Oscar Pistorius - Discussion Thread #69 *Appeal Verdict*

[Belgarion]

Except he wasn't in a place where 'armed home invasions that often ended in violence /death were not especially unusual'. He was in a high-security gated estate where home invasions weren't the norm at all. Not at all. And this was someone not really that bothered about security, as evidenced by sleeping with open balcony doors (as did many of his neighbours), not bothering to fix a broken downstairs window, and not being sure if his alarm was working or not. For someone who you think had a very real fear of a home invasion (despite the estate having had something like one minor incident in 5 years), why was he so lax about security? He was so petrified of intruders but yet relaxed enough to go to sleep with his balcony doors open.

When I lived briefly in a very rough part of London many moons ago (near a very famous prison) we were always worried about burglaries and violence and would never ever dream of sleeping with open windows, not unless we wanted our throats cut and our money stolen. When I moved to a leafy suburb years later, no one worried about that kind of thing at all. It was a completely different environment. OP's secured and monitored home was a totally different environment to the one where home invasions are a real threat. That's no doubt why he chose to live there, so he could feel safe enough to sleep with his windows open and not worry too much about fixing broken windows. His casual approach to security doesn't tally with the highly vulnerable disabled man in constant fear of intruders and violence. I think he felt quite safe at home.

In truth the ‘highly vulnerable disabled man in constant fear of intruders and violence’ only materialised after the murder when there was a desperate and indeed crude attempt by the defence to back fit him into this category. Unfortunately making up detailed stories then suddenly forgetting the names of the ‘witnesses’ somewhat gave the game away

 

[soozieqtips]

In truth the ‘highly vulnerable disabled man in constant fear of intruders and violence’ only materialised after the murder when there was a desperate and indeed crude attempt by the defence to back fit him into this category. Unfortunately making up detailed stories then suddenly forgetting the names of the ‘witnesses’ somewhat gave the game away

BIB - if you're referring to the invisible shooter and the unnamed friend who collected OP after his brush with death... that was actually a real laugh out loud moment for me. I couldn't believe he could be so dim as to give all this detail about the shooter and remember where he turned off and parked - but couldn't remember the name of the friend who collected him and brought him back the next day to pick up his car. That was beyond hilarious!

 

[Belgarion]

BIB - if you're referring to the invisible shooter and the unnamed friend who collected OP after his brush with death... that was actually a real laugh out loud moment for me. I couldn't believe he could be so dim as to give all this detail about the shooter and remember where he turned off and parked - but couldn't remember the name of the friend who collected him and brought him back the next day to pick up his car. That was beyond hilarious!

Dim or perhaps the sign of a pathological liar who will weave the most implausible fabrications then simply expect them to be believed because of whom they came from

 

[Greater Than]

On his evidence, whilst he didn't see the attack coming at him, he believed that he heard it coming at him.

SBM

No he didn't. In his own words, he didn't have time to interpret the noise at all, much less interpret it as an intruder coming out to attack him.


Nel: Is it your defense that you fired at the perceived attacker?

OP: No, that's not mine.

Nel: Then.... What is your defense?

OP: My defense is, as I've said milday, I head the noise and I didn't have time to interpret it and I fired my firearm out of fear, milady.

30:05 https://m.youtube.com/watch?v=fMsUK8mhGFw

 

[Sherbert]

To an extent, in breaking in in the first place, the 'intruder' has initiated an attack of sorts. - Just being in the house uninvited is a violation.

In a place where armed home invasions that often ended in violence /death were not especially unusual, I think it is completely possible that on believing someone to have broken into his house in the early hours of the morning, he would also have believed that person to be -in all likelihood -armed, and their own lives to be in danger as a result.

On his evidence, whilst he didn't see the attack coming at him, he believed that he heard it coming at him.

Ultimately, though, as he didn't claim PPD, how does any of that help him to get to culpable homicide?

 

[Sherbert]

I'm not sure if this has been posted before, but here is Dr Roche Steyn in person:

https://m.youtube.com/watch?v=dvKAs2y8CjU

 

[mrjitty]

Beyond simply submitting that the accused acted in fear for their life with a PPD claim, in a prima facie case of homicide like this, isn't the onus on the accused to justify how they "knew" or what made them believe they were acting in lawful self-defense (PPD)?

