Trial Discussion Thread #40

[BritsKate]

Incidentally, when a defendant in England or Wales claims an affirmative defence (like self-defence) in a prima facie case, the sole burden lies with the accused.

I found this too, specific to South African law, that seems it is similar:

An assault and the killing of a human being is an action which is prima facie unlawful. Once it becomes common cause that the accused has assaulted or killed the deceased or the victim in self-defence, an evidential burden is placed on the accused to rebut the prima facie presumption of unlawfulness.

http://www.saflii.org/za/cases/ZANCHC/2011/16.html


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[Hope4More]

Intending to shoot an intruder and dolus eventualis are separate legal issues.

One necessitates intent be absolved via an affirmative defence for an acquittal - the killing becomes justified and is no longer legally murder - while the other relies on the reasonable person test to establish intent required to prove murder, because such intent isn't already in place (as it would be if Oscar specifically intended to kill anyone).



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I don't understand what you are saying here.(??????????)

 

[patCee]

Defense witnesses in chronological order:
Jan Botha (pathologist)
OP (killer)
Dixon (Renaissance Man)

Mr. MN (next door neighbor-heard man crying loudly)
Mrs. MN (heard man crying loudly)
Mrs. __ (another neighbor-heard man crying loudly)

Ms. ___ (social worker, witness-wannabe)
Dr. Lungren (anesthesiologist-never asked quantity of food residue)
Wollie Wolmarans (ballistics expert-never spoke to OP)
Dr. Vorster (last minute psych addition)

Was there another witness after Dixon but before Mr. MN? Any other witnesses I missed? Seems like a very odd lineup Roux provided imo, especially WW with his language and hearing difficulties when an equally qualified ballistics expert (Jannie van der W) was on the team.

Seeing the list it's so difficult to work out what's going on with the defense other than failing to prove that a women was not heard screaming, bat v shots remains unproven, when RS last ate and the mag rack was moved, or was it? (police disturbed crime scene). I won't even go into Dr V and how that's ended up.

I understand that the PT have first pick of the witness list, but it does feel like the DT made some poor choices. It's difficult to decide who was the least effective for their case. The social worker? Dixon? Neighbours, I give up. Dr V has caused the biggest stir though, without a doubt and probably has created the most risk to the DT, depending how the evaluation turns out.

It all goes to prove, to me, that the PT have by far the strongest case so far. IMO

 

[BritsKate]

I don't understand what you are saying here.(??????????)

I don't know how to help clarify. There are three ways of establishing intent required for a murder conviction.

He intended to kill Reeva, he intended to kill an intruder OR he didn't intend to kill anyone - but, if it is determined he could foresee the consequences of his actions and proceeded anyway (dolus eventualis) intent is still proven. The latter is determined by utilising the reasonable person test.

Assuming he's acquitted of murder because intent isn't established, then culpable homicide will be considered.

Does that help?


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[BritsKate]

And just to add to my last post...

If the court finds Oscar intended to kill Reeva, he'll be convicted of murder. If the court finds he intended to kill an intruder, he could still be convicted of murder - unless the court believes his claim for putative self-defence. If the court does believe his claim, and by so doing, find he didn't intend to kill anyone, including an intruder - then they will determine if intent is established via dolus eventualis.

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[Lochlynsmom]

Can someone please explain to me why OP should be found not guilty of shooting someone just because he is a paranoid, double amputee? I have tried to understand but it really makes no sense to me.

 

[Feynman]

partial quote:

Oscar’s GAD diagnosis coupled with his double amputee status was presented as a mitigating circumstance until Nel through great labor pains gave birth to the diminished capacity claim.

Don't mitigating circumstances imply a diminished capacity?

 

[G.bng]

This panel is not gathered together to heal Oscar. They are appointed by the court to evaluate IF he has the disorder, or any other, that his own witness claimed. its that simple. It isn't complicated. That is their job, appointed by the court to do, with impartiality. And then to testify to their findings , be there any findings or not. . Oscar is not ordered to attend to be treated for a disorder, at all. This is a mistake and leads to confusion. He is ordered by the court to attend to ascertain if his witnesses claims have substance, or not.

