve at least 3 years of a 5 year sentence.
10-12 months was a joke.

 

[Interested Bystander]

I still have that saved. It's too good to ever go into the trash can.

Another curiosity is that he told the court that after the shooting he returned to the bedroom and felt the bed and Reeva wasn't there. Huh??? All that screaming, get the **** out of my house, shouting, shooting and he thought she was still in bed. Right. Probably looking for her favourite cars on the iPad.

Very odd too that he failed to put the bedroom light on when he went to find her, having already shot the occupant of the toilet who was now no longer a threat. His obsession with crime programmes probably assisted him with his unbelievable story.

 

[saraomar]

Welcome Tortoise!!! It's always refreshing to have a new perspective. I wish I could share your optimism but alas.... I am not so sure! Hope I am wrong!
Nel could not go with DD as his hands were tied due to factual findings from Masipa
Nel was at pains to reiterate he was 'not going there' because he knew Roux was waiting to pounce and take the appeal in another direction I.e Fact Vs Law. I think Nel did a good job steering carefully clear therefore.
These judges were far superior intellectually to Masipa(I.e Du Toit), I just hope they live up to their consciences and the law!

From delivering judgements on the same day to almost 2 weeks now...... I worry about what they will deliver as judgement! What on earth is taking so long? Hope not a long winding explanation of why no reversal of judgement, which is what fear!

 

[soozieqtips]

This is also an excellent post (not unlike Donmack's one) from WS member TrueDetective last year. The post is too old to get the link location.


"No evidence is ever, ever, ever 100% reliable. That's why it's all about probabilities. Is it probable that Reeva screamed? According to Saayman, yes. According to Botha - yes, if she was frightened already and "primed" for danger. Sorry, but the fact is....she probably screamed. I can't imagine what tortured thought process gets someone to "It's not relevant, as we'll never know". Actually, yes I can.....and "open mindedness" is not it.

So, according to OP's "perfectly plausible account"......

A) The fans were not out on the balcony, so no need to go out there. They were half in the room. In order to get out of bed during the time he's bringing them in (with his back to the room) Reeva either had to shift her way across the bed and get out of his side, or get out of her own side and walk within inches of him to get past. He heard and saw nothing of any of this?

B) His initial reason for waking and getting the fans in at all was because he was hot. Rather odd that he would then immediately close the black out curtains making the room instantly hotter, isn't it?

C) It's pitch black - but he can see jeans on the floor via the LED light. So not pitch black then? Obviously provides enough light to 1) see jeans and 2) be bothersome when trying to sleep. Just not enough light to notice your 5ft7 girlfriend walking last you to go the toilet?

D) He hears the bathroom window opening - knows exactly what it is and doesn't need to stand there and listen for more sounds? No part of his mind thinks...."What was that?" A truly terrifying event is happening in the next room (intruder/s!) and he says not a solitary word to his girlfriend who is awake and feet away?

E) He puts his hand in the bed to feel his way round, failing to notice that there's no one in it. He wobbles past his legs - the one thing that would make him feel instantly less vulnerable, and which takes seconds to put on (there's a YT vid showing this, and he slips his stumps into the hollowed out leg - no straps or ties). He also walks straight past his means of escape - the door which he and Reeva could have been through and potentially safe within about 5 seconds.

F) He gets the gun and then whispers to Reeva to get down - doesn't notice her lack of response either verbally or physically. Doesn't find that fact that she doesn't instantly leap out of bed odd? He doesn't glance over to see that she's finding a safe place to hide?

G) He's too scared to put on the lights or speak above a whisper - seconds before deciding to scream at the intruders to get out?

H) It then dawns on him that screaming out his position is not wise as the "intruders" will know he's coming.....because the scream a moment before wouldn't have clued them in?

I) Reeva, on the other hand, is too scared in the toilet to utter a word in case the intruders know where she is, so promptly slams the door instead.

J) OP trembling makes his way slowly into the toilet to confront the intruders who know he is coming because he's conveniently told them.

Just a pause to ask....if this had been a real situation and there really were armed intruders in the bathroom, what would have happened to Oscar if he'd done all this? He'd have been shot dead instantly - they would have been waiting for him, and seen him before he could see them. This was a suicide mission, nothing less. No one in their right mind would have behaved like this - no one....least of all a frightened, disabled man on stumps who was desperately trying to save the life of the woman he loved. Did not happen, people. No way.

K) He spends quite some time standing at the bathroom door screaming. No peep from Reeva - who lest we forget, has the advantage over OP because she KNOWS there's no intruder in the bathroom, she was in it moments before. So his "screaming" managed to convince her that a bad man had materialised out of nowhere - at no point did this law graduate put 2 and 2 together and realise the mistake?

L) Another sound has OP putting FOUR bullets through the door. FOUR. "I don't even know why I shot" explains one, it does not explain four. And all the evidence suggests he shot once, moved his position and then shot another three times. This was not a moment of panic, it was four moments of panic. His actions were deliberate, and I struggle to see how anyone could believe otherwise.

M) After the rigmarole of finding out is was probably Reeva in the loo, he spent 15 minutes screaming, shouting and crying about it. 15 minutes. He doesn't call anyone, press the panic alarm, try to get into the toilet....he just screams and shouts to "The Lord" to help him.

N) Finally realising that he needs to help his probably badly hurt girlfriend, he smashes the door and prises out the panels. He sees the key on the floor and tells us that he reaches for it because he desperately needs to get the door open to see if it's Reeva. Did he forget to look through the now panel free door to see that?

M) She's not breathing he says. Odd because in his previous affidavit he specifically says she was slumped over the toilet but alive. Alive people aren't generally breathing - so which is it? Given that he's so distraught to find her not breathing that he cries over her for some time, it seems remarkably peculiar that this translated into "slumped over but alive" in affidavit signed days after the event.

O) He's so distraught over her not breathing that he calls a neighbour who has no medical expertise at all.

P) Reeva is a biological miracle, however, because not only does her stomach have the remarkable ability to hold on to food eaten 8 hours earlier, her heart is able to continue beating for 20 minutes after she stops breathing. We know this because of the arterial blood spatter found in the little sitting room downstairs. For the hard of thinking......arterial spatter needs a beating heart, even a weakly beating one. A stilled heart cannot pump blood out of an artery.

On what planet is all of this this remotely plausible? The same planet where episodes of scaring your girlfriend, demeaning her so she "doesn't feel like a lady", calling her a stripper and a ho (oh yes he did - that's the only sensible explanation for that text), having tantrums in front of people and getting angry because she mentions an ex in passing is all "part of a perfectly normal relationship"?

Based entirely and only on the evidence, this man is very, very probably guilty. And I can only assume that those who are desperate to convince themselves that he's not are so desperate to be "right" that they are willing to abandon all common sense.

The wailing today was wonderful. We now have several million people across the globe who can testify that they have heard OP wailing and he sounds like a man. As if anyone with a brain ever doubted it."

 

[JudgeJudi]

What a wonderful fairytale to read before I go to bed. :floorlaugh: