Theory Thread - What happened at Pistorius' house on the night of Feb. 13, 2013?

[AJ_DS]

Thanks AJ.

We've had this out before - I disagree with your understanding of putative private defence, strongly so. If I have time later, I'll cite the relevant law and cases.


1. Putative private defence is a complete defence against murder, it is not a complete defence against culpable homicide. An accused can be found to have acted in putative private defence and also be found guilty of culpable homicide.

I agree… have not stated otherwise.

2. The test for murder is purely subjective - what the accused actually believed and intended - as intention to kill unlawfully is assessed subjectively. It is not objective. What matters is what the accused actually perceived, not what a reasonable person would have perceived. What matters is whether an accused believed there was means of escape, not whether there was in fact a means of escape. What matters is that the accused believed the response he took was reasonable, not whether it was objectively reasonable.

You keep talking about the test for murder but then jumping to PPD… not the same tests.

Here I partly disagree… BiB, I agree.

In PPD, the subjective assessment of a perceived threat must be made and it must be reasonable… an accused stating that he heard a noise can be believed by the Judge as being the Truth of what happened but it does not constitute a reasonable causation for believing one's life is being imminently threatened.

Same for the means of escape… say that the perceived threat is deemed reasonable… an accused saying that he believed no other options existed but to use deadly force against the threat is simply not good enough…

e.g. say after someone cut you off on the road, you pull over as does the other driver… the other driver comes over to your car and starts yelling, cursing at you and says : "I'm gonna kill you"… he goes back to his car and pulls out a machete… he walks back towards your car still saying he's going to kill you, cut your stupid head off, etc… if you remove your safety belt, unlock your car door, step out of your car, pull out your gun, take the safety off, *advertiser censored* the gun, point the gun and shoot the guy,… your self-defense claim will surely fail because objectively, you had many available options to avoid the life-threatning situation : you could have left in your car, you could have stayed in the safety of your car and showed the attacker you were armed and ready to defend yourself… simply stating that at the time you foresaw no other option but to shoot the other guy is not good enough

3. This is not to say whether we view things as reasonable is irrelevant for the murder charge. Reasonableness can be relevant indirectly. Whether we believe the accused is key, and we may say that the claimed thoughts and actions are so unreasonable, that they are unbelievable - exactly as the state says "so unreasonable, that they cannot be reasonably possibly true". Eg if an accused says in a public toilet cubicle, he heard the toilet flush and therefore thought he was about to be killed. You may well say OP's version is not dis-similar. However it is important to recognise there is a space in-between where the accused is believed, but he still acted unreasonably.

You keep going back to murder… I was commenting on PD and PPD.

The accused can be believed AND his believed actions deemed reasonable or unreasonable

The accused can be disbelieved AND his disbelieved actions deemed reasonable or unreasonable

4. The requirements you cite are not requirements to defend against a murder charge - they go above and beyond, since so long as you didn't have the subjective intention to unlawfully kill a human being, then you didn't murder. The requirements you cite are instead relevant to defending against culpable homicide, where the test is objective and the question is what a reasonable person would have done. If found to have acted in true putative private defence, then an accused is not guilty of murder. The competent verdict of culpable homicide may then be considered, and here an objective test of reasonableness is applied as it always is, the fact you acted in putative private defence does not make it reasonable or unreasonable per se.

Again you go back to the murder charge ??… I was commenting on the PD and PPD… the requirements I cited are for succeeding in PD and PPD

You seem to suggest that an accused could be found as having acted unreasonably in PD or PPD… that does not make sense… if unreasonable, then it's culpable homicide.

…I welcome any information you can find that would refute what I'm stating.

 

[AJ_DS]

AJ_DS - how did you match the cell tower names from the phone evidence with their actual locations in the timeline thread?

Hi Fossil,

With Google I was able to find the locations of the cell towers… the name of the tower is not random, it's linked to a specific neighborhood, suburb name, historic place, etc… also they all matched perfectly with :

1. Starting point and destination
2. Direction of travel
3. Distance between towers and time between towers

Also… please tell posters on DS that I am not there anymore under a pseudonym.

Keep up the good work on the timelines and data… you should definitely also post it here on WS

 

[Mr Fossil]

Will do. I had one PM me to ask if I was you this evening. Obviously I put her straight, but I did keep the x :blushing:

Yes, I've been doing that. The cell tower maps don't help because they don't give the names. Just wondered if you'd found a site that linked them.

