Trial Discussion Thread #40

[CriLondon]

I'd hate to be the judge that sets a precedent for future SA defendants that it's legally okay to shoot 4x into an enclosed cubicle at a supposed intruder neither heard nor seen, much less posing a threat.

In your very sentence there's the biggest reason why she will want to ensure she has ruled to the best of her knowledge , leaving very little room for interpretation and future appeal possibilities.
My belief is that she will want her ruling to stick , for good.

JMO

 

[Carmelita]

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.

I’m not sure if people realize the significant pressure that would be put on a young boy and a young man by a family that demanded that the boy with the double amputation is no different than a boy with a full set of legs. Yes there is significant advantage is pushing a person to be all that they can be but not so much in simply pretending a substantial physical difference does not exist to the point of an unhealthy denial of the actuality of the deformity/amputation.

I can only imagine the subconscious thoughts that circled in Oscars head.

Oscar’s father even wrote him a letter acknowledging that he was cruel to Oscar as a child but it was for Oscars own good.

I’m not saying that this excuses murder, (nor am I saying Oscar murdered Reeva) I am saying that in my opinion Oscar’s psyche is a minefield of contradictions. And probably has been so since he was a very young boy.

 

[CriLondon]

I’m not sure if people realize the significant pressure that would be put on a young boy and a young man by a family that demanded that the boy with the double amputation is no different than a boy with a full set of legs. Yes there is significant advantage is pushing a person to be all that they can be but not so much in simply pretending a substantial physical difference does not exist to the point of an unhealthy denial of the actuality of the deformity/amputation.

I can only imagine the subconscious thoughts that circled in Oscars head.

I back that up by saying that , in that interview , when he recalls how his family brought him up to consider himself a normal boy , he does so with what appears to me like a genuine smile (eyes involvement and all that...).
That to me indicates that his inner belief is that , that was the right/correct way of facing (i'd say not facing) his disability.

He then goes on to elaborate that you can't allow the disability to take over your mind.
Effectively adamant in considering himself normal, underlined by the fact that until he was 17 he didn't compete in para-events just normal able bodied athletes (he states so in this interview).

Just wanted to address the upper part of your post and snipped for relevance to my findings watching that video.

 

[Karmady]

He didn't, and I should have made that clearer. I used that as an example of what he would have said, for example, when Dr. Stipp testified that the bathroom light was clearly ON when OP swore it was OFF for some time after he killed Reeva, if OP wasn't on some "calming" meds at trial.

I also don't see where he yelled "read the law." The accounts I'm finding say he "said" it. Not a big deal, but since your post was about a history of supposed uncontrolled outbursts....

jmo

 

[Nausicaa]

Aaaah i see . In that case there's a difference....although i still have , in general , a huge problem with anyone shooting 4 devastating bullets through a closed door. But that's me....

Perhaps its relevant to ask: what is the correct course for an armed householder who believes there is a potentially aggressive intruder in his W.C.?

I believe I'm correct in saying that the answer is as follows:

1. Intrusion, though very grave, is not in itself an act of aggression against the person, especially if entry was gained without violence, so do not shoot towards the person until there is a positive act of aggression.

2. Instead, either (a) flee, or (b) warn the intruder orally, or at most by shooting into the air, that you are armed.

3. If aggression on the intruder's part begins, aim low, in order to incapacitate, not to kill.

4. Only aim high if all else fails.

5. If you are temperamentally too panic-prone to respect these rules, you should not keep a gun at home.

 

[Cherwell]

Thank you for the polite disagreement and reasoning.
I realize i should have elaborated a bit more and added that i would have liked that myself , for personal preference , so that it could give me a more complete picture.
In a sense that we can all say what we want and in most cases we can control what comes out. But the face ...the face shows what emotion there is and it is very hard to contain/fake.
So , in that respect , i would have liked to see everyone that's been in the witness box. Dr. V being just the latest example , we are relying on what we heard from her ...but Nel would have seen her and maybe was even led on by something she showed that we didn't see.

I didn't catch what was said just before Dr Vorster began her testimony, except that she clearly said "I have no objection". And I didn't hear anything said about her not wishing to be shown on camera, so I did wonder if she was asked about that, and if that was her answer. In which case why wasn't she shown?

