Discussion Thread #60 - 14.9.12 ~ the appeal~

[AJ_DS]

I'm puzzled by the State's strategy with respect to the murder charge.

Setting aside witness testimony for the moment, I wish to establish a broad strokes list of the State's Forensic & Material evidence.

All are invited to contribute, comment and point out missing or incorrect information.

State's Forensic & Material evidence

Mangena (ballistics expert)

1. Findings OP was either on his stumps with gun extended at shoulder height or on his prosthetics with gun at elbow height. Chose stumps because… ??? (anyone remember the reason given ?)

2. Findings on the sequence of which bullet caused which hole in the toilet door and caused which wound on Reeva's body.

Saayman (pathologist)

3. Findings Reeva stopped breathing moments after being shot.

4. Findings Reeva had eaten 2 hours or less before her death.

Vermeulen (forensic chemist)

5. Findings OP was either on his stumps or on his prosthetics when bashing the toilet door with the cricket bat. Chose stumps because trying to line up the bat with impact marks on the door whilst on prosthetics resulted in a swinging motion and posture that felt unnatural to him.

van der Nest (blood spatter analyst)

6. Nothing noteworthy.

Sales (IT analyst)

7. Nothing noteworthy.

Moller (IT analyst)

8. Findings of messages from Reeva that showed OP could be volatile, angry, mean, scary, etc.

9. Findings of messages exchanged between Reeva and OP the day leading up to the events.

10. Detailed billing of OP's 0020 iPhone

11. Detailed billing of OP's 4949 iPhone

12. Detailed billing of Reeva's 5353 iPhone

Unknown source

13. Detailed billing of Silverwoods estate security landline telephone


… was the detailed billing of Baba's cellular phone used in Court or only OP's detailed billing of 4949 phone ?

… are we missing anything ?

 

[L2L]

From an article in SportsWorld News concerning OPs upgrade in prison!

"That means that the 28-year-old Pistorius now can hug and kiss prisoners - as opposed to the strict "no touching policy" to which he had to adhere. He also is allowed to wear jewelry, make more phone calls, find a hobby and have a bigger budget to buy toiletries and snacks..."
http://www.sportsworldnews.com/arti...e-reeva-steenkamps-family-irate-over-blade-ru

I thought OP had been isolated safely away from the other inmates!

 

[GR_Turner]

Oscar Pistorius Case: Principles in practice or Principles avoided.

http://www.news24.com/MyNews24/Osca...es-in-practice-or-Principles-avoided-20150218

What do you think about this article?

Hi Estelle,

Some points are good and I'm not so sure about others. Her argument is that the police and NPA are not being fair to Oscar and trying him with the true aim of achieving justice. She is right in that:
- the police told the media it was a domestic violence incident immediately and leaked evidence that was then reported widely and turned out to be untrue (creating an impression of guilt right from day 1 that could have biased some of the witnesses)
- they overcharged Oscar at the bail application (probably to force him to disclose his defense though) but they did so by introducing baseless or incomplete evidence via W/O Botha (they knew much of his evidence was only his opinion but this was stated as fact and was enough to charge Oscar with premeditated murder in their eyes - is this the normal approach to evidence?)
- the State supported the televising of the trial and then argued that Oscar should be treated more harshly because of the degree of interest (ie that generated by the televising of the trial that they supported but which the defense objected to).
These things seem rather unfair.

I also have doubts about the motive for the appeal. They are based on my lack of understanding of the State's position. Adv Nel seemed 100% sure about Oscar's guilt. He seemed outraged when the judge gave him a custodial sentence that he regarded as too short - a strange position in the context of other sentences for CH crimes you'd think were much worse (e.g. 8 years for the CH of 10 children killed in a minibus by the driver who tried to outrun an approaching train - he got 12 years when he was previously convicted of the murders of the 10 children incidentally). Why was Adv Nel so outraged if his evidence didn't support his case?

The judge apparently made a mistake with DE in her judgement, but I doubt that Adv Nel is appealing to test the principles of law around DE or because he cares about the life of an 'intruder'. Given his reaction to the verdict and sentence, it seems to be more about getting the most severe conviction and sentence possible. Given this and his obvious contempt for Oscar throughout including way back at the bail application, I do wonder whether the case has been conducted entirely in the interests of justice.

What do you think?

