Trial Discussion Thread #45 - 14.07.3, Day 36

[JudgeJudi]

I think they're talking about it just now. Something along the lines of 'pathological temporary insanity'. A bit like if somebody was drunk and killed someone but normally they're a pretty stand-up person.

Criminal Law in South Africa

This very interesting article written by Prof. James Grant was written on 17 May (before the evaluation). The second paragraph reads as follows:

"An astute observer may ask whether there is any relationship between a claim to lack capacity and the second apparent defence raised by Pistorius – in his own testimony – that he acted involuntarily (see “Pistorius’s Second Defence: Involuntariness” on this site). The answer is that there is. In the leading case of S v Eadie (referred to above – which effectively shut down the defence of non-pathological criminal incapacity in practice) the SCA indicated that the requirement of capacity to act in accordance with an appreciation of wrongfulness (the second leg of capacity) and voluntariness were equivalent. This is the reason why non-pathological incapacity became such a difficult defence – because involuntariness is a difficult defence to succeed with. The court in Eadie indicated that a defence of incapacity to conduct oneself in accordance with an appreciation of wrongfulness must be established on the same basis as a defence if involuntariness. A defence of involuntariness is exceedingly difficult to prove. The essence of involuntariness is that the accused’s mind did not control his/her conduct. Well known examples are instances of epilepsy and sleepwalking. Also, the prosecution is aided by a form of presumption (“a natural inference&#8221 that the court will rely on: that conduct of an accused is ordinary voluntary and that if the accused wishes to disturb this natural inference, the accused will have to lay a sound basis for this. There seems to be no sound basis for a claim to incapacity for self control or involuntariness – unless the testimony of Dr Vorster is treated as such, or perhaps, the enquiry that her evidence triggered may provide. Her evidence, apparently (if media reports are correct) included statements that Pistorius would respond “differently” (presumably to “normal” people) and also that his mental condition may have affected his ability to control his conduct (act in accordance with an appreciation of wrongfulness).

http://criminallawza.net/2014/05/17/pistoriuss-third-defence-pathological-incapacity-insanity/

 

[JudgeJudi]

I would really be appreciative if someone could provide link to today's July 3 session 2 testimony...I can get 1 and 3 but not 2. Thanks.

Sessions 1, 2, 3 and 4 are now all on You Tube.

 

[JudgeJudi]

Agree totally. Surely this guy is going to feel rather stupid if he ever watches his performance. His head is so far up his *advertiser censored**e that he made himself look very biased. Not very intelligent for a supposedly very intelligent guy. I think much of his testimony will be disregarded by the court especially as he was attempting to be a psychologist, amongst other disciplines, whereas he is a sports medicine doctor.

He's shown that not only is he pompous and arrogant but has a total lack of respect for the court. If I were in Nel's shoes I would have told him two days ago "Don't come the raw prawn with me".

 

[wb180]

I think we are saying the same thing - the judge must first accept OP's version

Not version but versions unless we are talking about the elusive "core" version

 

[christee]

Has the possibilty been discussed that OP accessing the *advertiser censored* site(I believe it was OP), led to an argument about being intimate that night,maybe he wanted to, she didn't (or the other way around) and so she decided to leave. I believe he was physically aggressive towards her in the bedroom, possibly just after they became intimate. The inside out jeans strike me as being peeled off Reeva and thrown on the floor not Reeva sliding them off.
The damage to the BR door, the small spatters of blood on the wall (?, I may be confused about the blood) tell a story that for some reason wasn't discussed in detail during trial that I can remember but I could have missed that info.

 

[JudgeJudi]

Just got through yesterday's testimony and I heard a court order saying that from this day forward, no one can publish the psychiatric reports.

But apparently, these reports are already on the net. Would someone have links? I've tried Googling them but can't find any.

Thank you

A one page document of the findings only was out there but the only thing of note was that all the psychologists agreed he was not suffering from GAD. Oldwage asked Masipa to stop the media from publishing anything further because it contained intimate and personal details re himself and his family. She made the order. So none of us have, or will, see the reports themselves which appear to be very lengthy. We did see that one page report but there's absolutely nothing in it worth seeing IMO. It looks like it's been taken down because I've looked extensively for it and can't find it either. Maybe someone here has it.

 

[jassy writer]

No one proved the magazine rack didnt move before Oscar shot Reeva. So the third sound that he thought was the door opening could have been the magazine rack moving while Reeva was in the toilet.

It must annoy Gerrie Nel having to even hypothetically discuss this ridiculous "three sound startle" scenario when OP has been caught out in so many lies on the stand with his constantly changing, tailored-to-fit-the-facts testimony - not to mention his inability to admit even to the obvious (the gun fired itself in Tasha's, of course!).

Even so, he's patiently and methodically going about destroying this house of cards which the defense are attempting to shore up.

I particularly love it that the Prof handed in enough paperwork to fill a small sized cabinet, and yet he took no notes while consulting with OP! The mind boggles!

 

[cottonweaver]

Just catching up– missed the WS boat again!

Legal perspective written a few weeks ago- posting it in connection with the convenient startle testimony


“The problem is that when an accused raises the defence of having acted involuntarily, only the accused person can give direct evidence as to his or her level of consciousness at the relevant time. But an accused would obviously have a vested interest in telling the court that he or she acted involuntarily. ... In a case like the one involving Oscar Pistorius the court will require some indication of an “emotional stimulus” that could serve as a “trigger mechanism” which led to the sudden and unusual absence of control. In the past our courts – controversially – had found such a trigger in circumstances giving rise to stress, provocation, frustration and fatigue.”
http://saknowledge.blogspot.co.uk/2014/05/sa-knowledge-pistorius-trial-self.html

With such a defence the Judge really has to believe that the defendants' account can be relied upon.

