Oscar Pistorius - Discussion Thread #69 *Appeal Verdict*

[soozieqtips]

Perhaps because the person on the inside who locked the door knows it is locked and would have no reason to turn the handle.

Or he'd told so many lies by that time he didn't think quickly enough. I'm surprised he hasn't blamed Roux for not telling him to say the handle moved.

 

[Belgarion]

my bold.
and yet. not guilty in this case. which gets overlooked, as the murder is understandably the main issue... but still, how did he get away with that ammo charge?

Probably because Roux hoped Masipa would buy his ‘animus’ approach which in her rush to be lenient with Pistorius she did.

It is a sad fact that a High Court judge chose to muddy the waters on what is a serious matter – the act of possession in relation to firearms and ammunition.

It is interesting out of the 60 odd definitions in the Firearms Control Act there is not one for ‘possession.’ No doubt it wasn’t considered necessary as it was thought to be self-explanatory. Now Masipa very stupidly has produced case law which adds to physical possession the need to have the necessary desire to possess before it can be said a firearm/ammunition is possessed in the eyes of the law.

Firearm in the car Officer? Really? Well I never knew it was there so I can’t have the desire to possess it can I? Of course not Sir, have a good evening.

 

[Hazy]

Wonder why he didn't say he saw the handle move.

Logically wouldn't the key have had to turn in the lock first and should have heard that?

 

[sleuth-d-]

Probably because Roux hoped Masipa would buy his ‘animus’ approach which in her rush to be lenient with Pistorius she did.

It is a sad fact that a High Court judge chose to muddy the waters on what is a serious matter – the act of possession in relation to firearms and ammunition.

It is interesting out of the 60 odd definitions in the Firearms Control Act there is not one for ‘possession.’ No doubt it wasn’t considered necessary as it was thought to be self-explanatory. Now Masipa very stupidly has produced case law which adds to physical possession the need to have the necessary desire to possess before it can be said a firearm/ammunition is possessed in the eyes of the law.

Firearm in the car Officer? Really? Well I never knew it was there so I can’t have the desire to possess it can I? Of course not Sir, have a good evening.

i agree, bad precedent. and for a legal system and its processes under the microscope here… another botch-up.

also c/o masipa:
girlfriend behind the door officer? really? well, i never knew she was there, so i can't have the desire to shoot her can i? of course not sir, enjoy your luxury house arrest.

 

[Belgarion]

i agree, bad precedent. and for a legal system and its processes under the microscope here… another botch-up.

also c/o masipa:
girlfriend behind the door officer? really? well, i never knew she was there, so i can't have the desire to shoot her can i? of course not sir, enjoy your luxury house arrest.

This was yet another example of Pistorius going to the extreme to avoid responsibility

The explanation for the ammunition was probably quite simple. He had a .38 calibre firearm on order and had acquired ammunition for it prior to getting the license (maybe he saw a BOGOF offer in the local gun shop). Against the law but probably happens a lot and whose to know if it is in the owners safe. He got caught so just own up.

Instead he comes up with a story which beggars belief. Apparently a father to whom he is estranged and not speaking and who lives 800 miles away at Port Elizabeth just happens to be passing his son’s house and decides to deposit ammunition in the safe whilst he is away. No satisfactory explanation was ever offered as to how his father accessed the house and the safe to deposit ammunition to which he would not swear actually belonged to him.

You couldn’t make it up except of course he did and in the process insulted everyone’s intelligence including Masipa who was more than willing to give him the benefit of the doubt because of ‘animus’ instead of convicting him on an ‘explanation’ which was clearly beyond belief

 

[mrjitty]

Firearm in the car Officer? Really? Well I never knew it was there so I can’t have the desire to possess it can I? Of course not Sir, have a good evening.

Actually its worse than that

Masipa held that you can know it was there, and knowingly possess it - but if its on behalf of someone else then thats ok.

Its just so obviously incorrect its not worth discussing.

