Oscar Pistorius - Discussion Thread #69 *Appeal Verdict*

[JudgeJudi]

And another on the same subject

[video=youtube;tn7LwJTZhxU]http://www.youtube.com/watch?v=tn7LwJTZhxU"]http://www.youtube.com/watch?v=tn7LwJTZhxU[/video]


Disability does not become a licence to kill.

 

[Cherwell]

ONE OF SA’S TOP CRIME PROFILERS RESIGNS AFTER 14 YEARS

"Brigadier Labuschagne, who led the Investigative Psychology Section, resigned from the police this week. Labuschagne has worked on over 300 serial murder and rape cases and was recently involved in the Oscar Pistorius investigation."

"One of the police’s top psychologists and profilers Gerard Labuschagne, says while there are brilliant detectives working cases, the overall quality of investigations has been slipping."

http://ewn.co.za/2016/02/02/Gerard-Labuschagne-believes-in-his-former-unit-to-solve-cases

You will remember he was often seen sitting behind Gerrie Nel:

View attachment 88397

I think he was the colleague whom Pistorius's aunt (the criminal profiler) called immediately after the shooting. Some people referred to him as a "family friend" but he was someone she had worked with. He is said to have told Pistorius that he would look after him. Until it became clear what had really happened, I guess.

 

[Trotterly]

It was immediately apparent when listening to the reading of her judgement that it was illogical and that she had applied the test of DE incorrectly.

To a QC, it must have been even more apparent that it was appealable.

Roux had an insurmountable challenge to convince the SCA that the judgement was correct. He tried to convince the judges that Masipa had already dealt with dolus in relation to the intruder before she examined DE only in relation to Reeva, on some spurious ground that he may have still considered whether it was Reeva in the cubicle before firing the shots. The problem with this argument was that she had already also by that stage of the judgement found that he thought she was in the bedroom, so logically there was no need to ask that question again, and she may as well have not even bothered to consider DE at all if Roux's interpretation was correct.

The final nail in Roux's coffin came when Leach pointed out that if Roux was right in thinking that she needed at that stage only to check to see if DE applied only in relation to Reeva, she then added in a second paragraph about him not having been able to foresee killing Reeva, "or anyone else for that matter".

This unravelled Roux's argument completely, and when pressed to say how this made sense he couldn't and he thanked Justice Leach for letting him off the hook.

That is how Roux knew he had lost.

BIB I don't know why Roux failed to follow through with this.

If her reasoning is that in this case DE does not depend on but cannot apply unless he thinks it is Reeva then of course who he foresees might be killed is important. In this case since he could not actually see who it was then he could not foresee who he might kill whether it be Reeva, an intruder or whomever.

If it's easier to understand read it as "He cannot be guilty of DE because DE can only apply if he thinks it's Reeva and he did not know if it was Reeva or anyone else for that matter"

That makes sense.

 

[Tortoise]

BIB I don't know why Roux failed to follow through with this.

If her reasoning is that in this case DE does not depend on but cannot apply unless he thinks it is Reeva then of course who he foresees might be killed is important. In this case since he could not actually see who it was then he could not foresee who he might kill whether it be Reeva, an intruder or whomever.

If it's easier to understand read it as "He cannot be guilty of DE because DE can only apply if he thinks it's Reeva and he did not know if it was Reeva or anyone else for that matter"

That makes sense.

What you're saying is that she can only find criminal intent if he knows Reeva is behind the door. For that to be true, she needed to test his defence of PPD against the prescribed legal standard, and she didn't.

His physical disability does not affect sight or appraisal of what is happening and he knew as a rational person there was no threat at the moment he fired, he saw nothing move, not even the door handle. He said his gun just happened to be pointed at the door when he got a fright and he never decided to shoot, it just happened accidentally, had he wanted to shoot the intruder he would have aimed in a different place etc.. That fails the standard for PPD, his version makes no sense and not being reasonably possibly true it falls to murder.

 

[Greater Than]

BIB I don't know why Roux failed to follow through with this.

If her reasoning is that in this case DE does not depend on but cannot apply unless he thinks it is Reeva then of course who he foresees might be killed is important. In this case since he could not actually see who it was then he could not foresee who he might kill whether it be Reeva, an intruder or whomever.

If it's easier to understand read it as "He cannot be guilty of DE because DE can only apply if he thinks it's Reeva and he did not know if it was Reeva or anyone else for that matter"

That makes sense.

DD applies if he knows it's Reeva.
DE applies to whoever the human being behind the door is. He thought he was shooting at an intruder. Wth error in objecto, the identity of the person is irrelevant.

