Discussion Thread #61 ~ the appeal~

[Trotterly]

I think there is a cognitive dissonance between public attitude to defence of the home and the law of self defence - which after all - is effectively the same throughout the original common law jurisdictions.

People in RSA appear to be buying guns in contemplation of being able to "defend their house/person" without appearing to appreciate the high standard required to justify such lethal force

In NZ - though many families had guns in the home 30-40 years ago, we kept them locked up - because the idea of using them on intruder was off the table

If the prevailing social attitude in RSA is that guns for self defence should be allowed as first resort - the law needs to be changed to reflect it

The other thing is that prosecution seems to allow some of these which look strictly like murder to be watered down to Manslaughter

Because hunting down intruders with a gun is usually going to result in at least manslaughter - there needs to be a law change defining active/aggressive intervention within your own home as reasonable.

Of course the real issue is the proliferation of firearms which demonstrably place women and children at risk.

If Reeva's death was for anything it was for the want of better gun control in that barbaric country.

 

[GR_Turner]

I guess there is a fine line from exercising the right to protect yourself from what you may perceive as an imminent threat of bodily harm and "going commando" at every bump in the night, but identifying your target with a simple "Who goes there?" would prevent many of these cases of mistaken identity where a family member is accidentally shot and killed. That a trained and licensed gun owner like Oscar failed to do so resulted in the CH verdict-- he was clearly negligent in not identifying his target when he had ample time to do so (no one jumped him or actually attacked him, nor did he actually see anyone breaking and entering his home.)

I would go further though-- his actions were not simply negligent, Oscar granted himself the authority and permission to shoot to kill whoever was behind the toilet door. His excuse was that he was afraid of what might be behind the door. He did not feel obliged to find out if there was or was not an actual intruder behind the toilet door, he felt entitled to kill them regardless.

This word "regardless" is key for me in understanding the degree of culpability for his criminal actions. Oscar over-reacted to the simple sound of a window opening and a toilet door closing in his own en suite bathroom when an overnight guest would quite naturally be expected to be using these facilities. (I personally believe there was an argument, the victim's screams were indeed heard by neighbors, and he knew it was Reeva in the toilet, thus premeditated murder.)

However, even if you are unwilling to accept the totality of the circumstantial evidence, you should be able to evaluate if Oscar used deadly force in a reasonable (and legal) manner. I do not believe he did-- even if his intention were to protect himself and Reeva from an intruder, he chose, or allowed himself to be judge and executioner of the perceived intruder. Oscar, acting like some over-inflated superhero (an annoying trait of the Pistorius brothers) was always ready with a loaded gun, prepared to use it at the slightest provocation or opportunity. The only problem is that he lacked the maturity and judgement to know what constituted an appropriate use of deadly force. It was more than a simple case of putative private defense-- I don't care how bad your crime rate is, no one should be allowed or encouraged to blast away at every creak in the floorboards or the mere sound of a window opening on a hot night when the a/c is not working. This is beyond negligent-- it requires a willful and reckless disregard for human life, something Oscar frequently exhibited by driving at deadly speeds and mishandling a loaded firearm in a crowded public place.

He knew full well that he killed whoever was inside the toilet cubicle after unloading four Black Talon type bullets into that space and he did so intentionally. If you are willing to excuse his actions as a simple mistake, it tells me that you value his life much more than that of his victim, just as he did.

The problem with all this is that in sa even the police and prosecutors don't agree with that in other cases. Apparently you can shoot an intruder and be let off with slapped wrists or CH depending on the situation. If we were talking about the UK where there are strict gun laws I'd have no problem with a murder conviction for this. It's the ambiguity in sa and the way others have been treated that make me think if those cases weren't murder then neither was this. In sa they do value the life of a person defending himself in his home over the life of an intruder it seems. Maybe this will be on the wrong side of the line or will be used by the SCA to make a point. But as I said above, if they decide incidents like this are murder they'll surely have to start prosecuting others who have done similar things and to date not been convicted of murder. The reason people want him convicted seems just because they think he meant to shoot Reeva and this is a proxy for that. But it might change the landscape in relation to how these cases are treated.

 

[GR_Turner]

Why?

This never has been legal and even Masipa didn't find it was OK

The danger is people buying guns for self defence in the home not realising that shooting someone is only legally justified in very narrow circumstances.

Do you think all those other cases of people shooting in similar circumstances were just self defence with some negligence then? I don't really see that shooting at some who may or may not be a threat in your garden, drive, behind an opening door or on a roof is any better than what op did if the logic is that you must be sure there was a threat.

 

[Deleted member 102539]

I think there is a cognitive dissonance between public attitude to defence of the home and the law of self defence - which after all - is effectively the same throughout the original common law jurisdictions.

