Trial Discussion Thread #53 - 14.12.9, Day 42 ~ final verdict~

[kaydono]

Is it done for now? I have insomnia so I decided to watch live stream again.

 

[K.T]

Spending this amount of judgement time talking about Fresco is completely ridiculous after little amount of length of time the Judge spent on Pistorius many parts of untruthful evidence. Even if she's going to grant him indemnity, it just makes a mockery of the justice sytem not being 'just' but about legalese minutae that is generally irrelvant in the terrible death of a victim.

 

[zwiebel]

J:...Fresco's evidence was corroborated by Lareno.....

 

[sleuth-d-]

I really don't understand the difference between eventualis and negligence. I don't know enough about it but it basically sounds like the same thing to me [emoji53]


Sent from my iPad using Tapatalk

for me the main difference is in the judge's scope for sentencing.

 

[kaos]

It does make me wonder if there would have been more weight given to witnesses if Melissa Rom and Cassidy Taylor Memmory had their say on the stand.

 

[G.bng]

Was too tired to post this yesterday but seems it could be helpful to explain why murder is not the verdict.

Thank you for that. The problem I have with Masipa over this issue is that she contradicts herself as soon as she starts speaking about CH where she clearly states that he must have known he was likely to have killed someone. How on earth can he not foresee killing someone when pumping 4 bullets into a small cubicle, which then precludes him from a verdict of dolus eventualis, and yet needs to be aware of the risk of doing so to meet the criteria for Masipa to find him guilty of CH. (I know we haven't quite got there yet but that looks like where we are going). Doesn't stack up to me.

It concerns mens rea, a guilty mind, as dolus requires intent and/or malice which Masipa did not find proof of beyond reasonable doubt having believed that OP did, even if erroneously, genuinely believe there was an intruder.

There is an extensive Wikipedia article on SA Criminal Law with a section on Dolus Eventualis. Following excerpt courtesy of wikipedia:

Dolus eventualis (Excerpt courtesy of Wikipedia)
On Snyman’s definition, there are two requirements for existence of dolus eventualis:

• that the accused should subjectively foresee the possibility that, in striving towards his main aim, the unlawful act or result may ensue; and
• that he should reconcile himself to this possibility, or at least be reckless as to the possibility.

The first may be described as the cognitive part of the test; the second is the conative or volitional part.

In respect of foreseeing the possibility for dolus eventualis the test is subjective not objective. This is the point about which some are claiming Masipa made a mistake in law. That of course will be seen since the State must appeal if they consider that she did but IMHO in view of the precedents she quoted to demonstrate her reasoning and what is explained here, it does not look to be the case to me.

Foreseeing the possibility (Excerpt courtesy of Wikipedia)
The subjective test takes account only of the state of mind of the accused, the issue being whether the accused himself foresaw the consequences of his act. The test may be satisfied by inferential reasoning: that is to say, if it can be reasoned that, in the particular circumstances, the accused “ought to have foreseen” the consequences, and thus “must have foreseen,” and therefore, by inference, “did foresee” them.

In S v Sigwahla, Holmes JA expressed the degree of proof in the following terms:
Subjective foresight, like any other factual issue, may be proved by inference. To constitute proof beyond reasonable doubt the inference must be the only one which can reasonably be drawn. It cannot be so drawn if there is a reasonable possibility that subjectively the accused did not foresee, even if he ought reasonably to have done so, and even if he probably did do so.

The inference, then, must be the only one that can reasonably be drawn from the proved facts.

 

[zwiebel]

J:..no merit...opinion of this crt Mr Darren Fresco answered honestly....discharged from prosecution...discharge of Mr Fresco shall be entered on the record...

 

[PrimeSuspect]

She moves on to the indemnity of Darren Fresco - the issue of granting him immunity from prosecution

Darren Fresco has a lawyer with him in court

This deals with count three - the Fresco incident

Pistorius was handling Fresco's gun when it went off.

Although Fresco was found to be an unreliable witness for count 2, his evidence was accepted for count 3

Masipa says the contradictions relating to Fresco's testimony on count 3 were minor

Masipa says that Fresco wasn't out to implicate Pistorius

No one is infallible, not even lawyers.

Masipa says that Fresco answered honestly and is discharged from prosecution

Now back to Gerrie Nel and Barry Roux

http://cnnworldlive.cnn.com/Event/Oscar_Pistorius_trial_4

 

[minor4th]

Judge finds Fresco is entitled to immunity from prosecution related to the Tasha's incident

 

[christee]

So, Fresco is discharged.

 

[Chelly]

Was there a trial for Fresco? What did I miss?

 

[zwiebel]

Break. And Roux wants chambers sealed?

 

[katydid23]

I have heard that he could get no jail term at all for CH. Just fines and parole time.

 

[jimmy73]

Nel's team back in with him today.

 

[Forensics]

In closing arguments, Barry Roux, lead counsel for the defence, said the starting point for this trial should have been a charge of culpable homicide, rather than murder. Masipa made it clear that, although the state did not have to prove a motive for murder, there was no evidence in front of the court to say that Pistorius wanted to kill Steenkamp.

But her interpretation that a reasonable person would have foreseen that shooting four times through the door would kill the person behind it – but to clear Pistorius because he did not foresee this – is likely to spark much debate and criticism.



http://www.theguardian.com/world/li...ius-verdict-live-judge-rule-culpable-homicide

 

[lisasalinger]

Lessons for today:

4 shots are reasonable
Telling lies doesn't make you a bad witness, it makes you believable
Committing crime in SA is super easy and not punishable

 

[djameson]

Spending this amount of judgement time talking about Fresco is completely ridiculous after little amount of length of time the Judge spent on Pistorius many parts of untruthful evidence. Even if she's going to grant him indemnity, it just makes a mockery of the justice sytem not being 'just' but about legalese minutae that is generally irrelvant in the terrible death of a victim.

I agree .. this is a bit ridiculous .. this trial is about op and rs .. why is this being addressed in this court session ? .. she's not even done with the matters of the op trial yet

 

[jay-jay]

From @MandyWiener Myers girls - Reeva Steenkamp's friends - are crying incredulously as Judge Masipa agrees with #OscarPistorius's version

Mandy Wiener @MandyWiener · 30s

#OscarTrial Barry and June Steenkamp have shown little emotion though. Barry has gone slightly redder, June sighs deeply. Dup takes notes.

The parents have stated to journalists they are dissappointed (so far)

I feel so sorry for them .. I was looking at Gina just now, she is so upset .. as must be all Reeva's friends and family just now, especially June and Barry (although they won't show it openly). Bless them all, and Reeva .. justice has not been served here. I hope that Reeva comes to OP in his dreams every night, and that she eventually destroys him. Sadly though, OP is the type of killer who is not affected by his actions, or by the person he killed in such a disgusting way. He still manages to go out partying .. what a sick man he is, he needs to be locked up for the protection of the rest of society and other women who will be taken in by him.

 

[sleuth-d-]

re: count 4
the ammo was found in his safe.
what did the state have to prove?

does an accused now just have to use the defence is that it was your father's, and he has a key?

 

[Chelly]

If you lie on the stand it does not make your evidence unreliable. She said that!