Oscar Pistorius - Discussion Thread #63 ~ the appeal~

[Marfa Lights]

(Okay, forgive me for "over-posting")

Did Masipa cook her goose by acknowledging that even though he shot four rounds into the toilet but "clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door"? Oscar claimed that, of course, but was she obliged to accept it because we can never know what was in the mind of another?

Could she not have applied some judicial logic here and recognized that any experienced shooter would without doubt be able to foresee that recklessly firing four hollow-point bullets into a closed toilet cubicle without knowing who was behind it created the possibility that he would kill the person behind the door? For me, that's the part that is not reasonably, possibly true no matter what other evidence you accept or reject.

From page 3328 of her Judgment dealing with Dolus eventualis:
"The question is: Did the accused foresee the possibility of the resultant death, yet persisted in his deed reckless whether death ensued or not? In the circumstances of this case the answer has to be no.
How could the accused reasonably have foreseen that the shots he fired would kill the deceased? Clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door, let
alone the deceased, as he thought she was in the bedroom at the time."

Masipa statement that followed (p.3334) as the facts applied to CH:
"I now revert to the relevant questions.
First: Would a reasonable person in the same circumstances as the accused, have foreseen the reasonable possibility that, if he fired four shots at the door of the toilet, whoever was behind the door, might be struck by a bullet and die as a result? The second question is: Would a reasonable person have taken steps to guard against that possibility?
The answer to both questions is yes."

 

[Marfa Lights]

This links into a question I asked a while back about whether dolus is linked to the idea of accepting that you are or may be doing something unlawful. And I think it also links to Masipa saying that on accepting the possibility of the intruder version, Pistorius then lacked the required dolus for DE: in other words if he did not believe that what he was doing and the consequent risks of what he was doing were unlawful, then he cannot be guilty of murder... (?)

I am hoping that in the final analysis it will get down to this question of whether or not he foresaw the consequences and risks of recklessly firing 4 hollow point bullets into a small toilet cubicle which could possibly lead to the death of whoever was behind the door.

I think the correct answer is "Of course he did."

 

[Marfa Lights]

So he broke panels out of the door first, then deliberately fired through the door while he could see her? Lots of factors make that scenario seem far more unlikely than pistorius's own version...

I don't necessarily think he broke panels out with the first bat strikes-- I think he could have simply bashed at the door in anger and to frighten Reeva. Didn't he make mention of how the blows against the door reverberated through the bat and hurt his hands?

Why not just go get your gun and really show her who's in control here?

I think he then likely picked up the bat to finish prying the panels out of the door to unlock it and gain access. Hence bullet hole D could have been split apart by the last time he used the bat.

 

[cottonweaver]

but I am getting psyched up up for the appeal and was searching online to see if Putative Private Defense (PPD) alone excludes DE. According to Prof. James Grant, apparently it does.

http://criminallawza.net/2014/05/04/...r-human-being/

"It is worth remembering – because this issue continues to be misunderstood: one may intentionally kill another human being – so long as you are justified (such as in self/private defence) and you know/believe you are justified.

If you are not justified (such as you are not under attack), you are only liable to a murder conviction if you know/believe you were not justified – if you know that you were not under attack. If you know you were not justified, you have intention in South African law. Intention is an entirely subjective enquiry. It turns on what the accused was actually thinking.
[/I]

RSBM simply due to length and LOL re. psyched up.(Anyway, short posts on this seem impossible)
Am happy to be corrected as obviously no legal background, but my understanding

He was NOT a credible witness- (so all his testimony should have all been excluded, but I’ll let that go for a moment-The court could NOT be certain what he was thinking as he was a bad witness, subj or objectively.
However he HAD taken the gun “exam” and knew in which contexts he was entitled to shoot or not, in such circumstances. He DID know he was NOT justified to take this action.
He was NOT under attack – he was firing through a closed door.
He fired “at the door” knowing there was a human being behind that door and as even Dermen conceded - yes that intent was “to nullify the threat”

Dolus is intention thus is subjective- what was he thinking?
Ch – is an objective test , were his actions what a “reasonable” person would do, his firing his only option. (Obviously not., on his version. )

Yes she deemed him to have been unreasonable in his actions so she gave him CH. And Masipa fluffed it by applying “the foreseeability” test BUT she only applied the test with relation to Reeva.

Bizarrely her justification is that since Pistorius believed he was firing at an intruder, he clearly did not intent to kill (or seriously injure) the actual victim Reeva

However in this respect she has obviously misapplied the law .. She has not understood that if there is a case of mistaken identification, then intent/dolus applies to the person who was shot in error. She then uses law to justify this by correctly that there is no concept of "transferred intent" which is true in SA law. BUT she totally misunderstands and misinterprets what "transferred intent" actually means, and mistakenly takes it to mean that since Pistorius only acted to nullify an "intruder", his intent/dolus cannot therefore be "transferred" to the actual victim, Reeva.

