Oscar Pistorius - Discussion Thread #69 *Appeal Verdict*

[Deleted member 102539]

"The only thing that saved OP from being convicted of DD was that door."

The opinion from someone other - and I think, it's right.

 

[Deleted member 102539]

A wonderful pic of G. Nel, seems unknown to me:

 

[Belgarion]

A wonderful pic of G. Nel, seems unknown to me:

Would this be the chap that Roux (aka Andrew Fawcett) is complaining about in the leave to appeal document to the Concourt because they say he subjected Pistorius, whilst he was in a compromised state of mind, to a combative and aggressive manner of cross examination over an extended period of seven days, whilst consistently repeating questions; he is also accused of showing Pistorius a photograph of the Deceased’s wounded head and insisting that he must look at the photograph; to finish off he resorted to allegations designed to evoke severe emotions from Pistorius and even called him a liar on several occasions.

Oh dear, what a nasty man to have done all that to poor little Oscar, I wonder if Roux or Fawcett also charge Uncle Arnie for changing his nappy as well.

 

[Tortoise]

James Grant ‏@JamesGrantZA [video=twitter;687132519171489792]https://twitter.com/JamesGrantZA/status/687132519171489792[/video]
James Grant Retweeted sasha martinengo
It's no secret - I am honoured to be assisting the state again - not that I think Nel's team needs it.

 

[Tortoise]

Another problem I see with the Appeal - concerning Masipa's findings that Pistorius "genuinely although erroneously believed that his life and that of the Deceased was in danger" and "that there was nothing in the evidence as a whole to suggest that this belief was not honestly entertained" -

to do with hearing the bathroom window open and then finding the bathroom window open..

What Masipa does not do is state explicitly at what point Pistorius believed that their lives were in danger.

Was it when he heard the noise? Was it when he reached for his gun? Was it when he moved to the bathroom? Was it when he readied his gun? Was it when he discharged his weapon?

We can't know because she doesn't say. There is a big difference between on the one hand thinking one's life is in danger because one has heard a disturbance and goes to investigate, and on the other thinking one's life is in imminent danger and having to shoot in that moment to protect oneself.

However what is evident from Pistorius' testimony is that he didn't aim at a perceived intruder/attacker or fire the gun deliberately.

Therefore it can be ruled out that he perceived his life and that of the deceased to be in danger at the point of firing the gun. Masipa's finding that he genuinely feared for his life and Reeva's can only have pertained to his decision to approach the bathroom with a loaded firearm, not his motive for killing.

 

[L2L]

James Grant ‏@JamesGrantZA [video=twitter;687132519171489792]https://twitter.com/JamesGrantZA/status/687132519171489792[/video]
James Grant Retweeted sasha martinengo
It's no secret - I am honoured to be assisting the state again - not that I think Nel's team needs it.

Good news indeed! James Grant seems like a really nice guy, don't you think? Quiet and self-effacing.

 

[Tortoise]

Just to substantiate my last post above

Quoted from the appeal -

1. 93. Notwithstanding, the SCA proceeded to consider the Applicant’s version whether he had genuinely and honestly believed that his life was in danger when he discharged the shots.
2. 94. In doing so, the SCA ignored the factual finding of the Trial Court that the Applicant had genuinely, although erroneously, believed his life (and that of the Deceased) was in danger.

(my bolding)

 

[Tortoise]

I am sure that appeal document repeats every point about 100 times over. Probably could have been reduced to two pages. Perhaps they asked everyone in the office to contribute the same argument in their own words and it was all stapled together to bulk it out.

I can imagine it thus - say he had an anxiety disorder on the night of the incident...no-one will check, say over and over again PPD was accepted by the Trial Court, say he was compromised by the dreadful Prosecutor, forced to look at a photo of Reeva's head (they'll forget that he steadfastly refused to look)...poor poor Pistorius with NO legs according to the affidavit. He had to stand in front of the toilet door, he couldn't have done anything else, what do they expect of a disabled man......

 

[Belgarion]

Having looked at the appeal document in some detail there are statements in there that defy logic and quite frankly are an insult to the intelligence of the ConCourt. For instance in just one paragraph…..

44. Notwithstanding the above, the SCA reconsidered a factual finding by the Trial Court that the Applicant had genuinely, though erroneously believed that his life and that of the Deceased were in danger (putative private defence). In so doing the SCA found that the Applicant “did not entertain an honest and genuine belief that he was acting lawfully…”. The Applicant’s putative private defence was thus rejected and a conviction of murder returned.

Even here two things stand out immediately.

Firstly, how can they honestly claim, presumably with a straight face, that the SCA ‘rejected the Applicants’ putative private defence’ when he had no such defence as it had already been rejected by the trial judge.

Secondly, how do they conclude that ‘the SCA reconsidered a factual finding by the Trial Court that the Applicant had genuinely, though erroneously believed that his life and that of the Deceased were in danger’ when they say in the judgement ‘the Applicant did not entertain an honest and genuine belief that he was acting lawfully. Masipa’s findings about Pistorius believing his life to be in danger is in no way ‘reconsidered’ when the SCA makes a comment about his belief in the lawfulness or not of his actions. They are two totally different things.

