Trial Discussion Thread #59 - 14.21.10, Day 48 ~ sentencing~

[mrjitty]

I agree with you that the court found that Oscar shot in putative self defence. It did not make a finding as to whether his mistaken beliefs were reasonable, but it did make a finding that he had those beliefs and they motivated his shooting, in other words, that his version was reasonably possibly true, or even stronger, that it was true.

OK - so at what lines in the judgement does the Judge run through test for self defence and say OK that checks all the boxes?

The problems with this really start on page 3327 where having reviewed the law, she finds his belief of danger to his life was honest but mistakenly entertained.

But the problem is that more is required for Self Defence.

Especially the force used must not be excessive in the circumstances as known to the accused

But she then simply skips over to a completely different concept as to whether he subjectively foresaw the possibility of death, despite having found he intentionally but mistakenly deployed lethal force.

So we have these bizarre passages which can't be reconciled:

How could the accused reasonably have foreseen that the shots
he fired would kill the deceased? Clearly he did not subjectively foresee
this as a possibility that he would kill the person behind the door, let
alone the deceased, as he thought she was in the bedroom at the time.

and

It follows that the accused’s erroneous belief that his life was in
danger excludes dolus. The accused therefore cannot be found guilty
of murder dolus eventualis.

But this is not correct. An erroneous belief his life was in danger does not exclude Dolus on its own.

What would exclude Dolus is Self Defence. So again lets look at the test.

5) Force must be necessary;

6) The extent of force must be necessary and reasonable.

5 & 6 apply to the facts as the facts as the accused perceived them. However where is the finding on these points?

Then we find this at 3332

However, there were other means
available to him to deal with what he considered a threat to his life.
Security personnel are there to deal with such stress or emergencies.

All the accused had to do was to pick up his cell phone to call security
or the police. He could have run to the balcony and screamed in the
same way he had screamed after the incident. He was able to call
security after the incident. There is no reason or no explanation why he
could not do so before he ventured into the bathroom with a loaded
firearm

and worse still

The accused had reasonable
time to reflect, to think and to conduct himself reasonably.

So those findings, based on the facts as known to the accused would appear to specifically rule out Self Defence

All in all this verdict is a mess

But I personally doubt any Appeal Court would support a finding of Self Defence when Masipa herself fails to clearly articulate such a finding.

 

[Estelle]

James Grant ‏@CriminalLawZA

The 1982 Seekoei case held: no state legal appeal if conviction on competent verdict. But state can appeal this too, at SCA & the Con Court.

 

[mrjitty]

After Masipa's reasoning behind her verdict, I understand the thought process of those who are pleased with today's outcome because they expected no jail time at all, but I'm sorry, that's a cop-out..not justice. When sentencing for CH is 0-15 based on the level of negligence and aggravating factors, how much more negligent can one be? What are the actions of someone who would get 6-15? Five years for pumping a trapped defenseless woman's body with three black talon bullets is incomprehensible to me.

But then it gets worse? Masipa gives him a sentence dressed up as 5 years with no suspension, when in actuality it's under some subsection that allows him the possibility of being paroled after a mere 10 months?!! Disgraceful!

That said, Reeva's parents accepting the sentence is understandable to me. They want closure, they NEED closure...and no one can fault them for that. They had to sit through 7 months of hearing from the PT how their daughter was tragically executed, and from the DT how the man who executed her is a victim himself and should not be held accountable. Reeva deserved far better justice IMO, but true to form, her parents accepted the court's decisions with grace, dignity, and class. They are the type who should be admired and regarded as an inspiration to the citizens of SA, not some self-righteous trigger-happy athlete with deep pockets. MOO

Agreed.

Laughable.

 

[Deleted member 102539]

He has a lot of time on his hands now. Perhaps he might look into distance learning whilst in prison and under house arrest. A lot of UK prisoners study whilst inside and end up with degrees. Some even have been awarded law degrees. It will be a good way to make something good come from his sentence.

Perhaps he will begin his studies as an architect and in the future will design bedrooms with more sockets as usual before (to plug in fans and LED lights), bathrooms without windows, toilet cubicles without doors and showerrooms with non-ricochet-walls ...

 

[jay-jay]

Reeva's parents speaking on ITV/Good Morning Britain this morning http://www.itv.com/news/2014-10-22/steenkamps-parents-are-settled-with-the-sentence/

 

[jay-jay]

Perhaps he will begin his studies as an architect and in the future will design bedrooms with more sockets as usual before (to plug in fans and LED lights), bathrooms without windows, toilet cubicles without doors and showerrooms with non-ricochet-walls ...