As I understand it, the prosecution would still have the burden to prove that the accused's justification for lawfulness could not be reasonably possibly true beyond a reasonable doubt.

Contrary to what some seem to believe, I just don't see how the subjective state of fearfulness is all that is necessary to substantiate the use of lethal force.

This is not 100% accurate.

In any criminal case, the State must prove the overall case beyond reasonable doubt. This includes proving both the the Mens Rea (intent) and Actus reus (physical actions).

This is the overall burden in the case but i get the feeling people are now applying the BARD standard to individual evidential aspects of the case.

In the case the prosecution clearly proved beyond reasonable doubt that

a) Pistorius shot and killed Reeva
b) That Pistorius intended to kill a person (Dolus Eventualis).

Where the defence raises self defence - this is a defence of justification. The defence is not raising "doubt" so much but claiming that the action was legally justified. In such a case the evidential onus is on the defence to raise an evidential foundation to show that each element of the test for self defence is met.

Where the defence does raise an evidential foundation for self defence, then burden of proof remains on the prosecution (as usual).

Here is the critical part.

If the prosecution disproves even one element of the test for self defence, then the defence must fail.

So lets say for example the prosecution can show that the defensive action (firing 4 times) was excessive, this does not have to be proven to BARD

Its a simple factual finding that the Court accepts or not.

If the Court is unsure about it - i.e. the defence raises a real possibility that it was self defence - then the defence wins and the case has not been proven to the BARD standard.

In this example I have used self defence to make it simpler but the same applies to PPD.

What has happened is that OP has raised some evidence that brings the defence of PPD into play.

But the Court has found on the facts that elements of the test were not met.

This is why the talk about prima facie proof etc is important.

If the prosecution can kick out just one leg of the test on the facts then PPD is off the table.

So "raising a doubt" via the route of PPD is actually harder than it sounds (an intruder story that is reasonably possibly true).

The defence must prevent the prosecution from disproving even one element of the test.

 

[aftermath]

Except he wasn't in a place where 'armed home invasions that often ended in violence /death were not especially unusual'. He was in a high-security gated estate where home invasions weren't the norm at all. Not at all. And this was someone not really that bothered about security, as evidenced by sleeping with open balcony doors (as did many of his neighbours), not bothering to fix a broken downstairs window, and not being sure if his alarm was working or not. For someone who you think had a very real fear of a home invasion (despite the estate having had something like one minor incident in 5 years), why was he so lax about security? He was so petrified of intruders but yet relaxed enough to go to sleep with his balcony doors open.

When I lived briefly in a very rough part of London many moons ago (near a very famous prison) we were always worried about burglaries and violence and would never ever dream of sleeping with open windows, not unless we wanted our throats cut and our money stolen. When I moved to a leafy suburb years later, no one worried about that kind of thing at all. It was a completely different environment. OP's secured and monitored home was a totally different environment to the one where home invasions are a real threat. That's no doubt why he chose to live there, so he could feel safe enough to sleep with his windows open and not worry too much about fixing broken windows. His casual approach to security doesn't tally with the highly vulnerable disabled man in constant fear of intruders and violence. I think he felt quite safe at home.

These secure gated communities exist and appeal for a large part because of the high crime rate and risk of attack in south Africa. You think he felt quite safe, I think he probably felt safer than he would have done had he not lived in such an estate, but not safe per se.

The sleeping-with-balcony-doors-open detail doesn't necessarily mean that he felt so safe as to leave them open all night while he slept. Dr Vorster explained that his evidence didn't contradict the description of him as highly security conscious - just that (with the other security factors in place: gate/fence around estate, security patrols, alarms, locked doors downstairs, locked bedroom door, closed windows etc), he could trust his partner to close them and lock them before she went to sleep

I don't think the evidence suggests someone lax about security. I do think the defence team maximised his anxiety a bit though.

 

[mrjitty]

Seems a good time to post some key passages from Justice Leach

Re intention

The argument appears to have been that in the circumstances that prevailed, the accused may well have fired without thinking of the consequences of his actions.