Justice Leach made several references in the judgement regarding the limitations of the SCA in respect of the ‘findings of fact’ So does the defence expect us to believe that a document that was scrutinised by five experienced members of the SCA and no doubt other legal professionals to contain a blatant example of the cardinal sin of reconsidering factual findings. Really?

It's an absolute shambles it really is

 

[mrjitty]

Having looked at the appeal document in some detail there are statements in there that defy logic and quite frankly are an insult to the intelligence of the ConCourt. For instance in just one paragraph…..

44. Notwithstanding the above, the SCA reconsidered a factual finding by the Trial Court that the Applicant had genuinely, though erroneously believed that his life and that of the Deceased were in danger (putative private defence). In so doing the SCA found that the Applicant “did not entertain an honest and genuine belief that he was acting lawfully…”. The Applicant’s putative private defence was thus rejected and a conviction of murder returned.

Even here two things stand out immediately.

Firstly, how can they honestly claim, presumably with a straight face, that the SCA ‘rejected the Applicants’ putative private defence’ when he had no such defence as it had already been rejected by the trial judge.

Secondly, how do they conclude that ‘the SCA reconsidered a factual finding by the Trial Court that the Applicant had genuinely, though erroneously believed that his life and that of the Deceased were in danger’ when they say in the judgement ‘the Applicant did not entertain an honest and genuine belief that he was acting lawfully. Masipa’s findings about Pistorius believing his life to be in danger is in no way ‘reconsidered’ when the SCA makes a comment about his belief in the lawfulness or not of his actions. They are two totally different things.

Justice Leach made several references in the judgement regarding the limitations of the SCA in respect of the ‘findings of fact’ So does the defence expect us to believe that a document that was scrutinised by five experienced members of the SCA and no doubt other legal professionals to contain a blatant example of the cardinal sin of reconsidering factual findings. Really?

It's an absolute shambles it really is

yes - once more Roux is begging the question.

For example one critical question Justice Leach examined is what was OP's intention when he fired the four shots?

The SCA is well within its rights to sift through the accused's own evidence - and noted he had at least 3 explanations. The SCA is therefore allowed to conclude that the defence presented no consistent or reliable explanation on that point. This is not making a new finding of fact. It is simply noting a state of affairs on the face of the judgement.

The SCA also noted Masipa's own comment that PPD cannot apply if the shooting was not intentional

Again Roux's problem is Masipa's failure to work through the checklist

She made a legal error with her finding on DE and that has opened the door to the SCA to apply the law to the facts as found in the case.

The problem then becomes OP's own testimony which did not plead up to PPD

It isn't making new findings if Leach simply makes use of the defences own pleadings.

Leach drew attention to this issue when he asked Roux to show him where this finding was in the judgement.

Roux was spectacularly unable to find it.

 

[Trotterly]

Having looked at the appeal document in some detail there are statements in there that defy logic and quite frankly are an insult to the intelligence of the ConCourt. For instance in just one paragraph…..

44. Notwithstanding the above, the SCA reconsidered a factual finding by the Trial Court that the Applicant had genuinely, though erroneously believed that his life and that of the Deceased were in danger (putative private defence). In so doing the SCA found that the Applicant “did not entertain an honest and genuine belief that he was acting lawfully…”. The Applicant’s putative private defence was thus rejected and a conviction of murder returned.

Even here two things stand out immediately.

Firstly, how can they honestly claim, presumably with a straight face, that the SCA ‘rejected the Applicants’ putative private defence’ when he had no such defence as it had already been rejected by the trial judge.

Secondly, how do they conclude that ‘the SCA reconsidered a factual finding by the Trial Court that the Applicant had genuinely, though erroneously believed that his life and that of the Deceased were in danger’ when they say in the judgement ‘the Applicant did not entertain an honest and genuine belief that he was acting lawfully. Masipa’s findings about Pistorius believing his life to be in danger is in no way ‘reconsidered’ when the SCA makes a comment about his belief in the lawfulness or not of his actions. They are two totally different things.

Justice Leach made several references in the judgement regarding the limitations of the SCA in respect of the ‘findings of fact’ So does the defence expect us to believe that a document that was scrutinised by five experienced members of the SCA and no doubt other legal professionals to contain a blatant example of the cardinal sin of reconsidering factual findings. Really?

It's an absolute shambles it really is

Masipa found as fact that OP feared for his life and deliberately fired.

That's not murder.

The problem I think you are having is believing that it was a genuine fear. But that's not relevant as the appeal is based on what Masipa found not on what you or anyone else thinks is genuine.

 

[Belgarion]

Masipa found as fact that OP feared for his life and deliberately fired.

That's not murder.

The problem I think you are having is believing that it was a genuine fear. But that's not relevant as the appeal is based on what Masipa found not on what you or anyone else thinks is genuine.