:floorlaugh:

 

[Estelle]

James Grant @CriminalLawZA · Oct 21

Huh: "in the present case the aim was to shoot the intruder" - contrary to verdict

I think she really means "intent"????rather than "aim"

I think Judge Masipa must retire NOW!

 

[mrjitty]

Unsuccessful Attempts to Justify Judge Masipa’s Errors (Revised & Expanded) by Professor James Grant

http://criminallawza.net/

I had not seen this before so maybe others here haven't either.

As an aside to this, the whole reason why Judges are expected to deliver coherent verdicts;

1. with legal tests clearly set out,
2. relevant factual findings clearly articulated,
3. resulting inferences articulated
4. decision on legal issue clearly expressed

..... is precisely so that Appeal Courts can understand the analytic process of the judge.

Where the judge

a). sets out the wrong legal issues
b) fails to set out the relevant test for a matter at trial (self defence)
c) fails to set out the findings relating to the test
d) fails to make a clear holding (did self defence apply)

Then the Appeal Court can have no confidence

i) that the judge understood the legal issue
ii) the at the judge applied the correct legal tests
iii) as to what legal finding the Judge made

As Grant states, we can't simply 'fix up" the verdict by working out what she must have meant.

There is clear risk on the face of the judgement of legal errors, namely:

1. That she did not apply eventualis to the "intruder" - this is in black and white
2. That she did not apply the correct legal standard for self defence - this is missing from the judgement and the Court failed to determine relevant matters.
3. That there are inconsistent inferences that cannot be reconciled. Namely that lethal force was intentionally deployed against a person but with no intention to kill. That finding cannot be available to the court - at least not without explanation.


So that is just the three I see. I am sure Nel will have more.

 

[mrjitty]

I think maybe you are mistakenly attaching opinions to me which I do not hold. My points were just what I said they were, nothing more. You might be trying to disagree with someone who agrees with you.

Here's my opinion from a post I once made: "Even on the court's own findings of fact, if the principles of law are applied correctly, then OP is at least guilty of murder by virtue of knowing he was unlawfully firing shots 2, 3 and 4 accepting he may kill."

OK - lets leave it there.

I disagree with you that we can say the Judge held self defence.

She might have thought she did - but it is nowhere in the judgement

In the end, the defence must be one of justification, or one of lack of intent.

It cannot be 50/50

 

[zwiebel]

I'm sure you are right zwiebel but I really don't think it's going to do much good. As others have mentioned, to most close followers of this trial what he has lost is essentially of little to no consequence and most don't believe him anyway and think he is a murderer. The public at large share the same general attitude of 'he got away with it ... the sentence is a joke'. You only need to read comments sections to know what the sentiment out there is. So for all the attempts of his family and supporters to shape the narrative it's just not going to work IMO. Again, as others have said, he is always going to be known as 'that guy who killed his girlfriend and got away with it' and no amount of PR is going to change that. He'll also drop off the fame radar as he won't be competing again so far as I can see. They do have a point in saying 'he's lost everything'* but the problem is very very few people care.

* except his life of course

PS What did you have for breakfast today?

A huge slice of mandarin and cherry cheesecake. I would post a photo, but it's all gone.

 

[mrjitty]

A judge is required to reason through all the evidence. Masipa accepted that Oscar didn't intend to kill because he aimed low, but she didn't explain how or why Oscar thought that the person was upright so that aiming low would avoid killing. She accepted it because Oscar said so.

This is really the key point.

The judge stated yesterday in black and white that OP intended to shoot the intruder.

So that is the intentional use of lethal force against a person. So the logical inference is that an experienced firearms expert knows this can kill. Even an idiot knows that.

Yet she says he didn't intend to kill anyone.

How is that possible?

Well all the judgement says is this.

How could the accused reasonably have foreseen that the shots
he fired would kill the deceased? Clearly he did not subjectively foresee
this as a possibility that he would kill the person behind the door, let
alone the deceased, as he thought she was in the bedroom at the time.

So clearly we have an error of law here. By failing to apply Dolus E to the intruder.

We can't invent other ways that OP intentionally shot the intruder without meaning to kill if the judge herself did not articulate them.

 

[mrjitty]

It's hard for me to comment because basically I get what you're saying, I even agree with you. But I think what Kelly Phelps et al are saying is understandable.

