Oscar Pistorius - Discussion Thread #69 *Appeal Verdict*

[Belgarion]

Application for Leave to Appeal in full

https://docs.google.com/document/d/1s36SD0wAMqdrz115h111EkZZEy0xAws8ZCc5qn4fs3E/edit

This document appears to be littered with references to putative private defence as if this was accepted by the trial Court…….

…..once the putative private defence had been established

….the facts related to the Applicant’s defence of putative private defence formed part of the accepted facts that were before the SCA.

…..the Trial Court found, with reference to putative private defence, that the Applicant had never intended to kill the person in the toilet cubicle

…..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.

…….this was excluded by virtue of the Applicant’s genuine belief that his life and that of the Deceased were in danger (putative private defence),as found by the Trial Court

….The SCA, however, disregarded the Trial Court’s finding of putative private defence

…….Trial Court judgment also established the putative private defence, which the SCA did not include in their quotation.

This is simply not true Masipa did not accept Pistorius acted with putative private defence. In fact she said, ‘Counsel for the State, correctly in my view, submitted that if the accused never intended to shoot anyone he cannot rely on putative private defence'. In other word she rejected ppd not accepted it as the appeal document suggests

 

[mhiforme]

If the ConCourt refuses to hear OP's appeal, he may approach C.J. Mogoeng Mogoeng directly and ask him to reconsider. Not doubting that would happen, it being within his rights, but has he already said that though (link please)?

BIB

Curlewis said that if the Constitutional Court refuses to hear Pistorius' appeal‚ he may approach Chief Justice Mogoeng Mogoeng directly and ask him to reconsider.

http://www.rdm.co.za/politics/2015/12/09/why-oscar-s-appeal-to-the-constitutional-court-will-fail

 

[mhiforme]

It would be interesting to hear your reason as to why you think there is ‘no doubt' the ConCourt will entertain this appeal as in contrast I can’t see this happening.

Currently there appears to be two views from the Pistorius legal team for approaching the ConCourt. Firstly ‘the SCA should not have heard the appeal’ and secondly they are arguing the SCA wrongly overturned Masipa factual findings that Pistorius acted out of fear.

The first argument is in my opinion perverse. There may have been some merit in this approach if the trial judge had refused leave to appeal and the SCA had been petitioned directly but this was not the case. Masipa granted leave to appeal in respect of questions of law that had arisen in her court which in her opinion needed consideration by the SCA. It is then incumbent on the SCA to consider these questions of law reserved; to simply refuse such a request would fly in the face of the purpose of having an appellate court.

Secondly to argue that the SCA overturned Masipa’s finding of fact that Pistorius was ‘fearful’ is incorrect in my opinion.

During the appeal Justice Baartman noted that a person can’t simply use ‘anxiety’ as an excuse for firing four times through a closed door, but she did not dispute the trial court finding that Pistorius was fearful or anxious.

During the reading of the judgement Justice Leach was at pains to point out several times the limitations of the SCA in this case in respect of not interfering with Masipa’s findings of facts. Therefore it would be perverse for experienced SCA justices to then do exactly the opposite.

I would imagine the Pistorius defence team are hanging their hat on the single phrase in para 54 of the judgement where Justice Leach says ‘he fired without having a rationale or genuine fear his life was in danger’ which the defence may well consider overturns Masipa’s finding that Pistorius was indeed fearful. If this is the case they really are clutching at straws because previous to this statement Justice Leach accepts the accused may well have been frightened when he armed himself but then goes on to say there was no genuine reason for this ‘fear’ nor was it the product of rational thought. In essence Justice Leach is merely questioning the reason for this ‘fear’ but most importantly he does not question its existence because should he have done so then he would be overturning Masipa’s finding that Pistorius was ‘fearful.’ This he was careful not to do.