BIB and respectfully ✄


Huh...(?) Oooops... (?)

Methinks "MIST∀KE" and "CONFUSIOᴎ" has to be yours unless you, and the poster you replied to, know something the rest of us don't... that Mr Nel is not just a State Prosecutor but a physician as well !!! The poster wrote:

Psychiatrists are physicians they take the Hippocratic Oath. If you think that anyone in the mental health field will treat Oscar as Nel did you are simply mistaken. What your are suggesting would be the willful harming of a human being by mental health professionals.

So unless Mr Nel is also a physician it just has to be that the poster was referring to "treat" as in:

Behave towards or deal with in a certain way:
she had been brutally treated
he treated her with grave courtesy
(courtesy of the Oxford English Dictionary)

And not "treat" as in:

Give medical care or attention to; try to heal or cure:
the two were treated for cuts and bruises
(also courtesy of the Oxford English Dictionary)[

N'est-ce pas ? ;-)

 

[Hope4More]

Thanks for this interesting though brief source. The link you forgot to include is http://reference.sabinet.co.za/sa_epublication_article/funda_v14_n2_a2
I found the following statement enlightening:


The point is that whatever it means to say that the prosecution have to prove mens rea as well as actus reus, it cannot mean something that is practically impossible and would allow any murderer to go free by claiming temporary zombification as OP has. The law must be a zombie-stopper, to borrow a term I came across lately, and it must be applied as such.

BTW, as with your remarks about the presumption of innocence, I am not accusing you of not knowing what I point out - I am simultaneously addressing everyone on the forum, whatever their levels of knowledge. There's a proverb here in France that what goes without saying goes better still for being said.

I very much like your French proverb! I didn't forget link....typed incomplete one, I guess? My darling son appropriates my laptop often enough that I usually try to navigate WS on my wee droid phone. Don't know how to cut and paste links on this beast so I type them out.

I saw the quote you cite. Not sure how it applies here as OP's defense isn't mental illness. (Yet?)

 

[CriLondon]

Can someone please explain to me why OP should be found not guilty of shooting someone just because he is a paranoid, double amputee? I have tried to understand but it really makes no sense to me.

It's not about paranoid or double-amputee per se.
It comes down to whether a reason of "mental defect or mental illness is established and has played a role in the act the accused is charged with and would have had ,at the time of the act ,an influence on his capability to distinguish right from wrong"

Or something very close to those lines...

 

[Hatfield]

It's not about paranoid or double-amputee per se.
It comes down to whether a reason of "mental defect or mental illness is established and has played a role in the act the accused is charged with and would have had ,at the time of the act ,an influence on his capacity to distinguish right from wrong"

Or something very close to those lines...

If it is found that some illness is established does it just have a potential to reduce the crime OR can he get off scott free because of that illness?

 

[Hatfield]

I don't know how to help clarify. There are three ways of establishing intent required for a murder conviction.

He intended to kill Reeva, he intended to kill an intruder OR he didn't intend to kill anyone - but, if it is determined he could foresee the consequences of his actions and proceeded anyway (dolus eventualis) intent is still proven. The latter is determined by utilising the reasonable person test.

Assuming he's acquitted of murder because intent isn't established, then culpable homicide will be considered.

Does that help?


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Just want to thank you and others who know an awful lot about criminal proceedings and legal terms.

I am so lost when it comes to the legal reasons why certain things happen in cases and yours and everyones comments really help me.

SO THANK YOU AND OTHERS SO MUCH

 

[CriLondon]

If it is found that some illness is established does it just have a potential to reduce the crime OR can he get off scott free because of that illness?

There are here very knowledgeable people that have discussed, in the previous pages and the previous thread39 , in great length and detail your question.

In short , my understanding is that , yes he can if diagnosed with certain illnesses or mental defects be declared criminally not responsible for the act of murder he is charged with.

and no , he will not walk a free man because (again my understanding) he would be institutionalized and kept until , i would imagine , declared fit to re-join society a free man. That might happen fast or it might never happen at all.

That's in layman terms , my understanding only

 

[Hope4More]

And just to add to my last post...

