Oscar Pistorius - Discussion Thread #63 ~ the appeal~

[Interested Bystander]

Does anyone remember OP saying he took avoiding action by firing away from her? I don't recall this being any part of his evidence. I am quite happy to be wrong.

 

[Colin de France]

but someone did believe his lies (maybe not this one which was perhaps the silliest of them all).

Now I have broken my promise. I shall have to switch you to ignore LOL.

.....don't take it to heart .......it's all part of a discussion.....

 

[Colin de France]

Does anyone remember OP saying he took avoiding action by firing away from her? I don't recall this being any part of his evidence. I am quite happy to be wrong.

.....you will have to state to what version you are referring to................

 

[mrjitty]

This is a pointless discussion.

The Supreme Court of South Africa has already held that firing a gun not even directly at the victim counts as murder.

In the case in question, the accused fired a gun in a crowded bar during a fight with a rival.

I have to do some googling to find the name of the case.

Firing a gun into the toilet cubicle when someone is in there is not avoiding action.

ETA: I haven't been able to find it in my post history - and really i can't justify more time on this.

Maybe someone else can remember the name.

 

[Colin de France]

This is a pointless discussion.

The Supreme Court of South Africa has already held that firing a gun not even directly at the victim counts as murder.

In the case in question, the accused fired a gun in a crowded bar during a fight with a rival.

I have to do some googling to find the name of the case.

Firing a gun into the toilet cubicle when someone is in there is not avoiding action.

......again ....this is no comparison.......simply because avoiding action wasn't possible shooting into a crowd....

 

[JudgeJudi]

.......as i've said before......he thought she was to the right and whilst going for the gun she had turned slightly.......

Your statement is completely wrong. He never thought she was behind the door at all. What he did say during the trial was "It was pitch dark in the bedroom and I thought Reeva was in bed". (Transcript p.493)

Nowhere in the transcript did he ever say anyone, let alone Reeva, was to the right and whilst going for the gun the person or Reeva turned slightly.

 

[Colin de France]

Your statement is completely wrong. He thought nothing of the sort. What he did say during the trial was "It was pitch dark in the bedroom and I thought Reeva was in bed". (Transcript p.493)

.....and now you're mixing up versions as well.......is this a general tactic to try and undermine my explanation for what happened, i wonder........it's really best to say in advance to what version one is replying to otherwise we shall all be lost in confusion...........

 

[JudgeJudi]

.....and now you're mixing up versions as well.......is this a general tactic to try and undermine my explanation for what happened, i wonder........it's really best to say in advance to what version one is replying to otherwise we shall all be lost in confusion...........

I'm not mixing up versions at all. I responded to the entirety of your post, and I also edited mine to add a further bit.

 

[cottonweaver]

At the risk of sticking my oar in, where it's not wanted

Can I suggest we let June Steenkamp have the final word, in simple terms, on this one?

"
“I don't think it's a good idea to let him back in society so quickly," she said. "He shot my daughter through that door where she had no space to move or defend herself. One of the bullets blew her brains out, it is disgusting what he did to her – 10 months is just not enough."

http://www.telegraph.co.uk/news/wor...ius-to-be-released-from-prison-next-week.html

Just so happens I was just reading your links JJ, from the unnamed Def Team source. The above paper somewhat contradicts their spin.
Had to laugh about the mystery US donor to his appeal and the no-smoking rule, and the BS that he can't leave the house (except church)- unless they have made his H.Arrest terms uniquely strict so as to prevent him getting into trouble and thereby avoiding more egg-on-the -face for the SA establishment.

".........first will be allowed only to leave the house to go to work or to run the occasional errand.
As well as the habitual parole conditions including abstaining from alcohol and drugs or touching guns, he is likely to be instructed to undertake anger management courses as well as community service.
He has said he wants to work with children, but plans described at his trial to work at his uncle’s school in Mozambique are likely to be scuppered by his strict release conditions."

Why on earth are they leaking nonsense about mystery US donors? Is this an offer from a crank caller?

Reminds me a little of the "strange lady" ex-wife of the old amputation doc who appeared on Bail Day or the the strange social worker(?) who phoned the DT mid-trail to offer her evidence that his tears on arrest were genuine!

 

[Colin de France]

I'm not mixing up versions at all. I responded to the entirety of your post, and I also edited mine to add a further bit.

.......so you're using the version of the intruder to discuss the version that i mentioned earlier.......one can not criss-cross versions willy-nilly to dig out a suitable explanation that just happens to suit one's own agenda........all versions are apart/to be taken each on their own merit............obviously Pistorius is not going to say she was in the right of the WC when she is supposed to be in bed..........c'mon now...

 

[mrjitty]

NELSON SEPURU MAKGATHO ....................................................................Appellant

and

THE STATE .................................................................................................Respondent

http://www.saflii.org/za/cases/ZASCA/2013/34.html


[15] In the present case, the appellant foresaw the possibility that his firing a shot, whether into the ground or in the air, in the presence of many people, would result in harm and he reconciled himself to this possibility (see S v Sigwahla 1967 (4) SA 566 (A) at 570B-C; S v van Zyl 1969 (1) SA 553 (A) at 557A-E; S v Mtshiza 1970 (3) SA 747 (A) at 752A-H).

However, counsel for the appellant, conceded before us correctly so, that the appellant did not have to know the whereabouts of the deceased at the time of the shooting.