 

[Sherbert]

Hi Estelle,

Some points are good and I'm not so sure about others. Her argument is that the police and NPA are not being fair to Oscar and trying him with the true aim of achieving justice. She is right in that:
- the police told the media it was a domestic violence incident immediately and leaked evidence that was then reported widely and turned out to be untrue (creating an impression of guilt right from day 1 that could have biased some of the witnesses)
- they overcharged Oscar at the bail application (probably to force him to disclose his defense though) but they did so by introducing baseless or incomplete evidence via W/O Botha (they knew much of his evidence was only his opinion but this was stated as fact and was enough to charge Oscar with premeditated murder in their eyes - is this the normal approach to evidence?)
- the State supported the televising of the trial and then argued that Oscar should be treated more harshly because of the degree of interest (ie that generated by the televising of the trial that they supported but which the defense objected to).
These things seem rather unfair.

I also have doubts about the motive for the appeal. They are based on my lack of understanding of the State's position. Adv Nel seemed 100% sure about Oscar's guilt. He seemed outraged when the judge gave him a custodial sentence that he regarded as too short - a strange position in the context of other sentences for CH crimes you'd think were much worse (e.g. 8 years for the CH of 10 children killed in a minibus by the driver who tried to outrun an approaching train - he got 12 years when he was previously convicted of the murders of the 10 children incidentally). Why was Adv Nel so outraged if his evidence didn't support his case?

The judge apparently made a mistake with DE in her judgement, but I doubt that Adv Nel is appealing to test the principles of law around DE or because he cares about the life of an 'intruder'. Given his reaction to the verdict and sentence, it seems to be more about getting the most severe conviction and sentence possible. Given this and his obvious contempt for Oscar throughout including way back at the bail application, I do wonder whether the case has been conducted entirely in the interests of justice.

What do you think?

But, if Nel is convinced that Oscar deliberately murdered Reeva, a view shared by many posting on this forum, why is it wrong for him to push for a longer sentence?

You say that the evidence doesn't support his case, but a different judge could so easily have come to a different conclusion, based on the evidence presented.

 

[soozieqtips]

But, if Nel is convinced that Oscar deliberately murdered Reeva, a view shared by many posting on this forum, why is it wrong for him to push for a longer sentence?

You say that the evidence doesn't support his case, but a different judge could so easily have come to a different conclusion, based on the evidence presented.

I totally agree with you. In fact, I find it hard to imagine any other judge coming to the conclusion Masipa did - that because OP cried and came up with the intruder story quickly, he must have been telling the truth. He was hardly blessed with many options. It was either an intruder story, or an admission that he murdered Reeva. There are countless murderers who try and evade justice by lying, and given OP's propensity for lying, coupled with his unpredictable rages and jealousy, I'm sure any other judge would have seen through the lies. Nel was pushing for justice for Reeva, and I don't believe for a second he was motivated by anything personal against OP.

 

[cottonweaver]

Hi both,

Hi Estelle,

Some points are good and I'm not so sure about others. Her argument is that the police and NPA are not being fair to Oscar and trying him with the true aim of achieving justice. She is right in that:
- the police told the media it was a domestic violence incident immediately and leaked evidence that was then reported widely and turned out to be untrue (creating an impression of guilt right from day 1 that could have biased some of the witnesses)
- they overcharged Oscar at the bail application (probably to force him to disclose his defense though) but they did so by introducing baseless or incomplete evidence via W/O Botha (they knew much of his evidence was only his opinion but this was stated as fact and was enough to charge Oscar with premeditated murder in their eyes - is this the normal approach to evidence?)
- the State supported the televising of the trial and then argued that Oscar should be treated more harshly because of the degree of interest (ie that generated by the televising of the trial that they supported but which the defense objected to).
These things seem rather unfair.

I also have doubts about the motive for the appeal. They are based on my lack of understanding of the State's position. Adv Nel seemed 100% sure about Oscar's guilt. He seemed outraged when the judge gave him a custodial sentence that he regarded as too short - a strange position in the context of other sentences for CH crimes you'd think were much worse (e.g. 8 years for the CH of 10 children killed in a minibus by the driver who tried to outrun an approaching train - he got 12 years when he was previously convicted of the murders of the 10 children incidentally). Why was Adv Nel so outraged if his evidence didn't support his case?

The judge apparently made a mistake with DE in her judgement, but I doubt that Adv Nel is appealing to test the principles of law around DE or because he cares about the life of an 'intruder'. Given his reaction to the verdict and sentence, it seems to be more about getting the most severe conviction and sentence possible. Given this and his obvious contempt for Oscar throughout including way back at the bail application, I do wonder whether the case has been conducted entirely in the interests of justice.

What do you think?

This Aisling O'Faoilan who wrote this article, would not be pleading unfairness if it wasn’t for the appeal, that’s for sure. Plus it isn’t written very well is it? Initially I thought it must be because it’s an Afrikaans translation/native speaker, but no – her other stuff is linked on the Support Oscar Facebook page- which is good if you need a cheap laugh.