So, bearing in mind that before granting leave to appeal the ConCourt has to be of the opinion there is a reasonable prospect of the appeal succeeding then I cannot imagine for one moment an appeal being entertained on such flimsy grounds

Right or wrong, this case has national interest and is said to be one of the biggest cases in S. African history. It's for this reason that I think the ConCourt will make special accommodations to hear it. I think we'll hear more about the rights of the disabled as that is a constitutional matter.

I haven't gone through the whole doc yet, but I found this quite interesting. I wouldn't mind hearing some discussion on the second component. This is something that I have been stressing and I don't recall it really being addressed.

First, in determining the first two reserved questions of law in favour of the State, the SCA only applied the first component of dolus eventualis (foresight and reconciliation) and failed to appreciate the inextricable relationship between the first component of dolus eventualis (foresight and reconciliation) and the second component of dolus eventualis (knowledge of unlawfulness).

 

[Tortoise]

Right or wrong, this case has national interest and is said to be one of the biggest cases in S. African history. It's for this reason that I think the ConCourt will make special accommodations to hear it. I think we'll hear more about the rights of the disabled as that is a constitutional matter.

I haven't gone through the whole doc yet, but I found this quite interesting. I wouldn't mind hearing some discussion on the second component. This is something that I have been stressing and I don't recall it really being addressed.

First, in determining the first two reserved questions of law in favour of the State, the SCA only applied the first component of dolus eventualis (foresight and reconciliation) and failed to appreciate the inextricable relationship between the first component of dolus eventualis (foresight and reconciliation) and the second component of dolus eventualis (knowledge of unlawfulness).

I'll answer it for you but I guarantee you're not gonna like hearing it. He can't claim knowledge of anything (thinking it was lawful or unlawful to shoot) because he said he didn't shoot on purpose.

It is another DT smoke-screen, pour on lots of smoke, just like the constant references to PPD having been accepted by Masipa as Belgarion's post points out. Say it enough times and someone might think that what you're saying is true.

 

[mhiforme]

I'll answer it for you but I guarantee you're not gonna like hearing it. He can't claim knowledge of anything (thinking it was lawful or unlawful to shoot) because he said he didn't shoot on purpose.

It is another DT smoke-screen, pour on lots of smoke, just like the constant references to PPD having been accepted by Masipa as Belgarion's post points out. Say it enough times and someone might think that what you're saying is true.

BIB, we're at a point in this case where we are looking more at the actual definitions of the various terms such as Dolus and whether they were applied correctly.

I'm still working my way through Roux's petition to the CC, but I believe Leech put it best when he said that a new set of judges could look at the same information and come to a different conclusion. Because the SCA was a higher court than Masipa, their verdict ruled, but now it's time for the CC.

Roux addresses a lot in his paper and your comment in bold is also addressed when he says:

"The SCA had no legal basis to interfere with that credibility finding nor could the SCA introduce the rational person test to circumvent the Trial Court’s finding."

Again, this is now about legal definitions and Oscar may have his verdict reversed on a technicality. I would be really surprised if this doesn't get heard at the CC.

 

[Belgarion]

Right or wrong, this case has national interest and is said to be one of the biggest cases in S. African history. It's for this reason that I think the ConCourt will make special accommodations to hear it. I think we'll hear more about the rights of the disabled as that is a constitutional matter.

I haven't gone through the whole doc yet, but I found this quite interesting. I wouldn't mind hearing some discussion on the second component. This is something that I have been stressing and I don't recall it really being addressed.

First, in determining the first two reserved questions of law in favour of the State, the SCA only applied the first component of dolus eventualis (foresight and reconciliation) and failed to appreciate the inextricable relationship between the first component of dolus eventualis (foresight and reconciliation) and the second component of dolus eventualis (knowledge of unlawfulness).

I think you may not be aware that this latest somewhat desperate approach by the defence team is based on the writings of Dr Roché Steyn who is an integrative Medicolegal Specialist and not a practicing lawyer. In relation to determining ‘dolus eventualis’ he advocates elevating the basic two-step approach (i.e. ‘foreseeing and reconciling&#8217 by introducing the element of subjective ‘knowledge of unlawfulness’ Unfortunately the appeal document gives the impression this is a common practice approach which has been applied erroneously by the SCA. Nothing could be further from the truth.

