Oscar Pistorius - Discussion Thread #66~ the appeal~

[AW2B]

It seems to me that most here currently hold the Appeal Court Judges in high regard.-----If, against your wishes, they uphold Judge Masipa's CH Verdict (which imho they will), do you believe you'll continue to hold them in high regard?

BBM

Why do you think they will uphold her verdict?

If they do, IMO, they'll be setting a very dangerous precedent!

 

[AW2B]

Ty....I so hope you're right about Judgments being handed down in December.---------The first week of December works for me. lol.......If they postpone Judgment to next term, I'll "pull my hair out by the roots".--------Oh, also, I'm encouraged to see that as many as NINE Judgments can be rendered in one day!

BBM

LOL..I'm already doing that ..ullhair:

 

[Sherbert]

The general answer (as I don't know the exact situation in RSA)

They will need to find a real risk that Masipa misdirected herself on one or more key points

Then they will need to find that a Court properly directed, might well have reached a different decision

Something like that would be enough to send it back.

Or they could just apply the law correctly and announce the new result.

So for example - if they find Masipa misdirected herself in applying DE, or there was a real risk she did - they can either send it back to the High Cour, or apply the law of DE themselves.

If they believe the error does not change the result, then even if they find errors they won't disturb the verdict.

I suppose that one of the most straightforward methods of getting to DE is for the SCA to accept Masipa's finding of fact that OP intended to shoot, but hold that she erred in law by not giving sufficient weight to Sean Rens' evidence. On that basis, they could rule that:

1. PPD fails on the basis of excessive force/attack not imminent/option of escape

2. OP must have known that he was not entitled to shoot - as per Sean Rens' testimony.

3. He must have known that he could kill the person behind the door and reconciled himself to this possibility.

Regarding point 3, clearly Masipa was 'plainly wrong' to rule that OP didn't foresee the possibility that firing four bullets into a small cubicle would kill the person behind the door. IMO, the SCA will be more than willing to reverse an error of judgement of this magnitude, as it falls into the category of a finding of fact that is not based on the objective facts and is thus, effectively, an error of law.

And, of course, they could also bring in Mangena's evidence of a pause between shots to support a finding of intention.

 

[Deleted member 102539]

BIB, OP's pain will be equal to the Steenkamps, they'll all have to live with it for the rest of their lives.

The reality though is that with the Steenkamp's age and health, they may not be on earth for much longer but OP will have to endure this for maybe another 50 years or so. That is sad. No one wins.

Pistorius and his team are not conceding anything. “I’ll survive,” Oscar was reported by the BBC as saying upon his arrest, though his family categorically denied it. “I always win.”

http://www.vanityfair.com/culture/2013/06/oscar-pistorius-murder

 

[atthelake]

:waiting:

 

[Trotterly]

I suppose that one of the most straightforward methods of getting to DE is for the SCA to accept Masipa's finding of fact that OP intended to shoot, but hold that she erred in law by not giving sufficient weight to Sean Rens' evidence. On that basis, they could rule that:

1. PPD fails on the basis of excessive force/attack not imminent/option of escape

2. OP must have known that he was not entitled to shoot - as per Sean Rens' testimony.

3. He must have known that he could kill the person behind the door and reconciled himself to this possibility.

Regarding point 3, clearly Masipa was 'plainly wrong' to rule that OP didn't foresee the possibility that firing four bullets into a small cubicle would kill the person behind the door. IMO, the SCA will be more than willing to reverse an error of judgement of this magnitude, as it falls into the category of a finding of fact that is not based on the objective facts and is thus, effectively, an error of law.

And, of course, they could also bring in Mangena's evidence of a pause between shots to support a finding of intention.

BIB Why was this wrong?

How could he have foreseen who would actually be killed ?

 

[LemonMousse]

BIB Why was this wrong?

How could he have foreseen who would actually be killed ?

For DE he didn't need to know who would be killed, just that someone would. If he can't supply a lawful excuse absolving him of dolus, then it's murder.

At the very least, he knew there was an unknown human being behind the door. Even Roux didn't try to argue that he didn't know he'd very likely kill that person, so I shall assume you accept that much, right?