You think it's unfair for a number of reasons which I find quite interesting so thanks for sharing even though I can't agree at all with your issues nor Aisling's. Unfortunately, it's so long since I have posted on here that I can't remember how to multi quote .So apols in advance for the Re. Re. Re. repetitions.

Re. unfair due to leaks and DV.
I wasn’t aware that SPA used the term domestic violence at any point openly, even though Botha thought that himself from the evidence he had at the outset. Plus it wasn’t mentioned in court throughout the trial.
There were a lot of leaks, initially Oscar’s side most likely put out the intruder scenario that the Lieut Brig had to put straight in her address to the media. They were making immediate attempts at damage limitation and media perception was one of the first concerns of OP’s friends and family, indeed this was the Standers’ concern before the body was even cold – so please I think that side has media manipulation well-covered.

Re unfair due to "over-charging" I think its helpful if people stop using the term “premeditated murder” as it’s misleading. As they define it that can mean a few moments of consideration & foresight, which OP inadvertently admitted to anyway. ( Bathroom ricochet as one example.)

Re unfair due to live broadcasting. Lots of organisations supported the media broadcast of trial – that decision had to be fought for too, much to OP’s chagrin. OP however won the right not to be filmed whilst testifying. Was that unfair too?

Re unfair due to "public interest". I think you’re misinterpreting the “public interest” element of the fairness of the law- its not about appeasing a “baying mob” etc. Loads of legal websites explain it- not being patronising - it's just haven't got the links to hand.

Re the appeal's unfair as you doubt the motives for the appeal. ANC Womens League commented on this way back on verdict/sentencing days – to protect lives of SA women. Dangerous precedents in a country riven with violence – you can shoot when you’re actually not in danger, through a looked door, “target unknown” So there are a few motives for you. The SA legal professionals have other motives- grey areas they need to be cleared up. Visit James Grants webpage if you need the details.( I know you doubt it but am pretty sure that Nel would be interested in seeing those clarified actually. Entirely logical.)

Re. Nel's "outrage" and his belief that OP was guilt of murder. I must have been watching the wrong trial. During Masipa’s verdict he didn’t display outrage, he sat, head down, scribbling/doodling or whatever. He didn’t need to display "outrage" – not when there was an international outcry at the verdict and sentence.

Re. Nel wanted the "harshest conviction & sentence". Roux’s job was the reverse. What is the problem with either doing their job as they are meant to?

Re. Nel's "obvious contempt" for OP. A strong cross examiner is performing an occupational role, Nel's whole reputation pre trial was that he was good at CX. Plus a passionate advocate for justice – isn’t that what any state prosecutor needs ideally? He is not Oscar’s defence advocate. I don’t see how this is an issue. You seem really quite aggrieved about the “contempt” and the “outrage” from Nel.

My suspicion is that, a bit like the SOP Facebook page with its paltry 2000 likes, it must be very hard for an OP supporter when millions of people feel outrage about this crime and contempt for the criminal involved. But, I think a lot of OP supporters project way too much on Adv. Nel (even though I know that is entirely understandable.)
It’s a job- he is not going home at night thinking about OP whilst he works on other cases, that's for sure. It's not "personal" against Oscar, I doubt v much. Please do remember that Nel has also found himself highly unpopular with the State and been in fear of his life in difficult cases in the past. It’s all out there – you can read up on it.

Actually I think OP supporters should be "grateful" that OP lasted as long as he did OUT OF JAIL as the profile exposed in last two years shows he was a danger to others and himself for quite a while before Reeva’s death. He knows it, his family and his manager know it too- whilst obviously they can't say that, they're not stupid.

 

[AJ_DS]

I totally agree with you. In fact, I find it hard to imagine any other judge coming to the conclusion Masipa did - that because OP cried and came up with the intruder story quickly, he must have been telling the truth. He was hardly blessed with many options. It was either an intruder story, or an admission that he murdered Reeva. There are countless murderers who try and evade justice by lying, and given OP's propensity for lying, coupled with his unpredictable rages and jealousy, I'm sure any other judge would have seen through the lies. Nel was pushing for justice for Reeva, and I don't believe for a second he was motivated by anything personal against OP.

All very true…

Although it's not entirely impossible Nel had personal feelings against gun violence, domestic violence, murderers trying to escape justice, etc…, even maybe OP himself… Nel is not responsible for charging OP with murder… Nel is only responsible for conducting the case assigned to him by the NPA.

 

[AJ_DS]

Food for thought...

Nel's general contentions about the events as per heads of argument are :

- Reeva and OP were arguing at around 1:56AM
- Reeva was in the kitchen eating between 2AM and 3AM
- Reeva took refuge from OP in the toilet cubicle
- OP bashed the toilet door with the cricket bat
- Reeva screamed for her life
- OP shot and killed Reeva

Why would Nel choose to put OP on his stumps for the arguing, the terrorizing, the bashing and the shooting ?