Since this was largely the basis of the State's appeal to the SCA, I know you are well aware of this distinction by now. Your continual attempt to bait and wind people up has become tiresome.

 

[Marfa Lights]

BIB I don't know why Roux failed to follow through with this.

If her reasoning is that in this case DE does not depend on but cannot apply unless he thinks it is Reeva then of course who he foresees might be killed is important. In this case since he could not actually see who it was then he could not foresee who he might kill whether it be Reeva, an intruder or whomever.

If it's easier to understand read it as "He cannot be guilty of DE because DE can only apply if he thinks it's Reeva and he did not know if it was Reeva or anyone else for that matter"

That makes sense.

Actually it makes no sense at all, hence the appeal to the SCA to straighten out Masipa's faulty "reasoning."

As to your accepted (?) definition of DE, one has to wonder how in the world, after all this time and in-depth discussion, you could still present such delusional claptrap.

 

[Trotterly]

DD applies if he knows it's Reeva.
DE applies to whoever the human being behind the door is. He thought he was shooting at an intruder. Wth error in objecto, the identity of the person is irrelevant.

Since this was largely the basis of the State's appeal to the SCA, I know you are well aware of this distinction by now. Your continual attempt to bait and wind people up has become tiresome.

Of course it could be DD or DE if he thinks or knows it is Reeva.

The outcome of a DE enquiry cannot depend on identity but cannot be applied if he believes his actions are lawful.

Just because you don't see the distinction is no reason to accuse me of baiting.

 

[Trotterly]

Actually it makes no sense at all, hence the appeal to the SCA to straighten out Masipa's faulty "reasoning."

As to your accepted (?) definition of DE, one has to wonder how in the world, after all this time and in-depth discussion, you could still present such delusional claptrap.

It's not my definition it's Roux's. I was pointing out that Masipa's statement about Reeva or anyone else in the judgement made sense given Roux's reasoning. He just failed to appreciate that when he was arguing in front of the SCA.

 

[Susza]

DD applies if he knows it's Reeva.
DE applies to whoever the human being behind the door is. He thought he was shooting at an intruder. Wth error in objecto, the identity of the person is irrelevant.

Since this was largely the basis of the State's appeal to the SCA, I know you are well aware of this distinction by now. Your continual attempt to bait and wind people up has become tiresome.

BIB 2:
I can only agree. Even for me - an ignorant person concerning law (that's why I stay in the background or only ask questions and thank all the smart people here for their helpfull answers) - it appears to be a very odd attitude and very tiresome as BIB 1 is not that difficult to understand and had been explained repeatedly. As BIB 1 is a fact, or you accept it or you don't. In the latter case, with respect to the posters here you should stop belabouring it.

 

[Marfa Lights]

Of course it could be DD or DE if he thinks or knows it is Reeva.

The outcome of a DE enquiry cannot depend on identity but cannot be applied if he believes his actions are lawful.

Just because you don't see the distinction is no reason to accuse me of baiting.

Is it possible (or legally acceptable) for someone to believe their actions are lawful even when it has been entered into evidence that they have the KNOWLEDGE and training to understand such actions are indeed unlawful?

Does the law ask whether they held the belief that their actions were lawful or does the law ask whether or not they had the KNOWLEDGE of the lawful/unlawful nature of their actions?

Is the court obliged to accept the accused's claim that they "thought" or "believed" they were acting lawfully when it has been proven and entered into evidence (i.e. Sean Ren's testimony re: Oscar's firearms licensing exam) that they clearly knew and understood the law regarding the use of lethal force under those circumstances?

 

[ApplesInMyBra]

Is it possible (or legally acceptable) for someone to believe their actions are lawful even when it has been entered into evidence that they have the KNOWLEDGE and training to understand such actions are indeed unlawful?

Does the law ask whether they held the belief that their actions were lawful or does the law ask whether or not they had the KNOWLEDGE of the lawful/unlawful nature of their actions?

Is the court obliged to accept the accused's claim that they "thought" or "believed" they were acting lawfully when it has been proven and entered into evidence (i.e. Sean Ren's testimony re: Oscar's firearms licensing exam) that they clearly knew and understood the law regarding the use of lethal force under those circumstances?

Then anyone can shoot their spouse/partner/child/neighbour/postman dead through a closed door and claim that they "thought" they were acting lawful.

 

[Marfa Lights]

Then anyone can shoot their spouse/partner/child/neighbour/postman dead through a closed door and claim that they "thought" they were acting lawful.

And many have tried!

From ¶54 of the SCA Judgment:

"the accused was required to establish at least a factual foundation for his alleged genuine belief of an imminent attack upon him. This the accused did not do."

