Oscar Pistorius - Discussion Thread #68 *Appeal Verdict*

[LemonMousse]

The point I was making was that he did not just charge down the hall screaming like an idiot as has been said here time after time ... there was a chronology to what happened. He yelled at them to leave and waited ... he yelled at Reeva to phone the police ... he yelled at them again to leave ... then, later when he went back slowly into the bedroom while still having the gun pointed at the window he found that Reeva was not in the bed. As it dawned on him that it might have been Reeva in the toilet he started screaming in anguish and calling for help and trying to break through the toilet door ...

Again all I am trying to do is get rid of the "running towards the toilet screaming like and idiot phrase" ...

I am sorry if you don't like it much, but he testified...CLEARLY....to walking towards the bathroom screaming his head off. These "silences" and waiting for them to leave are your invention...he said no such thing. He screamed and screamed and screamed....right up until he got the bathroom door when he shut up so as not to give away his position then, when he saw the bathroom was empty, he promptly started to scream again.

Interestingly, he stopped screaming altogether when he saw what he'd done to Reeva...so much for his "anguish" as you call it.

Remember that the neighbours heard a woman screaming "out of her mind with terror" at the same time as hearing a man shout....and all female screams ended with the shots.

This is why Pistorius had to claim he was screaming continually as he "went to confront the intruder" and why he was "too sad" to scream when he saw Reeva's body....because after he shot her she stopped screaming.

Look......a woman was heard screaming and then a woman was shot. If you think the most likely explanation for this is that it was the man who shot her screaming in her voice (while simultaneously shouting in his own) then I have a bridge you might like to consider buying.

 

[LemonMousse]

I've thought about this a lot and about the type of person I believe Reeva was. She was a lawyer and had experience in a bad relationship if I remember right. I have her as a pretty smart person and I have trouble seeing her in an actual exchange with Oscar that involves a prolonged shouting match. I see her smarter than this. One who would diffuse and wait to leave as opposed to taking part in a fight. Maybe I'm wrong and I mean no disrespect to her.

Given that she ended up hiding in a toilet, it seems to me quite likely that he prevented her from leaving that night.

And even very smart people have blazing shouting matches so I can't see the relevance.

 

[mrjitty]

although, in the de oliveira case it was easier to establish that no attack had commenced, because the other people were outside the confines of the house.

in pistorius' case one could argue that the perceived entry into the house [via the window] was the starting point of the attack?
but then we come onto the issue of warning shot and number of shots/force used commensurate with the perceived threat. which pistorius fails on.

'further reading' … is a case cited alongside de oliveira here:
http://www.derebus.org.za/fight-back-might-found-guilty-putative-self-defence/

S v Naidoo 1997 (1) SACR 62 (T)
father shot through a door, along with this:
"
he mistakenly believed that he was about to be burgled and discharged his firearm killing his father. He had been the victim of previous burglary attempts at his home.
"

"
Regarding the factual question as to whether the state had proven beyond a reasonable doubt that the accused did not believe that he was entitled to shoot in the manner in which he did, it was held that objectively, a reasonable man in the position of the accused would not have fired the fatal shot aimed in the direction which he did.
"

unfortunately i am having trouble finding a more detailed account of the trial/events though. sc website records start at 1999.

I am very comfortable with Justice's Leach's approach to PPD for the following reasons.

1. The test for PPD never has been "OP was in fear of his life" - see quote from James Grant below

2. Masipa failed to itemise the detailed test for all the elements of PPD (misdirection). Where in the judgement does it say it?

3. Masipa made no express finding that PPD was held. Where in the judgement is this held?

4. PPD is not established by what the accused claims - but rather from what the accused must have believed based on the objective facts

5. On those facts the attack had not commenced, nor was the force necessary/reasonable - the accused must have known both these points.

6. The accused on his own testimony did not decide to shoot in PPD - therefore the defence is not available

7. For policy reasons - just as with self defence - this defence has a high barrier to entry - otherwise everyone can just blaze away and then claim they were scared.

the defence must fail if the accused foresaw the possibility (and persisted nevertheless), that any of the requirements may not have been met. Thus, the defence must fail if the accused foresaw the possibility of all or of any of the following:
1. That s/he was not under attack;
2. That no attack had commenced or was imminent;
3. That there was no attack on a legally protected interest that s/he was entitled to defend;
4. That the force was not necessary;
5. That the force used was excessive in the circumstances; or
6. The force used was not directed at the attacker.
If the court confirms this, the claim of putative private defence must fail.