 

[mrjitty]

It is interesting out of the 60 odd definitions in the Firearms Control Act there is not one for ‘possession.’ No doubt it wasn’t considered necessary as it was thought to be self-explanatory.

Well understood common law concepts like possession are frequently not defined.

But the key point is that so called Regulatory offences are often strict liability and I suspect tight interpretation should have been the case here.

To illustrate the difference, normally possession does require an intention to possess. So I can't unknowingly or unwittingly possess a gun hidden in the wall by a previous tenant.

However if a gun is lying on the kitchen table next to me, placed there by my flatmate, and the police come around they might argue I am knowingly in possession as I am in control of the premises. This might be different if the gun is in my flatmates room or in his gun safe.

So we can see that when the ammo is in OPs gunsafe - he clearly intended to exercise control over it.

Now the key point is that especially with regulatory offences, the prosecution does not have to show why he possessed it. Actual knowledge, and exertion of control is enough.

Now many Reg offences take this further - so if I fly to Australia with an apple in my daughters coat pocket I will be strictly liable for a big fine - even if I did not know about the apple and my daughter forgot about it.

I suspect the gun regs are not to be seen as strict liability but I think there is no doubt these kind of Regs are intended to be tightly construed.

So in other words, the fact of possession is sufficient, so long as there was knowledge. He does not need to own the goods

Pistorius clearly exercised control over the restricted goods by having them in his safe.

 

[Belgarion]

If one trawls through the media it is possible to find a series of articles entitled ‘Is the 'Link' in Dolus Eventualis still Missing’? by a Dr Roché Steyn, apparently not a lawyer but a lecturer in medico-legal matters. This has been commented on elsewhere.

Now call me suspicious but I find the timing of these articles and the adherence to the ‘theory’ of Dr Roche in the defence leave to appeal application more than coincidental.

At the SCA Masipa was roundly condemned for her errors in straying from the tried and tested formulation for establishing DE. Justice Leach corrected this by reference to the well-established principles of which we are all aware and in the process found Pistorius guilty of murder.

Then suddenly after the appeal hearing Dr Roche started publishing a series of articles which proposed the current approach to establishing DE was ‘inadequate’ and that a ‘second component’ should also be applied. It seems the speed at which the defence picked up on this new approach by Dr Roche one could surmise they have taken the approach that when the current legal principles are not to Pistorius’ advantage just try to change them in favour of the contents of recent publications. Some may even muse if these timely articles were perhaps commissioned by persons who have Pistorius’ interests at heart.

It was the inclusion of this proposed revision to how DE should have been established in the defence leave to appeal application that Andrea Johnson spent a lot of time demolishing in the State’s response, for example to paraphrase,

The applicant without any substantiation in law introduces an entirely alien and anomalous conception of dolus for this Court to consider.

Nowhere is there any authority in any case law or mainstream academic literature to the effect that dolus eventualis is or should be formulated as the Applicant argues it is or should be.

….. I was amused by her reference to ‘mainstream academic literature’ as it was obviously an oblique reference to the articles of Dr Roche not being worthy of this categorisation.

 

[Belgarion]

Well understood common law concepts like possession are frequently not defined.

But the key point is that so called Regulatory offences are often strict liability and I suspect tight interpretation should have been the case here.

To illustrate the difference, normally possession does require an intention to possess. So I can't unknowingly or unwittingly possess a gun hidden in the wall by a previous tenant.

However if a gun is lying on the kitchen table next to me, placed there by my flatmate, and the police come around they might argue I am knowingly in possession as I am in control of the premises. This might be different if the gun is in my flatmates room or in his gun safe.

So we can see that when the ammo is in OPs gunsafe - he clearly intended to exercise control over it.

Now the key point is that especially with regulatory offences, the prosecution does not have to show why he possessed it. Actual knowledge, and exertion of control is enough.

Now many Reg offences take this further - so if I fly to Australia with an apple in my daughters coat pocket I will be strictly liable for a big fine - even if I did not know about the apple and my daughter forgot about it.