 

[Belgarion]

And many have tried!

From ¶54 of the SCA Judgment:

Presumably one has to conclude that the ‘wood moving’ sound claimed by Pistorius as the movement of a magazine rack that it was later shown by a defence expert witness never actually moved (oh the irony!) didn’t quite cut the mustard for the SCA then!

 

[Greater Than]

Is it possible (or legally acceptable) for someone to believe their actions are lawful even when it has been entered into evidence that they have the KNOWLEDGE and training to understand such actions are indeed unlawful?

Does the law ask whether they held the belief that their actions were lawful or does the law ask whether or not they had the KNOWLEDGE of the lawful/unlawful nature of their actions?

Is the court obliged to accept the accused's claim that they "thought" or "believed" they were acting lawfully when it has been proven and entered into evidence (i.e. Sean Ren's testimony re: Oscar's firearms licensing exam) that they clearly knew and understood the law regarding the use of lethal force under those circumstances?

But OP never claimed that he thought or believed he was acting lawfully. On the contrary. He repeatedly said he fired the four shots "before I knew it" and "before I had time to think."

If he didn't have time to think before shooting, then how could he possibly think he was shooting lawfully? According to him, there was no time to think!

He also said he did not intentionally shoot, that he did not aim, that he did not want to shoot the intruder coming out of the toilet, and that he did not purposefully fire into the door.

If he never intended to shoot, much less intentionally shoot at the perceived attacker to defend himself, then how could he possibly believe he was shooting lawfully? According to him, he never intentionally shot his weapon at all. It's impossible to simultaneously believe you're shooting lawfully, yet not even intend to shoot in the first place.

Roux argued that he fired the shots due to his "increased startle response," that the firing of the shots was the result of "a fright," and that it was an "involuntary reflexive response."

If the shots were fired as a reflex due to a startle and fright, then how could he possibly believe he was firing the shots lawfully? No thought process takes place prior to or during a reflexive action, it just automatically happens. So it would be impossible for him to believe the action was lawful when according to him, the action itself was not even voluntary.

OP unloaded four rounds through a closed door upon hearing a noise. He never even suggested, much less claimed, that at the time he was firing the shots that he honestly and genuinely believed he was entitled to shoot and kill whoever made that noise.

 

[mrjitty]

I agree with what a number of you have posted upstream

Intention is not so narrowly defined, nor based only in the moment, or on what the accused testifies.

It is based on what you must have known.

i.e. an imputed knowledge.

So if - thanks to rigorous firearms training - you know an action is illegal, you don't stop knowing that in a moment of fear.

It will always be implied that one knows ones weapon is lethal.

Similarly if one knows ones weapon is lethal, and one starts sleeping with a loading gun beside the bed - that already indicates foresight to use said weapon against "intruders"

A common sense approach is taken.

The evidential onus was on OP to establish facts that indicated to him an imminent attack of a nature justifying the use of lethal force.

He spectacularly failed to do that.

 

[mrjitty]

Is it possible (or legally acceptable) for someone to believe their actions are lawful even when it has been entered into evidence that they have the KNOWLEDGE and training to understand such actions are indeed unlawful?

This is a real great question.

The answer is really more to do with the onus of proof.

For instance, lets us say I am a lawyer, and my client wants me to draft documents relating to some highly complex tax transactions.

Later it emerges the deals constitute tax evasion under a specific provision of the tax code. I face prosecution for my role in the scam.

My defence is i believed the transactions were lawful.

This defence is possible.

e.g maybe i was negligent and didn't check out the right law.

or I was stressed due to work load and forgot about a specific tax provision.

or maybe I analysed the law for my client but made genuine mistakes

However where I am a tax expert - in general it is going to be hard for me to prove to the court that i didn't know what the law was.

The presumption - especially about something obvious - is that I must have known.

I think it is technically possible I could argue I was simply so stressed at work and forgot about that law at the key moment.

But I think its hardly likely the Court would believe me without very good evidence to back up my claim.

Especially the Court is unlikely to believe a "mistake" that can't be taken seriously.

 

[mrjitty]

But OP never claimed that he thought or believed he was acting lawfully. On the contrary. He repeatedly said he fired the four shots "before I knew it" and "before I had time to think."

If he didn't have time to think before shooting, then how could he possibly think he was shooting lawfully? According to him, there was no time to think!

He also said he did not intentionally shoot, that he did not aim, that he did not want to shoot the intruder coming out of the toilet, and that he did not purposefully fire into the door.

