Oscar Pistorius - Discussion Thread #63 ~ the appeal~

[Colin de France]

I think if you read the line of inquiry I was replying to what I meant would be more apparent. I see your point - no of course picking up the gun didn`t mean that from the outset he intended to do what he ended up doing, but the very act of retrieving a gun and cocking it surely points to an acknowledgment that you might indeed use it, especially if you head towards a perceived threat with it. But essentially I was responding to posts that were saying there is no proof that he intended to use his gun and in frustration ended up making some sort of proof is in the actions argument. You could argue along similar lines that there is no proof that someone going in to rob a bank with a loaded pistol ever intended to use it, couldn`t you, but a court is well within its rights to reject such an argument and if you ended up shooting a teller, you would likely be charged with murder.

....that's right....picking up the gun from the outset didn't mean he had the intention of using it........but's that's not what the state are saying....

 

[JudgeJudi]

Today is Reeva's birthday. She would have turned 32.

While Oscar Pistorius will be preparing to leave Kgosi Mampuru II Prison in Pretoria, the Steenkamps will spend the morning on the beach where their blonde beauty daughter’s ashes were strewn.

“They will spend a quiet morning at the beach in Port Elizabeth at the spot where her ashes were strewn,” family lawyer Tania Koen said on Tuesday.

“There will only be a handful of family and close friends, and they will pay their respects to her and honour her.

“We will also throw rose petals into the water.”

“As a family we want to continue to honour Reeva’s memory and will commemorate her birthday by focusing on the Reeva Rebecca Steenkamp Foundation, celebrating her life, what she stood for and the joy she brought into so many lives.”

http://www.iol.co.za/news/south-afr...brate-reeva-s-birthday-1.1902209#.VdQyaI0Vg4k

 

[GR_Turner]

I think if you read the line of inquiry I was replying to what I meant would be more apparent. I see your point - no of course picking up the gun didn`t mean that from the outset he intended to do what he ended up doing, but the very act of retrieving a gun and cocking it surely points to an acknowledgment that you might indeed use it, especially if you head towards a perceived threat with it. But essentially I was responding to posts that were saying there is no proof that he intended to use his gun and in frustration ended up making some sort of proof is in the actions argument. You could argue along similar lines that there is no proof that someone going in to rob a bank with a loaded pistol ever intended to use it, couldn`t you, but a court is well within its rights to reject such an argument and if you ended up shooting a teller, you would likely be charged with murder.

Sorry if I misunderstood. No I think in the case of a robbery there's no legitimate use of a gun. It must be to threaten or kill and if you do kill someone this must be something you considered was possible when you decided to take the gun. In OP's case the use of the gun could have been legitimate so the argument isn't the same imo.

 

[mrjitty]

There's surely a distinction between his intention to use his gun in a general sense and his intention to use it in the way in which he actually did. In other words, you can't put his intention to shoot 4 times through the door back to when he picked up the gun. Heading towards a threat with a gun isn't illegal in SA and had there been a threat and he'd shot to defend himself it would have legal. So it makes no sense to me to try to suggest that the unlawful act of shooting through the door was his intention when he picked up the gun.

You keep using a piecemeal approach.

The point is the evidence all goes in the same direction - so the inference is drawn.

I research plane tickets to Miami
I buy a ticket online
I book a cab to the airport
I check in
I get on the plane
I arrive in Miami

The inference is drawn that it was my intention to fly to miami and I ended up there.

We don't have to deal with parallel universes where I missed the flight.

 

[Colin de France]

Sorry if I misunderstood. No I think in the case of a robbery there's no legitimate use of a gun. It must be to threaten or kill and if you do kill someone this must be something you considered was possible when you decided to take the gun. In OP's case the use of the gun could have been legitimate so the argument isn't the same imo.

.......nice one Turner.......slippery ground ....

 

[Colin de France]

You keep using a piecemeal approach.

The point is the evidence all goes in the same direction - so the inference is drawn.

I research plane tickets to Miami
I buy a ticket online
I book a cab to the airport
I check in
I get on the plane
I arrive in Miami

The inference is drawn that it was my intention to fly to miami and I ended up there.