 

[mrjitty]

Both cases revolve around entitlement to shoot when afraid, although I do accept that having an intruder in the house is probably more threatening than seeing and hearing a group of people creating a disturbance outside. Both scenarios may be frightening. De Oliveira didn't give evidence, whereas OP's evidence was unreliable. Many of his actions simply didn't make sense. On the other hand, Sean Rens gave evidence that OP knew that he was not entitled to shoot. As the Defence did not adduce any compelling evidence to rebut this, the logical conclusion must be that he had dolus vis-a-vis the intruder.

Exactly.

It's worth repeating that the Court should make obvious and natural inferences.

OP was trained on the legalities. He could see the door was not opening. He did not know who was in the toilet. He knew he could retreat.

The evidential onus was on OP to show that the prima facie inference should be set aside.

 

[Colin de France]

Surprised?

Given as how 5 Justices of the SCA were in unanimous agreement perhaps you should consider that its you who doesn't understand the doctrine of Stare decisis and how authorities are applied to new cases.

....which is why there is a problem......there's a disconnection between the evidence, version, proof and the sentence, regardless of how many judges there were.......

 

[LemonMousse]

I am very comfortable with Justice's Leach's approach to PPD for the following reasons.

1. The test for PPD never has been "OP was in fear of his life" - see quote from James Grant below

2. Masipa failed to itemise the detailed test for all the elements of PPD (misdirection). Where in the judgement does it say it?

3. Masipa made no express finding that PPD was held. Where in the judgement is this held?

4. PPD is not established by what the accused claims - but rather from what the accused must have believed based on the objective facts

5. On those facts the attack had not commenced, nor was the force necessary/reasonable - the accused must have known both these points.

6. The accused on his own testimony did not decide to shoot in PPD - therefore the defence is not available

7. For policy reasons - just as with self defence - this defence has a high barrier to entry - otherwise everyone can just blaze away and then claim they were scared.

You should put number one in bold too because he was not under attack.

 

[Sherbert]

I think that's where his disability might come in. An overreaction due to being unable to do anything else and knowing he couldn't do anything else.

Where would it end? Would we then proceed to water down the test for pregnant women and the elderly? Following this approach to its logical conclusion, we would need a different standard for each person, depending on their personal characteristics. In fact, anyone who was less physically able than the intruder would argue that they shot to kill because, in the heat of the moment, they thought they were entitled to.

It is a basic principle that, as far as possible, the law needs to be certain, so that we all know where we stand. The flexibility that you advocate militates against this principle.

 

[Interested Bystander]

I am sorry if you don't like it much, but he testified...CLEARLY....to walking towards the bathroom screaming his head off. These "silences" and waiting for them to leave are your invention...he said no such thing. He screamed and screamed and screamed....right up until he got the bathroom door when he shut up so as not to give away his position then, when he saw the bathroom was empty, he promptly started to scream again.

Interestingly, he stopped screaming altogether when he saw what he'd done to Reeva...so much for his "anguish" as you call it.

Remember that the neighbours heard a woman screaming "out of her mind with terror" at the same time as hearing a man shout....and all female screams ended with the shots.

This is why Pistorius had to claim he was screaming continually as he "went to confront the intruder" and why he was "too sad" to scream when he saw Reeva's body....because after he shot her she stopped screaming.

Look......a woman was heard screaming and then a woman was shot. If you think the most likely explanation for this is that it was the man who shot her screaming in her voice (while simultaneously shouting in his own) then I have a bridge you might like to consider buying.

I listened to OP's testimony and cross examination yesterday and you are so right. Funny how all that screaming, and according to his testimony there was a lot of it, all by him. NOT! He was screaming much of the time if one believes him. The only time he says he was not screaming was when he reached the end of the carpet in the closet area and the entrance to the bathroom and, of course, no screaming once he realised he had shot Reeva!