Professor James Grant has observed Masipa quite surprisingly did not even consider the issue of whether Pistorius subjectively felt that his life was in imminent danger, and if he did, whether he used proportionate force.( OR as Greenland said – she never actually told us what was in his mind, subjectively)


However Marfa, having posted all that I think maybe I am missing your point! LOL- let me know if that’s true!!!!

 

[cottonweaver]

Masipa knew on day 1 of delivering this verdict, that she had F'd it up, hence her sudden break ( we were all baffled) and returning next day to try and cover it up.

Now that's a "dramatic pause."

 

[cottonweaver]

I think he then likely picked up the bat to finish prying the panels out of the door to unlock it and gain access. Hence bullet hole D could have been split apart by the last time he used the bat.

I agree and I found the Vermeulen(sp?) and Nel exchanges on this most unsatisfactory, deficient and not nearly comprehensive enough.
Bats - gun - bats for final prising. Always made perfect sense - he had that bat to hand.

 

[Marfa Lights]

RSBM simply due to length and LOL re. psyched up.(Anyway, short posts on this seem impossible)
Am happy to be corrected as obviously no legal background, but my understanding

He was NOT a credible witness- (so all his testimony should have all been excluded, but I’ll let that go for a moment-The court could NOT be certain what he was thinking as he was a bad witness, subj or objectively.
However he HAD taken the gun “exam” and knew in which contexts he was entitled to shoot or not, in such circumstances. He DID know he was NOT justified to take this action.
He was NOT under attack – he was firing through a closed door.
He fired “at the door” knowing there was a human being behind that door and as even Dermen conceded - yes that intent was “to nullify the threat”

Dolus is intention thus is subjective- what was he thinking?
Ch – is an objective test , were his actions what a “reasonable” person would do, his firing his only option. (Obviously not., on his version. )

Yes she deemed him to have been unreasonable in his actions so she gave him CH. And Masipa fluffed it by applying “the foreseeability” test BUT she only applied the test with relation to Reeva.

Bizarrely her justification is that since Pistorius believed he was firing at an intruder, he clearly did not intent to kill (or seriously injure) the actual victim Reeva

However in this respect she has obviously misapplied the law .. She has not understood that if there is a case of mistaken identification, then intent/dolus applies to the person who was shot in error. She then uses law to justify this by correctly that there is no concept of "transferred intent" which is true in SA law. BUT she totally misunderstands and misinterprets what "transferred intent" actually means, and mistakenly takes it to mean that since Pistorius only acted to nullify an "intruder", his intent/dolus cannot therefore be "transferred" to the actual victim, Reeva.

Professor James Grant has observed Masipa quite surprisingly did not even consider the issue of whether Pistorius subjectively felt that his life was in imminent danger, and if he did, whether he used proportionate force.( OR as Greenland said – she never actually told us what was in his mind, subjectively)


However Marfa, having posted all that I think maybe I am missing your point! LOL- let me know if that’s true!!!!

No, that's it in a nutshell, with extra clarity on top! Thanks.

 

[Marfa Lights]

Masipa knew on day 1 of delivering this verdict, that she had F'd it up, hence her sudden break ( we were all baffled) and returning next day to try and cover it up.

Now that's a "dramatic pause."

Yes, that was an interesting moment... you could almost hear her utter an "Oops."

 

[cottonweaver]

Although I am still waiting for the speculative answers to what OP was doing post 3am on the Dof A timelines.

PS>I watched the EVDM cross by Roux again in conjunction with the DEf HofA ....

...because naturally you can't rely on the DofA without checking by reading the tweets of actual dialogue on the stand or watching the old broadcasts.......

The EVDM testimony of an argument was naturally critical for Roux to bulldoze. In the D H of A Roux manages to reduce it to :
“Van der Merwe’s evidence raises, at best for the State, a speculative inference of a possibility of an argument.”

3 mins in ending at 24 mins, rouxs cross is here [video=youtube;WN3cN_T-GxU]https://www.youtube.com/watch?v=WN3cN_T-GxU[/video]
compared to Heads linked on preceding page of this thread.
(172.7 Contrary to the Further Particulars:, page 57 of pdf. )

Watch ( if you can be bothered) Roux twist and turn in court and then distort it for the Heads. You've got to hand it to him - it's his job to get his Def off and only an adequate panel on the Bench would spot the differences.

 

[Marfa Lights]

I agree and I found the Vermeulen(sp?) and Nel exchanges on this most unsatisfactory, deficient and not nearly comprehensive enough.
Bats - gun - bats for final prising. Always made perfect sense - he had that bat to hand.

Agree. Another time Nel failed to drive a point home.

