Oscar Pistorius - Discussion Thread #63 ~ the appeal~

[Trotterly]

Interesting.

Personally I suspect there will be no political will for that.

Ideally the Supreme Court will simply fix the judgement by applying the correct legal test for DE to the facts as the trial Court found them.

I worry what will happen is that SC might duck for cover by criticising the quality of the Judgement, but throwing its hand in the air.

This would provide a moral victory to State, but close down the circus

I'm far too busy on holiday to keep up with everything on here at the moment but I just wanted to mark the BIB for future reference.

 

[mrjitty]

A killing in PPD can never be a lawful killing.

Sure it can!

An intruder enters your bedroom with a gun. Waking from sleep you grab your gun and intentionally shoot for the head. You turn the light on and see it was a 14 year old burglar with a toy gun.

No real threat. But an honest and reasonable mistake. The killing is lawfully justified - even though you intended to shoot them dead. Dolus is not excluded. You wanted to kill in self defence. Which the law allows in limited circumstances.

Masipa's argument appears to be that OP's belief that he was under attack from an intruder excludes the intention to kill unlawfully.

However, this does not tie in with her apparent acceptance that the force used was excessive.

When she states that he intended to shoot, but not to kill, I believe that she may actually have meant to say that he did not intend to kill unlawfully, not that he did not intend to kill at all.

IMO, she is saying that he lacked the dolus necessary for dolus eventualis because, despite the fact that he panicked and used excessive force, his intention was to act lawfully in self defence.

That's my feeling as well - that she just didn't explain her reasoning properly because she lacks the hard legal-analytical skills that you'd find in an English High Court judge.

But the SC has to go on the face of the document.

They can't start guessing about what she might have meant to say.

 

[GR_Turner]

Sure it can!

An intruder enters your bedroom with a gun. Waking from sleep you grab your gun and intentionally shoot for the head. You turn the light on and see it was a 14 year old burglar with a toy gun.

No real threat. But an honest and reasonable mistake. The killing is lawfully justified - even though you intended to shoot them dead. Dolus is not excluded. You wanted to kill in self defence. Which the law allows in limited circumstances.



That's my feeling as well - that she just didn't explain her reasoning properly because she lacks the hard legal-analytical skills that you'd find in an English High Court judge.

But the SC has to go on the face of the document.

They can't start guessing about what she might have meant to say.

Ok - I won't post this again after this, but why does the following not apply in your example? Objectively the person was not in danger but he had a reasonable belief that he was. How is this not the case referred to below?

... In putative private defence it is not lawfulness that is in issue but culpability (‘skuld’). If an accused honestly believes his life or property to be in danger, but objectively viewed they are not, the defensive steps he takes cannot constitute private defence. If in those circumstances he kills someone his conduct is unlawful. ...

S v De Oliviera 1993 (2) SACR 59 (A) on page 63 h – 64 a, Smalberger JA

 

[soozieqtips]

~snipped~

Sure it can!

An intruder enters your bedroom with a gun. Waking from sleep you grab your gun and intentionally shoot for the head. You turn the light on and see it was a 14 year old burglar with a toy gun.

No real threat. But an honest and reasonable mistake. The killing is lawfully justified - even though you intended to shoot them dead. Dolus is not excluded. You wanted to kill in self defence. Which the law allows in limited circumstances.

BIB - that's how I understand it too because Masipa said that shooting at a shadowy figure 'hovering' near the bed would have been 'reasonable', ie, accepted as a lawful killing (even if it had turned out to be Reeva).

 

[aftermath]

Sure it can!

An intruder enters your bedroom with a gun. Waking from sleep you grab your gun and intentionally shoot for the head. You turn the light on and see it was a 14 year old burglar with a toy gun.

No real threat. But an honest and reasonable mistake. The killing is lawfully justified - even though you intended to shoot them dead. Dolus is not excluded. You wanted to kill in self defence. Which the law allows in limited circumstances.



That's my feeling as well - that she just didn't explain her reasoning properly because she lacks the hard legal-analytical skills that you'd find in an English High Court judge.

But the SC has to go on the face of the document.

They can't start guessing about what she might have meant to say.