It really is well worth listening to Roux take him through his evidence and then listen to Nel cross examine him. The fact that he lies continuously becomes even more apparent each time one listens. The more I listen, the more gobsmacked I become that Masipa bought many of his lies.

I wonder whether she has watched the tapes!

 

[Sherbert]

Just for the record here.

I believe based on the evidence that there is a possibility that what he says is what happened. Therefore I give him the benefit of the doubt.

I am not 100% sure he is innocent even of pre-meditiated murder but as I say, for me, the state did not make it's case.

I will admit to you all it bothers me when someone says they are 100% sure he killed her on purpose.

A 'possibility' is not strong enough. His story has to be reasonably possibly true, not just possibly true.

(I would bold reasonably, but my iPad won't go there).

 

[Sherbert]

I listened to OP's testimony and cross examination yesterday and you are so right. Funny how all that screaming, and according to his testimony there was a lot of it, all by him. NOT! He was screaming much of the time if one believes him. The only time he says he was not screaming was when he reached the end of the carpet in the closet area and the entrance to the bathroom and, of course, no screaming once he realised he had shot Reeva!

It really is well worth listening to Roux take him through his evidence and then listen to Nel cross examine him. The fact that he lies continuously becomes even more apparent each time one listens. The more I listen, the more gobsmacked I become that Masipa bought many of his lies.

I wonder whether she has watched the tapes!

I agree - IMO, it couldn't have been any more transparent that he was lying.

 

[Sherbert]

Given that she ended up hiding in a toilet, it seems to me quite likely that he prevented her from leaving that night.

And even very smart people have blazing shouting matches so I can't see the relevance.

Yes, I have a feeling that her raised voice was heard because she was locked in.

As he had done with a previous girlfriend, apparently.

 

[Sherbert]

I am very comfortable with Justice's Leach's approach to PPD for the following reasons.

1. The test for PPD never has been "OP was in fear of his life" - see quote from James Grant below

2. Masipa failed to itemise the detailed test for all the elements of PPD (misdirection). Where in the judgement does it say it?

3. Masipa made no express finding that PPD was held. Where in the judgement is this held?

4. PPD is not established by what the accused claims - but rather from what the accused must have believed based on the objective facts

5. On those facts the attack had not commenced, nor was the force necessary/reasonable - the accused must have known both these points.

6. The accused on his own testimony did not decide to shoot in PPD - therefore the defence is not available

7. For policy reasons - just as with self defence - this defence has a high barrier to entry - otherwise everyone can just blaze away and then claim they were scared.

Regarding 6., from a quick scan of the bail application, it looks as though Roux is seeking to argue that, as Masipa found that there was intention to shoot, the Defence of PPD should be available, in principle.

 

[Noisy Fan]

I am sorry if you don't like it much, but he testified...CLEARLY....to walking towards the bathroom screaming his head off. These "silences" and waiting for them to leave are your invention...he said no such thing. He screamed and screamed and screamed....right up until he got the bathroom door when he shut up so as not to give away his position then, when he saw the bathroom was empty, he promptly started to scream again.

Interestingly, he stopped screaming altogether when he saw what he'd done to Reeva...so much for his "anguish" as you call it.

Remember that the neighbours heard a woman screaming "out of her mind with terror" at the same time as hearing a man shout....and all female screams ended with the shots.

This is why Pistorius had to claim he was screaming continually as he "went to confront the intruder" and why he was "too sad" to scream when he saw Reeva's body....because after he shot her she stopped screaming.

Look......a woman was heard screaming and then a woman was shot. If you think the most likely explanation for this is that it was the man who shot her screaming in her voice (while simultaneously shouting in his own) then I have a bridge you might like to consider buying.

You make some good points ...

I said he yelled at them to leave and waited. It is what he did not what he said. He yelled at them to leave and then he waited. There was time for them to leave or answer had there been anyone there. Reeva not answering makes sense as she would have no idea what was going on other than it was coming at her. He retreated at one point and was not yelling at that point. So there was a break in his idiotic screaming as you put it. Fair enough ...

 

[aftermath]

I am sorry if you don't like it much, but he testified...CLEARLY....to walking towards the bathroom screaming his head off. These "silences" and waiting for them to leave are your invention...he said no such thing. He screamed and screamed and screamed....right up until he got the bathroom door when he shut up so as not to give away his position then, when he saw the bathroom was empty, he promptly started to scream again.