Indeed even if one were to introduce such a step it does not assist Pistorius. You may recall in April 2014 Pistorius told the court that ‘he did not intend to shoot anyone and didn't intend to fire his gun on the night Reeva Steenkamp was killed’.

So quite how a court is supposed to determine the lawfulness or otherwise of someone not intending to shoot anyone or indeed even intending to discharge their firearm is beyond my comprehension.

This desperation ranks alongside Mr Andrew Fawcett challenging the appeal court's conclusion that the athlete knew he would kill someone when he fired into a toilet cubicle when Roux himself conceded at the SCA that the probable consequence of Pistorius firing into the toilet was that someone would be shot, perhaps even fatally

The stench of desperation is overwhelming

 

[Tortoise]

BIB, we're at a point in this case where we are looking more at the actual definitions of the various terms such as Dolus and whether they were applied correctly.

I'm still working my way through Roux's petition to the CC, but I believe Leech put it best when he said that a new set of judges could look at the same information and come to a different conclusion. Because the SCA was a higher court than Masipa, their verdict ruled, but now it's time for the CC.

Roux addresses a lot in his paper and your comment in bold is also addressed when he says:

"The SCA had no legal basis to interfere with that credibility finding nor could the SCA introduce the rational person test to circumvent the Trial Court’s finding."

Again, this is now about legal definitions and Oscar may have his verdict reversed on a technicality. I would be really surprised if this doesn't get heard at the CC.

I think you're missing the point. Pistorius's defence/version at trial is set in stone. Masipa didn't make the "credibility finding" that the appeal papers are relying on - that he fired in PPD. Masipa simply did not address PPD in her judgement.

He said he fired without intention, not only no intention to kill but no intention to shoot. Masipa rejected this outright, said he fired on purpose. That doesn't give him a valid retrospective claim, or new defence as it were, to have shot purposefully and lawfully to defend himself against a perceived attack (PPD).

When the SCA evaluated his version to see if it met the requirements for a successful defence of PPD they found it lacking in every respect. One of those requirements being that to defend oneself one must at the very least make the conscious decision to shoot to preempt / ward off the perceived attack. He denied he did this because he said he didn't think, even though he said he was thinking about whether a warning shot would ricochet. Therefore they were entitled and obligated by the law to rule that the intention to shoot was unlawful.

No new eyes are needed on this, the five judges were correct and the legal definitions you refer to certainly aren't new and were already considered by the SCA.

As for the rational person, he had a psychiatric evaluation and was not even found to have an anxiety disorder after having shot Reeva to death and while on trial for murder, let alone over a year earlier. Not that anxiety would justify murder anyway.

His fall will be even harder now that the whole world has seen what despicable lows he will stoop to to avoid doing the time for the murder he calculatedly committed when he took up his gun walked from his bedroom to the bathroom and pumped 4 bullets into Reeva; disability discrimination for goodness sake. He is fighting a dirty fight and he will lose.

 

[ColonelMustard]

Forgive me if I'm totally off base with this but do I remember there being some discussion about, in the event that this would go to/be accepted by the ConCourt, the following disparity could be corrected:

The Defense can appeal on the basis or fact or law.
The Prosecution can appeal based only on law.

In my humble opinion, that should change. There were many numerous errors of fact in Masipa's judgement, if I recall correctly, such as:

"- that the deceased sustained a wound on the right thigh, a wound on the left upper arm, a head injury and a wound on the web of the
fingers and..."

I thought it was her right arm.

Comments please.

 

[Belgarion]

BIB, we're at a point in this case where we are looking more at the actual definitions of the various terms such as Dolus and whether they were applied correctly.

I'm still working my way through Roux's petition to the CC, but I believe Leech put it best when he said that a new set of judges could look at the same information and come to a different conclusion. Because the SCA was a higher court than Masipa, their verdict ruled, but now it's time for the CC.