So, if he knew he'd kill them, then the question becomes did he know it was wrong to do so and reconcile himself to that? IOW, was there criminal intent?

This is where the PPD bit comes in. If the court accepts that defence, then it is necessarily accepting that, because of the circumstances and his fears, his intent was not criminal although he remains culpable because he was behaving irresponsibly, and not as a reasonable person would or should.

Where you seem confused is your belief that Masipa accepted PPD and by doing so automatically demolished the criminal intent before she'd even got as far as evaluating DE.

Firstly, it's not actually that clear that she did accept PPD...or if she even knew what that meant. She misdirected herself (as Leach pointed out) by stating that the accused said he never intended to shoot, in other words, raising a defence of PPD.

But PPD necessarily requires intent. You can't on the one hand claim you believed you had reason to act to protect yourself and then say that you didn't intend to act to defend yourself. It does not compute. It has to be one or the other.

Roux's argument is that she approached DE having already excluded intent to kill by accepting PPD - but PPD has nothing to do with intent, it's all about culpability. Intent is assumed. So his argument is baseless.

This means, that actually when she addressed DE she asked the wrong questions.

What she should have done (once DD was excluded) is say....

Right. He didn't mean to kill Reeva - he thought she was in bed. Fine.

So what about the unknown person he thought he was shooting at?

1) Did he know firing into that cublcle he'd kill whoever it was? Inescapably, yes.

2) Did he intend for this to happen...or, at least, take the risk that it would? Yes, because I believe he thought he had to (PPD)

3) Did he know this was unlawful and reconcile himself with that? No, his PPD defence absolves him of the necessary criminal intent.

However, he shouldn't have done it no matter how scared, so he is still culpable. Hence CH.

Using PPD to excuse him from intentionally killing was a misdirection and a mistake. Using Reeva's whereabouts to say anything about his intentions regarding the human being he knew was behind the door was a mistake.

HTH

By the way...be careful not to confuse intent to kill/harm with criminal intent. PPD assumes the first and absolves the latter.

 

[Trotterly]

For DE he didn't need to know who would be killed, just that someone would. If he can't supply a lawful excuse absolving him of dolus, then it's murder.

At the very least, he knew there was an unknown human being behind the door. Even Roux didn't try to argue that he didn't know he'd very likely kill that person, so I shall assume you accept that much, right?

So, if he knew he'd kill them, then the question becomes did he know it was wrong to do so and reconcile himself to that? IOW, was there criminal intent?

This is where the PPD bit comes in. If the court accepts that defence, then it is necessarily accepting that, because of the circumstances and his fears, his intent was not criminal although he remains culpable because he was behaving irresponsibly, and not as a reasonable person would or should.

Where you seem confused is your belief that Masipa accepted PPD and by doing so automatically demolished the criminal intent before she'd even got as far as evaluating DE.

Firstly, it's not actually that clear that she did accept PPD...or if she even knew what that meant. She misdirected herself (as Leach pointed out) by stating that the accused said he never intended to shoot, in other words, raising a defence of PPD.

But PPD necessarily requires intent. You can't on the one hand claim you believed you had reason to act to protect yourself and then say that you didn't intend to act to defend yourself. It does not compute. It has to be one or the other.

Roux's argument is that she approached DE having already excluded intent to kill by accepting PPD - but PPD has nothing to do with intent, it's all about culpability. Intent is assumed. So his argument is baseless.

This means, that actually when she addressed DE she asked the wrong questions.

What she should have done (once DD was excluded) is say....

Right. He didn't mean to kill Reeva - he thought she was in bed. Fine.

So what about the unknown person he thought he was shooting at?

1) Did he know firing into that cublcle he'd kill whoever it was? Inescapably, yes.

2) Did he intend for this to happen...or, at least, take the risk that it would? Yes, because I believe he thought he had to (PPD)

3) Did he know this was unlawful and reconcile himself with that? No, his PPD defence absolves him of the necessary criminal intent.

However, he shouldn't have done it no matter how scared, so he is still culpable. Hence CH.

Using PPD to excuse him from intentionally killing was a misdirection and a mistake. Using Reeva's whereabouts to say anything about his intentions regarding the human being he knew was behind the door was a mistake.