Only 3 possibilities were available to Nel :

1. Bat on stumps - gun on stumps - puts on prosthetics (Nel chose this one)
2. Bat on stumps - puts on prosthetics - gun on prosthetics
3. Had on prosthetics - bat on prosthetics - gun on prosthetics

Choosing #1 corroborates OP's version on 2 elements out of 3 : he did not have his prosthetics on that night and he shot Reeva on his stumps.

Working backwards :

- OP was found with his prosthetic legs by the first individuals at the scene.

- Mangena's findings show OP could have shot Reeva whislt either being on his stumps or on his prosthetics.

- Vermeulen's findings show OP could have bashed the toilet door whislt either being on his stumps or on his prosthetics.

- Nel's contention is Reeva and OP were neither in bed nor asleep… why then contend OP would be without his prosthetics if he was awake and about ?

… however, the smudged varnish on the toilet door, the varnish transfer onto OP's sock, the sock fiber transfer onto the the toilet door may have indicated OP was on his prosthetics when he kicked the toilet door… when this kicking occurred in the timeline is another matter altogether... as it could have happened before the cricket bashing, after the cricket bashing or after both bashing and shooting.

Furthermore, one would have great difficulty to prove what OP can and cannot do on his stumps whereas it would be more than reasonable to put forth OP on his prosthetics is physically as capable as any able-bodied man (if not more).

Nel's basic contentions about the chronology regarding the toilet door:

- OP bashed the toilet door with the cricket bat

- OP shot and killed Reeva through the toilet door

- OP broke and removed the toilet door panel

Why would Nel choose to make common cause the fact the toilet door was locked from the inside ?

There is absolutely no evidence whatsoever that proves the toilet door was indeed locked when it was bashed and/or shot.

The unsubstantiated and uncorroborated claim the toilet door was locked may have been OP's way to disguise the domestic violence signs caused by the cricket bat bashing… which is perfectly consistent with Nel's contentions.

Accepting the toilet door was locked provided :

- justification as to why the panel had to be broken and removed.
- justification as to why the door had to be bashed with the cricket bat.
- credence to OP's version of events.

…which is completely mind boggling considering Nel's contention that :

- OP's version of events is a fabricated lie.
- the bashing had nothing to do with trying to save Reeva.
- the bashing occurred before the gunshots.

As we know, OP's entire Defence would be irreparably jeopardized if one would disprove that the cricket bat strikes occurred after the gunshots… this is why Roux went to great lengths with distorting the timeline and bat strikes can be mistaken for gunshots because as soon as one begins to suspect the bat occurred before the gunshots, the only remaining possible scenario is murder.

Imagine the same exact circumstances and evidence with one exception : the toilet door cannot be locked because it has no lock on it… it would have been an open and shut case of murder !

 

[Sherbert]

Imagine the same exact circumstances and evidence with one exception : the toilet door cannot be locked because it has no lock on it… it would have been an open and shut case of murder !

RSBM

A very good point.

Do you think it would have assisted the State, had the Stipps not heard the first set of bangs?

 

[AJ_DS]

RSBM

A very good point.

Do you think it would have assisted the State, had the Stipps not heard the first set of bangs?

I don't see how (for the moment)... but it may just be "tunnel-vision" on my part… please elaborate on your thoughts.

 

[GR_Turner]

Hi both,



This Aisling O'Faoilan who wrote this article, would not be pleading unfairness if it wasn’t for the appeal, that’s for sure. Plus it isn’t written very well is it? Initially I thought it must be because it’s an Afrikaans translation/native speaker, but no – her other stuff is linked on the Support Oscar Facebook page- which is good if you need a cheap laugh.

You think it's unfair for a number of reasons which I find quite interesting so thanks for sharing even though I can't agree at all with your issues nor Aisling's. Unfortunately, it's so long since I have posted on here that I can't remember how to multi quote .So apols in advance for the Re. Re. Re. repetitions.

Re. unfair due to leaks and DV.
I wasn’t aware that SPA used the term domestic violence at any point openly, even though Botha thought that himself from the evidence he had at the outset. Plus it wasn’t mentioned in court throughout the trial.
There were a lot of leaks, initially Oscar’s side most likely put out the intruder scenario that the Lieut Brig had to put straight in her address to the media. They were making immediate attempts at damage limitation and media perception was one of the first concerns of OP’s friends and family, indeed this was the Standers’ concern before the body was even cold – so please I think that side has media manipulation well-covered.

Re unfair due to "over-charging" I think its helpful if people stop using the term “premeditated murder” as it’s misleading. As they define it that can mean a few moments of consideration & foresight, which OP inadvertently admitted to anyway. ( Bathroom ricochet as one example.)