People in RSA appear to be buying guns in contemplation of being able to "defend their house/person" without appearing to appreciate the high standard required to justify such lethal force

In NZ - though many families had guns in the home 30-40 years ago, we kept them locked up - because the idea of using them on intruder was off the table

If the prevailing social attitude in RSA is that guns for self defence should be allowed as first resort - the law needs to be changed to reflect it

The other thing is that prosecution seems to allow some of these which look strictly like murder to be watered down to Manslaughter

Because hunting down intruders with a gun is usually going to result in at least manslaughter - there needs to be a law change defining active/aggressive intervention within your own home as reasonable.

Of course the real issue is the proliferation of firearms which demonstrably place women and children at risk.

I would like to know whether OP would have felt the same safety re law in another country, let's say Italy (when on training)? Thinking "I may shoot at an intruder in SA, so I can shoot at an annoying girlfriend and make it just a burglary".
OP is lucky to be in SA and he knows. In addition he is "the" privileged Hero and he knows. He is white and of course he knows. He is rich and influencial and he knows. He is the descendant of a popular and huge family and he knows. He is almost untouchable and he knows. - He was fairly safe in his gated estate and he didn't know? He was fairly safe in his home with alarm system and he didn't know?

 

[mrjitty]

Do you think all those other cases of people shooting in similar circumstances were just self defence with some negligence then? I don't really see that shooting at some who may or may not be a threat in your garden, drive, behind an opening door or on a roof is any better than what op did if the logic is that you must be sure there was a threat.

Well in NZ, in the cases I am familiar with - it has been held that it is not legitimate to shoot at someone in your garden.

There have been efforts at times from Politicians to give householders broader powers of "home defence"

However the police tend to be against it. First because there is no real evidence citizens are in mortal peril. Second because it just leads to more dead bodies and the police don't want citizens shooting burglars over a stolen ipad.

Indeed at home efforts are in the other direction.

Firearms have to be secured and ammunition separately stored and locked.

Sleeping with a loaded gun under your bed is a great way to loose your firearms license.

It is also worth noting that many countries like NZ tightly restrict pistol ownership.

Its not coincidence that so many of these tragedies occur with pistols rather than rifles.

 

[mrjitty]

Thank you Mr Jitty. It is good to know why. I do wonder why Nel made a point of Perumal's report not being used, because he surely knew it would be going nowhere if the report had not been admitted as evidence.

I think it is legitimate for the prosecutor to ask why the defence has not produced such a key witness.

 

[GR_Turner]

Well in NZ, in the cases I am familiar with - it has been held that it is not legitimate to shoot at someone in your garden.

There have been efforts at times from Politicians to give householders broader powers of "home defence"

However the police tend to be against it. First because there is no real evidence citizens are in mortal peril. Second because it just leads to more dead bodies and the police don't want citizens shooting burglars over a stolen ipad.

Indeed at home efforts are in the other direction.

Firearms have to be secured and ammunition separately stored and locked.

Sleeping with a loaded gun under your bed is a great way to loose your firearms license.

It is also worth noting that many countries like NZ tightly restrict pistol ownership.

Its not coincidence that so many of these tragedies occur with pistols rather than rifles.

Yes it's clear that restricting gun ownership would be better, as would properly funding the police and courts in sa to catch criminals and limit the need to self defence. I don't see this case from the UK perspective though and think cross country comparisons are largely academic. Not only are the laws different but so too is the context including what people read in the papers about crime and self defence. No one in the UK would think you can kill an intruder without very good reason. Op is a product of a sa society that allows guns and lets off people who kill defending themselves in their homes. They are much less lenient with people who shoot in supposed self defence outside the home I.e. in a public space. So there does seem to be an assumption that the person in their home has some right to assume an intruder means them no good. Clearly op is also part of a group in sa society for whom guns are normal and it's interesting that though many now say how bad it is that he carried a gun with him this isn't illegal in sa. So again, this sort of behaviour is sanctioned by the law.

 

[Deleted member 102539]

SABC News Online retweetete
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[JudgeJudi]

Best wishes to y'all from the Land Down Under

 

[mrjitty]

"I kept on shouting for Reeva, I didn't hear anything. At this point it didn't occur to me that it could have been Reeva in the bathroom. I still thought they could be intruders.

"I retreated back to the point where I got to the corner of the bed. I tried to lift myself up while talking to Reeva. No one responded to me. At that point lifted myself up into the bed and I thought Reeva was there and I couldn't feel anything.

"At that point the first thing I thought was maybe she got down onto the floor like I told her to, maybe she was just scared ... I can't remember what I said but I was trying to talk out to her.

"It was upon that time, my Lady, that it first dawned upon me that it could be Reeva that was in the bathroom or in the toilet. I jumped out of the other side of the bed and I ran my hands along the curtains to see that she wasn't hiding.

