Discussion Thread #61 ~ the appeal~

[Deleted member 102539]

Personally (and speculatively), I think he shouted "help" like that because he knew that both he and Reeva had been shouting it a few minutes before and the neighbours had probably heard.

Who, really, with access to two telephones would yell "help" from a balcony like that? Who was he hoping would hear and what did he want them to do?

Everything was calculated, that's why I'm mad at him.

 

[Deleted member 102539]

http://ddiafrica.tumblr.com/post/98213687860/twitter-engagement-and-the-oscar-pistorius-trial

We looked at Innocent vs Guilty and public opinion during certain times in the trial, across all media platforms and online news entities. Unsurprisingly, the sound of “guilty” rang out with near constant posts, with only Pistorians, the minority in the public jury, speaking of innocence. When compared to the word “gun” or “glock”, just under 10 000 Tweets were posted along with the word “guilty”. This is compared to less than 1000 mentioning “innocent”. This trend continued, with Guilty occurring more than innocent in all situations… except for two; “screaming” and “pistorians”, the two terms that incited the public to discuss Oscar Pistorius’ innocence.

 

[soozieqtips]

~snipped~

Where a witness is found to be unreliable, a Court will often dismiss their evidence in toto

Masipa admitted OP was a very poor and unreliable witness (one of the only things I agree with her on). So if the defendant (killer) is a poor witness who provides unreliable and contradictory testimony, it makes no sense why she didn't just choose to throw out his testimony. She didn't have any problem throwing out bits from other witnesses in order to make things "fit" whatever advance conclusion she had already come to. Didn't OP in fact have three defences at one point??

 

[Colin de France]

Everything was calculated, that's why I'm mad at him.

...calculating and manipulative...from shouting help at the window (sowing seeds for later defense like carrying her down the stairs to meet the ambulance) down to the confortable "i don't know m'lady" .....a lot of people have underestimated Pistorious......

 

[JudgeJudi]

~snipped~

Masipa admitted OP was a very poor and unreliable witness (one of the only things I agree with her on). So if the defendant (killer) is a poor witness who provides unreliable and contradictory testimony, it makes no sense why she didn't just choose to throw out his testimony. She didn't have any problem throwing out bits from other witnesses in order to make things "fit" whatever advance conclusion she had already come to. Didn't OP in fact have three defences at one point??

Yes he did.

1. Putative self-defence (putative private defence)
2. Involuntary action
3. Mental disorder - generalized anxiety disorder aka GAD

 

[Interested Bystander]

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.[SUP]1
[/SUP]
Dolus eventualis is sometimes said to be the criminal law equivalent to the tort concept of gross negligence.

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

BIR

I haven’t seen this qualification before, or maybe I have and glossed over it. Given what the judge said, I think this may be what was on her mind when she decided to be lenient with OP. I find it a concern that dolus eventualis is an elastic concept.

I think most of us think he knew very well what he was doing but it looks as though Masipa may have given him a get out clause. :tantrum:

Is this the only point of law that Nel is using in the appeal?

 

[soozieqtips]

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.[SUP]1
[/SUP]
Dolus eventualis is sometimes said to be the criminal law equivalent to the tort concept of gross negligence.

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

BIR

I haven’t seen this qualification before, or maybe I have and glossed over it. Given what the judge said, I think this may be what was on her mind when she decided to be lenient with OP. I find it a concern that dolus eventualis is an elastic concept.

I think most of us think he knew very well what he was doing but it looks as though Masipa may have given him a get out clause. :tantrum:

Is this the only point of law that Nel is using in the appeal?

I'm sure someone will correct me if I'm wrong, but I think the "and associated himself therewith" is another way of saying that he proceeded with his actions anyway (after foreseeing the possibility of those actions killing someone).

 

[Interested Bystander]

I'm sure someone will correct me if I'm wrong, but I think the "and associated himself therewith" is another way of saying that he proceeded with his actions anyway (after foreseeing the possibility of those actions killing someone).

I do hope you are right. For a moment I thought it meant that one did not know or was not aware of what one was doing at that moment in time. At some point I think OP said that it just happened, almost as though he did not know why. It made me think the judge thought he was stressed out of his mind.

 

[Estelle]

http://criminallawza.net/2014/09/28...ustify-judge-masipas-errors-revised-expanded/

Please read Professor Grant's take on this.

 

[Colin de France]

I do hope you are right. For a moment I thought it meant that one did not know or was not aware of what one was doing at that moment in time. At some point I think OP said that it just happened, almost as though he did not know why. It made me think the judge thought he was stressed out of his mind.

...."stressed" ...there's another word for this it's called uncontrollable anger ...

 

[Interested Bystander]

...."stressed" ...there's another word for this it's called uncontrollable anger ...

Correct! But I am not sure that is what the judge thought.

 

[Interested Bystander]

http://criminallawza.net/2014/09/28...ustify-judge-masipas-errors-revised-expanded/

Please read Professor Grant's take on this.