 

[Mr Fossil]

During the lull, I'm reviewing the evidence again.

Moller states that OP’s 0020 iPhone was in the “reception area of the Silver Lakes MTN NGA tower until about 8 o’clock that morning and thereafter it left”. It was then handed back to the police on 25 February 2013.

https://www.youtube.com/watch?v=eMPYfZFquM0 @ 35:40

A closer look at Moller’s chart shows 6 GPRS connections on OP’s phone, starting at about 06:40. The cell towers indicate that the phone was on the move earlier than 08:00, then returning, before being taken away again. The last connection is over 23 minutes.

Times are approximate (taken from the top of the chart).

06:40 3G Silverlakes Something* NGA (15 seconds)
06:53 3G Shere AH NGA (26 secs)
07:00 3G Silverlakes MTN NGA (16 secs)
07:15 3G Silverlakes MTN NGA (26 secs)
07:37 3G Shere AH NGA (24 secs)
08:00 2G Shere AH NGA 2 (1,400+ secs)

*I can’t read this, suggestions welcome

Carice Viljoen-Stander leaves for a shower and then comes back. Does anyone else leave e.g. to pick up a coffee at say Hazeldean Square (it’s just down the road).

There are also 3 unidentified SMS text messages on the phone at approximately 06:00, 06:43 and 06:46.

 

[AJ_DS]

Will do. I had one PM me to ask if I was you this evening. Obviously I put her straight, but I did keep the x :blushing:

Yes, I've been doing that. The cell tower maps don't help because they don't give the names. Just wondered if you'd found a site that linked them.

Which tower are you trying to locate ?… I'll help you.

 

[Mr Fossil]

I'm working on what happened during the day and early evening of the 13th February 2013. I've re-listened to and transcribed OP's EIC for this period and I do not believe his version. If it can be disproved then he is lying. And if he is lying, it is because he is hiding what led up to Reeva's murder. So, starting with dinner ...

OP says they ate between 19:10 and 20:00.

Roux says this is supported by the fact that there is no iPad activity at this time. (Source: Defence HoA). I would add that neither Reeva nor OP have any phone activity of any sort during this period either (Source: Moller phone records)

I do not believe they ate between 19:10 and 20:00.

OP says Reeva was preparing dinner when he got home. Maybe preparing but not cooking. Chopping chicken and vegetables perhaps. A stir fry isn't cooked until just before it's eaten. I'm not sure she was preparing anything but I'm still working on that.

He had a late lunch with Justin Divaris (Source: JD Affidavit). He messaged Reeva at 15:21 to say he was just finishing with Ryan (estate agent). He may have eaten a little at the Firzt party, maybe not. He didn't mention the party to her. He may have drunk alcohol, maybe not. But he arrived at JD's office after this so lunch was definitely late and he was unlikely to have been hungry when he got home.

I think Reeva made them both a hot drink when he got in and they took them upstairs at 19:10, hence the cups found by each side of the bed.

I believe he and Reeva spent some intimate time between 19:10 and 20:00, hence no iPad activity. He / they had viewed *advertiser censored* prior to this. He says he went upstairs for a shower / bath and then "got off the bed and we went downstairs to eat". A slip of the tongue or the truth? This is also supported by the lack of phone and iPad activity. Or maybe they just had a cuddle and a sleep ...

Post mortem evidence suggests Reeva ate 2 hours before death. This is an estimate, it might be 3 hours but it isn't 7-8 hours.

And finally, Reeva used her iPhone to create a hotspot that afternoon so that she could work on the Mac laptop. She most probably worked on her new contract. OP says in his EIC that they discussed the contract over dinner. He says she had her computer at the table and he suggested some changes. But Reeva doesn't create the GPRS hotspot until 20:04 (the 11 hour connection) so I think she or they work on the contract later. (I would love to know what time the document was last saved to the cloud.)

All this suggests they eat later.

 

[AJ_DS]

I'm working on what happened during the day and early evening of the 13th February 2013. I've re-listened to and transcribed OP's EIC for this period and I do not believe his version. If it can be disproved then he is lying. And if he is lying, it is because he is hiding what led up to Reeva's murder. So, starting with dinner ...

OP says they ate between 19:10 and 20:00.