Re unfair due to live broadcasting. Lots of organisations supported the media broadcast of trial – that decision had to be fought for too, much to OP’s chagrin. OP however won the right not to be filmed whilst testifying. Was that unfair too?

Re unfair due to "public interest". I think you’re misinterpreting the “public interest” element of the fairness of the law- its not about appeasing a “baying mob” etc. Loads of legal websites explain it- not being patronising - it's just haven't got the links to hand.

Re the appeal's unfair as you doubt the motives for the appeal. ANC Womens League commented on this way back on verdict/sentencing days – to protect lives of SA women. Dangerous precedents in a country riven with violence – you can shoot when you’re actually not in danger, through a looked door, “target unknown” So there are a few motives for you. The SA legal professionals have other motives- grey areas they need to be cleared up. Visit James Grants webpage if you need the details.( I know you doubt it but am pretty sure that Nel would be interested in seeing those clarified actually. Entirely logical.)

Re. Nel's "outrage" and his belief that OP was guilt of murder. I must have been watching the wrong trial. During Masipa’s verdict he didn’t display outrage, he sat, head down, scribbling/doodling or whatever. He didn’t need to display "outrage" – not when there was an international outcry at the verdict and sentence.

Re. Nel wanted the "harshest conviction & sentence". Roux’s job was the reverse. What is the problem with either doing their job as they are meant to?

Re. Nel's "obvious contempt" for OP. A strong cross examiner is performing an occupational role, Nel's whole reputation pre trial was that he was good at CX. Plus a passionate advocate for justice – isn’t that what any state prosecutor needs ideally? He is not Oscar’s defence advocate. I don’t see how this is an issue. You seem really quite aggrieved about the “contempt” and the “outrage” from Nel.

My suspicion is that, a bit like the SOP Facebook page with its paltry 2000 likes, it must be very hard for an OP supporter when millions of people feel outrage about this crime and contempt for the criminal involved. But, I think a lot of OP supporters project way too much on Adv. Nel (even though I know that is entirely understandable.)
It’s a job- he is not going home at night thinking about OP whilst he works on other cases, that's for sure. It's not "personal" against Oscar, I doubt v much. Please do remember that Nel has also found himself highly unpopular with the State and been in fear of his life in difficult cases in the past. It’s all out there – you can read up on it.

Actually I think OP supporters should be "grateful" that OP lasted as long as he did OUT OF JAIL as the profile exposed in last two years shows he was a danger to others and himself for quite a while before Reeva’s death. He knows it, his family and his manager know it too- whilst obviously they can't say that, they're not stupid.

Yes, Aisling does indeed need an editor and she could do with being more balanced for sure. I don't know who she is in fact though I gather she must be someone strongly on OP's 'side' as it seems we must have sides. Her views in the above instance reflect my own however and it was another poster's choice of article.

To address your points:
The police spokesperson said there had been previous incidents of a domestic nature at Oscar's house when she spoke to the media on 14 Feb 2013. Sounds like domestic violence to me and probably did to the media as well. And the whole State's case is that this was domestic violence. The allegation about the cricket bat could only have come from someone who saw the scene - the police and forensics team. As could the allegations about steroids. It's not so much one incident as the combined effect. If Oscar's PR team wished to refute allegations that were untrue, why should we have a problem with that?

The State's justification for the charge was that Oscar had his legs on at the time of shooting. Since he must have put on his legs to prepare for the shooting, this is pre-meditation. But their evidence was based on W/O Botha's opinion of the angle of the shots. Nothing more. Is it normal to just make things up so you can charge someone with a more serious crime than you have actual evidence to support?

Why was this case so special that it needed to be televised? And why have no other trials been televised since if it is such a good thing for justice? If the State opposed the application to televise the Dewani trial on the grounds that it wasn't in the public interest, then why was it in the public interest to televise the Pistorius trial? It's inconsistent.

I'm not sure that the ANCWL could have been more biased it they tried to be honest. They made it clear from well before the trial that this was about domestic violence and expressed that at every opportunity, including after the verdict. I don't agree that this case would set a dangerous precedent as all the other really quite similar cases didn't do so. What about the precedent that a person who believes they are acting in lawful self-defense can't over-react in a moment of panic without being convicted of murder?

I disagree with the idea that a prosecutor's role is to get the harshest conviction and sentence. He/she is there to put his case to the court to help the court to come to the best decision. In doing this he should make clear what his case is and how the evidence supports it and then let the court decide. I agree that Adv Nel just looked crushed and angry at the verdict. But at the sentencing he made his opinion very clear. I'd have a clearer idea that Adv Nel was just after justice if he had explained his case and shown how the evidence (all the evidence) fit. Yes, I know about Adv Nel's nightime arrest during the Selebi case.