Oscar intentionally but not illegally shot at the person behind the door in putative private defence. He shot low so didn't intend to kill. "If I'd intended to kill I would have aimed higher." Masipa took that at face value.

Of course it's rubbish. First how could Oscar have known the position of the person to know that aiming higher would have killed rather than say aiming at the toilet? Perhaps the intruder went in to use the toilet. Second, it was foreseeable that shooting 4 hollow point rounds anywhere at the target could end in death, unless it was at her toes, and he didn't shoot that low.

The problem I find is, it is JM's reasoning as to matters of fact that is so flawed. If she reaches perverse enough conclusions on the facts of the case, then the verdict has some coherence. She concludes as a matter of fact, Oscar did not intend to kill because he shot low, and in any case the killing was lawful because it was PPD, but it was reckless because he could have taken other measures. Q.E.D.

But the state cannot appeal on reasoning as to the facts, and I am still not 100% clear on whether the law supports any appeal if culpable homicide is a competent verdict. First it will have to appeal against Seekoei by petitioning constitutional court to appeal this verdict, which Prof. Grant is confident can succeed - as I understand it.

Can a Judgment be so biased and unreasoned in favour of the defence that it is overruled in toto?

Hi Rosie

The law of RSA is a bit different to what I am used to so I cannot really comment on exactly what can be appealed.

In NZ, factual matters are also difficult to be disturbed on appeal. However there is some scope where there is new evidence, or where a finding was logically not available on the facts. Things can also get messy where it is not clear what on earth the judge has held on key points.

In practice, when legal issues are raised, the Appeal Court is going to obliquely consider factual aspects: e.g.

1. Did OP foresee the possibility of killing the intruder - WHAT ON EARTH DID THE JUDGE HOLD HERE? WHAT FACTS DID SHE FIND TO BASE HER DECISION ON?

2. Did Self Defence apply? WHAT FACTUAL FINDINGS DID THE COURT MAKE ON THE TEST FOR SELF DEFENCE?

I tend to think the best hope for the prosecution is to focus on

a) the judge misstated a legal test (PDD)

b) the judge misapplied legal standards (PDD and DE)

b) the judge failed to articulate key facts on which legal conclusions were based


To put it country simple

As Pistorius intentionally shot the intruder, the judge needed to explain why he did not foresee the possibility of death.

OR

If the shooting was justified (but based on an unreasonable mistake) the judge needed to articulate how self defence applied, although based on an unreasonable mistake.

Instead she seemed to mix these two bits up

 

[lithgow1]

http://www.dailymail.co.uk/news/art...s-five-year-prison-term-killing-daughter.html

AND

http://www.mirror.co.uk/news/world-news/outrage-over-oscar-pistorius-sentence-4479433

AND

http://www.independent.co.uk/news/p...pic-superstar-to-pretoria-prison-9808306.html

 

[soozieqtips]

A bit more about what he can expect in prison.

http://www.news.com.au/world/africa...ampuru-ii-prison/story-fnh81gzi-1227097916867

 

[RosieC]

OK - so at what lines in the judgement does the Judge run through test for self defence and say OK that checks all the boxes?

The problems with this really start on page 3327 where having reviewed the law, she finds his belief of danger to his life was honest but mistakenly entertained.

But the problem is that more is required for Self Defence.

Especially the force used must not be excessive in the circumstances as known to the accused

But she then simply skips over to a completely different concept as to whether he subjectively foresaw the possibility of death, despite having found he intentionally but mistakenly deployed lethal force.

So we have these bizarre passages which can't be reconciled:

and

But this is not correct. An erroneous belief his life was in danger does not exclude Dolus on its own.

What would exclude Dolus is Self Defence. So again lets look at the test.

5 & 6 apply to the facts as the facts as the accused perceived them. However where is the finding on these points?

Then we find this at 3332

and worse still

So those findings, based on the facts as known to the accused would appear to specifically rule out Self Defence

All in all this verdict is a mess

But I personally doubt any Appeal Court would support a finding of Self Defence when Masipa herself fails to clearly articulate such a finding.

Thank you mr jitty! Quote is long but worth repeating in case anyone missed it. This is turning my head in!

But just before page 3327 from where you start, JM raises De Oliveira and the difference between private defence and putative private defence. The test for private defence is objective. Then p 3326 quoting Smallberger JA on the significant difference between them: "In putative private defence it is not lawfulness that is in issue but culpability.. his erroneous belief that his life ... was in danger may ... exclude dolus ... At worst .... he can be convicted of culpable homicide."