(Of course I may have missed something obvious)

 

[BritsKate]

Again I disagree. If the State can prove that OP intended to kill Reeva he is guilty of premeditated murder. Burden of proof: that he knew Reeva was behind the door, that he shot to kill her.

If the state can prove OP shot to kill an intruder he is guilty of murder, period. Burden of proof: that OP had other options but chose to pursue the intruder, that he intentionally shot to kill the person on the other side of the door.

DE is used in that original determination of intent. Did he INTEND to kill whoever was behind that door?

And no, not what a reasonable person would do (objective) but subjective.... what was OP's state of mind?

He can be found guilty of culpable homicide if the state doesn't meet its burden of proving intent but the judge finds that OP, even without intent, should have been aware that his actions would result in death.

SA law doesn't recognise a specific charge for 'premeditated murder', Hope. Instead, if premeditation is proven, its used as an aggravating factor to determine sentencing.

It is separate, and in addition, to intent.

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

 

[Cherwell]

I think this is one of those terms which definitions varies by the country in which it is spoken (like toilet! And biscuit!)

In the USA, an athlete is any person who participates and/or competes regularly in a sport. It's not specific to a particular sport. We very much consider soccer players, football players, basketball players, wrestlers, ice skaters, etc., athletes, the same as we consider those who focus on track, field, marathons as athletes.

Personally I struggle to think of darts players as athletes. :biggrin:

 

[Nausicaa]

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?)

Well I've been skimming through some SA case reports involving dolus eventualis and it appears to me that Britskate is out of date in thinking that the "reasonable person" test is currently applied. (I regret this, but I am neither the legislator nor the judge.) It is no longer enough to show what a reasonable person would be expected to notice, because unreasonable people are too numerous for us to send them all to prison until they become reasonable. The court wants to know what the accused himself really did think when acting - subjective.

However, this definitely does not mean that you can kill someone in SA and then claim that you didn't intend to and you didn't notice that shooting into a confined space was liable to prove lethal to the person therein. The current test, so far as I can see, is not: can the prosecution positively prove that the accused knew what he was doing. It is: is it reasonably credible that he didn't?

In other words, the accused is no longer automatically deemed to be a reasonable person, but the judge is. So don't try alleging incredible scenarios.

 

[Carmelita]

I back that up by saying that , in that interview , when he recalls how his family brought him up to consider himself a normal boy , he does so with what appears to me like a genuine smile (eyes involvement and all that...).
That to me indicates that his inner belief is that , that was the right/correct way of facing (i'd say not facing) his disability.

He then goes on to elaborate that you can't allow the disability to take over your mind.
Effectively adamant in considering himself normal, underlined by the fact that until he was 17 he didn't compete in para-events just normal able bodied athletes (he states so in this interview).

Just wanted to address the upper part of your post and snipped for relevance to my findings watching that video.

If you have time his autobiography is a fascinating and quick read, especially in light of the events of his life after it was written. The subconscious is a fascinating place. Oscar talks about how the Paralympics were different from other sporting events because there was a comradery off the field that was not present when he competed with able-bodied athletes, yet he still insists that he is not disabled because he was raised as if he was not disabled.

Very interesting.

I think it is healthy to push yourself, healthy to not be limited by a disability but our bodies cannot perform beyond their structure and I think that this dichotomy was (and is) at war in Oscar psyche.


Is there a school of thought about micro mannerisms and the subconscious?

 

[Karmady]

Well I've been skimming through some SA case reports involving dolus eventualis and it appears to me that Britskate is out of date in thinking that the "reasonable person" test is currently applied. (I regret this, but I am neither the legislator nor the judge.) It is no longer enough to show what a reasonable person would be expected to notice, because unreasonable people are too numerous for us to send them all to prison until they become reasonable. The court wants to know what the accused himself really did think when acting - subjective.

However, this definitely does not mean that you can kill someone in SA and then claim that you didn't intend to and you didn't notice that shooting into a confined space was liable to prove lethal to the person therein. The current test, so far as I can see, is not: can the prosecution positively prove that the accused knew what he was doing. It is: is it reasonably credible that he didn't?