Really sorry to keep asking, but as someone who knows law I thought you might have a definitive answer: how would you explain /define 'dolus'? The definitions I have read link it to the idea of unlawfulness - is that wrong?

 

[Colin de France]

Sure it can!

An intruder enters your bedroom with a gun. Waking from sleep you grab your gun and intentionally shoot for the head. You turn the light on and see it was a 14 year old burglar with a toy gun.

No real threat. But an honest and reasonable mistake. The killing is lawfully justified - even though you intended to shoot them dead. Dolus is not excluded. You wanted to kill in self defence. Which the law allows in limited circumstances.



That's my feeling as well - that she just didn't explain her reasoning properly because she lacks the hard legal-analytical skills that you'd find in an English High Court judge.

But the SC has to go on the face of the document.

They can't start guessing about what she might have meant to say.

.....in regards to your example about the fourteen year old with a gun........exactly as you described i can't see how the killing is lawfully justified......in this country you would go to prison for that..........that scenario is illegal....self defense has to be at it's maximum equal to the attack, which in your case it wasn't.................i don't know which country you're from but you can't go around blasting peoples heads off willy nilly .......you should know all that being an expert..

 

[Mr Fossil]

Karyn Maughan ‏@karynmaughan 47m47 minutes ago
BREAKING Minister Masutha says he wants to "verify for myself" that #OscarPistorius probation was correctly handled.

Karyn Maughan ‏@karynmaughan 48m48 minutes ago
Masutha: I'm not bound by past practices, I'm bound by the law. #OscarPistorius

Karyn Maughan ‏@karynmaughan 49m49 minutes ago
Masutha:if law says #OscarPistorius must be released on Friday,he will be released on Friday if it says otherwise, we'd have to look at that

Karyn Maughan ‏@karynmaughan 52m52 minutes ago
Masutha: the last thing we would want would be to have blunders of misinterpretation or misapplication of the law #OscarPistorius

Karyn Maughan ‏@karynmaughan 54m54 minutes ago
Masutha: “I’m confident that by Friday I would be in a position to determine whether legally I have the authority to do anything" #Pistorius

Karyn Maughan ‏@karynmaughan 55m55 minutes ago
Masutha: my starting point is the rule of law...nothing to do with publicity or the fact that this is a high profile matter #OscarPistorius

Karyn Maughan ‏@karynmaughan 56m56 minutes ago
Masutha: "it would be egg in our face if it turns out that we have indeed misinterpreted the law" #OscarPistorius

Karyn Maughan ‏@karynmaughan 57m57 minutes ago
BREAKING: Masutha on #Pistorius release "what concerns me the most, is that if we say this is the law, we must be sure that this is the law"

Karyn Maughan ‏@karynmaughan 1h1 hour ago
BREAKING: Justice and Correctional Services Minister Michael Masutha "seeking legal advice" on #OscarPistorius release on probation

http://www.enca.com/south-africa/justice-minister-seeking-legal-advice-pistoriuss-release-probation

 

[Mr Fossil]

Petition to oppose Pistorius release

http://www.scribd.com/doc/275031629/Petition-to-Oppose-Oscar-Pistorius-Release

 

[Sherbert]

Sure it can!

An intruder enters your bedroom with a gun. Waking from sleep you grab your gun and intentionally shoot for the head. You turn the light on and see it was a 14 year old burglar with a toy gun.

No real threat. But an honest and reasonable mistake. The killing is lawfully justified - even though you intended to shoot them dead. Dolus is not excluded. You wanted to kill in self defence. Which the law allows in limited circumstances.



That's my feeling as well - that she just didn't explain her reasoning properly because she lacks the hard legal-analytical skills that you'd find in an English High Court judge.

But the SC has to go on the face of the document.

They can't start guessing about what she might have meant to say.

Hello Mr Jitty! Referring to your example, I would say that, whilst understandable, the killer's reaction was unlawful because, in reality, there was no immediate threat to his life. However, he lacked dolus because he had no intention to kill unlawfully. In other words, he probably satisfies the criteria for PPD.

Depending on the circumstances, he'd be likely to get an acquittal; at worst, it's culpable homicide.

Your example provides an interesting reminder that, even looking at the matter from OP's perspective, his reaction was unreasonable. In contrast, despite the putative element, the reaction of the shooter in your example is understandable.