Not everyone who thinks the State were probably wrong do so for emotional and illogical reasons. I've explained my reasons in a post above.

The conduct of police, prosecutors, the media and the effects of televising trials should concern everyone imo.

 

[Jake18]

Yes, Aisling does indeed need an editor and she could do with being more balanced for sure. I don't know who she is in fact though I gather she must be someone strongly on OP's 'side' as it seems we must have sides. Her views in the above instance reflect my own however and it was another poster's choice of article.

To address your points:
The police spokesperson said there had been previous incidents of a domestic nature at Oscar's house when she spoke to the media on 14 Feb 2013. Sounds like domestic violence to me and probably did to the media as well. And the whole State's case is that this was domestic violence. The allegation about the cricket bat could only have come from someone who saw the scene - the police and forensics team. As could the allegations about steroids. It's not so much one incident as the combined effect. If Oscar's PR team wished to refute allegations that were untrue, why should we have a problem with that?

The State's justification for the charge was that Oscar had his legs on at the time of shooting. Since he must have put on his legs to prepare for the shooting, this is pre-meditation. But their evidence was based on W/O Botha's opinion of the angle of the shots. Nothing more. Is it normal to just make things up so you can charge someone with a more serious crime than you have actual evidence to support?

Why was this case so special that it needed to be televised? And why have no other trials been televised since if it is such a good thing for justice? If the State opposed the application to televise the Dewani trial on the grounds that it wasn't in the public interest, then why was it in the public interest to televise the Pistorius trial? It's inconsistent.

I'm not sure that the ANCWL could have been more biased it they tried to be honest. They made it clear from well before the trial that this was about domestic violence and expressed that at every opportunity, including after the verdict. I don't agree that this case would set a dangerous precedent as all the other really quite similar cases didn't do so. What about the precedent that a person who believes they are acting in lawful self-defense can't over-react in a moment of panic without being convicted of murder?

I disagree with the idea that a prosecutor's role is to get the harshest conviction and sentence. He/she is there to put his case to the court to help the court to come to the best decision. In doing this he should make clear what his case is and how the evidence supports it and then let the court decide. I agree that Adv Nel just looked crushed and angry at the verdict. But at the sentencing he made his opinion very clear. I'd have a clearer idea that Adv Nel was just after justice if he had explained his case and shown how the evidence (all the evidence) fit. Yes, I know about Adv Nel's nightime arrest during the Selebi case.

Not everyone who thinks the State were probably wrong do so for emotional and illogical reasons. I've explained my reasons in a post above.

The conduct of police, prosecutors, the media and the effects of televising trials should concern everyone imo.

Not only that, but the poor boy was obviously devastated. Why, oh why, does Nel want to "punish him twice" for gunning down his girlfriend in the middle of night?



Masipa, is that you??

 

[Jake18]

And, can you please show us the section of South African law that states that it is "lawful self defence" for a trained fire arms expert to arm himself, walk silently (yet screaming all the while) towards a threat and purposefully shoot 4 times though a door at an unseen perceived attacher? It's not - it's dolus eventualis, hence the appeal.

I don't even think firing 4 times at a perceived noise, through a door, when there were other means of escape, would be considered "lawful self defence" in America, although I'd be happy to be proved wrong if you can find evidence to the contrary

 

[james83]

Hi all,
Haven't posted in a while but this case continue's to mess with my head most days, and i have to say the more time goes on the more frustrated i feel with the prosecution, i feel like they were complacent in many aspects of this case.

I don't know if Nel was familiar with Masipa but looking back i think he made an error in the way he would never tie up loose ends, he always seemed to avoid going into the fine detail's where as Roux would always thoroughly and at times passionately stress the point he was trying to make.

Where Nel seemed laid back Roux was on the attack twisting facts and confusing witness's.
Roux tied Dr Stipp up in knots regarding the phone records.
For me my opinion remains that

(A) The gunshots came second at around 3.14
(B) Dr Stipp heard the gunshots/2nd set of sounds before he got through on his phone call to security, after the call he heard the three shouts for help
(C) The bang Mrs Nhlengethwa heard was the last of the gunshots, after which they heard the 3 shouts for help.

Roux was masterful at causing confusion about this issue IMO.

 

[AJ_DS]

Hi all,
Haven't posted in a while but this case continue's to mess with my head most days, and i have to say the more time goes on the more frustrated i feel with the prosecution, i feel like they were complacent in many aspects of this case.

I don't know if Nel was familiar with Masipa but looking back i think he made an error in the way he would never tie up loose ends, he always seemed to avoid going into the fine detail's where as Roux would always thoroughly and at times passionately stress the point he was trying to make.