In other words, the accused is no longer automatically deemed to be a reasonable person, but the judge is. So don't try alleging incredible scenarios.

That's exactly the way I read that case that CapetownCrim posted a few weeks ago. I gave up discussing it, though

 

[Nausicaa]

I think burden of proof muddy waters may be due to changes in the CPA. The original 1977 CPA was modified to incorporate rights accorded to defendants in the Constitution and Bill of Rights.

The burden of proof shifted to the State at that time.

Not for the faint at heart, but here is a link to a 140 page SA dissertation (2011) on the burden of proof/ presumption of innocence in SA trials, with a specific focus on defendants claiming mental illness:

upetd.up.ac.za/thesis/.../dissertation.pdf

" Constitutionality of the Onus of Proof...."

Life is too short to type out links the long way, granted, but your shortened form is insufficient to locate any particular dissertation. Tell that lad of yours to get his greedy hands off your laptop for a few minutes and give us a usable link...please!

 

[Emz73]

Hi, can't help with your main question, but this link may confirm you last sentance if you haven't already seen it.

http://criminallawza.net/2014/03/03/the-pistorius-defence/#comments

He says that SA law definitely doesn't take on any external circumstances when using the reasonable person test so his disability isn't a factor. He says the courts never waver on this. So maybe GAD comes under this too. The reasonable person test is used with the immediate circumstances ie
Heard the window
Walked TOWARDS the noise even when in great fear.
Heard another "wood moving noise"
Shot 4 times.

Would a reasonable person do any of this?? Was there an immediate threat to him or family etc?? Was the force he used necessary and reasonable??
Very interesting read.

 

[44ALLAN]

I must ask...
If as an outpatient OP has to be at the 'evaluation centre' from 5am - 9pm does that mean he has to leave 'home' at about 4.30am only to return at about 9.30pm....that is a long, stressful day.
Who drives him ?
Would it be everyday (7/7) or just Monday to Friday ?

....that is a long, stressful day.

Tell me your having a laugh?
You are aren't you?

 

[Nausicaa]

Don't shoot the messenger, but the argument would be that, although he understood right from wrong, his disabilities made him psychologically/mentally incapable of acting in a manner consistent with that knowledge. At least that's my understanding of it.

"...the argument would be..." but in fact no one is using this argument, because peope who are psychologically incapable of acting consistently with their knowledge of right and wrong urgently need to be put somewhere very nice and very secure and very far away from the rest of us.

 

[Karmady]

He says that SA law definitely doesn't take on any external circumstances when using the reasonable person test so his disability isn't a factor. He says the courts never waver on this. So maybe GAD comes under this too. The reasonable person test is used with the immediate circumstances ie
Heard the window
Walked TOWARDS the noise even when in great fear.
Heard another "wood moving noise"
Shot 4 times.

Would a reasonable person do any of this?? Was there an immediate threat to him or family etc??
Very interesting read.

But a reasonable person test doesn't apply when there's a pathological incapacity defense asserted. The court found that there is now evidence offered to support such a defense (by Vorster) and that is why the defendant is being referred for evaluation. That's where his mental health/GAD come into play. Whether those conditions rendered him incapable of acting in a manner consistent with his admitted recognition of right and wrong.

eta: the conditions also would be considered potentially relevant to diminished pathological capacity in mitigation.

Clear as mud?

jmo

 

[BritsKate]

Franaaz Khan, an attorney and a criminal law and commercial law lecturer at the University of KwaZulu-Natal, said that while said South African law does not recognise a charge called “premeditated murder”, the fact that it was premeditated can be used in court as an argument in aggravation of sentence.

“Intention can be formed at the instant of committing the crime and does not imply or necessitate any degree of forethought or planning on the part of the accused.

http://www.iol.co.za/dailynews/opinion/expert-clarifies-premeditated-murder-1.1573253

As I've said before I think some may confuse premeditation with intent. They're separate legal principles in SA from everything I've read.

 

[Viper]

This is no doubt going to open a big can of worms. :worms: But you folks can handle it!