If the court finds Oscar intended to kill Reeva, he'll be convicted of murder. If the court finds he intended to kill an intruder, he could still be convicted of murder - unless the court believes his claim for putative self-defence. If the court does believe his claim, and by so doing, find he didn't intend to kill anyone, including an intruder - then they will determine if intent is established via dolus eventualis.

Please pardon errors as posted via Tapatalk with a less than stellar user.

My understanding is that DE is used at the onset, to determine whether or not OP acted with intent and thus is guilty of murder.

I also understand that he is presumed innocent and the burden of proof does lie with the State. Not a US projection but a reading of the SA constitution and commentary on how the Constitution applies to the CPA, and the opinions of the several SA jurists I've read.

I'm not an Atty and am brand new to SA law, but my understandings are different from yours for sure. Can you point me to the relevant sections of the CPA that can better inform me?

 

[Hatfield]

There are here very knowledgeable people that have discussed, in the previous pages and the previous thread39 , in great length and detail your question.

In short , my understanding is that , yes he can if diagnosed with certain illnesses or mental defects be declared criminally not responsible for the act of murder he is charged with.

and no , he will not walk a free man because (again my understanding) he would be institutionalized and kept until , i would imagine , declared fit to re-join society a free man. That might happen fast or it might never happen at all.

That's in layman terms , my understanding only

Thank you and I agree and I should have known that because I do remember some of the discussion along these lines now.

I had even brought up about John Hinkley Junior and Chapman who fit the bill of people who shot famous people and were of sick minds.
They both spent a lot of time institutionlized and I think 1 is still there and 1 is finally out free now after many years. I suppose he is out free because he may have been finally considered well enough to join society and is probably on medication.

 

[BritsKate]

Just want to thank you and others who know an awful lot about criminal proceedings and legal terms.



I am so lost when it comes to the legal reasons why certain things happen in cases and yours and everyones comments really help me.



SO THANK YOU AND OTHERS SO MUCH

You're welcome but I feel the same about everyone else - we all add something to the conversation. There are so many times I exclaim 'Why didn't I think of that?!?' at my monitor.

I think a lot of people here probably know the law very well but SA law is very different to American. Even American legal experts have made statements that are correct according to US law but incorrect when applied to SA, which confuses everyone.

Methinks they (the US legal eagles) haven't done their due diligence in terms of research.


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[CriLondon]

Thank you and I agree and I should have known that because I do remember some of the discussion along these lines now.

I had even brought up about John Hinkley Junior and Chapman who fit the bill of people who shot famous people and were of sick minds.
They both spent a lot of time institutionlized and I think 1 is still there and 1 is finally out free now after many years. I suppose he is out free because he may have been finally considered well enough to join society and is probably on medication.

You're welcome , hope in short it helped you see where we are with this break.

Just to be clear , if ever needed , i wasn't indicating those previous pages/thread due highlight your lack of attention....simply because i've noticed very knowledgeable members discussing it (with more seniority and knowledge than me!! haha) very well.

 

[Hatfield]

You're welcome , hope in short it helped you see where we are with this break.

Just to be clear , if ever needed , i wasn't indicating those previous pages/thread due highlight your lack of attention....simply because i've noticed very knowledgeable members discussing it (with more seniority and knowledge than me!! haha) very well.

No need to clear it up. I deserved it as I was being lazy and forgetful. :floorlaugh:

 

[Ncl1968]

Intending to shoot an intruder and dolus eventualis are sepletter te legal issues.

One necessitates intent be absolved via an affirmative defence for an acquittal - the killing becomes justified and is no longer legally murder - while the other relies on the reasonable person test to establish intent required to prove murder, because such intent isn't already in place (as it would be if Oscar specifically intended to kill anyone).



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But he did intend to kill someone... The intruder story of his acts out dolus to the letter.. He even told Dr van he aimed for the noise in the toilet or the other side reeva was deliberately targeted

 

[Onlyamum]

https://www.youtube.com/watch?v=e3nuFArz0Rk

So worth a watch!

Larry King interview with OP, around the time I think that he was with Sam as he refers to the golfing in Scotland but at least he says he was very close to his mother and was raised as a normal child
and didn't regard himself as having a disability.