I suspect the gun regs are not to be seen as strict liability but I think there is no doubt these kind of Regs are intended to be tightly construed.

So in other words, the fact of possession is sufficient, so long as there was knowledge. He does not need to own the goods

Pistorius clearly exercised control over the restricted goods by having them in his safe.

Absolutely agree, Pistorius knew the ammo was in the safe, he had knowledge of it and therefore in the eyes of the law had control over it therefore possessed it. I would imagine Pistorius finally settled on the ridiculous ‘belonging to my father’ explanation when he had run out of ‘friends’ who would not say it belonged to them. Somewhat similar to asking Fresco to take the rap for the Tasha incident. Anything to avoid taking responsibility!

 

[saraomar]

BIB - "Reacting strongly" is a bit of an understatement for pumping 4 bullets into the door and murdering a human being, don't you think? And it's already been pointed out time and time again that he had no legitimate reason to believe an 'attack' was imminent, since no one came out of the toilet and the door handle didn't even move.

A later post of yours highlights some of OP's testimony where you say he makes it pretty clear why he shot? Firstly, him repeating at least 8 times that "I didn't have time to think" doesn't make it true. Nel pointed out several times where OP did think from the time he armed himself with a gun to the point when he decided to shoot. OP explained all his thought processes when pressed by Nel, and funnily enough he was thinking all the way down the passage, when to scream, when to be quiet, not firing a warning shot in case he hurt himself... but conveniently, at the point of shooting (when he was absolutely under no threat of attack) that's when he suddenly didn't have time to think.

It would not have been a difficult distinction to understand if OP hadn't repeatedly lied throughout, changed his versions when he thought it might help him, or enlisted the help of his family to remove evidence from the crime scene. Innocent people don't do that.

Even if I, one of his biggest fans, in an unbelievable alternate reality gave him the benefit of the doubt.....I cannot accept/justify....
He heard a noise, ok I can accept that we may all do at 3am at night, he did all the things he said he did, never checked to say is that u? Reeva? Walked down quietly, shouted, quiet, ok, fine, then I get to the bathroom and in my fright (noise) I accidently/purposefully/never had time to think etc ok ok I accept........My finger pulls the trigger FOUR times! FOUR not ONE(She would still be alive)....TWO....(she would still be alive)THREE....(possibly still be alive and could live with medical help)....FOUR.....No chance of being alive. How do you pull the trigger 4 times because of a fright? It was not a machine gun!
No No No I do not believe or buy this nonsense!

 

[GR_Turner]

:gaah:

It's fine to take up a gun in self defense, but one then has to be mindful to only USE the gun in a legitimate act of self-defense. You cannot take up a lethal weapon whenever something goes bump in the night and shoot four shots at an unidentified person and kill them simply out of some unfounded fear. All he needed to do was identify his target by asking "Who goes there?"

Otherwise what is left to say: "Sorry, I made an erroneous assumption."

But you can Marfa. That's what PPD is. It's a defense whereby you have a genuine fear which in fact turns out to be unfounded. This is the bit you're missing in the above - what he thought, not what was actually happening. You are taking the armchair critic approach which is not the correct approach here. Would you really say 'who goes there' if you thought you knew it was an intruder? Surely you'd just yell 'get out' as he did.

 

[GR_Turner]

BIB - "Reacting strongly" is a bit of an understatement for pumping 4 bullets into the door and murdering a human being, don't you think? And it's already been pointed out time and time again that he had no legitimate reason to believe an 'attack' was imminent, since no one came out of the toilet and the door handle didn't even move.

A later post of yours highlights some of OP's testimony where you say he makes it pretty clear why he shot? Firstly, him repeating at least 8 times that "I didn't have time to think" doesn't make it true. Nel pointed out several times where OP did think from the time he armed himself with a gun to the point when he decided to shoot. OP explained all his thought processes when pressed by Nel, and funnily enough he was thinking all the way down the passage, when to scream, when to be quiet, not firing a warning shot in case he hurt himself... but conveniently, at the point of shooting (when he was absolutely under no threat of attack) that's when he suddenly didn't have time to think.

