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

[K.T]

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.

"A person acts with intention, in the form of dolus eventualis, if the commission of the unlawful act or the causing of the unlawful act is not his main aim, the unlawful act may be committed or the unlawful act may ensue, and he reconciles himself to this possibility...

It is sufficient if the accused, having foreseen real possibility of the existence of the circumstances in question, nevertheless persisted in his conduct irrespective of whether it existed or not." http://www.justice.gov.za/sca/judgments/sca_2013/sca2013-034.pdf

I think a gun expert like Pistorius, after passed his proficiency test, would have 'foreseen' the death of whoever was in the difficult to manoeuvre toilet-space. From this reading of 'intention', it seems important that an ammunition choice like black talons is highly relevant, even for a 'subjective' test about being "reconciled to the possibility" of death.

I'm concerned why Masipa disregarded State evidence and ignored ammunition choice under intention.

 

[thewagesofsin]

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 :-/

Oscar will be forever known as a reckless, violent, paranoid, frightened little man who screams like a girl. I doubt that is of any comfort to Reeva's loved ones though.

 

[Giles]

What!!! Did this actually happen?????

No, I just watched it again, thinking I might have missed something. I think the original poster was just making a joke...

 

[screecher]

What a waste...of time, energy, money and hope. This so-called finding of facts and the findings is a mockery of justice.

IMO, the blatant disregard of people's lives (and murders) is reprehensible.

Shame on TPTB.

 

[Giles]

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.

Yes. As minor4th says, her ruling was confusing. The only reason I can remember her saying in this regard was during the first day about firing at chest height vs the height he fired at. I thought she said she would come back to it but never did...

Will her report be made available like the heads of argument?

 

[turaj]

What!!! Did this actually happen?????

yes it did

 

[turaj]

No, I just watched it again, thinking I might have missed something. I think the original poster was just making a joke...

it is not a joke...i watched it yesterday after the abrupt ending.

 

[Ginro]

No, I just watched it again, thinking I might have missed something. I think the original poster was just making a joke...

Yes I'm pretty sure it was a pun on 'round', 'rand' being S.A. currency i.e. money changing hands. It's been funny watching peoples responses to it though

 

[AJ_DS]

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.

I have serious doubts Masipa will come down on OP for Tasha's :

1- Masipa said that OP genuinely was distressed at the firearm going off, genuinely concerned about people around him

2- Masipa opened the door when she hinted that perhaps OP had not heard Fresco's warning that the firearm was one up

3- OP testified that he did not understand how it is possible that the firearm discharged since he did not have his finger on the trigger… and no evidence was led to the contrary as to OP having in fact put his finger on it… except Mangena who stated that unless a malfunctioned occurred, it is impossible (but no one examined that weapon).

4- OP had no reason/motive/intent to want that gun to discharge.

5- OP stated that he was not familiar with that type of firearm.

6- OP is a first time offender.

… for these 6 reasons, Masipa will probably conclude that it was a stupid thing to do and that responsibility is shared between OP and Fresco :

- OP should have known better than to ask to examine a firearm in a public place… and he should have made sure the gun was safe as he knew how to do so.

- Fresco should have known better than to hand over his firearm for OP to examine in a public place… he should have made the gun safe as he knew how to do so before handing it over.

The responsibility is pretty much shared 50-50 between OP and Fresco :

- Fresco is the owner of that firearm… OP is not

- Asking for a gun is not liable… handing over one's own gun is liable

- Fresco's carelessness with an unsafe firearm precedes OP carelessness with said unsafe firearm

- OP is the one that discharged the firearm

… as for the CH…

Let us remember that in Masipa's view it was an accident, albeit a tragic one, cause by mitigated negligence…

Therefore, Masipa will probably go the route of OP has suffered enough in this tragedy … lengthy suspended sentence to serve in the community with strict conditions.

 

[sicknote]

The screaming makes sense when the cricket bat sounds come first. Stroke of genius by the defence. Gutted by the verdict.