Roux says this is supported by the fact that there is no iPad activity at this time. (Source: Defence HoA). I would add that neither Reeva nor OP have any phone activity of any sort during this period either (Source: Moller phone records)

I do not believe they ate between 19:10 and 20:00.

OP says Reeva was preparing dinner when he got home. Maybe preparing but not cooking. Chopping chicken and vegetables perhaps. A stir fry isn't cooked until just before it's eaten. I'm not sure she was preparing anything but I'm still working on that.

He had a late lunch with Justin Divaris (Source: JD Affidavit). He messaged Reeva at 15:21 to say he was just finishing with Ryan (estate agent). He may have eaten a little at the Firzt party, maybe not. He didn't mention the party to her. He may have drunk alcohol, maybe not. But he arrived at JD's office after this so lunch was definitely late and he was unlikely to have been hungry when he got home.

I think Reeva made them both a hot drink when he got in and they took them upstairs at 19:10, hence the cups found by each side of the bed.

I believe he and Reeva spent some intimate time between 19:10 and 20:00, hence no iPad activity. He / they had viewed *advertiser censored* prior to this. He says he went upstairs for a shower / bath and then "got off the bed and we went downstairs to eat". A slip of the tongue or the truth? This is also supported by the lack of phone and iPad activity. Or maybe they just had a cuddle and a sleep ...

Post mortem evidence suggests Reeva ate 2 hours before death. This is an estimate, it might be 3 hours but it isn't 7-8 hours.

And finally, Reeva used her iPhone to create a hotspot that afternoon so that she could work on the Mac laptop. She most probably worked on her new contract. OP says in his EIC that they discussed the contract over dinner. He says she had her computer at the table and he suggested some changes. But Reeva doesn't create the GPRS hotspot until 20:04 (the 11 hour connection) so I think she or they work on the contract later. (I would love to know what time the document was last saved to the cloud.)

All this suggests they eat later.

That is one plausible explanation…

Another would be that they ate between 7PM-8PM, OP went to bed because he was in training, RS stayed downstairs to work, she got hungry around 1AM, made some noise which woke up OP.

The phone data seems to support this version more IMO

 

[Mr Fossil]

Thanks, I used the same technique as you to find Shere AH and Cabana Glen. So not totally accurate but good enough for now.

Can you figure the Silverlakes variant at 06:40 above?

 

[AJ_DS]

Thanks, I used the same technique as you to find Shere AH and Cabana Glen. So not totally accurate but good enough for now.

Can you figure the Silverlakes variant at 06:40 above?

I'll give it a try… but I don't believe there is 2 distinct tower with the name SIlverlakes… on the same tower, I know there is a 3G and 2G antenna on the Silverlakes tower and other towers as well.

On a side note, any connection on a tower (call, GPRS, etc&#8230 is always registered with the tower who has the strongest signal available to the phone (not necessarily with the closest tower) and if the user is moving, the connection switches towers BUT the log will always show the original tower and not the subsequent towers it connected to

 

[Mr Fossil]

The hotspot isn't started until 20:04, what do you make of that?

OP says "we ate and we sat at the dining room table for a while and we chatted about my day and we chatted about Reeva’s contract that she was in the process of signing with the new management company. She had it up on her computer "

He goes on "She asked me to go through one of her contracts, a contract that she had been working on during the day which she was in the process of finalising and about to sign. I went through the contract and I made some changes for her on things that I didn’t think were applicable or things which could be binding for her in a negative way"

He does say twice in his EIC for her to close the curtains and the sliding doors "when you come, when you fall asleep", suggesting "come to bed" so she may in fact have been up, still working on her contract.

 

[AJ_DS]

The hotspot isn't started until 20:04, what do you make of that?

OP says "we ate and we sat at the dining room table for a while and we chatted about my day and we chatted about Reeva’s contract that she was in the process of signing with the new management company. She had it up on her computer "

He goes on "She asked me to go through one of her contracts, a contract that she had been working on during the day which she was in the process of finalising and about to sign. I went through the contract and I made some changes for her on things that I didn’t think were applicable or things which could be binding for her in a negative way"

He does say twice in his EIC for her to close the curtains and the sliding doors "when you come, when you fall asleep", suggesting "come to bed" so she may in fact have been up, still working on her contract.

I believe RS started working after dinner and cleaning up the table and kitchen… around 8PM… time of the hotspot start time… also close to OP's call to cousin… they were both doing their own thing after diner.

I don't believe we should believe OP on his version… I do believe there are some truths woven into his lies… and some slips of the tongue as well.