JM continues, in PPD the test to determine intention is subjective, the accused is the only person who can say what his state of mind was ....

And the rest is history. Had Oscar intended to kill he would have aimed higher. So he didn't intend to kill blah blah blah

Ironically, if there had been an armed intruder in the toilet, the court's reasoning would have been different, because it would have been private defence, not PPD.

Yes, all in all, the verdict is a mess. So my questions are:

Any comments to this please? Anyone? And:

Are there any circumstances in which a verdict is so perverse that it can be overturned in its entirety?

 

[PrimeSuspect]

This is really the key point.

The judge stated yesterday in black and white that OP intended to shoot the intruder.

So that is the intentional use of lethal force against a person. So the logical inference is that an experienced firearms expert knows this can kill. Even an idiot knows that.

Yet she says he didn't intend to kill anyone.

How is that possible?

Well all the judgement says is this.



So clearly we have an error of law here. By failing to apply Dolus E to the intruder.

We can't invent other ways that OP intentionally shot the intruder without meaning to kill if the judge herself did not articulate them.

It's like 2 different people wrote it. :idea:

 

[PrimeSuspect]

Reeva's parents speaking on ITV/Good Morning Britain this morning http://www.itv.com/news/2014-10-22/steenkamps-parents-are-settled-with-the-sentence/

Reeva's mother said the only time daughter was "made visible" during the trial was when her niece, Kim Martin, took to the stand to explain how much the family had lost.

From your link jay-jay. Imo this lies sorely with the judge. The trial was conducted like OP was some poor, decrepit, broken shell of man who shouldn't be there to answer any questions, and JM tried to make it as comfortable for him as she could.
I will never forget her asking Uncle Arnold to keep an eye on his wayward nephew when Nel brought up about OP's altercation at the VIP club. I have a 25 yr old son, he's a man fps!!! Makes me irritable just thinking about it. She should have been reprimanding OP in a stern way, that's tough love if she's wants to practice love towards the accused. :gaah:

 

[mrjitty]

You know having gone through this I think I can see what one of the Judge's mistakes clearly was.

According to Grant with putative private defence, two aspects must be considered.

First - did the circumstances as the accused mistakenly believe them to be, amount to private defence? (self defence)
Second - was the mistake reasonable?

So on that analysis, you have to examine whether self defence has actually been shown, then you consider the nature of the mistake.

I think Masipa didn't realise she has to work through the test for self defence.

She thought it is enough if the defendant genuinely held a belief in SD, then she can move straight on to the putative part.

But that is 100% incorrect.

 

[akp]

It's like 2 different people wrote it. :idea:

Quite possibly, that WAS the case!

Reeva's mother said the only time daughter was "made visible" during the trial was when her niece, Kim Martin, took to the stand to explain how much the family had lost.

From your link jay-jay. Imo this lies sorely with the judge. The trial was conducted like OP was some poor, decrepit, broken shell of man who shouldn't be there to answer any questions, and JM tried to make it as comfortable for him as she could.
I will never forget her asking Uncle Arnold to keep an eye on his wayward nephew when Nel brought up about OP's altercation at the VIP club. I have a 25 yr old son, he's a man fps!!! Makes me irritable just thinking about it. She should have been reprimanding OP in a stern way, that's tough love if she's wants to practice love towards the accused. :gaah:

That was unbelievable, wasn't it? That was mainly to allow her to hand out a light sentence, I believe.

I hope that higher authorities do scrutinize her conduct during the length of the trial. I am pretty sure it won't happen, though.

 

[akp]

You know having gone through this I think I can see what one of the Judge's mistakes clearly was.

According to Grant with putative private defence, two aspects must be considered.

First - did the circumstances as the accused mistakenly believe them to be, amount to private defence? (self defence)
Second - was the mistake reasonable?

So on that analysis, you have to examine whether self defence has actually been shown, then you consider the nature of the mistake.

I think Masipa didn't realise she has to work through the test for self defence.

She thought it is enough if the defendant genuinely held a belief in SD, then she can move straight on to the putative part.

But that is 100% incorrect.

That is such an elementary mistake to make; I can not fathom how a judge can make that kind of mistake. If this is allowed to go unchallenged, anyone can justify any crime citing his or her `belief' at the time of committing it.