I entirely agree that the wording of Masipa's judgement leaves a lot to be desired and I fervently hope, (against my better judgement), that the Appellate Court will be thorough, watch the recordings, including the screams evidence, and find the means to revisit her tenuous findings of fact.

As the State is challenging Masipa's handling of the circumstantial evidence, ideally, they need to look at the totality of that evidence, not just the excerpts recommended by the Defence.

 

[cottonweaver]

Here you go

Appeal Heads Full 43 pages !

http://pod702.co.za/Eyewitnessnews/docs/150818OscarAppeal.pdf

 

[GR_Turner]

Petition to oppose Pistorius release

http://www.scribd.com/doc/275031629/Petition-to-Oppose-Oscar-Pistorius-Release

I wonder how many other people who've committed crimes against women have been released on parole or house arrest this month. And why this case is different. They make themselves look silly imo.

 

[aftermath]

Petition to oppose Pistorius release

http://www.scribd.com/doc/275031629/Petition-to-Oppose-Oscar-Pistorius-Release

I don't understand the mentality behind this.(I could only access an extract of the petition)
In essence, isn't the petition starter saying: 'we the undersigned were unsatisfied with the verdict and therefore believe that pistorius's recommended release into house arrest/probation,( in accordance with south African law, the crime of which he was convicted, the sentence that followed, and his subsequent behaviour while in prison), should be denied in order to reflect our own personal preferences?'

 

[cottonweaver]

As per my link on previous page

"26.
With respect, conceivably, a more devastating illustration of the Court’s fragmented
approach to the evaluation of circumstantial evidence and willingness to exclude dealing
with the evidence that may conflict with the finding it intended to make is the finding that
Captain Mangena’s evidence was not only helpful, but also “largely unchallenged” but
with respect, thereafter failed to take into account his reconstruction of the scene."

Let's remember that the use of devastating is not as in , for example "emotionally devastating"!

 

[cottonweaver]

Appeal heads - Reeva's position and Pistorius's shots:

"This ( the Court paying attention to facts of Reeva's position behind the door) would have clearly impacted on the Court’s unfortunate acceptance of a portion ofthe untruthful version of the respondent that if he intended to kill the person behind the door he would have aimed higher.

The circumstantial evidence indicated that he and the main issue is he aimed at the bigger portion of the body of a human being standing upright facing the door and the main issue is he did not fire at the legs of the person or at the floor or at a point higher than where the head of a standing person could foreseeably have been. Furthermore, he did not only fire one shot but fired four shots into the vicinity of where a standing person’s torso would have been."

That's a new one for us, as far as it coming from Nel. ( Amuses me that I argued something similar about 40 threads ago!)

 

[aftermath]

As per my link on previous page

"26.
With respect, conceivably, a more devastating illustration of the Court’s fragmented
approach to the evaluation of circumstantial evidence and willingness to exclude dealing
with the evidence that may conflict with the finding it intended to make is the finding that
Captain Mangena’s evidence was not only helpful, but also “largely unchallenged” but
with respect, thereafter failed to take into account his reconstruction of the scene."

Let's remember that the use of devastating is not as in , for example "emotionally devastating"!

It is still an emotive use of the word though -for dramatic emphasis.

 

[cottonweaver]

Scathing really

" 28. We respectfully submit that the Court a quo only paid lip service to the fact that it took “all
the evidence into consideration and that includes all the exhibits and all the submissions
by counsel.”"

"29 The court accepted a version that was not the respondent’s defence. The respondent’s defence is that he never willingly fired the shots. That excludes any acceptance of “why he shot” and “why” at a certain height or why he fired four shots."

 

[Interested Bystander]

This is an old piece (in fact pre trial) but it does touch on PPD/SD with respect to OP. I don't know if it will be of any help to those who are unsure.

http://constitutionallyspeaking.co.za/oscar-pistorius-criminal-law-101/

Oscar Pistorius: Criminal Law 101

Feb 22nd, 2013
by Pierre De Vos. “Many people have been treating the bail hearing of Oscar Pistorius as if it were a trial, jumping to conclusions about whether he will be found guilty of murder based on the (often untested) allegations made by both sides at this hearing. But those who think they know what the outcome of this trial will be, are probably still going to change their minds several times before the trial is over. The only thing we can be relatively certain of is that specific legal principles will play a decisive role in this trial. It might be helpful to familiarise yourself with these principles before pontificating on the outcome of the trial.