Thank you, Estelle, for the link. I have read it once but need to read itSLOWLY again to fully digest. I don’tthink the SA laws are very clear and it is a good thing the Supreme Court willhave to look at them again but also I think it is very unlikely that OP’s verdictwill be overturned but not because I think he is not guilty. Far from it. More, that the law is unclear.

 

[Deleted member 102539]

I'm sure someone will correct me if I'm wrong, but I think the "and associated himself therewith" is another way of saying that he proceeded with his actions anyway (after foreseeing the possibility of those actions killing someone).

"and associated himself therewith"
Does it mean with other words: he comes to terms with it (to shoot through door at his victim Reeva in the cubicle, although he foresaw the possibility of the death of his victim)???

I think, the dangerous word is "subjectively" in the specific context.

 

[soozieqtips]

"and associated himself therewith"
Does it mean with other words: he comes to terms with it (to shoot through door at his victim Reeva in the cubicle, although he foresaw the possibility of the death of his victim)???

I think, the dangerous word is "subjectively" in the specific context.

Yes, I think it means that having foreseen the possibility he might kill someone by firing 4 shots into a small space, he reconciled that fact with himself (came to terms with it) and decided to go ahead and shoot anyway (proceeded with his actions).

 

[Interested Bystander]

Yes, I think it means that having foreseen the possibility he might kill someone by firing 4 shots into a small space, he reconciled that fact with himself (came to terms with it) and decided to go ahead and shoot anyway (proceeded with his actions).

At one point I thought the judge inferred that OP did not come to terms with the fact that he might have killed someone. Hence my feeling that this (in her opinion) allowed her to hand down a verdict of CH. If she acepted that he had come to terms with it, the verdict could only have been Dolus Eventualis. I think I need to go back and read her decision again. I may be misremembering.

 

[Colin de France]

Yes, I think it means that having foreseen the possibility he might kill someone by firing 4 shots into a small space, he reconciled that fact with himself (came to terms with it) and decided to go ahead and shoot anyway (proceeded with his actions).

This and post 615 are interesting because if we accept the idea he was in uncontrollable anger did he then possess the faculties to have "forseen" that he might kill someone ?

 

[Interested Bystander]

This and post 615 are interesting because if we accept the idea he was in uncontrollable anger did he then possess the faculties to have "forseen" that he might kill someone ?

Interesting. He certainly accepted that if he fired a warning shot in the bathroom that he could have killed himself. My problem is with the judge and how she interpreted his many discrepancies about whether he accidentally fired, whether he fired low so as not to kill somebody, whether his gun fired without him thinking about it, ie not consciously thinking of the outcome. As far as I am concerned he knew exactly what he was doing. The problem for me are his many explanations of why he fired and how the judge determined that it was CH rather than DE. Was all the confusion about what really happened enough to sway the judge?

 

[soozieqtips]

At one point I thought the judge inferred that OP did not come to terms with the fact that he might have killed someone. Hence my feeling that this (in her opinion) allowed her to hand down a verdict of CH. If she acepted that he had come to terms with it, the verdict could only have been Dolus Eventualis. I think I need to go back and read her decision again. I may be misremembering.

BIB - she did infer that. It was something along the lines of just because he ought to have foreseen the possibility of killing someone, didn't mean he did foresee it. However, he had time to foresee that he might injure himself from a bullet ricochet, so why Masipa didn't think he could foresee that firing 4 shots into a small space might have killed someone (as opposed to a single ricochet that may have injured him) is still a complete mystery to me. Given OP's thought process as he explained it to Nel (in several different ways...) how can Masipa accept he could foresee one thing (injuring himself), yet not foresee a second thing (killing someone else) just nano seconds later?

 

[Interested Bystander]

BIB - she did infer that. It was something along the lines of just because he ought to have foreseen the possibility of killing someone, didn't mean he did foresee it. However, he had time to foresee that he might injure himself from a bullet ricochet, so why Masipa didn't think he could foresee that firing 4 shots into a small space might have killed someone (as opposed to a single ricochet that may have injured him) is still a complete mystery to me. Given OP's thought process as he explained it to Nel (in several different ways...) how can Masipa accept he could foresee one thing (injuring himself), yet not foresee a second thing (killing someone else) just nano seconds later?

I absolutely and totally agree with what you say. If you read my past posts I am sure you will realise that I have never waivered in my belief that OP knew what he was doing and that he committed murder, albeit in a rage. I just have this niggling feeling the SC will not rule against the judge. When I read the article that stated that DE was somewhat elastic, followed by the Prof G's comments on the trial, I felt somewhat uneasy that the appeal may fail. Call it a gut feeling. I really hope I am wrong.

 

[soozieqtips]

I absolutely and totally agree with what you say. If you read my past posts I am sure you will realise that I have never waivered in my belief that OP knew what he was doing and that he committed murder, albeit in a rage. I just have this niggling feeling the SC will not rule against the judge. When I read the article that stated that DE was somewhat elastic, followed by the Prof G's comments on the trial, I felt somewhat uneasy that the appeal may fail. Call it a gut feeling. I really hope I am wrong.

Yes, I know your feelings mirror mine on the whole debacle. We just have to hope that justice finally prevails and that the elastic isn't too stretchy!