Trial Discussion weekend Thread #24

[Really?]

Yes, and he completely denies any problems on the stand. I can't remember exactly what he said but along the lines of --these texts were just two people learning about each other, it was nothing serious, we had it straightened out the next day, etc.

well, it sounds serious to me. Reeva is thinking out loud in that text, and what she is thinking is not in his favor, long term.

and..... sometimes a dumper doesn't like to be dumped first by the dumpee.
IYKWIM

 

[minor4th]

Dolus directus- not proven.

What do you reckon for dolus eventualis, Minor?

I don't think that is proven either because he is relying on putative self defense - meaning if it's reasonably possibly true that he thought an intruder was in the bathroom and that his and Reeva's safety was in danger, then dolus eventualis wouldn't apply.

So I don't think they've gotten there yet. If Nel can somehow prove that there's really no way Oscar believed that then perhaps, but he's got a ways to go.

 

[minor4th]

I disagree. He approached what he conceived was danger, never gave any warning that he was about to open fire. The type of bullets he used also indicate he didn't intend to maim but kill.

Dolus directus or premeditated murder means that he specifically intended to kill Reeva and had time to reflect on his intention.

 

[IfIMay]

It's anyone's guess.

Fan's probably, Nel should be well versed in fan's as we've spent days on them already.

I can only see him generalizing that a row occurred, as there's no evidence of any merit to suggest that there was an ongoing disagreement.
He could always go for the 'lack of evidence' tactic and suggest the lack of Valentine's present from OP was a catalyst for a fight.

He's got a bit of a hill to climb to make this one stick,

IMO

Do you really think Nel has to prove exactly what the argument was about? Unless SA if very different, motive is not a necessary element in proving guilt. All he has to do is argue the circumstantial evidence suggests and argument.. there's plenty of that.

 

[minor4th]

<modsnip>

....to my understanding, it is not as simple as culpable homicide in SA, there is also a question whether the defendant should have foreseen the possible consequences of his actions by reference to the 'reasonable man' and whether he is objectively tested against what a reasonable man' would do in the same circumstances. However, there is also a question whether OP could be compared to an "average man" in respect to his "perceived vulnerability".

http://www.legalcity.net/Index.cfm?fuseaction=RIGHTS.article&ArticleID=4191473

It's not a question of whether he should have foreseen killing Reeva by shooting through the bathroom door (when he believed there was an intruder) - the question is whether he DID foresee such a possibility and decided to go ahead and shoot anyway.

 

[Bobbie Elliott]

Maybe OP asked somebody to call Netcare for him. I'm not going to believe OP called unless I see evidence..

I thought that OP said that Netcare told him to take Reeva to hospital in his car?? Not that OP told someone to call Netcare and Netcare told that someone to tell OP to take Reeva ........ etc

 

[J. Brannagh]

I'm sorry if this has already been brought up or discussed... there is far too much to read to find out...

My DH and I were discussing the fact that the bathroom door was locked... when you are going to the bathroom in the middle of the night... with your significant other in the bedroom... most people don't lock the door.... they may not even close the door... unless they don't want to wake their partner by making noise... most people would just close the door and go...

The fact that the door was locked... seems to indicate to us that she was purposely trying to keep him out of the bathroom... going along with the notion that they had been arguing.

It is plausible that they could have been arguing through the door and he was trying to get in to confront her... explaining why the door had been beaten in... when he was unsuccessful he may have lost his temper and shot her through the door.

Has anyone brought up this subject in trial?

 

[sorrell skye]

"Dolus directus, on the other hand, known as intention in its ordinary grammatical sense, is present when the accused&#8217;s aim and object is to bring about the unlawful consequence, even should the chance of its resulting be small."

http://www.duhaime.org/LegalDictionary/D/DolusDirectus.aspx

OP has admitted that he knew someone was in the confined space of the toilet room.

He pulled the trigger 4 times, with the intent to shoot whomever was behind the toilet door.

According to SA criminal statues, his actions demonstrate dolus directus, IMO.

 

[minor4th]

However, the test always remains whether the accused person subjectively foresaw the possibility of the death of the deceased and associated himself therewith.

http://www.duhaime.org/LegalDictionary/D/DolusEventualis.aspx

By OP's own admission during testimony, he knew someone was in the toilet room.