It would not have been a difficult distinction to understand if OP hadn't repeatedly lied throughout, changed his versions when he thought it might help him, or enlisted the help of his family to remove evidence from the crime scene. Innocent people don't do that.

Yes, when pressed by Nel. This is catch 22. If he hadn't explained what he did in great detail, while being repeatedly asked why he did this and didn't do that by Nel, he might have had his version rejected because he couldn't explain his actions. But when he justifies his actions, then he was thinking throughout and must be held accountable for that. I'm not sure in what way he could have been clearer that he was acting in reaction to things that happened as they happened, including the noise in the toilet.

 

[Belgarion]

But you can Marfa. That's what PPD is. It's a defense whereby you have a genuine fear which in fact turns out to be unfounded. This is the bit you're missing in the above - what he thought, not what was actually happening. You are taking the armchair critic approach which is not the correct approach here. Would you really say 'who goes there' if you thought you knew it was an intruder? Surely you'd just yell 'get out' as he did.

So you are saying that it is OK to dismiss all the firearms training…. Identify your target and what lies beyond, etc all goes out of the window and it’s perfectly OK for a homeowner to fire four times through a closed door just because a mysterious ‘noise’ made their trigger finger a little twitchy

Really?

 

[sinth]

But you can Marfa. That's what PPD is. It's a defense whereby you have a genuine fear which in fact turns out to be unfounded. This is the bit you're missing in the above - what he thought, not what was actually happening.

Case law disagrees with your definition of PPD because a genuine fear must be based on rational thought, otherwise any murderer could claim that they had a genuine fear and then be exempted from dolus based on PPD. This was mentioned in the SCA judgment:

"But as was pointed out in DeOliviera ,the defence of putative private defence implies rational but mistaken thought. Even if the accused believed that there was someone else in the toilet,his expressed fear that such a person was a danger to his life was not the product of any rational thought. The person concerned was behind a door and although the accused stated that he had heard a noise which he thought might be caused by the door being opened, it did not open. Thus not only did he not know who was behind the door, he did not know whether that person in fact constituted any threat to him. In these circumstances, although he may have been anxious, it is inconceivable that a rational person could have believed he was entitled to fire at this person with a heavy calibre firearm, without taking even that most elementary precaution of firing a warning shot (which the accused said he elected not to fire as he thought the ricochet might harm him). This constituted prima facie proof that the accused did not entertain an honest and genuine belief that he was acting lawfully, which was in no way disturbed by his vacillating and untruthful evidence in regard to his state of mind when he fired his weapon."​

 

[Tortoise]

I think he was pretty clear actually. He fired when he thought the door was about to open, in fright and without time to think. The problem I think is the word intent. OP is clear that he didn't think before shooting and that's why he says he didn't have intention to shoot. This is an understandable perspective when the word is used colloquially and is surely different from intention when used in a legal sense. Given that OP was consistent about his version regarding the belief that the door was about to open, that he was afraid as he thought there was an intruder and that just fired without thinking, the question of legal intent should have been decided by the court and not OP's answer to the question of whether he intended to shoot imo. Masipa decided there was intention so PPD should have been based on that finding, not on OP's fuzzy and colloquial understanding of intention. In effect he had one version that could raise 2 possible defences depending on how you dealt with it legally.

snipped for space

I'm not sure why you think Pistorius had to understand anything about legal definitions of intention or common everyday use of the word intention. All he needed to do was say that he shot on purpose, that he meant to pull the trigger, that he wanted to shoot to protect himself - he failed to do this every time he was asked in many different forms, in fact he didn't just fail to say he wanted to fire the gun, he said he didn't want to, he denied wanting to, he said that it just happened without any thought or self-control or decision or will, that it was accidental or automatic. You can't get further away from intentional shooting than that - it is the opposite. The problem for him is that the psychiatric evaluation decided that he was in full possession of his senses and his actions.

