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

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MeeBee said:
That's exactly what happened and that was one of Nel's grave mistakes. The only conclusion I can come up with is he did not have an explanation for it so had no choice but to ignore it.
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Wow, very interesting.
 
Mr Fossil said:
"JUDGE MASIPA GOT IT RIGHT: Oscar Pistorius and the intention to kill"

http://thelawthinker.com/judge-masipa-got-it-right-oscar-pistorius-and-the-intention-to-kill/

Explains Masipa's rationale (in the writer's view) and why an appeal may not work. Oh dear. The more I read the more I'm beginning to feel that the State did not do enough to satisfy the stringent tests of the law. I shall have to keep hoping that either the writer is wrong or Masipa hands down a harsh sentence for CH.
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The more I read (http://www.justice.gov.za/sca/judgments/sca_2013/sca2013-034.pdf & http://www.saflii.org/za/cases/ZASCA/1985/41.html etc. & judgement after Jub Jub about the tightening of dolus eventualis about motorists) about "subjective foresight", "reconciling himself towards this possibility" & "volitional state of mind" under dolus eventualis appellant cases, the more I see Masipa ruling as perhaps legally possible. Of course, I completely disagree with not finding a Pistorius guilty of murder, but one needs to look repeatedly at why it happened, and from different perspectives, to stop a miscarriage like this again.

It's complicated and I feel very easy to confuse, or at least it's hard to differentiate between eventualis and negligence. I perceive this law, from reading a very short series of case law about eventualis, as subjective to context, semantic and available for various loopholes. This may be the major problem in this trial, it's convoluted SA law that leads to a loose, easily contested application of the charge. If a judge wants to use a totality of evidence, a choice of evidence, or compartmentalise the evidence leads to a difference in the application of the law - in this trial which Masipa basically threw out the majority of the prosecution evidence.
 
Mr Fossil said:
Can anyone give me an example please. In this case it would appear that OP simply saying "I didn't intend to kill anyone" apparently suffices to tell the judge that he didn't foresee that he would kill anyone. But if that is the case, every murderer would say that - how would anyone get convicted of Dolus Eventualis? We can't be in his head!
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It has to be proven by his actions and how 'obvious' they were. If you punched someone for example and they fall, hit their heads and die, then you could argue the accused possibly did not foresee his punch could kill them, and it would be hard to prove.

In this case Oscars actions are so obvious that there can be no reasonable doubt he KNEW he might kill someone, which is why I also don't understand any logical reasoning for her decision. It makes no sense. The test is only POSSIBLY not WOULD. Huge difference.
 
The Pistorious media conference ....really?
How cruel and transparently self absorbed they are...
OP has learned at the knee of the teacher


Karma is patient
JMO
 
Regarding foresight of killing the person behind the door, Masipa is right: one should not readily jump from "ought to" have foreseen to "must have" foreseen. But nobody is suggesting we do. We should go straight in at "must have" based on her own findings, as this is the only reasonable inference.

Here is the finding of fact: "Clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door". Section 146 of the CPA requires the judge to give reasons for any finding of fact. Masipa failed to do give a single reason whatsoever, despite strong evidence on her own findings to discount it. I would argue this is a question of law and grounds for appeal. It is a crucial finding of course, because this alone excludes any possibility of murder, even on a correct application of error in persona and dolus eventualis. Surely an appeal court can in theory re-find on this fact, then address facts relating to unlawfulness not considered by Masipa (did he foresee risk not under imminent or inevitable attack? did he believe or foresee risk using excessive force?) to reach a guilty verdict on murder.
 
pandax81 said:
Regarding foresight of killing the person behind the door, Masipa is right: one should not readily jump from "ought to" have foreseen to "must have" foreseen. But nobody is suggesting we do. We should go straight in at "must have" based on her own findings, as this is the only reasonable inference.

Here is the finding of fact: "Clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door". Section 146 of the CPA requires the judge to give reasons for any finding of fact. Masipa failed to do give a single reason whatsoever, despite strong evidence on her own findings to discount it. I would argue this is a question of law and grounds for appeal. It is a crucial finding of course, because this alone excludes any possibility of murder, even on a correct application of error in persona and dolus eventualis. Surely an appeal court can in theory re-find on this fact, then address the necessary facts relating to unlawfulness not considered by Masipa (did he foresee risk not under imminent or inevitable attack? did he believe or foresee risk using excessive force?) to reach a guilty verdict on murder.
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Yes, she failed to give a single reason, but she did remind everyone that he was well versed in the rules of handling a fire arm!!!!!!!! It is truly sickening.
 
IndianSummer said:
The Pistorious media conference ....really?
How cruel and transparently self absorbed they are...
OP has learned at the knee of the teacher





Karma is patient
JMO
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And to do it from the courtroom too.....ye Gods!! Why on earth were they allowed to do that?
 
K.T said:
It's complicated and I feel very easy to confuse, or at least it's hard to differentiate between eventualis and negligence. I perceive this law, from reading a very short series of case law about eventualis, as subjective to context, semantic and available for various loopholes. This may be the major problem in this trial, it's convoluted SA law that leads to a loose, easily contested application of the charge. If a judge wants to use a totality of evidence, a choice of evidence, or compartmentalise the evidence leads to a difference in the application of the law - in this trial which Masipa basically threw out the majority of the prosecution evidence.
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If I understand correctly it just means whether the accused KNEW the possible risks or was ignorant of them and SHOULD have known. In this case the question is whether Oscar knew that shooting at someone as he did, might kill them. Seems a simple and clear yes to me, no complications yet Masipa judged there is reasonable possibility he did not know.
 