We don't have to deal with parallel universes where I missed the flight.

......the murder version........intention to use.


......the intruder version.......no intention to use.


......the door hole version.....intention to use.

 

[lithgow1]

......the murder version........intention to use.


......the intruder version.......no intention to use.


......the door hole version.....intention to use.

So what, in your opinion, was his intention in the intruder version?

Also, do you believe that he fired at the perceived threatening noise made by the perceived intruder?

 

[Colin de France]

So what, in your opinion, was his intention in the intruder version?

Also, do you believe that he fired at the perceived threatening noise made by the perceived intruder?

..........can't see a problem there, didn't he say he fired because he thought someone was coming out of the WC ? .......you're not trying to say that he had already intended to fire before picking up the gun when he heard a noise in the bedroom are you ?..............

 

[Trotterly]

You keep using a piecemeal approach.

The point is the evidence all goes in the same direction - so the inference is drawn.

I research plane tickets to Miami
I buy a ticket online
I book a cab to the airport
I check in
I get on the plane
I arrive in Miami

The inference is drawn that it was my intention to fly to miami and I ended up there.

We don't have to deal with parallel universes where I missed the flight.

I like your timeline approach to evidence.

For all Nel's carping on about the holistic approach he missed out the most important part LOL.

 

[Marfa Lights]

......whoops.........you've forgotten or bypassed evidence.....i think the word evidence has been largely missing in the recent discussion about inference versus proof.......i'd like to see some evidence that he murdered her and that there was no other possible alternative explanation......

I am not sure why I persist with this but here goes (please correct me, anyone, if I am mistaken about any of this):

He admitted killing her-- no further evidence needed for that. The determination of murder (DE) is up to the courts. To convict him of Dolus eventualis they need only determine if he foresaw the possibility of unlawfully killing whoever was behind the door. This is a subjective test, but as we have said many times this morning, the court is allowed to make reasonable inferences about the accused's intentions.

The killing is considered fundamentally unlawful because Pistorius was mistaken about being under attack and therefore it does not meet the criteria for what would have been a lawful killing in self-defense.

According to some legal scholars, Masipa erred in her application of PPD in Oscar's case. Apparently key aspects of his PPD claim do not meet the legal standards necessary to justify his response to the perceived threat, including an excessive use of force against an unknown target when he had other options. If Masipa is found to have erred in her application of PPD in Oscar's case, then he will be considered eligible for DE.

The appeal will also revisit whether the court should have made the reasonable inference that a trained and licensed firearm owner would have the foresight to know that firing four rounds into a small toilet cubicle would likely kill the person behind the door.

 

[Colin de France]

I like your timeline approach to evidence.

For all Nel's carping on about the holistic approach he missed out the most important part LOL.

.........you're right.......and that was coming from an expert......!

 

[GR_Turner]

You keep using a piecemeal approach.

The point is the evidence all goes in the same direction - so the inference is drawn.

I research plane tickets to Miami
I buy a ticket online
I book a cab to the airport
I check in
I get on the plane
I arrive in Miami

The inference is drawn that it was my intention to fly to miami and I ended up there.

We don't have to deal with parallel universes where I missed the flight.

This works in your example but doesn't in the op case because there are 2 plausible narratives. Once you out all the evidence together you still can't discount that this might have been a jumpy disabled man who panicked on thinking he had an intruder in his bathroom.

 

[Colin de France]

I am not sure why I persist with this but here goes (please correct me, anyone, if I am mistaken about any of this):

He admitted killing her-- no further evidence needed for that. The determination of murder (DE) is up to the courts. To convict him of Dolus eventualis they need only determine if he foresaw the possibility of unlawfully killing whoever was behind the door. This is a subjective test, but as we have said many times this morning, the court is allowed to make reasonable inferences about the accused's intentions.

The killing is considered fundamentally unlawful because Pistorius was mistaken about being under attack and therefore it does not meet the criteria for what would have been a lawful killing in self-defense.

According to some legal scholars, Masipa erred in her application of PPD in Oscar's case. Apparently key aspects of his PPD claim do not meet the legal standards necessary to justify his response to the perceived threat, including an excessive use of force against an unknown target when he had other options. If Masipa is found to have erred in her application of PPD in Oscar's case, then he will be considered eligible for DE.