This link is for anyone that just can't envision or understand what characteristics OP has, or experienced in his life, that could bring him to commit murder. I am so looking forward to hearing the results of his psychiatric evaluation, but reading from the attached list I can see what is coming.

From Doctor Phil. Source: Internal Association of Forensic Science, an article written by FBI Special Agent Robert K. Ressler, "The Serial Killer," Harold Schechter

Fourteen Characteristics of a Serial Killer, here:

http://www.drphil.com/articles/article/188

:hills:

 

[Cherwell]

Well I've been skimming through some SA case reports involving dolus eventualis and it appears to me that Britskate is out of date in thinking that the "reasonable person" test is currently applied. (I regret this, but I am neither the legislator nor the judge.) It is no longer enough to show what a reasonable person would be expected to notice, because unreasonable people are too numerous for us to send them all to prison until they become reasonable. The court wants to know what the accused himself really did think when acting - subjective.

However, this definitely does not mean that you can kill someone in SA and then claim that you didn't intend to and you didn't notice that shooting into a confined space was liable to prove lethal to the person therein. The current test, so far as I can see, is not: can the prosecution positively prove that the accused knew what he was doing. It is: is it reasonably credible that he didn't?

In other words, the accused is no longer automatically deemed to be a reasonable person, but the judge is. So don't try alleging incredible scenarios.

1. He thought there was someone in the toilet (allegedly an intruder)
2. He admitted that he thought that if he shot into the shower, there would be a danger of ricochet.
3. So instead he shot into the toilet - four times.
4. That toilet is a small enclosed tile-lined space.
5. It is his toilet, so he knew that.

Does it for me. :gavel:

 

[44ALLAN]

A scenario (suspend your disbelief about specifics) and a question.

OP had a bad few days. Reeva comes over totally into VDay, OP not so much. Not a great night and at some point they fight. A lot. OP goes to sleep. Reeva can't. She goes downstairs and gets a snack, then comes back upstairs. OP wakes up and is angry all over again. They fight again, this time more intensely. Reeva considers leaving, but hasn't decided for sure. Both are tense. OP gets up to do whatever.. move fans, go on balcony, go downstairs... whatever. ( Yes, I know what he said he did, but since y'all think he lied about everything, why believe what he said he did here?)

Continuing. Reeve slips out of bed and goes to the loo. She may have decided to leave, or maybe she just had to pee. In either case she's quiet on purpose because she doesn't want the fight to escalate any further.

OP hears a noise in the bathroom. He is already enraged, has not let go of the fight. He doesn't check for Reeva. His first thought isn't protecting her, its that a SOB might be in his house.

He's angry - very - but he also is feeling vulnerable. Not afraid, but vulnerable because he is at a physical disadvantage. Just reality of the matter, and part of the reason he feels compelled to compensate for that disadvantage by always reaching for a gun.

The thought of pushing the panic button or running the other way never occurs to him. It doesn't because response to the panic button isn't instaneous, because if he turned his back to flee he might be overtaken, because he is OP, who isn't going to back down, and because his reasoning is already impaired by rage, increased exponentially by his perception that an intruder dared to threaten him.

He grabs his gun, runs down the hallway screaming get the f out. Reeva has no idea what's going on and stays silent. OP hears her move, perhaps she reaches for the door handle. He doesnt fire a warning shot because it never occurs to him to do so, not because he's afraid of a richocet.

He shoots once. The noise is deafening. Literally.

He doesn't hear her scream because of the deafening noise. He is also literally pumped on adrenaline, and furious. He pauses for a brief moment because the noise hurts his ears, and because the temporary loss of hearing increases his anger and his fear. He fires 3 more shots. He fires them knowing that he is firing them, and yes, hoping that the shots will eliminate the threat. He isn't trying to kill whoever is behind the door, but he knows enough even in that mental state that he is very likely to cause them serious injury.

Given that scenario ......(please don't argue about the details...its only a scenario) ....do you think he should be found guilty of murder?

Yup.

Do that scenario again and show how the 5 witnesses are lying about a woman screaming then I might consider listening to your preposterous story