Roux addresses a lot in his paper and your comment in bold is also addressed when he says:

"The SCA had no legal basis to interfere with that credibility finding nor could the SCA introduce the rational person test to circumvent the Trial Court’s finding."

Again, this is now about legal definitions and Oscar may have his verdict reversed on a technicality. I would be really surprised if this doesn't get heard at the CC.

I don’t think you should rely too much on that statement, which was merely a sop to make Masipa feel better after she had been trashed by the SCA. In fact what Justice Leach said in full was, ‘The fact that this court has determined that certain mistakes were made should not be seen as an adverse comment upon her competence and ability. The fact is that different judges reach different conclusions and, in the light of an appeal structure, those of the appellate court prevail. But the fact that the appeal has succeeded is not to be regarded as a slight upon the trial judge who is to be congratulated for the manner in which she conducted the proceedings’.

Justice Leach was indeed correct about Masipa making errors as no doubt on reflected she also concluded she may have erred when she granted leave to appeal with the words……. I cannot say.. that the prospect of success at the Supreme Court is remote and that others may find different

 

[mrjitty]

https://twitter.com/karynmaughan

#OscarPistorius lawyers argue SCA acted "unconstitutionally" when it rejected finding that OP believed his and Reeva's life were in danger

Check out her twitter feed for snapshots of parts of the Leave to Appeal
https://twitter.com/karynmaughan/status/686830224164712448
https://twitter.com/karynmaughan/status/686831220282503168
https://twitter.com/karynmaughan/status/686832001463267332
https://twitter.com/karynmaughan/status/686833960861712384
https://twitter.com/karynmaughan/status/686834945290047489
https://twitter.com/karynmaughan/status/686836596725968896

So in short, Roux is rehashing the same tired arguments that failed in the SCA

His problem remains the same - Masipa failed to articulate a tight set of findings that make out PPD

"Acting out of fear" is not the test for PPD but merely one limb

Its easy to highlight fallacy.

Even if scared, OP had to know that his actions were not lawful.

The door had not opened. He had not verified who was in the toilet. He had the option to retreat but advanced on the toilet and fired 4 shots

 

[mrjitty]

This document appears to be littered with references to putative private defence as if this was accepted by the trial Court…….

…..once the putative private defence had been established

….the facts related to the Applicant’s defence of putative private defence formed part of the accepted facts that were before the SCA.

…..the Trial Court found, with reference to putative private defence, that the Applicant had never intended to kill the person in the toilet cubicle

…..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.

…….this was excluded by virtue of the Applicant’s genuine belief that his life and that of the Deceased were in danger (putative private defence),as found by the Trial Court

….The SCA, however, disregarded the Trial Court’s finding of putative private defence

…….Trial Court judgment also established the putative private defence, which the SCA did not include in their quotation.

This is simply not true Masipa did not accept Pistorius acted with putative private defence. In fact she said, ‘Counsel for the State, correctly in my view, submitted that if the accused never intended to shoot anyone he cannot rely on putative private defence'. In other word she rejected ppd not accepted it as the appeal document suggests

exactly.

The irony being that Masipa's poor quality drafting remains Roux's Achilles heel on appeal

 

[DexterMorgan]

https://twitter.com/karynmaughan

#OscarPistorius lawyers argue SCA acted "unconstitutionally" when it rejected finding that OP believed his and Reeva's life were in danger

Check out her twitter feed for snapshots of parts of the Leave to Appeal
https://twitter.com/karynmaughan/status/686830224164712448
https://twitter.com/karynmaughan/status/686831220282503168
https://twitter.com/karynmaughan/status/686832001463267332
https://twitter.com/karynmaughan/status/686833960861712384
https://twitter.com/karynmaughan/status/686834945290047489
https://twitter.com/karynmaughan/status/686836596725968896



Is Roux hoping to get the original conviction overturned as well?

https://twitter.com/karynmaughan/status/686837659642236928
https://twitter.com/karynmaughan/status/686838864451899392
https://twitter.com/karynmaughan/status/686840320663916544

Karyn Maughan ‏@karynmaughan
#OscarPistorius lawyers: SCA unfairly discriminated against him on basis of his"disability, vulnerability, anxiety"
#OscarPistorius lawyers argue Appeal Court wrong to treat him like able-bodied person and find his behavior in shooting was irrational

Hopefully we'll have a link to the full document shortly.