HTH

By the way...be careful not to confuse intent to kill/harm with criminal intent. PPD assumes the first and absolves the latter.

Maybe I didn't make myself clear.

You said that Masipa ruled "that OP didn't foresee the possibility that firing four bullets into a small cubicle would kill the person behind the door"

She did not say this, she made her finding based only on Reeva being in the bedroom.

Her concluding statements can only have been about being unable to find for DE because OP could not foresee who was behind the door.

He could not foresee that he would kill a specific person because he could not see them.

 

[Sherbert]

Maybe I didn't make myself clear.

You said that Masipa ruled "that OP didn't foresee the possibility that firing four bullets into a small cubicle would kill the person behind the door"

She did not say this, she made her finding based only on Reeva being in the bedroom.

Her concluding statements can only have been about being unable to find for DE because OP could not foresee who was behind the door.

He could not foresee that he would kill a specific person because he could not see them.

I have no recollection of Masipa either stating or implying that she was unable to find DE because OP couldn't see who was behind the door.

Masipa eventually held that OP didn't foresee the possibility of killing Reeva 'or anyone else for that matter' and it would appear from the comments made during the Appeal Hearing relating to the number of bullets and size of the cubicle that the SCA not only understood this to be her finding, but, also, was extremely sceptical about its accuracy.

 

[LemonMousse]

Maybe I didn't make myself clear.

You said that Masipa ruled "that OP didn't foresee the possibility that firing four bullets into a small cubicle would kill the person behind the door"

She did not say this, she made her finding based only on Reeva being in the bedroom.

Her concluding statements can only have been about being unable to find for DE because OP could not foresee who was behind the door.

He could not foresee that he would kill a specific person because he could not see them.

A specific person would relate only to DD...not DE.

Surely you get this?

DE is when you not only do not intend to kill a specific person, but you don't intend to kill any person at all. The fact that you do is a predictable by-product of your very reckless behaviour. In this case, shooting fourt times into a toilet cubicle.

There is no way whatsoever that Masipa said she couldn't find for DE because he couldn't see who he was shooting at. Absolutely no way. Even she is not that stupid.

Look, I know you don't like it, but the cold facts are that Masipa simply asked the wrong questions for DE. And your attempts to justify it is actually making her judgement look even worse than it already does!

For DE it does not matter if he could or could not see the person. He just had to know that there was someone...a living, live human being...in the toilet and that by shooting like that he could kill or harm them.

 

[sleuth-d-]

Maybe I didn't make myself clear.

You said that Masipa ruled "that OP didn't foresee the possibility that firing four bullets into a small cubicle would kill the person behind the door"

She did not say this, she made her finding based only on Reeva being in the bedroom.

Her concluding statements can only have been about being unable to find for DE because OP could not foresee who was behind the door.

He could not foresee that he would kill a specific person because he could not see them.

ty. much clearer now.

 

[foxbluff]

BBMWhy do you think they will uphold her verdict?If they do, IMO, they'll be setting a very dangerous precedent!

Because each time I read the State's Closing HOA, it hits me all over again that they failed to prove Murder Beyond Reasonable Doubt.---------I believe Judge Masipa's reasoning in reaching a Verdict of CH is sound/correct.-------- It was imo just some of her "explaining" of her reasoning which got muddled.--------Perhaps somewhat due to her having to deliver in a language which is out of her comfort zone?

 

[Sherbert]

Because each time I read the State's Closing HOA, it hits me all over again that they failed to prove Murder Beyond Reasonable Doubt.---------I believe Judge Masipa's reasoning in reaching a Verdict of CH is sound/correct.-------- It was imo just some of her "explaining" of her reasoning which got muddled.--------Perhaps somewhat due to her having to deliver in a language which is out of her comfort zone?

Hi Foxbluff! Why do you think that CH is the correct verdict? Are you saying that you believe that OP had no intention to kill unlawfully or is it that you believe that he had no intention to kill at all?

 

[Interested Bystander]

What saddens me most is, that regardless of what the SCA hand down, he was not found guilty of intentionally murdering RS at his trial due to a case that was not adequately put together. His defence was IMO a pack of lies, aided and abetted by many people. I would love to see a retrial but it is not going to happen.