In my view this cannot be accepted. On his own version, when he thought there was an intruder in the toilet, the accused armed himself with a heavy calibre firearm loaded with ammunition specifically designed for self-defence, screamed at the intruder to get out of his house, and proceeded forward to the bathroom in order to confront whoever might be there. He is a person well-trained in the use of firearms and was holding his weapon at the ready in order to shoot. He paused at the entrance to the bathroom and when he became aware that there was a person in the toilet cubicle, he fired four shots through the door. And he never offered an acceptable explanation for having done so.

As a matter of common sense, at the time the fatal shots were fired, the possibility of the death of the person behind the door was clearly an obvious result.

On whether PPD was raised

As a final counter to the State's case, it was argued that although the accused had not acted in private or so called 'self-defence' ─ there had in fact been no attack upon him that he had acted to ward off - he had genuinely but erroneously believed that his life was in danger when he fired the fatal shots. As opposed to what is commonly known as self-defence, this is so-called 'putative' private or self-defence.

On standard of proof

On appeal the unlawfulness of the appellant's conduct was not in issue. Accordingly the only issue was whether the State had proved beyond all reasonable doubt that the appellant subjectively had the necessary intent to commit the crimes of which he was convicted, in other words, that he did not entertain an honest belief that he was entitled to act in private defence .

So if as a question of fact, the belief was not held, the case has been proved beyond all reasonable doubt.

On Proof at trial

The immediate difficulty that I have with the accused's reliance upon putative private defence is that when he testified, he stated that he had not intended to shoot the person whom he felt was an intruder. This immediately placed himself beyond the ambit of the defence, although as I have said, his evidence is so contradictory that one does just not know his true explanation for firing the weapon.

oh dear!

In order to disturb the natural inference that a person intends the probable consequences of his actions, the accused was required to establish at least a factual foundation for his alleged genuine belief of an imminent attack upon him.

So as you can see, dear old Oscar failed to actually establish the grounds for PPD

 

[mrjitty]

BIB - if you're referring to the invisible shooter and the unnamed friend who collected OP after his brush with death... that was actually a real laugh out loud moment for me. I couldn't believe he could be so dim as to give all this detail about the shooter and remember where he turned off and parked - but couldn't remember the name of the friend who collected him and brought him back the next day to pick up his car. That was beyond hilarious!

And yet this obvious lying didn't draw a specific rebuke from the Judge

High Court Judges I know back home would have devoted some choice words in their judgement to that little fiasco

 

[Marfa Lights]

Thanks, Mr. Mitty!

Easy to go off rails without some course correction now and then.

 

[JudgeJudi]

Snipped

What's very interesting here is that President Zuma appointed Chief Justice Mogoeng. That's a bit worrying.

Reading through parts of the ConCourt website I’ve just learned that:

“First, the Judicial Service Commission draws up a list of candidates that must have three more names than the number of vacancies. The Commission does this after calling for nominations and holding public interviews. Then the President, after consultation with the Chief Justice and the leaders of political parties represented in the National Assembly, chooses the judges from this selection”.

http://www.constitutionalcourt.org.za/site/judges/howjudgesareappointed.htm

Mogoeng’s meteoric rise under the Zuma administration raised concerns about his independence.

Criticism of his suitability, and of his close ties with the Zuma administration, continued well after his appointment. But he has been defended by highly respected colleagues who described him as a man "of serious purpose, deeply committed to the Constitution", and is now widely thought to have dispelled suspicions that he would be a conservative and executive-minded Chief Justice.

In his public addresses he has been "outspoken" and "forthright", has regularly championed judicial independence and deplored interference by the executive.

In a recent case he was widely praised for his "courageous and principled leadership and his "efforts to protect the independence of the judiciary". One commentator even said "Mogoeng's intervention might one day be seen as one of the courageous acts that saved South Africa's budding democracy".

https://en.wikipedia.org/wiki/Mogoeng_Mogoeng

All the above, especially in light of the Zuma case before the ConCourt the other day where Zuma has been accused of violating the Constitution, leads me to believe he will act in an impartial manner and show that judicial independence is alive and well in SA.

 

[sinth]

BIB - if you're referring to the invisible shooter and the unnamed friend who collected OP after his brush with death... that was actually a real laugh out loud moment for me.

Do you remember which day of court this story took place on? I would like to see it...

 

[Marfa Lights]

Do you remember which day of court this story took place on? I would like to see it...