No one responded to me?

To see that she wasn't hiding?

He really is a bad story teller

 

[Deleted member 102539]

"I kept on shouting for Reeva, I didn't hear anything. At this point it didn't occur to me that it could have been Reeva in the bathroom. I still thought they could be intruders.

"I retreated back to the point where I got to the corner of the bed. I tried to lift myself up while talking to Reeva. No one responded to me. At that point lifted myself up into the bed and I thought Reeva was there and I couldn't feel anything.

"At that point the first thing I thought was maybe she got down onto the floor like I told her to, maybe she was just scared ... I can't remember what I said but I was trying to talk out to her.

"It was upon that time, my Lady, that it first dawned upon me that it could be Reeva that was in the bathroom or in the toilet. I jumped out of the other side of the bed and I ran my hands along the curtains to see that she wasn't hiding.

No one responded to me?

To see that she wasn't hiding?

He really is a bad story teller

bbm= Ach, who would have thought! (IF at all ...)

 

[GR_Turner]

"I kept on shouting for Reeva, I didn't hear anything. At this point it didn't occur to me that it could have been Reeva in the bathroom. I still thought they could be intruders.

"I retreated back to the point where I got to the corner of the bed. I tried to lift myself up while talking to Reeva. No one responded to me. At that point lifted myself up into the bed and I thought Reeva was there and I couldn't feel anything.

"At that point the first thing I thought was maybe she got down onto the floor like I told her to, maybe she was just scared ... I can't remember what I said but I was trying to talk out to her.

"It was upon that time, my Lady, that it first dawned upon me that it could be Reeva that was in the bathroom or in the toilet. I jumped out of the other side of the bed and I ran my hands along the curtains to see that she wasn't hiding.

No one responded to me?

To see that she wasn't hiding?

He really is a bad story teller

I think you may be reading too much into his choice of words. I wonder how naturally you would express yourself knowing that you had a prosecutor openly accusing you of lying, waiting to pounce on your every word and hoping to have you locked up for 25 years. Add in that you would have thought and talked about your evidence in advance so it wouldn't be the first time you were saying what happened and there are millions listening and judging you. For myself, I have gone to pieces in job interviews in front of a panel of a few people with really very little at stake so I'm not inclined to assume that someone in his situation should be able to openly and naturally describe what happened, as you seem to.

 

[Colin de France]

"I kept on shouting for Reeva, I didn't hear anything. At this point it didn't occur to me that it could have been Reeva in the bathroom. I still thought they could be intruders.

"I retreated back to the point where I got to the corner of the bed. I tried to lift myself up while talking to Reeva. No one responded to me. At that point lifted myself up into the bed and I thought Reeva was there and I couldn't feel anything.

"At that point the first thing I thought was maybe she got down onto the floor like I told her to, maybe she was just scared ... I can't remember what I said but I was trying to talk out to her.

"It was upon that time, my Lady, that it first dawned upon me that it could be Reeva that was in the bathroom or in the toilet. I jumped out of the other side of the bed and I ran my hands along the curtains to see that she wasn't hiding.

No one responded to me?

To see that she wasn't hiding?

He really is a bad story teller

....Does anyone in their right mind believe that after he had shouted for Reeva that she would still be hiding and not replied to him........he got all this wrong when he made it up....

 

[GR_Turner]

"I kept on shouting for Reeva, I didn't hear anything. At this point it didn't occur to me that it could have been Reeva in the bathroom. I still thought they could be intruders.

...

I meant to ask you earlier about how you combine evidence as discussed a few pages back. I'm unclear at what point you evaluate evidence to decide whether to accept it or not. In your example you seem to have accepted that the photo of the bedroom represents the scene straight after the shooting. Have you accepted it in isolation despite the contradictions in the police evidence or have you accepted it in combination with other evidence? I would have rejected it and therefore it would not form part of my deliberations in piecing together any mosaic of evidence.

 

[Interested Bystander]

I think you may be reading too much into his choice of words. I wonder how naturally you would express yourself knowing that you had a prosecutor openly accusing you of lying, waiting to pounce on your every word and hoping to have you locked up for 25 years. Add in that you would have thought and talked about your evidence in advance so it wouldn't be the first time you were saying what happened and there are millions listening and judging you. For myself, I have gone to pieces in job interviews in front of a panel of a few people with really very little at stake so I'm not inclined to assume that someone in his situation should be able to openly and naturally describe what happened, as you seem to.

The problem here is that he had a whole year to think up an answer to just about any question that possibly could be asked.