 

[james83]

“I am warning the media, if you do not behave, you will not be treated with soft gloves,”,"because i am holding them back for Oscar".

 

[04009margaret]

I don't disagree with what you say but I'm trying to understand the law and how it is being applied by Masipa.

For Dolus Eventualis the law says that the State has to prove beyond a reasonable doubt that OP reconciled himself to the fact that in firing his gun it would result in the death of whoever was in the toilet. This is a subjective standard meaning what OP actually foresaw and actually reconciled himself to, as a consequence of his action. Not what he should have foreseen (or, it would appear, probably did foresee). So ... how would the State prove that? 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 even though he armed himself, went towards the perceived danger and fired four black talon rounds into a small toilet cubicle knowing that there was someone inside. 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 (perish the thought)!

How can Masipa state that OP could not foresee that the consequence of his action in firing 4 shots through a closed door, in a small confined space would not result in death. In OP's own version he admitted that he couldn't fire a warning shot as he could be hit by the ricochet, therefore he is stating he knew what the result could possibly be.

 

[turaj]

Yes I'm pretty sure it was a pun on 'round', 'rand' being S.A. currency i.e. money changing hands. It's been funny watching peoples responses to it though

I have reviewed where I thought I saw it and it is not there so I must be totally imagining it...sorry for stating it as true.

 

[james83]

It really is totally needless for the sentencing to be a month away, we all know exactly what's going to happen, suspended sentence because she thinks he's suffered enough, followed in a few months with an interview on Oprah, followed by millions of soppy idiot's feeling sorry for him, gold medal at the paralympics in 2 years dedicated to Reeva, blah blah blah.

 

[04009margaret]

WOW now I'm really really angry.Alex Crawford has just revealed on Sky News that Arnold Pistorius revealed to her, just prior to the beginning of Masipa's judgement, that the Pistorius clan was now looking to the future for OP. The family have a plan to get OP back into running with a goal towards the next Olympics & also have in place a plan for the rebuilding of the Oscar brand. The sense of entitlement & total lack of empathy for what their family member has done defies logic. This family has no morals & need to hang their heads in shame.

 

[patCee]

The whole thing is not just sick, it is blatantly sick without any humility or regard for anyone involved. Uncle Arnold giving press conferences for his nephew? Everyone wants to know what he thinks because he's very important and influential don't you know? In the court itself too, where the trial and verdict was given. How disrespectful is that? I've never seen anything like that before, ever. It's an intimidating signal to all in SA to know their place, in particular to the family of RS who've been sitting in that exact room listening to the details of their child's death.

 

[Giles]

I have reviewed where I thought I saw it and it is not there so I must be totally imagining it...sorry for stating it as true.

No, I certainly missed it. I've just been back to look at it again and can't see it. It could be that the feed I am watching cuts away too quickly though.

 

[turaj]

WOW now I'm really really angry.Alex Crawford has just revealed on Sky News that Arnold Pistorius revealed to her, just prior to the beginning of Masipa's judgement, that the Pistorius clan was now looking to the future for OP. The family have a plan to get OP back into running with a goal towards the next Olympics & also have in place a plan for the rebuilding of the Oscar brand. The sense of entitlement & total lack of empathy for what their family member has done defies logic. This family has no morals & need to hang their heads in shame.

I don't know who Alex Crawford is but I said the same thing in the last days and everyone says that it is not possible. So I am glad to see I'm not the only one thinking this way...you just can't underestimate that clan and after their celebration today at Arnold's place where the new girlfriend is not doubt waiting...they will be on with the planning. Arnold is all about business and imagine and wants to get back one of his best brands.

 

[ApplesInMyBra]

I am absolutely gutted by all of this. Masipa just gave everyone the go ahead to shoot anyone through a door, as long as they immediately start crying afterwards, come up with a ridiculous excuse (intruder) and maintain that ridiculous story and repeat it over and over to everyone.

 

[Unique]

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.

Thank you, you summed up exactly how I'm feeling.