Interestingly, he stopped screaming altogether when he saw what he'd done to Reeva...so much for his "anguish" as you call it.

Remember that the neighbours heard a woman screaming "out of her mind with terror" at the same time as hearing a man shout....and all female screams ended with the shots.

This is why Pistorius had to claim he was screaming continually as he "went to confront the intruder" and why he was "too sad" to scream when he saw Reeva's body....because after he shot her she stopped screaming.

Look......a woman was heard screaming and then a woman was shot. If you think the most likely explanation for this is that it was the man who shot her screaming in her voice (while simultaneously shouting in his own) then I have a bridge you might like to consider buying.

He testified to moving towards the bathroom, screaming at the intruder to get out and shouting back to Reeva to call the police. Whilst he didn't say he rushed along the corridor, even at a walking pace it wouldn't have taken very long, as it wasn't very far. And he didn't say he started shouting until he was in/ part way along the corridor, if I remember correctly.

So yes- he testified to screaming and shouting then stopping as he got to the bathroom, before looking from window to door a few times and screamed again to Reeva to call the police. But the defence didn't say these screams and shouts were persistent, non-stop with no break, and they didn’t say they were the screams and shouts that the earwitnesses heard. In fact, on the defence version, nobody heard those.

The screams the defence claims were heard by eyewitnesses were after the first set of bangs, when he discovered Reeva was not in the bedroom, realised that it was probably her in the cubicle, and desperately tried to get in to her. These, the defence claim, were the higher pitched screams of despair and panic as he realised what he had done and couldn't open the door (the screams mistaken as those of a woman), intermingled with the male cries for help.

 

[Noisy Fan]

Given that she ended up hiding in a toilet, it seems to me quite likely that he prevented her from leaving that night.

And even very smart people have blazing shouting matches so I can't see the relevance.

I certainly agree she was hiding ...

 

[Marfa Lights]

That is the states argument. They fit the defence as well. Oscar is yelling before he fires and he is screaming in anguish after he fires. The screams end when he finally breaks through the door and realizes his mistake.

I was disappointed that the ear witnesses had no distinction between the gun shots and the cricket bat breaking through the door. If there had been a distinction made it would have influenced my opinion of their opinions on who was screaming. That coupled with the one witness who corrected his wife by saying it was Oscar screaming was last straw for me.

Oh really? Did you really follow her testimony at trial? (BTW it was Estelle vdM who testified not her husband.) Estelle van der Merwe was awoken first around 2 a.m. by the irritating sound of a woman's voice arguing, which lasted for about an hour. Around 3 a.m. she then heard what sounded like four gunshots. Her husband woke up immediately AFTER that or at some point during sound of the four gunshots, and she asked him what he thought those shot sounds were. He told her recognized them as gunshots. He got up and looked out the window but saw nothing. They then heard a "commotion" and her husband called security at the estate.

Only then, after all of those events POST-SHOOTING did they both hear someone "crying" loudly. She thought it sounded like a woman's voice, but her husband corrected her and said it was Oscar.

It would be a very willful fallacy to think just because Estelle van der Merwe thought it was a woman crying AFTER the shooting, that she and all others had to be mistaken about the woman's voice they heard SCREAMING FOR HER LIFE before the shots.

I know I really was hoping to hear Roux play the tape of Oscar screaming like a woman though. Too bad he didn't. That might have changed a lot of minds.

http://www.telegraph.co.uk/news/wor...rial-Witness-heard-argument-before-shots.html

More importantly though, if you rest your case on Estelle van der Merwe's testimony, you might want to consider the timing of her evidence. Argument for nearly an hour, followed by shots fired around 3 a.m. then TOTAL SILENCE before hearing a commotion, security is called and Oscar is heard crying.

Why do the van der Merwes not hear the second set of (3) bangs that would have been Oscar breaking down the toilet door? And how does this fit within the timeline for all the sequence of events he claimed followed that event? If they heard him "crying" (not screaming) after the final sounds, then it would indicate the shots were heard last.

 

[Noisy Fan]

Yes, I have a feeling that her raised voice was heard because she was locked in.