If he never intended to shoot, much less intentionally shoot at the perceived attacker to defend himself, then how could he possibly believe he was shooting lawfully? According to him, he never intentionally shot his weapon at all. It's impossible to simultaneously believe you're shooting lawfully, yet not even intend to shoot in the first place.

Roux argued that he fired the shots due to his "increased startle response," that the firing of the shots was the result of "a fright," and that it was an "involuntary reflexive response."

If the shots were fired as a reflex due to a startle and fright, then how could he possibly believe he was firing the shots lawfully? No thought process takes place prior to or during a reflexive action, it just automatically happens. So it would be impossible for him to believe the action was lawful when according to him, the action itself was not even voluntary.

OP unloaded four rounds through a closed door upon hearing a noise. He never even suggested, much less claimed, that at the time he was firing the shots that he honestly and genuinely believed he was entitled to shoot and kill whoever made that noise.

This is really where the "bob each way" approach came unstuck and why Nel was so hot on the "you can't have two defences" point.

 

[Tortoise]

But OP never claimed that he thought or believed he was acting lawfully. On the contrary. He repeatedly said he fired the four shots "before I knew it" and "before I had time to think."

If he didn't have time to think before shooting, then how could he possibly think he was shooting lawfully? According to him, there was no time to think!

He also said he did not intentionally shoot, that he did not aim, that he did not want to shoot the intruder coming out of the toilet, and that he did not purposefully fire into the door.

If he never intended to shoot, much less intentionally shoot at the perceived attacker to defend himself, then how could he possibly believe he was shooting lawfully? According to him, he never intentionally shot his weapon at all. It's impossible to simultaneously believe you're shooting lawfully, yet not even intend to shoot in the first place.

Roux argued that he fired the shots due to his "increased startle response," that the firing of the shots was the result of "a fright," and that it was an "involuntary reflexive response."

If the shots were fired as a reflex due to a startle and fright, then how could he possibly believe he was firing the shots lawfully? No thought process takes place prior to or during a reflexive action, it just automatically happens. So it would be impossible for him to believe the action was lawful when according to him, the action itself was not even voluntary.

OP unloaded four rounds through a closed door upon hearing a noise. He never even suggested, much less claimed, that at the time he was firing the shots that he honestly and genuinely believed he was entitled to shoot and kill whoever made that noise.

That's the nub of it.

You can't apply thought or rationale to an involuntary startle action. Not once did he say he was in control of firing his weapon.

So, he can't have genuinely thought his life was in danger or that he was lawfully entitled to shoot or that he had no other choice or that the door was opening, because if he did he would have elected to shoot and attested to it.

His version was made up.

Anyone who fights on his behalf and cites cases where others have fired at family members in error, is blind to the facts of this case and his testimony. Someone who genuinely but mistakenly thinks they are in danger would not make up their version.

On the facts of his case, subjectively and from his own mouth, it is murder.

 

[Marfa Lights]

But OP never claimed that he thought or believed he was acting lawfully. On the contrary. He repeatedly said he fired the four shots "before I knew it" and "before I had time to think."

If he didn't have time to think before shooting, then how could he possibly think he was shooting lawfully? According to him, there was no time to think!

He also said he did not intentionally shoot, that he did not aim, that he did not want to shoot the intruder coming out of the toilet, and that he did not purposefully fire into the door.

If he never intended to shoot, much less intentionally shoot at the perceived attacker to defend himself, then how could he possibly believe he was shooting lawfully? According to him, he never intentionally shot his weapon at all. It's impossible to simultaneously believe you're shooting lawfully, yet not even intend to shoot in the first place.

Roux argued that he fired the shots due to his "increased startle response," that the firing of the shots was the result of "a fright," and that it was an "involuntary reflexive response."

If the shots were fired as a reflex due to a startle and fright, then how could he possibly believe he was firing the shots lawfully? No thought process takes place prior to or during a reflexive action, it just automatically happens. So it would be impossible for him to believe the action was lawful when according to him, the action itself was not even voluntary.

OP unloaded four rounds through a closed door upon hearing a noise. He never even suggested, much less claimed, that at the time he was firing the shots that he honestly and genuinely believed he was entitled to shoot and kill whoever made that noise.

Yes, you might say his defense strategy "back-fired" on him.

 

[sleuth-d-]

And many have tried!

From ¶54 of the SCA Judgment:

"the accused was required to establish at least a factual foundation for his alleged genuine belief of an imminent attack upon him. This the accused did not do."

the case would have been over much quicker if they could have focussed on this as the task - day one. sweep all the other b/s to one side. instead, nearly three years later the delaying tactics are still dragging on...