It is faulty logic to think that because Masipa found he did intend to shoot, it satisfies the requirement of intention to shoot by someone who is claiming they were acting to save their own life.

For PPD to succeed, one of the six requirements is "the force used was directed at the attacker".

Pistorius said he did not aim at the (perceived) attacker.

If you can see why directing force at the attacker is an essential component of PPD, (you can't be acting to save yourself if you didn't try to stop the attacker) you must also be able to see that Masipa's finding that he intended to shoot does not assist him. In other words she said he lied when he testified he didn't exert any will or control over pulling the trigger 4 times. A finding of untruthfulness is by its very nature an adverse finding, it cannot be used as evidence of a lawful defence to a criminal action an accused person never advanced themselves.

As the State says "The Applicant's reliance on putative self-defence does not get out of the starting-blocks, since on his own version he never intended to shoot at the perceived danger", and the State again referring to what the SCA said, "The Applicant... has totally ignored the insurmountable hurdle that he on his own version ..had not intended to shoot the person whom he felt was the intruder... which immediately placed him beyond the ambit of the defence.."

 

[GR_Turner]

So you are saying that it is OK to dismiss all the firearms training…. Identify your target and what lies beyond, etc all goes out of the window and it’s perfectly OK for a homeowner to fire four times through a closed door just because a mysterious ‘noise’ made their trigger finger a little twitchy

Really?

Of course not, it's culpable homicide which is still a serious offence.

 

[Trotterly]

I'm not sure why you think Pistorius had to understand anything about legal definitions of intention or common everyday use of the word intention. All he needed to do was say that he shot on purpose, that he meant to pull the trigger, that he wanted to shoot to protect himself - he failed to do this every time he was asked in many different forms, in fact he didn't just fail to say he wanted to fire the gun, he said he didn't want to, he denied wanting to, he said that it just happened without any thought or self-control or decision or will, that it was accidental or automatic. You can't get further away from intentional shooting than that - it is the opposite. The problem for him is that the psychiatric evaluation decided that he was in full possession of his senses and his actions.

It is faulty logic to think that because Masipa found he did intend to shoot, it satisfies the requirement of intention to shoot by someone who is claiming they were acting to save their own life.

For PPD to succeed, one of the six requirements is "the force used was directed at the attacker".

Pistorius said he did not aim at the (perceived) attacker.

If you can see why directing force at the attacker is an essential component of PPD, (you can't be acting to save yourself if you didn't try to stop the attacker) you must also be able to see that Masipa's finding that he intended to shoot does not assist him. In other words she said he lied when he testified he didn't exert any will or control over pulling the trigger 4 times. A finding of untruthfulness is by its very nature an adverse finding, it cannot be used as evidence of a lawful defence to a criminal action an accused person never advanced themselves.

As the State says "The Applicant's reliance on putative self-defence does not get out of the starting-blocks, since on his own version he never intended to shoot at the perceived danger", and the State again referring to what the SCA said, "The Applicant... has totally ignored the insurmountable hurdle that he on his own version ..had not intended to shoot the person whom he felt was the intruder... which immediately placed him beyond the ambit of the defence.."

How is it?

 

[soozieqtips]

How is it?

How is it not?

 

[Tortoise]

How is it?

I've explained it in the bit beneath that sentence you bolded. Do you think a judge can find that you directed force at a perceived attacker to save your own life, if you say you did not?

That's preposterous.

 

[mrjitty]

But you can Marfa. That's what PPD is. It's a defense whereby you have a genuine fear which in fact turns out to be unfounded. This is the bit you're missing in the above - what he thought, not what was actually happening. You are taking the armchair critic approach which is not the correct approach here. Would you really say 'who goes there' if you thought you knew it was an intruder? Surely you'd just yell 'get out' as he did.

Incorrect.

The correct legal definition was posted upthread. You don't get to write your own definition.

Legal reasoning requires that you apply the facts to the legal standard - not claim a legal standard conveniently met by the facts.