With respect I think you don’t understand my post. I am not sure why you think I have a problem understanding ‘genuine fear’ as I really don’t care in what form his ‘fear’ manifested itself.

My post was to show the SCA were not ‘reconsidering’ anything that Masipa had found as fact and more importantly how Roux appears to have a magic wand that for the purposes of the appeal miraculously resurrects putative private defence when it was killed off at the original trial by Masipa.

Now Roux performing conjuring tricks in an attempt to pull the wool over the eyes of the ConCourt is something you really should be worried about!!

 

[Trotterly]

With respect I think you don’t understand my post. I am not sure why you think I have a problem understanding ‘genuine fear’ as I really don’t care in what form his ‘fear’ manifested itself.

My post was to show the SCA were not ‘reconsidering’ anything that Masipa had found as fact and more importantly how Roux appears to have a magic wand that for the purposes of the appeal miraculously resurrects putative private defence when it was killed off at the original trial by Masipa.

Now Roux performing conjuring tricks in an attempt to pull the wool over the eyes of the ConCourt is something you really should be worried about!!

But they did reconsider that he genuinely feared for his life and found that he didn't.

 

[Belgarion]

I am sure that appeal document repeats every point about 100 times over. Probably could have been reduced to two pages. Perhaps they asked everyone in the office to contribute the same argument in their own words and it was all stapled together to bulk it out.

I can imagine it thus - say he had an anxiety disorder on the night of the incident...no-one will check, say over and over again PPD was accepted by the Trial Court, say he was compromised by the dreadful Prosecutor, forced to look at a photo of Reeva's head (they'll forget that he steadfastly refused to look)...poor poor Pistorius with NO legs according to the affidavit. He had to stand in front of the toilet door, he couldn't have done anything else, what do they expect of a disabled man......

He has to resurrect PPD as it underpins the whole appeal simply because PPD implies rational (albeit mistaken) thought. Without an element of thought then there can be no thought process to consider unlawfulness and without that his much trumpeted second component of dolus eventualis (knowledge of unlawfulness) goes out of the window. Which when it is understood the complaint about the SCA re-examining ‘findings of fact’ is unfounded then only leaves Nel treating him in a ‘beastly’ fashion during the cross examination.

Oh wait! They can’t complain about that as it pertains to the original trial in which case it should have formed part of the appeal to the SCA if they had felt so aggrieved. The time limit for bringing complaints about the original trial has long elapsed.

 

[Tortoise]

But they did reconsider that he genuinely feared for his life and found that he didn't.

I wonder if his defence being that he didn't shoot on purpose or aim where he thought the intruder would come out had anything to do with it, let me think about that a while..

 

[Tortoise]

He has to resurrect PPD as it underpins the whole appeal simply because PPD implies rational (albeit mistaken) thought. Without an element of thought then there can be no thought process to consider unlawfulness and without that his much trumpeted second component of dolus eventualis (knowledge of unlawfulness) goes out of the window. Which when it is understood the complaint about the SCA re-examining ‘findings of fact’ is unfounded then only leaves Nel treating him in a ‘beastly’ fashion during the cross examination.

Oh wait! They can’t complain about that as it pertains to the original trial in which case it should have formed part of the appeal to the SCA if they had felt so aggrieved. The time limit for bringing complaints about the original trial has long elapsed.

hehehe! I'm so looking forward to seeing the State's reply to the appeal.

At one point it even says something about appeals to the CC narrowed to the individual's circumstances not being permissible, it then goes on to state very specific complaints about his case - his stumps, his anxiety, his knowledge of unlawfulness, and his treatment by Nel. How that is of wider public importance escapes me.

 

[Trotterly]

I wonder if his defence being that he didn't shoot on purpose or aim where he thought the intruder would come out had anything to do with it, let me think about that a while..

Doesn't really matter what his defence was or what his defence team's defence was either. It's what Masipa found that is important. She was the judge in the trial not Leach or any of the others.

 

[Tortoise]

Masipa found as fact that OP feared for his life and deliberately fired.

That's not murder.

The problem I think you are having is believing that it was a genuine fear. But that's not relevant as the appeal is based on what Masipa found not on what you or anyone else thinks is genuine.

You are having difficulty separating Pistorius' version from the trial court's findings I see.

 

[Tortoise]

Doesn't really matter what his defence was or what his defence team's defence was either. It's what Masipa found that is important. She was the judge in the trial not Leach or any of the others.

BBM What on earth is that?

 

[Belgarion]

But they did reconsider that he genuinely feared for his life and found that he didn't.

But that’s an irrelevance simply because it does not impact in any way on the reasoning the SCA used to find count 1 in favour of the state. This was decided because Masipa misdirected herself in evaluating DE which the SCA subsequently found to be proven. All done without any reference to Pistorius being fearful or not.

The SCA can muse all it likes about his state of mind and whether or not they agree with the trial judge just as long as any disagreement with the facts as found by the original court are not used in determining the outcome of any elements of the appeal.