As for the name of the tower… I can't get an accurate read… if you have a good screenshot of it post it…. also Moller said that the 0020 phone left the silver lakes area around 8AM

 

[Mr Fossil]

I believe RS started working after dinner and cleaning up the table and kitchen… around 8PM… time of the hotspot start time… also close to OP's call to cousin… they were both doing their own thing after diner.

I don't believe we should believe OP on his version… I do believe there are some truths woven into his lies… and some slips of the tongue as well.

As for the name of the tower… I can't get an accurate read… if you have a good screenshot of it post it…. also Moller said that the 0020 phone left the silver lakes area around 8AM

BIB1 Quite possible (but I don't think they had dinner, as per my theory above). Did OP ever help her by giving his advice, I wonder. Anyway, OP is lying.
BIB2 No, I don't, it's very blurred
BIB3 Yes, I know, "Left the Sliver Lakes area for good" might have been more accurate because the GPRS connections suggest otherwise. And the final connection is a long one. Someone is using the phone IMO

 

[pandax81]

• putative private defence is a complete defence against murder, it is not a complete defence against culpable homicide. An accused can be found to have acted in putative private defence and also be found guilty of culpable homicide.

i agree… have not stated otherwise.

But you do state otherwise, and that's a fundamental flaw in your understanding of putative private defence:

you seem to suggest that an accused could be found as having acted unreasonably in pd or ppd… that does not make sense… if unreasonable, then it's culpable homicide.

Also, I never mentioned private defence, I was talking about putative private defence. The two are crucially different, so please let's ignore private defence and not confuse matters for the time being.

again you go back to the murder charge ??… i was commenting on the pd and ppd… the requirements i cited are for succeeding in pd and ppd

Yes, but this is my point. Your requirements for putative private defence are wrong. The requirement is in essence simple and derived from the meaning of the words - that the accused believed he was acting in private defence, but in fact did not do so. This is so intimately related to the charge of murder that it's hard to separate them - by intending to act lawfully, the accused did not intend to kill unlawfully.

Then we get to the crux of the matter: if he believed he was acting in private defence, he may still have acted unreasonably by an objective standard of what a reasonable person would have thought and done. Therefore you do not need to have been objectively reasonable in order to have acted in putative private defence. Therefore you may be found to have acted in putative private defence and be found guilty of culpable homicide.

…i welcome any information you can find that would refute what i'm stating

Gladly. There are mountains of sources I could cite, but I can do no better than quote the defining case of putative private defence - S v De Oliveira 1993 - bbm:

"In putative private defence it is not lawfulness that is in issue but culpability ("skuld"). If an accused honestly believes his life or property to be in danger, but objectively viewed they are not, the defensive steps he takes cannot constitute private defence. If in those circumstances he kills someone his conduct is unlawful. His erroneous belief that his life or property was in danger may well (depending upon the precise circumstances) exclude dolus in which case liability for the person's death based on intention will also be excluded; at worst for him he can then be convicted of culpable homicide."

Allow me to summarise, and also resolve how this ties is in to private defence:

Private defence: I did not kill unlawfully. Subjectively I believed I was acting in private defence, and objectively I did act in private defence. There is no unlawful killing and therefore I am not guilty of murder or culpable homicide.

Putative private defence: I accept that I did in fact kill unlawfully. Subjectively I believed I was acting in private defence, but objectively I did not act in private defence. There is an unlawful killing but because subjectively I believed I was acting in private defence, I never intended to kill unlawfully and therefore I am not guilty of murder. However, objectively, I may or may not have been negligent in my unlawful killing and therefore I may or may not be guilty of culpable homicide.

 

[Hoosen_Fenger]

I fed 'bail pending appeal south africa' into Google.

Amazingly, the first case that came up was this: http://www.justice.gov.za/sca/judgments/sca_2013/sca2013-001.pdf

It is the case that Nel referred to when cross-examining Wolmarans, on the topic of Wolmarans vs Mangena. Looks like Wolmaran's long-winded response that the judgement didn't amount to an adverse credibility finding against him has no substance.