As he had done with a previous girlfriend, apparently.

I tried to consider how in the world Reeva could be heard if indeed she was in the small toilet with that little window and the door locked. I suspect that it was not her that was heard but it would have been prudent to do a swab of the small window just to see if there was any DNA that might match hers if maybe she was screaming with her mouth close to the window to be heard. That is the only way in my mind that it might possibly be her.

 

[Colin de France]

I tried to consider how in the world Reeva could be heard if indeed she was in the small toilet with that little window and the door locked. I suspect that it was not her that was heard but it would have been prudent to do a swab of the small window just to see if there was any DNA that might match hers if maybe she was screaming with her mouth close to the window to be heard. That is the only way in my mind that it might possibly be her.

.............we don't know that the WC window was shut when she screamed.....

 

[Marfa Lights]

<snipped>

The screams the defence claims were heard by eyewitnesses were after the first set of bangs, when he discovered Reeva was not in the bedroom, realised that it was probably her in the cubicle, and desperately tried to get in to her. These, the defence claim, were the higher pitched screams of despair and panic as he realised what he had done and couldn't open the door (the screams mistaken as those of a woman), intermingled with the male cries for help.

ALTERNATE VERSION: The screams the prosecution claims were heard by eyewitnesses were after the first set of bangs-- the bat striking the toilet door after he had chased Reeva from the bedroom screaming "Get the Fukk out of My House" and she retreated into the locked toilet cubicle. Reeva knows she is in mortal danger and is screaming for her life. Oscar retrieves his pistol and fires 4X into the toilet door, silencing Reeva's screams. Oscar picks up the bat he has thrown aside (possibly damaging the bathtub cover plate) and uses it to pry open the toilet door panels gaining access to the key and opens the door. He sits with Reeva while she takes her last breath and it sinks in what he has done. His first thought is to make it appear to have been an intruder that he mistakenly shot. He runs to the balcony window and yells "Help, Help, Help!" before he returns to the bathroom and drags Reeva out of the toilet, calls Stander, Security, and Netcare. He carries her downstairs and is crying loudly in front of Dr. Stipp, the Standers and Baba from Security who arrive almost immediately.

 

[Noisy Fan]

Oh really? Did you really follow her testimony at trial? (BTW it was Estelle vdM who testified not her husband.) Estelle van der Merwe was awoken first around 2 a.m. by the irritating sound of a woman's voice arguing, which lasted for about an hour. Around 3 a.m. she then heard what sounded like four gunshots. Her husband woke up immediately AFTER that or at some point during sound of the four gunshots, and she asked him what he thought those shot sounds were. He told her recognized them as gunshots. He got up and looked out the window but saw nothing. They then heard a "commotion" and her husband called security at the estate.

Only then, after all of those events POST-SHOOTING did they both hear someone "crying" loudly. She thought it sounded like a woman's voice, but her husband corrected her and said it was Oscar.

It would be a very willful fallacy to think just because Estelle van der Merwe thought it was a woman crying AFTER the shooting, that she and all others had to be mistaken about the woman's voice they heard SCREAMING FOR HER LIFE before the shots.

I know I really was hoping to hear Roux play the tape of Oscar screaming like a woman though. Too bad he didn't. That might have changed a lot of minds.

http://www.telegraph.co.uk/news/wor...rial-Witness-heard-argument-before-shots.html

More importantly though, if you rest your case on Estelle van der Merwe's testimony, you might want to consider the timing of her evidence. Argument for nearly an hour, followed by shots fired around 3 a.m. then TOTAL SILENCE before hearing a commotion, security is called and Oscar is heard crying.

Why do the van der Merwes not hear the second set of (3) bangs that would have been Oscar breaking down the toilet door? And how does this fit within the timeline for all the sequence of events he claimed followed that event? If they heard him "crying" (not screaming) after the final sounds, then it would indicate the shots were heard last.

It's not just one thing or even two things ... it is the inability of anyone to formulate a time-line. Heck, we are still debating what happened when. If nothing can be established by the prosecution then what are we supposed to do? Can we throw someone to the dogs when we are not sure what happened when?

You have people that cannot distinguish gun shots from bat sounds. Door panels broken through a bullet hole.