Based on the version of events provided by Pistorius and his lawyers at the bail hearing, the disputed element of the crime will be fault. You can only be found guilty of murder if you unlawfully and intentionally killed another person. You can be found guilty of culpable homicide if you unlawfully and negligently killed another person.

There is no dispute that the killing of Reeva Steenkamp was unlawful as it would be impossible to argue that Pistorius acted in self-defence (or private defence, as it is known in law)…………………….”

 

[cottonweaver]

It is still an emotive use of the word though -for dramatic emphasis.

I keep reading all this "too emotional" and I have found it ironic.

Here's an emotive piece by journalist RANJENI MUNUSAMY focussing on the histrionic emotionalism employed by the Defence in the trial above and beyond that displayed by Pistorius and his bucket...

"You’ve got to hand it to Oscar’s Pistorius’ legal team for coming up with four people willing to take the oath and stand in court to testify how the convicted athlete was a truly special human being who did not deserve to go to prison. Dr Lore Hartzenburg, who has been counselling Pistorius since he shot and killed Reeva Steenkamp in February 2013, told the court what an awful time he has been having, crying, vomiting and being tormented by the media.

“We are left with a broken man who has lost everything,” she said. And apparently this professional counsellor even cried in court when Pistorius had to take off his prosthesis during a demonstration. Hartzenberg said Pistorius had told her he would like to work at his uncle Arnold’s school in Mozambique, helping children. Perhaps he’d get time to sip cocktails at Bazaruto while he’s there, who knows.

Do the children have a choice in deciding whether a convicted killer should be foisted on them, or like everything else, does Pistorius’ sense of entitlement allow him to go to the rescue of black African waifs?

Hartzenberg pities his woeful state and felt that his ability to grieve had been hampered by negative media reports. He has suffered enough, and the big bad media should leave him alone. After killing someone.

There really aren’t enough expletives in the world to respond to this amount of ********.

But incredibly, the sentencing hearing rolled downhill from there. A social worker in the Department of Correctional Services, Joel Maringa, was trotted out next. He recommended a three-year sentence of correctional supervision, with two eight-hour days of cleaning work a month. For killing someone.

Why? Because of the trauma he has suffered. Because of his disability. And because he could still play a productive role in society. According to Maringa, being placed under house arrest is not a lighter sentence. Perhaps. If he were staying in a shack in Alexandra township where giants rats run the hood and eat parts of babies, that is. His uncle’s three-story Waterkloof mansion, however, might be a tad more luxurious than the average prison cell that every other South African citizen would be frog-marched into if they killed someone. But, you see, Pistorius “should not be destroyed”, according to Maringa, and needs to be integrated back into society."

 

[cottonweaver]

From scathing to withering?

On EVALUATION OF EVIDENCE: page 17

It is the Appellant’s respectful submission that it “is trite that a trial court must consider
the totality of the evidence to determine if the guilt of any accused person has been
proven beyond reasonable doubt.” – see S v Libazi and Another


What must be borne in mind, however, is that
the conclusion which is reached (whether it be to convict or to acquit) must
account for all the evidence. Some of the evidence might be found to be
false; some of it might be found to be unreliable; and some of it might be
found to be only possibly false or unreliable; but none of it may simply be
ignored.”

 

[cottonweaver]

Withering to scornful or just LOL?

Without once applying the holistic approach to the circumstantial evidence the Court
dealt with ...( eye, ear witnesses, WhatsApp messages cited here)

31.3. The deceased’s cellular phone on the scene and again evaluated in isolation
found that “there could be a number of reasons … to pick just one reason
would be to delve in the realm of speculation.”

31.4. As far as the gastric emptying is concerned, the Court, with respect, here
ventured to speculate that the deceased “might have left the bedroom while
the accused was asleep to get something to eat.”

31.5. Although the Court was amenable to speculate, the Court, with respect, failed
to evaluate the gastric content with the evidence of Ms van der Merwe around
the “argument”.