 

[cottonweaver]

Re. Prof Dernham, the Joburg attorney David Dadic’s tweets are always illuminating, for example yesterday he was tweeting ...

“worst weekend of Prof Dernham’s life?”
And “Here is the defence people. It's taken three months, but we are here.”… and
“This is great evidence for OP. Nel will have a big job to do here. Also I believe he has to re-open his case. We're here for a while longer.” “What's great about this witness is that he's not only an expert in amputees but also in disabled sports persons. Hard to find rebuttal expert” and
“Incredible that Olwage, after all this time, examines what is basically the most important defence witness”
"Derman says we are dealing with a paradox of an individual who is supremely abled and supremely disabled."
https://twitter.com/DavidDadic

Yes it was the Prof's first time on stand.

 

[cottonweaver]

Bear in mind Dadic was writing the explanation below just as OP was being sent off to Weskoppies. Main point still holds however – with sane automatism credibility of accused trumps all in Judge’s eyes because psychologists’ reports are also based on what accused tells them.


Non-Pathological Criminal Incapacity (Temp insanity) & Automatism as Defences

Recently the courts have widened the psychological factors which may affect criminal responsibility to include temporary emotional and psychological states……….The consequence of defences of NPCI is an acquittal of the accused……Moreover there is case law where expert reports of existent psychological issues culminating in a poor impulse control by the accused at the time of the offence resulted in an acquittal of the accused. I am of the opinion that this is Nel’s biggest concern The argument however, doesn’t remain there (it’s never simple). The courts are very conservative with these defences and in fact align them with defences of automatism (you will remember when this came up in the trial, how often legal professionals impressed upon automatism being a very difficult defence to claim).
The criminal law literature specifically says that these defences should be approached with much caution as they are often utilized by accused as a final resort when all other defences have been exhausted (interesting, huh?) The literature goes on to say that where such cases have been successfully argued there is always evidence of cumulative buildup of stress prior to the offence, The literature goes further to say that because these defenses are approached with such caution, and because they are so inherently connected to the accused’s version of events, the court must have strong regard for the reliability and truthfulness of the accused as a witness (as I said the expert’s report is not self conclusive, the final decision rests with the court. You can bet that Nel, should Oscar be diagnosed in line herewith, will do all he can to have the court reject it). The court can even treat the expert’s report with the same disregard as it treats an unreliable accused, because obviously the report is largely based on what the unreliable accused has to say OR HOW HE ACTS.

http://whosyourdadic.com/

 

[JudgeJudi]

Are we quite sure that Nel will wrap-up Wayne Derman's cross-examination and Oldwage the re-examination, all on Monday ??

Do we believe the Defence has further witnesses… or was Wayne Derman the last one ?

Several reputable journos, one being Andrew Harding, said he was the last. However when Nel asked Masipa for an adjournment until Monday because he had an appointment with one of the State's psychologists at Weskoppies, she made a reference to that doc coming in and testifying. Nel left the answer up in the air but you got the impression that it was possible not probable.

 

[Bobbie Elliott]

This is the very latest video from Judge Greenland which covers all yesterday morning's testimony up to lunchtime. It's really worth watching.

https://www.youtube.com/watch?v=v4QvTMOxuvw

Thank you for this Judgejudi. Judge Greenland explains things so well. Don't tell anyone, but I think that I have a crush on him - crumpet for the mature thinking woman!!

 

[44ALLAN]

We do not know that the magazine rack didn't move before Oscar fired at the sound

With all due respect..............Oscar did not fire at any sound other than Reeva screaming for her life as testified to by 4 witnesses on the night in question.

Doors opening/windows sliding etc are all BS if you are following the trial closely

ps.

If the magazine rack moved whilst Reeva was in the toilet (which caused him to fire in his version) then it would have been impossible for Reeva to be next to the door for Bullet A to hit her..............am I right ? lol

 

[44ALLAN]

We don't know the rack never moved. We certainly don't know there was no sound at all. How could such things be known, anyways?

Were the 4 witnesses to a woman's screams all mistaken or lying ?

 

[44ALLAN]

IIRC Roux tried to raise it with OP - in OP's version the timing of it was while Reeva was supposedly stir frying chicken and "fibrous vegetables"- and OP was evasive (for a change). Roux didn't pursue it, although I think he said he'd "come back" to it. I'm not surprised Nel didn't bother as neither response from OP would be particularly damning, IMO. I'm not for a second suggesting that it's classy to briefly watch *advertiser censored* while your girlfriend's in your house but it's neither a crime nor, I'd imagine, that uncommon. If OP had sheepishly admitted to it it wouldn't have been a big deal and if he'd, more likely, denied it then Nel wouldn't have gained much by confronting him on cross except learning that he watches *advertiser censored* and is embarrassed about it being known publicly. It's certainly not a good "look" to be looking at online *advertiser censored* while your gorgeous girlfriend is visiting you though but it doesn't make him a murderer or even of deviant character.

Disclaimer : I am not a watcher of online *advertiser censored* but i must confess to sneakily checking in with the trial while I'm supposed to be having special reading time with the kids.

My opinion is they were both watching it and that's why it wasn't taken any further by either counsel.

 

[Really?]

wah wah wah......were is the trial ????

mornin peeps

 

[kittychi]

OT, but...Happy 4th of July, fellow Yanks!

:fireworks:

 

[HauntsForHope]

:fireworks2:

Good Morning People!

Happy July 4th
Independence Day!

Do we have court today?

 

[Giles]

:fireworks2:

Good Morning People!

Happy July 4th
Independence Day!

Do we have court today?

No court today. Court has adjourned until Monday.

 

[KarenUK]

Hi all - I've been really bad at keeping up since the trial restarted, would any of you be kind enough to give me a quick update?