By his own admission, he fired not just 1, but 4 bullets through the toilet door.

By his own admission, he knew the toilet cubicle was a confined space, with little to no room for the person inside to retreat from his hail of bullets.

IMO, he was fully aware that firing 4 bullets through the toilet door would very likely kill whomever was behind the door.

IMO, Dolus directus. Intentional killing.

The bit you've quoted is talking about dolus eventualis. He had to have foreseen the possibility of killing Reeva by shooting at the door when he thought there was an intruder there.

All of those factors you've listed don't apply. For there to be "intent" under SA law, OP had to either intentionally kill Reeva after purposely deciding to do so (dolus directus) OR he had to have foreseen he could kill Reeva by firing through the door at what he thought was an intruder, and consciously decided to shoot the gun and take that risk. (dolus eventualis)

I don't think the state has proved either of those scenarios, or even come close.

 

[minor4th]

"Dolus directus, on the other hand, known as intention in its ordinary grammatical sense, is present when the accused’s aim and object is to bring about the unlawful consequence, even should the chance of its resulting be small."

http://www.duhaime.org/LegalDictionary/D/DolusDirectus.aspx

OP has admitted that he knew someone was in the confined space of the toilet room.

He pulled the trigger 4 times, with the intent to shoot whomever was behind the toilet door.

According to SA criminal statues, his actions demonstrate dolus directus, IMO.

No, he would have to intend to kill Reeva, and that has not been proven.

 

[TorisMom003]

I thought that OP said that Netcare told him to take Reeva to hospital in his car?? Not that OP told someone to call Netcare and Netcare told that someone to tell OP to take Reeva ........ etc

In OP's BAS he stated that he called Stander to have him call for an ambulance, then he himself called Netcare. In his testimony OP stated that he called Stander to get him to come and help OP because he could not carry Reeva downstairs on his own to take her to the hospital. Now phone records show that OP's phone was used to call Stander and then Netcare. So how did OP know that Netcare was going to tell him to bring Reeva to the hospital instead of waiting for an ambulance?

 

[molly333]

Oh absolutely, I think culpable homicide equates. By SA law and ruling, that fits with evidence so far.

Can you explain why you think so? Lawyer on Tricia said so, too, and said this is 15 years.

 

[TorisMom003]

I'm sorry if this has already been brought up or discussed... there is far too much to read to find out...

My DH and I were discussing the fact that the bathroom door was locked... when you are going to the bathroom in the middle of the night... with your significant other in the bedroom... most people don't lock the door.... they may not even close the door... unless they don't want to wake their partner by making noise... most people would just close the door and go...

The fact that the door was locked... seems to indicate to us that she was purposely trying to keep him out of the bathroom... going along with the notion that they had been arguing.

It is plausible that they could have been arguing through the door and he was trying to get in to confront her... explaining why the door had been beaten in... when he was unsuccessful he may have lost his temper and shot her through the door.

Has anyone brought up this subject in trial?

Not brought up in trial yet that I can remember. It has been discussed here on the board however. Mixed reviews as to if Reeva would lock the toilet room door or not.

I was watching the Nancy Grace show from last night (yes I know, many errors usually in her show) when it hit me. How could OP not hear Reeva pick up the key for the toilet room door? There was at least two keys on that key ring. They would cling together when picked up, more than likely. Now, OP stated that he keeps his keys on the speaker which is across from his bed. The same speaker that is directly next to the LED light. I really want Nel to ask OP about those toilet room keys, where they were kept, why he didn't hear Reeva pick them up, why he didn't see Reeva pick them up.

MOO

 

[sorrell skye]

The bit you've quoted is talking about dolus eventualis. He had to have foreseen the possibility of killing Reeva by shooting at the door when he thought there was an intruder there.

All of those factors you've listed don't apply. For there to be "intent" under SA law, OP had to either intentionally kill Reeva after purposely deciding to do so (dolus directus) OR he had to have foreseen he could kill Reeva by firing through the door at what he thought was an intruder, and consciously decided to shoot the gun and take that risk. (dolus eventualis)

I don't think the state has proved either of those scenarios, or even come close.