Makgatho, according to court papers, went to a tavern in Senobarana in Limpopo looking for his “girlfriend”, Daphne Madibane, but when she refused to go with him, he attempted to force her and the people she was seated with objected.

Makgatho apparently slapped Madibane and Nicholas Maloba before firing a shot up in the air.

At the heart of his appeal was the contention of whether he had acted with dolus eventualis when he caused the death of another person.

In the Makgatho case, the SCA said Makgatho foresaw the possibility that his firing a shot, whether into the ground or in the air, in the presence of many people, would result in harm.

“The fundamental question is not whether he should have accepted that the result would follow, but whether in actual fact he accepted that it would follow,” the SCA ruled.

“The test in respect of intention is subjective and not objective.”

ETA:

The point being is that if you are having a domestic and fire 4 shots to intimidate your girlfriend - even if not directly at her, the Supreme Court is likely to find you guilty of murder.

 

[Colin de France]

NELSON SEPURU MAKGATHO ....................................................................Appellant

and

THE STATE .................................................................................................Respondent

http://www.saflii.org/za/cases/ZASCA/2013/34.html


[15] In the present case, the appellant foresaw the possibility that his firing a shot, whether into the ground or in the air, in the presence of many people, would result in harm and he reconciled himself to this possibility (see S v Sigwahla 1967 (4) SA 566 (A) at 570B-C; S v van Zyl 1969 (1) SA 553 (A) at 557A-E; S v Mtshiza 1970 (3) SA 747 (A) at 752A-H).

However, counsel for the appellant, conceded before us correctly so, that the appellant did not have to know the whereabouts of the deceased at the time of the shooting.


Makgatho, according to court papers, went to a tavern in Senobarana in Limpopo looking for his “girlfriend”, Daphne Madibane, but when she refused to go with him, he attempted to force her and the people she was seated with objected.

Makgatho apparently slapped Madibane and Nicholas Maloba before firing a shot up in the air.

At the heart of his appeal was the contention of whether he had acted with dolus eventualis when he caused the death of another person.

In the Makgatho case, the SCA said Makgatho foresaw the possibility that his firing a shot, whether into the ground or in the air, in the presence of many people, would result in harm.

“The fundamental question is not whether he should have accepted that the result would follow, but whether in actual fact he accepted that it would follow,” the SCA ruled.

“The test in respect of intention is subjective and not objective.”

...but in the theory i'm defending he did know the whereabouts of the deceased.......and took avoiding action...that's the big difference .......in the case you've mentioned no avoiding action was taken simply because he didn't know where people were......an avoiding action is a positive action.....meaning he did not want to kill ......a choice was made...that to me is not an act of murder........

 

[cottonweaver]

"...Makgatho apparently slapped Madibane and Nicholas Maloba before firing a shot up in the air...."

 

[mrjitty]

...but in the theory i'm defending he did know the whereabouts of the deceased.......and took avoiding action...that's the big difference .......in the case you've mentioned no avoiding action was taken simply because he didn't know where people were......an avoiding action is a positive action.....meaning he did not want to kill ......a choice was made...that to me is not an act of murder........

There is no such thing as "avoiding action" - this is something you made up.

 

[Colin de France]

There is no such thing as "avoiding action" - this is something you made up.

......he knew she was to the right either by her screams or conversation that's why he fired towards the left not knowing she had slightly moved whilst he went for the gun .......the key is the bat.....see you all later.....

 

[mrjitty]

......he knew she was to the right either by her screams or conversation that's why he fired towards the left not knowing she had slightly moved whilst he went for the gun .......the key is the bat.....see you all later.....

That's murder by Dolus Eventualis

You have to apply the law of South Africa to your hypothetical facts

You can't invent a concept called "avoiding action" - no such idea exists in the case law

 

[mrjitty]

"...Makgatho apparently slapped Madibane and Nicholas Maloba before firing a shot up in the air...."

I recall there is a similar case where an offender shot a gun to scare a chasing police officer.

Held murder though he allegedly aimed away from the officer.

It is hardly surprising the Courts don't accept these kinds of shootings as accidents

 

[JudgeJudi]

RSBM

http://www.telegraph.co.uk/news/wor...ius-to-be-released-from-prison-next-week.html

Just so happens I was just reading your links JJ, from the unnamed Def Team source. The above paper somewhat contradicts their spin.

I posted a similar link to yours previously. I don't think there's necessarily a contradiction inasmuch as yours and my earlier one probably refer to general conditions for house arrest. Your link is dated 13 August whereas mine were dated 15 and 16 August and, as you say, allegedly come from a DT source. This tends to suggest that these will be his actual conditions for probation. I hope so because he's something of a loose cannon at the best of times.

 

[cottonweaver]

Re house arrest terms and the links

What struck me as odd/distorted is the Mirror one is titled " Oscar cannot leave house except for church." ( sic) ?? No work? No comm. service?
And that "he becomes "a prisoner in his own home".
And " The source added: “The appeal court can’t send him back to prison, they can only order a retrial. "

Can any of those three points be true? Surely not

http://www.mirror.co.uk/news/world-news/oscar-pistorius-freed-next-week-6260458"

 

[JudgeJudi]

mrjitty

As this appeal is by the State, can the defence introduce new facts? I know the State can't.

In the event of a retrial, which most SA lawyers seem to think unlikely, do you believe that the State may consider they now have enough evidence for DD or try for DE?

Further, how would the defence team tackle a retrial? One imagines they can't change their version very much.