AJ_DS said:
What's left to say really…?

OP will likely get a slap on the wrist for Tasha's… Masipa made a point to say that OP was distressed and concerned for his friends.

OP will get a very light sentence for the CH… Defence will plead various aspects during sentence mitigation… in the end, OP will probably serve a lengthy suspended prison sentence in the community.

I will be surprised if OP sees the inside of a prison cell.

SA Justice has been diminished on this day… shame on you Masipa !!
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Hopefully he gets a hard sentence for this one. How can he plead not guilty for it and lie his *advertiser censored* off on the stand about it only to have his lawyer concede that he was indeed guilty without any repercussions?

IMO, Oscar has to see jail time for the homicide. If he doesn't it's opening a huge can of worms for South Africa. If I want to kill someone there, all I have to do is wait for them to go to the crapper and shoot them through the door. I thought there was an intruder? My bad.
 
Mr Fossil said:
Masipa used the following quote from case law in expanding on her rationale for not finding OP guilty of Murder Dolus Eventualis:

“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 that 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.”

I’m still trying to fully understand it but I’m wondering if she felt that a verdict of Dolus Eventualis would be easily overturned by an appeal court by using this same case law and that a verdict of culpable homicide was therefore more secure. If so, I expect her sentence to be harsher than others are perhaps expecting.

I think the issue here is that the judge has to abide by the law and precedent; setting precedent herself would be more vulnerable to a successful appeal. She repeatedly said the onus was on the State to prove beyond reasonable doubt and she found that it had not.
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That's possible, but I don't think so.

That excerpt was taken from the case I cited last night - the Appeal Court found that the Accused must have realised the possibility that a bullet might ricochet and hit the deceased. In that case, the Accused was an expert marksman and fired two bullets very close to the deceased, who, it emerged, was not an intruder, but one of his employees.

I think Masipa could easily have cited this case as precedent in support of a verdict of dolus eventualis.
 
I just hope that Barry Steenkamp is ok, he has been so ill recently since OP killed Reeva .. this is almost enough to finish him off :-/
 
mirage1 said:
If I understand correctly it just means whether the accused KNEW the possible risks or was ignorant of them and SHOULD have known. In this case the question is whether Oscar knew that shooting at someone as he did, might kill them. Seems a simple and clear yes to me, no complications yet Masipa judged there is reasonable possibility he did not know.
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BIB - as might be the case if someone had never used a firearm before. But OP was a very experienced gun owner, using deadly bullets, so how on EARTH Masipa can say he should have known that shooting at someone might kill them - but didn't know, is just an absolute joke.
 
pandax81 said:
Regarding foresight of killing the person behind the door, Masipa is right: one should not readily jump from "ought to" have foreseen to "must have" foreseen. But nobody is suggesting we do. We should go straight in at "must have" based on her own findings, as this is the only reasonable inference.

Here is the finding of fact: "Clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door". Section 146 of the CPA requires the judge to give reasons for any finding of fact. Masipa failed to do give a single reason whatsoever, despite strong evidence on her own findings to discount it. I would argue this is a question of law and grounds for appeal. It is a crucial finding of course, because this alone excludes any possibility of murder, even on a correct application of error in persona and dolus eventualis. Surely an appeal court can in theory re-find on this fact, then address facts relating to unlawfulness not considered by Masipa (did he foresee risk not under imminent or inevitable attack? did he believe or foresee risk using excessive force?) to reach a guilty verdict on murder.
Click to expand...

Is it possible that her published verdict will be more detailed than what she covered in court?
 
pandax81 said:
Regarding foresight of killing the person behind the door, Masipa is right: one should not readily jump from "ought to" have foreseen to "must have" foreseen. But nobody is suggesting we do. We should go straight in at "must have" based on her own findings, as this is the only reasonable inference.

Here is the finding of fact: "Clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door". Section 146 of the CPA requires the judge to give reasons for any finding of fact. Masipa failed to do give a single reason whatsoever, despite strong evidence on her own findings to discount it. I would argue this is a question of law and grounds for appeal. It is a crucial finding of course, because this alone excludes any possibility of murder, even on a correct application of error in persona and dolus eventualis. Surely an appeal court can in theory re-find on this fact, then address facts relating to unlawfulness not considered by Masipa (did he foresee risk not under imminent or inevitable attack? did he believe or foresee risk using excessive force?) to reach a guilty verdict on murder.
Click to expand...

Yes, in fact she gave reasons why he must have known:

1. She rejected the startle response

2. She accepted that he had criminal capacity

3. She accepted his proficiency with firearms

4. She called his story 'peculiar' (apologies for the paraphrasing)

5. She accepted that the toilet cubicle was small
 
4MrsB said:
I'm of the thinking that "political pressure" & influence from her superiors had more to do with it. The Pistorius Family influence, connections & deep pockets seem to run deep in S.A.

Remember OP's rant at the VIP lounge (think that was the name), while arguing with the guy who ended up shoving him? . . . "My family owns Zuma" (something along those lines). Referring to Jacob Zuma, President of South Africa.

Heck...maybe they do! Nothing about this family & their connections would surprise me at this point.
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I've been thinking about that, too.

After all, Zuma appoints the Chief Justice.

I doubt very much that Masipa wasn't under pressure.
 
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