The South African Court of Appeal held that mens rea in the form of dolus eventualis is an elastic concept. It can range from bordering on negligence (culpa) on the one hand to dolus directus on the other. However, the test always remains whether the accused person subjectively foresaw the possibility of the death of the deceased and associated himself therewith.

http://www.duhaime.org/LegalDictionary/D/DolusEventualis.aspx

According to the above link, dolus eventualis ranges from negligence to intentional.

The test is whether or not the accused subjectively foresaw the possibility of death, and proceeded in his actions, despite knowing that his actions could likely result in death.

According to Mr. Nel, an error in persona will not affect the intention to kill a human being.

http://www.scribd.com/doc/161348107/Oscar-Pistorius-indictment

 

[Val1]

Thank you for acknowledging the post. I do hope someone knows the answer to this, I've been Googling this but haven't found an article that provides a good response. Most just say that in addition to the potential 25 years to life premeditated murder charge, OP also faces three separate gun charges

Perhaps this person would be able to answer your questions? Some of his articles are quite interesting, definitely worth a read.

http://criminallawza.net/2014/04/13/pistoriuss-new-defence/

 

[Mystymiss]

I thought that OP said that Netcare told him to take Reeva to hospital in his car?? Not that OP told someone to call Netcare and Netcare told that someone to tell OP to take Reeva ........ etc

I know that I'm just making a false hood. I really don't think he called Netcare!

But if he did I want to hear it from Netcare 911. Can't keep up with his many \stories!

 

[minor4th]

The South African Court of Appeal held that mens rea in the form of dolus eventualis is an elastic concept. It can range from bordering on negligence (culpa) on the one hand to dolus directus on the other. However, the test always remains whether the accused person subjectively foresaw the possibility of the death of the deceased and associated himself therewith.

http://www.duhaime.org/LegalDictionary/D/DolusEventualis.aspx

According to the above link, dolus eventualis ranges from negligence to intentional.

The test is whether or not the accused subjectively foresaw the possibility of death, and proceeded in his actions, despite knowing that his actions could likely result in death.

According to Mr. Nel, an error in persona will not affect the intention to kill a human being.

http://www.scribd.com/doc/161348107/Oscar-Pistorius-indictment

However, the test always remains whether the accused person subjectively foresaw the possibility of the death of the deceased and associated himself therewith.

The accused must have foreseen the possibility of killing Reeva and decided to take the risk anyway. That has not been proved.

Nel's error in personae argument is a creative way of trying to get around the actual laws - but it's not a sound argument and will not be applied in this case.

 

[wb180]

Sorry for the mis-communication, I didn't mean to imply that Oscar said that he couldn't sleep well due to the balcony doors being open, what I tried to state is that Oscar not sleeping well due to the doors being open would fit into his personality and into the his defense.

Hey, no need to say sorry - I think that's why I said Oscar should have listened to you. His argument would have sounded much better if he read your post before testifying in court.

Unfortunately, he didn't read your post and he offered a different reason why the balcony doors were open (it was hot and humid) which sort of suggest he wasn't really thinking about security issue.

But this is just one point of evidence, there are already many other evidence (the house and his actions) that point to OP not been "scared" about security. I could list them but I just can't be bothered sorry

 

[TorisMom003]

However, the test always remains whether the accused person subjectively foresaw the possibility of the death of the deceased and associated himself therewith.

The accused must have foreseen the possibility of killing Reeva and decided to take the risk anyway. That has not been proved.

Nel's error in personae argument is a creative way of trying to get around the actual laws - but it's not a sound argument and will not be applied in this case.

One doesn't know what will and/or will not be applied in this case. One can also not say what the judge herself finds as a reasonable argument. At least not until the court proceedings are completely over, the judge has reached her verdict and has explained how she reached her verdict. Until that point in time, it is just one's opinion as to how much or little the evidence presented from both sides will weigh in the verdict.

 

[minor4th]

One doesn't know what will and/or will not be applied in this case. One can also not say what the judge herself finds as a reasonable argument. At least not until the court proceedings are completely over, the judge has reached her verdict and has explained how she reached her verdict. Until that point in time, it is just one's opinion as to how much or little the evidence presented from both sides will weigh in the verdict.

I can say that Nel's "error in personae" argument is not the law in SA. So, assuming the judge is going to follow the law - that will not be applied in this case.