 

[Interested Bystander]

I meant to ask you earlier about how you combine evidence as discussed a few pages back. I'm unclear at what point you evaluate evidence to decide whether to accept it or not. In your example you seem to have accepted that the photo of the bedroom represents the scene straight after the shooting. Have you accepted it in isolation despite the contradictions in the police evidence or have you accepted it in combination with other evidence? I would have rejected it and therefore it would not form part of my deliberations in piecing together any mosaic of evidence.

Could you please point out to which contradictions you are referring.

 

[GR_Turner]

The problem here is that he had a whole year to think up an answer to just about any question that possibly could be asked.

Yes, and that might have contributed to the way in which he answered the questions whether he was telling the truth or not. It's quite different from when a person is asked to say what happened close to the event before being charged and with only a few people present. It would have been far better for the police to have interviewed him on the 14th or 15th after he'd recovered sufficiently and for them to have made the decision on charges based on that interview. As it is, the state can say he had time to prepare and tailor his version and the defense has no protection against that allegation. This is unfair on both sides.

 

[GR_Turner]

Could you please point out to which contradictions you are referring.

Who arrived first, when Botha arrived, who was there when photos were taken.

 

[Trotterly]

Recently some friends and I had the opportunity to carry out some sound tests. Whilst not replicating all of the conditions of that night the results are nevertheless very interesting.

We had access to two villas which were of block and concrete construction. The area was on flat open ground but the villas were slightly closer packed than where OP lived.

Firstly I tried screaming as loudly as I could to see if it could be heard at a distance. At 80m in the open (paced out) 4 people in line of sight not expecting to hear anything did not hear anything unusual. This was at about 28 degC with a light wind blowing towards the witnesses. This was surprising to me as Burger and Johnson both reported "helps" at more than twice this distance.

Secondly we tested female screams at a similar distance. At 80m the screams could be heard clearly. At 177m they could only be heard as very faint by one witness . There was again a light breeze from the screamer towards the witnesses.

This was very surprising given what Burger reported but of course this was with surrounding buildings which could have redirected and "concentrated" the sound. It was not possible to replicate these conditions but it was possible to investigate how screaming from a room affected what was heard.

Next a woman screamed as loudly as she could from within a closed room inside the ground floor. The room had two windows like OPs bathroom but they were slightly smaller and double glazed. This screaming could not be heard any further away than 50m. In fact a woman and girl both screamed together. I expected that this would change when the window was opened. On opening the window completely the scream could be heard clearly at 50m and at 80m but became very difficult to hear at 100m and beyond.

Here is the most fascinating part.
From a villa next door no more than 10m away the screaming could not be heard at all even with the window wide open until the screamer was right next to the window and the witness was right next to an open window when it was clear.

Obviously those screaming were not doing so "for their lives" but I was stunned as to how the screams could be lost over such relatively short distances.

When you actually measure out 177m (580ft) it is a huge distance and seemed much further than I had been thinking of when first analysing the PT witnesses evidence.

 

[aftermath]

Recently some friends and I had the opportunity to carry out some sound tests. Whilst not replicating all of the conditions of that night the results are nevertheless very interesting.

We had access to two villas which were of block and concrete construction. The area was on flat open ground but the villas were slightly closer packed than where OP lived.

Firstly I tried screaming as loudly as I could to see if it could be heard at a distance. At 80m in the open (paced out) 4 people in line of sight not expecting to hear anything did not hear anything unusual. This was at about 28 degC with a light wind blowing towards the witnesses. This was surprising to me as Burger and Johnson both reported "helps" at more than twice this distance.

Secondly we tested female screams at a similar distance. At 80m the screams could be heard clearly. At 177m they could only be heard as very faint by one witness . There was again a light breeze from the screamer towards the witnesses.

This was very surprising given what Burger reported but of course this was with surrounding buildings which could have redirected and "concentrated" the sound. It was not possible to replicate these conditions but it was possible to investigate how screaming from a room affected what was heard.

Next a woman screamed as loudly as she could from within a closed room inside the ground floor. The room had two windows like OPs bathroom but they were slightly smaller and double glazed. This screaming could not be heard any further away than 50m. In fact a woman and girl both screamed together. I expected that this would change when the window was opened. On opening the window completely the scream could be heard clearly at 50m and at 80m but became very difficult to hear at 100m and beyond.

Here is the most fascinating part.
From a villa next door no more than 10m away the screaming could not be heard at all even with the window wide open until the screamer was right next to the window and the witness was right next to an open window when it was clear.

Obviously those screaming were not doing so "for their lives" but I was stunned as to how the screams could be lost over such relatively short distances.

When you actually measure out 177m (580ft) it is a huge distance and seemed much further than I had been thinking of when first analysing the PT witnesses evidence.

Do you mind me asking what time of day did you did these tests?

I would have thought that in the early hours of the morning, -when the OP case sounds were heard, the potential for confusion/ misinterpretation/ not hearing anything would be greater, given that people are generally asleep. ..