• "The real dispute concerned whether it was possible for the right-handed deceased, in view of the nature and track of the fatal wound, to shoot himself on the left neck as the appellant and her ballistics expert, Mr Wolmarans, claimed, a possibility that was dismissed as impossible by Dr Nkondo and the state’s ballistics expert, Mr Mangena."
• "As indicated, the state’s expert witnesses discounted any possibility that the fatal wound was self-inflicted because of its position and track. Mr Wolmarans, on the other hand, whilst not disagreeing with his state counterpart on the wound’s nature and track, testified that it could have been self-inflicted and physically demonstrated how this could have occurred."
• "The court made strong adverse credibility findings against the defence witnesses, alternately describing the version of the appellant, whom it found an unimpressive witness, as ‘vague’, ‘inexplicable’ and ‘bizarre’. The court found Mr Wolmarans’ hypothesis and demonstration speculative and unconvincing, especially in light of the appellant’s inability to explain the firearm’s position when the fatal shot was fired. The court concluded that ‘for a right handed person to inflict that wound would have required some ability in contortionism. The exit wound would not have been where it was’.

With regards to bail pending appeal, looks like it is a real possibility, and will boil down to the prospects of success of appeal, and where the judge draws the threshold in this regard (some seem to need strong prospects of success, others seem to need just reasonable possibility).

I have watched the Wolmarans evidence all day today. IWLWY … He was worse than Dixon. In fact, he was the worst Defence witness. A ballistic's expert that has no filing system, does not submit any reports & bungles his lines on everything? Yet, manages to crow bar in that the scene was tampered with and OP threw up? Laughable, totally laughable.

 

[AJ_DS]

But you do state otherwise, and that's a fundamental flaw in your understanding of putative private defence:



Also, I never mentioned private defence, I was talking about putative private defence. The two are crucially different, so please let's ignore private defence and not confuse matters for the time being.



Yes, but this is my point. Your requirements for putative private defence are wrong. The requirement is in essence simple and derived from the meaning of the words - that the accused believed he was acting in private defence, but in fact did not do so. This is so intimately related to the charge of murder that it's hard to separate them - by intending to act lawfully, the accused did not intend to kill unlawfully.

Then we get to the crux of the matter: if he believed he was acting in private defence, he may still have acted unreasonably by an objective standard of what a reasonable person would have thought and done. Therefore you do not need to have been objectively reasonable in order to have acted in putative private defence. Therefore you may be found to have acted in putative private defence and be found guilty of culpable homicide.



Gladly. There are mountains of sources I could cite, but I can do no better than quote the defining case of putative private defence - S v De Oliveira 1993 - bbm:

"In putative private defence it is not lawfulness that is in issue but culpability ("skuld"). If an accused honestly believes his life or property to be in danger, but objectively viewed they are not, the defensive steps he takes cannot constitute private defence. If in those circumstances he kills someone his conduct is unlawful. His erroneous belief that his life or property was in danger may well (depending upon the precise circumstances) exclude dolus in which case liability for the person's death based on intention will also be excluded; at worst for him he can then be convicted of culpable homicide."

Allow me to summarise, and also resolve how this ties is in to private defence:

Private defence: I did not kill unlawfully. Subjectively I believed I was acting in private defence, and objectively I did act in private defence. There is no unlawful killing and therefore I am not guilty of murder or culpable homicide.

Putative private defence: I accept that I did in fact kill unlawfully. Subjectively I believed I was acting in private defence, but objectively I did not act in private defence. There is an unlawful killing but because subjectively I believed I was acting in private defence, I never intended to kill unlawfully and therefore I am not guilty of murder. However, objectively, I may or may not have been negligent in my unlawful killing and therefore I may or may not be guilty of culpable homicide.

LOL… we definitely don't understand each other's posts !!

However, I believe we are in perfect sync on this post… I fully agree… and it's what I was saying all along but put in different words

Now how does the Judge decide if the accused is guilty of PPD or culpable homicide ?

When the Judge evaluates PPD, he must go through the 3-step test I mentioned earlier… if the test is failed, the accused is found guilty of culpable homicide.

The 3-step test is crucial…

In PD, it is NOT enough to find the accused was objectively in a life-threatening situation… In PPD, it is NOT enough to find the accused was subjectively in a life-threatnening situation … the possibility to remove oneself from said threat and the response to said threat is an integral part of PD and PPD.

Otherwise people would be killing each other left and right and all get off with PD and even worse PPD.