 

[Sherbert]

What saddens me most is, that regardless of what the SCA hand down, he was not found guilty of intentionally murdering RS at his trial due to a case that was not adequately put together. His defence was IMO a pack of lies, aided and abetted by many people. I would love to see a retrial but it is not going to happen.

Yes, and it didn't help that the trial judge seemed almost completely disengaged and more concerned with form than with substance.

 

[JudgeJudi]

SCA Judge President, Lex MPati.

Like Judge Greenland, this man has risen from poverty and led a most extraordinary life. His rise from the most humble of beginnings to where he is now must be a huge inspiration to others.

“I would sit in the back, listening to the charges being put to people and agonising over how they tried to defend themselves. Mostly, they were black people and, not being educated, they were not able to conduct a good defence.”

He got upset when people were sent to jail simply because they couldn’t ask the state witnesses the right questions.

“It was clear to me that the justice system was simply not working well and too many people were going to jail. That is what pushed me to decide to do law. I felt they needed someone who could defend them,” he says.

http://www.news24.com/Archives/City-Press/Mpati-Thorny-road-to-top-20150429

 

[mrjitty]

What saddens me most is, that regardless of what the SCA hand down, he was not found guilty of intentionally murdering RS at his trial due to a case that was not adequately put together. His defence was IMO a pack of lies, aided and abetted by many people. I would love to see a retrial but it is not going to happen.

My theory is that this case was simply too obvious.

When you step back from it, the defence case is laughable.

The defence failed to prove either that Oscar screamed like a woman (the key to their whole case) or to show that Oscars version was a possible version.

Murder is all that is left!

But because the Judge is such a muppet, we are left wondering what else would convince her. But IMO nothing short of a video tape would have convinced her.

 

[mrjitty]

Yes, and it didn't help that the trial judge seemed almost completely disengaged and more concerned with form than with substance.

That's what i find most bizarre. The way she simply failed to deal with half the evidence.

So lazy!

 

[mrjitty]

I suppose that one of the most straightforward methods of getting to DE is for the SCA to accept Masipa's finding of fact that OP intended to shoot, but hold that she erred in law by not giving sufficient weight to Sean Rens' evidence. On that basis, they could rule that:

1. PPD fails on the basis of excessive force/attack not imminent/option of escape

2. OP must have known that he was not entitled to shoot - as per Sean Rens' testimony.

3. He must have known that he could kill the person behind the door and reconciled himself to this possibility.

Regarding point 3, clearly Masipa was 'plainly wrong' to rule that OP didn't foresee the possibility that firing four bullets into a small cubicle would kill the person behind the door. IMO, the SCA will be more than willing to reverse an error of judgement of this magnitude, as it falls into the category of a finding of fact that is not based on the objective facts and is thus, effectively, an error of law.

And, of course, they could also bring in Mangena's evidence of a pause between shots to support a finding of intention.

Yes - IMO something along the lines of

1. The Judge misdirected herself re DE (misstated the test - Identity not relevant)

2. He shot at the person - so he must have known he risked killing the person (a non controversial ruling IMO)

Only question - was this PPD?

3. Not clear the judge held it / misstated test
4. Can it apply to these facts? (the big qn!!)

 

[LemonMousse]

Yes - IMO something along the lines of

1. The Judge misdirected herself re DE (misstated the test - Identity not relevant)

2. He shot at the person - so he must have known he risked killing the person (a non controversial ruling IMO)

Only question - was this PPD?

3. Not clear the judge held it / misstated test
4. Can it apply to these facts? (the big qn!!)

I can't recall his exact words, but Leach said something along the lines of "I think you'd struggle to apply PPD to the facts of this case". I thought that was very interesting.

I hope they'll find that her acceptance of PPD (if that's what it was) was based on a misdirection and therefore shouldn't have happened. This, coupled with the "shocking" testimony from Pistorius himself, which another judge would have disregarded, has the effect of leaving him defenceless.

Maybe, maybe, maybe.....they'll find that the right verdict should have been DD. Is this possible?