 

[cottonweaver]

(Okay, forgive me for "over-posting")

Did Masipa cook her goose ....snipped


Masipa statement that followed (p.3334) as the facts applied to CH:
"I now revert to the relevant questions.
First: Would a reasonable person in the same circumstances as the accused, have foreseen the reasonable possibility that, if he fired four shots at the door of the toilet, whoever was behind the door, might be struck by a bullet and die as a result? The second question is: Would a reasonable person have taken steps to guard against that possibility?
The answer to both questions is yes."

[[/SIZE]

RSBM

Dadic" A few people have said, and I agree, that she's interpreted the law regarding forseeability incorrectly. The foreseeability test applies to eventualis, and not to culpable homicide. So from that point of view, if the state feels she applied the law incorrectly in terms of section 310 of the Criminal Procedure Act, the state can appeal the decision based on the wrong application of law by the judge."

 

[Colin de France]

Agree. Another time Nel failed to drive a point home.

.......by firing obviously it's not going to get him into the WC but i see it more like he blew a fuse in a fit of anger because he coudn't get in with the bat......he may of been thinking that Reeva was on the right near to where he had been hiiting with the bat and so shot towards the other side not knowing that she had slightly changed her position and was hit.........it certainly fits in with everything we know......if this theory is correct what would be the charge ? ...........it woudn't be murder but at the same time it was certainly reckless.......

 

[Colin de France]

I am hoping that in the final analysis it will get down to this question of whether or not he foresaw the consequences and risks of recklessly firing 4 hollow point bullets into a small toilet cubicle which could possibly lead to the death of whoever was behind the door.

I think the correct answer is "Of course he did."

.....on the basis it was a fit of rage and the intention was the door........would that change anything ? ......law wise .....

 

[cottonweaver]

Agree. Another time Nel failed to drive a point home.

And if all posters would actually initiate discussion about the deficiencies/strengths of BOTH SIDES they might find it "helpful" in the search for "truth and justice" which is , apparently, the goal of all. ( Initiate rather than simply accede when the point is lost/forced to.)

So, now I am over-posting too .....even though I have too much I should be doing so I'll butt out for a while.

 

[Marfa Lights]

.....on the basis it was a fit of rage........would that change anything ? ......

I am not sure that matters for DE-- even on his version he was intentionally shooting at an intruder, and so it would seem that the only important question would be if he foresaw the possibility that he would kill the individual behind the door.

And unlike Masipa, most rational beings would say "How could he not?"

 

[JudgeJudi]

Masipa knew on day 1 of delivering this verdict, that she had F'd it up, hence her sudden break ( we were all baffled) and returning next day to try and cover it up.

Now that's a "dramatic pause."

A judge is not permitted to do this. If a mistake is made, it must be corrected immediately, not the next day.

 

[Colin de France]

I am not sure that matters for DE-- even on his version he was intentionally shooting at an intruder, and so it would seem that the only important question would be if he foresaw the possibility that he would kill the individual behind the door.

And unlike Masipa, most rational beings would say "How could he not?"

......ok.........forget his version completely and just look at it from the intention was the door in a fit of rage........in a moment of rage would his thoughts of enabled him to forsee that he might kill someone even with an avoiding action ? ....

 

[JudgeJudi]

I am hoping that in the final analysis it will get down to this question of whether or not he foresaw the consequences and risks of recklessly firing 4 hollow point bullets into a small toilet cubicle which could possibly lead to the death of whoever was behind the door.

I think the correct answer is "Of course he did."

Prof James Grant, Wits University criminal law professor noted the State could appeal if they believe there has been an legal error.

"Masipa doesn't accept that accused intended to kill anyone. Huh? His defence was he didn't intend to UNLAWFULLY kill," he tweeted.

"How can you voluntarily fire four shots into a toilet cubicle & not foresee the possibility of killing whoever was in there."

And so say 99.9% of us.

 

[JudgeJudi]

Masipa knew on day 1 of delivering this verdict, that she had F'd it up, hence her sudden break ( we were all baffled) and returning next day to try and cover it up.

Now that's a "dramatic pause."

Yes, that was an interesting moment... you could almost hear her utter an "Oops."

You'll also recall that people who were familiar with her wording of judgments found this one out of character which gave rise to speculation that one of the assessors had written it. She paused numerous times while reading it and made corrections as she went. She had more than enough time to read it prior to delivering it in court, so why weren't these errors picked up earlier?

IMO we, like others, are entitled to speculate.

 

[Marfa Lights]

......ok.........forget his version completely and just look at it from the intention was the door in a fit of rage........in a moment of rage would his thoughts of enabled him to forsee that he might kill someone even with an avoiding action ? ....

Not sure but it sounds like you might be describing a (second degree?) homicide that in the U.S. might be described as a crime of passion??

Gotta run but to be continued later today.