Why do you believe Nel questioned OP on alternative options other than going into the bathroom ? Why do you believe Roux insisted so much on the fight/flight ?… because OP could have fled the perceived threat but didn't. (step 2)

Why do you believe much debate and confusion was put forth about the 4 gunshots, grouping, accidental, automatism, etc ?… because it was not a reasonable to shoot 4 times at a door in response to a noise. (step 3)

How do you believe the Judge makes a determination of negligence for a culpable homicide verdict in a PPD case ?

1. The Judge must believe the accused version/evidence of self-defense… there is NO other way of determining what the accused believed at the time of the crime but decide if he is credible or not

2. The Judge must reject the State's version/evidence which contradicts the accused version

3. The Judge applies the 3-step test... if it fails, it's culpable homicide… if it passes, it's PPD

Am trying to find the original reference that I read a while ago… will try to post… but I have found the following references which support what I'm stating

[19] A further aspect that remains for determination is whether, despite the appellant’s subjective belief that if he did not react as he did he would have been killed, it was necessary for him to shoot the deceased three times. The first shot would, in all probability, have had the desired effect to ward off the unlawful attack on him. In my view, the appellant, especially as a long serving police officer with considerable experience in handling firearms, ought to reasonably have realised that he was using excessive force beyond the legitimate bounds of private defence. In the circumstances, he should have been convicted of culpable homicide.

http://www.bowman.co.za/filebrowser/general/Judgment%20-%20Mkhize%20v%20S.pdf

An accused’s conduct may be justified by (putative) private defence provided that the requirements of both the ATTACK and DEFENCE are satisfied

ATTACK
1. Imminent (commenced but not yet completed)
2. Upon a legally protected interest (such as one's life)
3. Unlawful (not by a police officer or such)

Putative Private Defence : HOW DO WE DETERMINE WHETHER THE ERRONEOUS BELIEF OF THE ACCUSED IS HONEST/GENUINE?

By inferential reasoning: by an evaluation of objective factors, what is the only inference that can be made regarding the Accused’s state of mind ? (S v DE OLIVIERA ’93 )

DEFENCE
1. Necessary to avert the harm
2. Reasonable response to the attack
3. Directed against the attacker
4. Awareness

IN RE: S v VAN WYK ‘67
• Necessary means that the defensive steps taken by the Defender were the only means available at the time to ward off the attack.

R v ZIKALALA ‘53
• The Courts do not expect a person under attack or emergency to rationalize without violence
• There is no general duty to retreat from an unlawful attack but the defender should and must do so if he can make a safe escape rather than to kill the attacker.
• Where a man can save himself by flight, he should flee rather than to kill his assailant BUT if flight does not guarantee a safe escape, a defender is not obliged to risk a stab in the back.

S v NTULI ‘75
• Where a victim acts in self defence knowing that she is using excessive force which might result in death and continues reckless as to that possibility, she will be guilty of murder.

S v GOVENDER ‘2007
• Use of force after initial risk of harm has passed amounts to exceeding the bounds of the private defence.

 

[geevee]

That is one plausible explanation…

Another would be that they ate between 7PM-8PM, OP went to bed because he was in training, RS stayed downstairs to work, she got hungry around 1AM, made some noise which woke up OP.

The phone data seems to support this version more IMO

I still have a hard time believing with the heat and humidity of that night that either were sleeping in the clothing they were in when she was killed.

 

[Jake18]

I'm working on what happened during the day and early evening of the 13th February 2013. I've re-listened to and transcribed OP's EIC for this period and I do not believe his version. If it can be disproved then he is lying. And if he is lying, it is because he is hiding what led up to Reeva's murder. So, starting with dinner ...

OP says they ate between 19:10 and 20:00.

Roux says this is supported by the fact that there is no iPad activity at this time. (Source: Defence HoA). I would add that neither Reeva nor OP have any phone activity of any sort during this period either (Source: Moller phone records)

I do not believe they ate between 19:10 and 20:00.

OP says Reeva was preparing dinner when he got home. Maybe preparing but not cooking. Chopping chicken and vegetables perhaps. A stir fry isn't cooked until just before it's eaten. I'm not sure she was preparing anything but I'm still working on that.

He had a late lunch with Justin Divaris (Source: JD Affidavit). He messaged Reeva at 15:21 to say he was just finishing with Ryan (estate agent). He may have eaten a little at the Firzt party, maybe not. He didn't mention the party to her. He may have drunk alcohol, maybe not. But he arrived at JD's office after this so lunch was definitely late and he was unlikely to have been hungry when he got home.