Where Nel seemed laid back Roux was on the attack twisting facts and confusing witness's.
Roux tied Dr Stipp up in knots regarding the phone records.
For me my opinion remains that

(A) The gunshots came second at around 3.14
(B) Dr Stipp heard the gunshots/2nd set of sounds before he got through on his phone call to security, after the call he heard the three shouts for help
(C) The bang Mrs Nhlengethwa heard was the last of the gunshots, after which they heard the 3 shouts for help.

Roux was masterful at causing confusion about this issue IMO.

Agree with everything especially the BiB which is puzzling since we saw Nel being very meticulous during OP's cross-examination.

Nel's heads of arguments are about 90% on the defensive (trying to demonstrate OP's lack of credibility) and about 10% on the offensive (proving the murder charge)

I realize hindsight is always 20-20 and Nel did not have the benefit of OP's full and complete version until he rested his case… nevertheless, Nel had more than enough to know OP fabricated his version of events.

PS : curious about your 3:14AM time for the gunshots… I always figured 3:15AM… could you elaborate a little… thanks !

 

[AJ_DS]

Not only that, but the poor boy was obviously devastated. Why, oh why, does Nel want to "punish him twice" for gunning down his girlfriend in the middle of night?



Masipa, is that you??

And, can you please show us the section of South African law that states that it is "lawful self defence" for a trained fire arms expert to arm himself, walk silently (yet screaming all the while) towards a threat and purposefully shoot 4 times though a door at an unseen perceived attacher? It's not - it's dolus eventualis, hence the appeal.

I don't even think firing 4 times at a perceived noise, through a door, when there were other means of escape, would be considered "lawful self defence" in America, although I'd be happy to be proved wrong if you can find evidence to the contrary

Indeed !… well said

 

[GR_Turner]

And, can you please show us the section of South African law that states that it is "lawful self defence" for a trained fire arms expert to arm himself, walk silently (yet screaming all the while) towards a threat and purposefully shoot 4 times though a door at an unseen perceived attacher? It's not - it's dolus eventualis, hence the appeal.

I don't even think firing 4 times at a perceived noise, through a door, when there were other means of escape, would be considered "lawful self defence" in America, although I'd be happy to be proved wrong if you can find evidence to the contrary

I don't think a DE conviction is a foregone conclusion - it's hard to say without seeing the arguments. There are a number of possible issues that I can see at the moment:

I don't believe a householder is obliged in SA to flee from an intruder so Oscar was within his rights to go towards the 'intruder'. If the intention to shoot through the door happened in the moment before the shooting, not earlier, then one could argue that the process of picking up the gun and proceeding to investigate was separate to the decision to shoot through the door. So the issue is whether Oscar had other options at the moment of shooting, not earlier.

One could argue then that he should have foreseen that he might have to shoot an intruder. This is I guess what Adv Nel would say was provoked self-defense. But if that's the case, then there are cases in SA in which self-defense was accepted when the accused had approached and indeed caused a dangerous situation and was then attacked. Provoked self-defense should surely mean that the attack being defended against was deliberately provoked by the accused so he could then attack back. If Oscar didn't know there was an 'intruder' or that he was coming towards him (apparently) till the moment of firing, then the defense might argue that is not a provoked attack unless Oscar provoked it by standing in his own bathroom where he had a right to be.

Putative private defense is judged subjectively not objectively. Maybe the key question should be - did the State prove beyond reasonable doubt that at the moment of firing, Oscar knew he was acting unlawfully? If he thought he was acting in self-defence then that would be lawful. If the decision to shoot through the door was a reaction to a perceived threat that he couldn't hope to escape on his stumps or in any other way at that moment, then he may have thought this was an appropriate response. Did the State prove otherwise?

If there are other cases where a man has shot and killed a 'intruder' he couldn't see that have been treated as CH not murder. So this argument doesn't apply imo.

Moreover, dolus eventualis requires someone to not only act, but to reconcile themselves to the consequences of the act. I'm not sure whether the State can argue that he had time to reconcile himself to the consequences if they can't prove that he paused during firing. The law in SA doesn't expect people to react instantly in a quick changing situation - this is indicated by the Court of Appeal over-turning the murder conviction of a man who shot someone in the side in a self-defense situation because they said he couldn't be expect to realise and react immediately once the man started turning and the danger had passed.

All gun owners pass the same written tests. And many go to shooting ranges for fun and keep guns for self-defense. And collecting guns doesn't make you a gun expert, it makes you a gun collector. Oscar sounds like he was a good marksman and was clearly interested in guns and negligent around them, but I didn't hear any evidence that he had training in how to deal with dangerous situations such as the police would have.

On the other hand, he didn't see the door handle turn. And he did indeed have other options as long as you see his actions in their totality and not separately - I'm not sure which is the correct approach.