The appeal will also revisit whether the court should have made the reasonable inference that a trained and licensed firearm owner would have the foresight to know that firing four rounds into a small toilet cubicle would likely kill the person behind the door.

.......the discussion was about intention and inference..........then about the lack of proof and now lack of evidence to back up any one version ............leading up to the act......

 

[mrjitty]

The point about an appeal is that it is an appeal on points of law.

So discussion really needs to use legal reasoning and be based on recognised legal precedent.

Claims about the process of inference that are wildly divergent from the text books shouldn't really be entertained.

Certainly Roux won't make those kinds of arguments.

 

[Marfa Lights]

I am trying to come up with a similar scenario--

What if I had encountered a scary man several times when I walk my dog early in the morning (very early, when it is still dark outside.) This scary man eventually began saying threatening things about raping me and I stopped walking my dog in that area. As as woman I am aware of how vulnerable I am when out walking alone.

Some time later, I ran out at 3:30 in the morning to get some milk for my coffee. It's a little scary at the neighborhood 7-11 at that time of the morning when no one else is around and 7-11s are known to have a lot of robberies.

As I am coming out of the store with my milk, a man starts to approach me. I think I recognize him as the scary man who threatened to rape me even though it is very dark. I am startled to see him and yell at him to get away from me. He runs into a port-a-john nearby. I am so struck with fear that he may come back out to get me that I get in my car and floor the gas pedal running my Hummer into the portable toilet. He is instantly killed.

When we open the toilet, it is discovered it was only the milk delivery truck driver. I am stricken with remorse and weep uncontrollably.

What would I be guilty of in South Africa?

 

[Trotterly]

This works in your example but doesn't in the op case because there are 2 plausible narratives. Once you out all the evidence together you still can't discount that this might have been a jumpy disabled man who panicked on thinking he had an intruder in his bathroom.

Just before going out for the day this was what I was just going to say. Many seem to have forgotten that a complete convenient fabrication it may be but this story is still a reasonable explanation and it stood up for Masipa and it will stand for the SCA as well.

In summary, to all those wanting to slam the door for 15 years, he is a human being not an animal and will be judged (again) as such.

 

[mrjitty]

This works in your example but doesn't in the op case because there are 2 plausible narratives. Once you out all the evidence together you still can't discount that this might have been a jumpy disabled man who panicked on thinking he had an intruder in his bathroom.

I can discount it.

Masipa found he deliberately fired at the intruder.

Panic is not a defence to Murder.

 

[Trotterly]

I can discount it.

Masipa found he deliberately fired at the intruder.

Panic is not a defence to Murder.

What kind of lawyer were you??

 

[Colin de France]

Claims about the process of inference that are wildly divergent from the text books shouldn't really be entertained.

.........wasn't it the state that decided to base it's case on inference ?...............but not only that i see that you're avoiding discussing evidence.......!.... not that there's much to discuss ...

 

[mrjitty]

I am trying to come up with a similar scenario--

What if I had encountered a scary man several times when I walk my dog early in the morning (very early, when it is still dark outside.) This scary man eventually began saying threatening things about raping me and I stopped walking my dog in that area. As as woman I am aware of how vulnerable I am when out walking alone.

Some time later, I ran out at 3:30 in the morning to get some milk for my coffee. It's a little scary at the neighborhood 7-11 at that time of the morning when no one else is around and 7-11s are known to have a lot of robberies.

As I am coming out of the store with my milk, a man starts to approach me. I think I recognize him as the scary man who threatened to rape me even though it is very dark. I am startled to see him and yell at him to get away from me. He runs into a port-a-john nearby. I am so struck with fear that he may come back out to get me that I get in my car and floor the gas pedal running my Hummer into the portable toilet. He is instantly killed.

When we open the toilet, it is discovered it was only the milk delivery truck driver. I am stricken with remorse and weep uncontrollably.

What would I be guilty of in South Africa?

Arguably you should be guilty of murder.

Even if it was really the rapist - you could have driven away in your car. Therefore the force used was not necessary.