I think Reeva made them both a hot drink when he got in and they took them upstairs at 19:10, hence the cups found by each side of the bed.

I believe he and Reeva spent some intimate time between 19:10 and 20:00, hence no iPad activity. He / they had viewed *advertiser censored* prior to this. He says he went upstairs for a shower / bath and then "got off the bed and we went downstairs to eat". A slip of the tongue or the truth? This is also supported by the lack of phone and iPad activity. Or maybe they just had a cuddle and a sleep ...

Post mortem evidence suggests Reeva ate 2 hours before death. This is an estimate, it might be 3 hours but it isn't 7-8 hours.

And finally, Reeva used her iPhone to create a hotspot that afternoon so that she could work on the Mac laptop. She most probably worked on her new contract. OP says in his EIC that they discussed the contract over dinner. He says she had her computer at the table and he suggested some changes. But Reeva doesn't create the GPRS hotspot until 20:04 (the 11 hour connection) so I think she or they work on the contract later. (I would love to know what time the document was last saved to the cloud.)

All this suggests they eat later.

Personally I can't think of any reason we should believe OP that they ate any kind of stir fry - i think the meal was a deliberate fabrication to cover Reeva's stomach contents. It also allowed the anaesthetist to talk about the slower digestion of "fibrous vegetables". Prof Saayman found a whitish "cheese like" substance in Reeva's stomach - not even close to chicken. However, it would seem implausible for an athlete to eat a cheese and spinach salad as a main meal and a cheese stir fry sounds pretty foul. I think the DT chose chicken because it's "whitish". Something like feta and say spinach may seem an unusual early morning snack but I doubt OP's house had crisps and chocolate and as a model watching her weight Reeva was very likely "low carb" and very diet conscious.

 

[pandax81]

LOL… we definitely don't understand each other's posts !!

However, I believe we are in perfect sync on this post… I fully agree… and it's what I was saying all along but put in different words

No, you are still saying something totally different, as you go on to prove (bbm):

Now how does the Judge decide if the accused is guilty of PPD or culpable homicide ?

*respectfully snipped*

The Judge applies the 3-step test... if it fails, it's culpable homicide… if it passes, it's PPD

Until you accept that putative private defence simply means an accused believed he was acting in private defence and in fact did not, then we can never be in agreement and your understanding is flawed.

Until you accept that putative private defence does not require the beliefs and actions to be objectively reasonable based on what a reasonable person would have done, then we can never be in agreement and your understanding is flawed.

Until you accept that an accused can be found to have acted in putative private defence AND be guilty of culpable homicide, then we can never be in agreement and your understanding is flawed.

Until you accept that a court does not find an accused "guilty" of putative private defence at all, let alone make a decision as to whether it is putative private defence OR culpable homicide after finding not guilty of murder, then we can never be in agreement and your understanding is flawed.

You fail to deal with my quote of the defining case law which clearly states that if an accused acted in putative private defence, he may still be found guilty of culpable homicide.

As for the rest of your post and your quotes - I see nothing of relevance, nothing that counters what I put to you, and you largely mention private defence although I have said explicitly my point applies to putative private defence.

Your quote relating to the de oliviera case may appear to the casual observer to support your position because it uses the word 'objective', however closer inspection - well it is in caps lock in fact - shows this is in relation to making a finding of the subjective intention of the accused. Your third-hand source says: "Putative Private Defence : HOW DO WE DETERMINE WHETHER THE ERRONEOUS BELIEF OF THE ACCUSED IS HONEST/GENUINE? By inferential reasoning: by an evaluation of objective factors, what is the only inference that can be made regarding the Accused’s state of mind ? (S v DE OLIVIERA ’93 )" Your third-hand source has actually misrepresented/misunderstood - this is not the only way to make a finding, it was only so in this case because the accused did not testify. The actual quote from the case is: "The appellant did not testify as to his state of mind at the time of the shooting. Whether or not he held an honest belief that he was entitled to act as he did must therefore be determined with regard to such other evidence as reflects upon his state of mind, and inferential reasoning."


It's always difficult on the internet to put a differing view across strongly without risking appearing rude or confrontational. I'm sure you know this is not the case or intention however!

If you wish to reach the truth may I suggest tweeting Prof James Grant https://twitter.com/CriminalLawZA if it's a brief tweet asking a question about the law in general rather than a specific case then I've noticed he does usually very kindly reply.... perhaps something like 'can you act in putative private defence and still be guilty of culpable homicide?'