It appears to have been on April 10th, 2014. Here's a link to a transcript as reported in The Telegraph:

http://www.telegraph.co.uk/news/wor...ius-murder-trial-April-10-as-it-happened.html

 

[JudgeJudi]

Do you remember which day of court this story took place on? I would like to see it...

It was on 11 April starting at 0:38:00

[video=youtube;eBvvA4cL5Zc]https://www.youtube.com/watch?v=eBvvA4cL5Zc[/video]

 

[Interested Bystander]

I'm not sure if this has been posted before, but here is Dr Roche Steyn in person:

https://m.youtube.com/watch?v=dvKAs2y8CjU

There is something shifty about this guy. Watch his lack of eye contact when talking to the reporter/camera. The only other option is he is very shy and I doubt that given his status. Do we have a psychologist on board?

 

[Belgarion]

There is something shifty about this guy. Watch his lack of eye contact when talking to the reporter/camera. The only other option is he is very shy and I doubt that given his status. Do we have a psychologist on board?

Perhaps he just has a guilty conscience as to how much he is being ‘reimbursed’ for his scholarly input.

 

[Tortoise]

Perhaps he just has a guilty conscience as to how much he is being ‘reimbursed’ for his scholarly input.

I don't think there is a conscience anywhere on that team.

Having realised he has no acceptable defence to murder within the definitions of the law, they have the gall to approach the Constitutional Court with an accusation that the way courts have defined murder is unfair. And not just unfair to Pistorius, but the general population, just to make it a constitutional matter.

You couldn't make it up. But I suppose he got away with it once already when it came to his illegal possession of ammo. Pistorius breaks the law and then gets the law changed to accommodate him.

Someone needs to come down hard on him soon, because he just doesn't get it.

 

[aftermath]

I don't think there is a conscience anywhere on that team.

Having realised he has no acceptable defence to murder within the definitions of the law, they have the gall to approach the Constitutional Court with an accusation that the way courts have defined murder is unfair. And not just unfair to Pistorius, but the general population, just to make it a constitutional matter.

You couldn't make it up. But I suppose he got away with it once already when it came to his illegal possession of ammo. Pistorius breaks the law and then gets the law changed to accommodate him.

Someone needs to come down hard on him soon, because he just doesn't get it.

What bit of Steyn's comment on knowledge of unlawfulness for dolus don't you agree with?

ETA I have always felt that the question of his criminal intent has to be about whether- at the moment he fired - that he knew he was acting unlawfully/ knew he might be acting unlawfully but carried on anyway/ knew the consequences of his actions would be unlawful /knew the consequences of his actions might be unlawful but carried on anyway. If none of these applied, then he wouldn't have the necessary dolus for DE.

I don't think that in putting Sean Rens on the Stand, for example, that the state proved that at the moment of firing he knew he was acting unlawfully. All it proved was that when in a safe, calm situation (the written test), Pistorius knew it was unlawful to fire through a door at an attacker.

 

[Marfa Lights]

What bit of Steyn's comment on knowledge of unlawfulness for dolus don't you agree with?

ETA I have always felt that the question of his criminal intent has to be about whether- at the moment he fired - that he knew he was acting unlawfully/ knew he might be acting unlawfully but carried on anyway/ knew the consequences of his actions would be unlawful /knew the consequences of his actions might be unlawful but carried on anyway. If none of these applied, then he wouldn't have the necessary dolus for DE.

I don't think that in putting Sean Rens on the Stand, for example, that the state proved that at the moment of firing he knew he was acting unlawfully. All it proved was that when in a safe, calm situation (the written test), Pistorius knew it was unlawful to fire through a door at an attacker.

You might re-read Sherbert's post # 601 which quotes an earlier post of mine where I was sorting through these issues. I had been hung up thinking of "knowledge" of lawfulness as the kind of factual knowledge that he would have demonstrated on his firearms exam. But yes, your approach is more correct. See also Mr. Jitty's posts #647 & 649 above.

Not sure though how anyone could believe he would have thought he was acting lawfully firing 4 lethal rounds at an unidentified person through a closed door. He went to confront a supposed intruder, he located someone in his toilet, he aimed, he fired, and he killed someone before bothering to ascertain if they even were an intruder. He was unable to justify his actions as a lawful PPD response.