I don't see what the laws on self-defense in the US have to do with this case...

 

[james83]

This was actually a typo, i also believe the gunshots were at 3.15
Stipp heard the 2nd set of sounds before he got through on his call to security, the call to security was timed at 3.15.51.
If The Nhlengethwa's only heard one loud bang/explosion and nothing more than the only possible explanation is that they heard the 2nd set of sound's.
Stipp and Nhlengethwa both heard a man shouting for help, Stipp heard this after the 2nd set of sound's.
It's obvious really that the Nhlengethwa's didnt hear any female screams because they simply slept through them.

 

[AJ_DS]

This was actually a typo, i also believe the gunshots were at 3.15
Stipp heard the 2nd set of sounds before he got through on his call to security, the call to security was timed at 3.15.51.
If The Nhlengethwa's only heard one loud bang/explosion and nothing more than the only possible explanation is that they heard the 2nd set of sound's.
Stipp and Nhlengethwa both heard a man shouting for help, Stipp heard this after the 2nd set of sound's.
It's obvious really that the Nhlengethwa's didnt hear any female screams because they simply slept through them.

OK… we're on the same page… thanks

 

[Jake18]

I don't think a DE conviction is a foregone conclusion - it's hard to say without seeing the arguments. There are a number of possible issues that I can see at the moment:

I don't believe a householder is obliged in SA to flee from an intruder so Oscar was within his rights to go towards the 'intruder'. If the intention to shoot through the door happened in the moment before the shooting, not earlier, then one could argue that the process of picking up the gun and proceeding to investigate was separate to the decision to shoot through the door. So the issue is whether Oscar had other options at the moment of shooting, not earlier.

One could argue then that he should have foreseen that he might have to shoot an intruder. This is I guess what Adv Nel would say was provoked self-defense. But if that's the case, then there are cases in SA in which self-defense was accepted when the accused had approached and indeed caused a dangerous situation and was then attacked. Provoked self-defense should surely mean that the attack being defended against was deliberately provoked by the accused so he could then attack back. If Oscar didn't know there was an 'intruder' or that he was coming towards him (apparently) till the moment of firing, then the defense might argue that is not a provoked attack unless Oscar provoked it by standing in his own bathroom where he had a right to be.

Putative private defense is judged subjectively not objectively. Maybe the key question should be - did the State prove beyond reasonable doubt that at the moment of firing, Oscar knew he was acting unlawfully? If he thought he was acting in self-defence then that would be lawful. If the decision to shoot through the door was a reaction to a perceived threat that he couldn't hope to escape on his stumps or in any other way at that moment, then he may have thought this was an appropriate response. Did the State prove otherwise?

If there are other cases where a man has shot and killed a 'intruder' he couldn't see that have been treated as CH not murder. So this argument doesn't apply imo.

Moreover, dolus eventualis requires someone to not only act, but to reconcile themselves to the consequences of the act. I'm not sure whether the State can argue that he had time to reconcile himself to the consequences if they can't prove that he paused during firing. The law in SA doesn't expect people to react instantly in a quick changing situation - this is indicated by the Court of Appeal over-turning the murder conviction of a man who shot someone in the side in a self-defense situation because they said he couldn't be expect to realise and react immediately once the man started turning and the danger had passed.

All gun owners pass the same written tests. And many go to shooting ranges for fun and keep guns for self-defense. And collecting guns doesn't make you a gun expert, it makes you a gun collector. Oscar sounds like he was a good marksman and was clearly interested in guns and negligent around them, but I didn't hear any evidence that he had training in how to deal with dangerous situations such as the police would have.

On the other hand, he didn't see the door handle turn. And he did indeed have other options as long as you see his actions in their totality and not separately - I'm not sure which is the correct approach.

I don't see what the laws on self-defense in the US have to do with this case...

Except all this is moot now. Masipa rejected pretty much all of OP's (varied) defences including :
a) Diminished criminal responsibility secondary to mental illness,
b) Automatism ("the gun just went off')
c) A sort of provoked self defence (secondary to his disability and exaggerated "startle")

IIRC the DT didn't even broach the possibility that, without the above extenuating factors, it was in any way reasonable to shoot a noise 4 times in the middle of the night.

In the same way that the arguments over screams and phone calls are rendered irrelevant by Masipa's decision, so is the impact of Oscar's disability and supposed anxious nature on his actions.

Which leaves us with a criminally responsible, experienced firearms owner, with another method of escape, shooting four times through a closed door at a person who was unable to escape.

He says he didn't mean to kill anyone, so what did he foresee?

Masipa called these actions negligent, the State say that murder was the only likely outcome.

And therein lies the crux of the issue for the appeal judges.