 

[Val1]

Personally I can't think of any reason we should believe OP that they ate any kind of stir fry - i think the meal was a deliberate fabrication to cover Reeva's stomach contents. It also allowed the anaesthetist to talk about the slower digestion of "fibrous vegetables". Prof Saayman found a whitish "cheese like" substance in Reeva's stomach - not even close to chicken. However, it would seem implausible for an athlete to eat a cheese and spinach salad as a main meal and a cheese stir fry sounds pretty foul. I think the DT chose chicken because it's "whitish". Something like feta and say spinach may seem an unusual early morning snack but I doubt OP's house had crisps and chocolate and as a model watching her weight Reeva was very likely "low carb" and very diet conscious.

Tofu is a pretty common substitute for chicken and would totally fit the profile, though honestly if I had a snack that late at night I'd probably opt for a greek salad rather than a stirfry,if I couldn't have chocolate... :thinking:

 

[LemonMousse]

No, you are still saying something totally different, as you go on to prove (bbm):



Until you accept that putative private defence simply means an accused believed he was acting in private defence and in fact did not, then we can never be in agreement and your understanding is flawed.

Until you accept that putative private defence does not require the beliefs and actions to be objectively reasonable based on what a reasonable person would have done, then we can never be in agreement and your understanding is flawed.

Until you accept that an accused can be found to have acted in putative private defence AND be guilty of culpable homicide, then we can never be in agreement and your understanding is flawed.

Until you accept that a court does not find an accused "guilty" of putative private defence at all, let alone make a decision as to whether it is putative private defence OR culpable homicide after finding not guilty of murder, then we can never be in agreement and your understanding is flawed.

You fail to deal with my quote of the defining case law which clearly states that if an accused acted in putative private defence, he may still be found guilty of culpable homicide.

As for the rest of your post and your quotes - I see nothing of relevance, nothing that counters what I put to you, and you largely mention private defence although I have said explicitly my point applies to putative private defence.

Your quote relating to the de oliviera case may appear to the casual observer to support your position because it uses the word 'objective', however closer inspection - well it is in caps lock in fact - shows this is in relation to making a finding of the subjective intention of the accused. Your third-hand source says: "Putative Private Defence : HOW DO WE DETERMINE WHETHER THE ERRONEOUS BELIEF OF THE ACCUSED IS HONEST/GENUINE? By inferential reasoning: by an evaluation of objective factors, what is the only inference that can be made regarding the Accused’s state of mind ? (S v DE OLIVIERA ’93 )" Your third-hand source has actually misrepresented/misunderstood - this is not the only way to make a finding, it was only so in this case because the accused did not testify. The actual quote from the case is: "The appellant did not testify as to his state of mind at the time of the shooting. Whether or not he held an honest belief that he was entitled to act as he did must therefore be determined with regard to such other evidence as reflects upon his state of mind, and inferential reasoning."


It's always difficult on the internet to put a differing view across strongly without risking appearing rude or confrontational. I'm sure you know this is not the case or intention however!

If you wish to reach the truth may I suggest tweeting Prof James Grant https://twitter.com/CriminalLawZA if it's a brief tweet asking a question about the law in general rather than a specific case then I've noticed he does usually very kindly reply.... perhaps something like 'can you act in putative private defence and still be guilty of culpable homicide?'

I am no lawyer.....but I don't think you can be correct, Panda.

Self-defence, putative or not, relies on an acknowledgement of intent. "Yes, I killed that person. But I genuinely believed that person was about to kill me, and I felt I had no choice".

You cannot claim self-defence but deny intent. That would make no sense.

Since culpable homicide removes intent from the equation and replaces it with negligence, then a court cannot agree that you genuinely acted in self-defence but find you guilty of culpable homicide. Who negligently kills someone who is about to kill them?

For OP to be found guilty of culpable homicide then the judge has to believe that he really did not intend to harm or kill anyone but that, in spite of the particular circumstances, he ought to have know he might and he ought to have known that would be an unlawful act.

I am also not sure your understanding of Directus vs Eventualis is quite right, either. Murder does not drop down a notch just because you intended to harm or maim rather than kill.

Did you intend that person serious harm & they died? Directus.

Did you not intend that specific person harm, but knew that your actions could well result in someone's death and still went ahead? Eventualis.

JM (unqualified) O.