Well it has already been proven that oscar didn't think that he and Reeva was in danger. Simply because he never secured her whereabouts before firing shots. Jmo.

 

[mrjitty]

First, in determining the first two reserved questions of law in favour of the State, the SCA only applied the first component of dolus eventualis (foresight and reconciliation) and failed to appreciate the inextricable relationship between the first component of dolus eventualis (foresight and reconciliation) and the second component of dolus eventualis (knowledge of unlawfulness).

This is nonsense

The accused lacks knowledge of unlawfulness only where the defence of PPD is made out.

So in other words, the accused must mistakenly believe that they acted in self defence

So in other words, allowing for the subjective mistake, the test of self defence must be made out.


This was precisely the question the SCA addressed and precisely the question where Masipa failed to articulate a coherent finding

We should expect the SCA to confirm that the defence of putative private defence must fail if there is dolus eventualis (forsight of the possibility and reckless persistence) relating to any of these requirements. In other words, that 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 no force was necessary;
5. That the force used was excessive in the circumstances; or
6. The force used was not directed at the attacker.

http://criminallawza.net/2015/12/02...-of-appeal-judgement-in-the-pistorius-appeal/

The defence clearly fails on points 2, 4 and 5

 

[mrjitty]

The key question remains the same

Even if he was afraid - OP knew for a fact that his actions were not lawful

He knew that you may not shoot through the door in those circumstances

 

[L2L]

BIB

Curlewis said that if the Constitutional Court refuses to hear Pistorius' appeal‚ he may approach Chief Justice Mogoeng Mogoeng directly and ask him to reconsider.

http://www.rdm.co.za/politics/2015/12/09/why-oscar-s-appeal-to-the-constitutional-court-will-fail

Curlewis, yes; and others. Haven't checked and hardly worth the time anyhow, but, if memory serves me right, I recall you saying Pistorius himself had said he would approach the Chief Justice to reconsider. Again, if I recall correctly, Roux stated that they would return to the HC for sentencing if ConCourt appeal was rejected. Not that important now in light of recent days' events.

 

[DexterMorgan]

In the United States. Gun accidents do happen as well.

But it was a hot night. So Reeva wouldn't have been under blankets totally. So he should have known that reeva was not in the bed when he got the gun and was screaming loud enough for the neighborhood to hear him.

Also. Why didn't he call out for the other person in the house to come upstairs to help. Jmo

 

[ColonelMustard]

 

[DexterMorgan]

Oscar said that he heard a noise. Got his gun and went straight to the bathroom while yelling get out of my house.

But what he didn't say was that he tried to warn reeva to exit the bed or call the police or even check to see if reeva was still in the bed.

 

[Tortoise]

So in short, Roux is rehashing the same tired arguments that failed in the SCA

His problem remains the same - Masipa failed to articulate a tight set of findings that make out PPD

"Acting out of fear" is not the test for PPD but merely one limb

Its easy to highlight fallacy.

Even if scared, OP had to know that his actions were not lawful.

The door had not opened. He had not verified who was in the toilet. He had the option to retreat but advanced on the toilet and fired 4 shots

Precisely.

In a nutshell, PPD was explicitly rejected by Masipa on the grounds laid out by the State in closing arguments - had PPD been accepted he would have been acquitted as it is a complete defence.

The DT is dressing up the same arguments that failed already. They should be sent away with a flea in their ear. Perhaps they couldn't resist taking a bite of Uncle's money.

 

[Deleted member 102539]

Does anybody know if the man to the left is Frankie?