Oscar Pistorius - Discussion Thread #65~ the appeal~

[atthelake]

Yes!

Also in reply to cottonweaver above.

Justice Leach has seized upon an important point with the application of legal tests to facts.

The critical question is - did Pistorius mistakenly believe he was acting with lawful justification?

Much discussion centred on the mistake - but Masipa really made a mess of the justification part.

The starting point is that Shooting people is not allowed. Self defense is an exception to that.

Having dealt with the factual nature of the mistake the Judge should have done 2 things.

1. Outline the tests for lawfulness given the mistake

2. Reviewed the proven facts which showed that the test for lawfulness was met.

If the test was not met - it must, logically be murder.

So the main questions were

1. Did he use lethal force against an imminent threat?

2. Was the force not excessive?

3. Was the course of action reasonable? (e.g. did he have obvious non-lethal options)

Per Justice Leach the next point is the evidential onus is on the defence to prove facts which bring SD into play.

And as Leach has identified - here is where the shabby judgement really kicks in

1. Imminent threat? Where is the finding on this?

2. Force not excessive. Ditto???

3. Course of action reasonable? Masipa seems to find the opposite???!!??

These are clear legal errors on the face. So PDD really has not been found.

So then you are left with the obvious problem that OP does not have any other defence.

So many :goodpost: this morning and the reason is because everything was so understandable in THIS court.

Today, within just 3 hours, everything has been clarified so well as it is now " intuitively obvious to the most casual observer"

 

[Trotterly]

BIB I'm not sure that Leach said that to Nel. Can you be be more specific?

I don't have the recording to hand but it was about 25 minutes in. Leech said that (OP said that) he fired at the noise (which he must have done on his version). Then Olivera was cited (I think it was by Leech) which rightly said that PPD and firing without thinking are incompatible.

OP said at one point that before he could think he fired because he thought there was an imminent attack. Clearly he did think and he admits it in that sentence. This is in line with PPD.

 

[soozieqtips]

I don't have the recording to hand but it was about 25 minutes in. Leech said that (OP said that) he fired at the noise (which he must have done on his version). Then Olivera was cited (I think it was by Leech) which rightly said that PPD and firing without thinking are incompatible.

OP said at one point that before he could think he fired because he thought there was an imminent attack. Clearly he did think and he admits it in that sentence.
This is in line with PPD.

Masipa rejected that defence.

 

[cottonweaver]

Masipa rejected that defence.

I can't find the part with Nel as previously posted but here is a bit more on Leech and the noise, to Roux PARAPHRASED,

Leech – What is your case re intruder issue? He hears a noise, there is no confrontation, does he honestly believe he was entitled to shoot that noise maker, kill that person? That must be established before you can have your PPD
Roux : I don't agree. A trial court analyses evidence and the evidence of the witness (getting louder)
L interrupts Roux with -.... a shocking unreliable witness but then the court said she followed his version that an intruder entered window and he believed life in danger, that it was honestly entertained – But was there anything apart form a noise to show that his life was or he believed it was in danger?
I know we live in dangerous times, but this man armed himself, goes towards it and shoots ...( This last sentence was possibly Majedt not Leech)

Do you feel optimistic Soozie? Cause of the WS loading issues it's really hard for me to review the old posts from today ?

 

[lithgow1]

I can't find the part with Nel as previously posted but here is a bit more on Leech and the noise, to Roux PARAPHRASED,

Leech – What is your case re intruder issue? He hears a noise, there is no confrontation, does he honestly believe he was entitled to shoot that noise maker, kill that person? That must be established before you can have your PPD
Roux : I don't agree. A trial court analyses evidence and the evidence of the witness (getting louder)
L interrupts Roux with -.... a shocking unreliable witness but then the court said she followed his version that an intruder entered window and he believed life in danger, that it was honestly entertained – But was there anything apart form a noise to show that his life was or he believed it was in danger?
I know we live in dangerous times, but this man armed himself, goes towards it and shoots ...( This last sentence was possibly Majedt not Leech)

Do you feel optimistic Soozie? Cause of the WS loading issues it's really hard for me to review the old posts from today ?

I, along with other posters and tweeters such as David Dadic, found it very interesting and gratifying that the judges today brought up many of the issues we have discussed and debated here for months now, such as arming himself and heading towards the danger, firing four shots at a 'noise' and so on. Whatever happens I am glad that those questions, which go to the heart of the credibility of Pistorius' version IMO, were raised by those judges today.

 

[Sherbert]

Yes!

Also in reply to cottonweaver above.

Justice Leach has seized upon an important point with the application of legal tests to facts.

The critical question is - did Pistorius mistakenly believe he was acting with lawful justification?

Much discussion centred on the mistake - but Masipa really made a mess of the justification part.

The starting point is that Shooting people is not allowed. Self defense is an exception to that.

Having dealt with the factual nature of the mistake the Judge should have done 2 things.

1. Outline the tests for lawfulness given the mistake

2. Reviewed the proven facts which showed that the test for lawfulness was met.

If the test was not met - it must, logically be murder.

So the main questions were

1. Did he use lethal force against an imminent threat?

2. Was the force not excessive?

3. Was the course of action reasonable? (e.g. did he have obvious non-lethal options)

Per Justice Leach the next point is the evidential onus is on the defence to prove facts which bring SD into play.

And as Leach has identified - here is where the shabby judgement really kicks in

1. Imminent threat? Where is the finding on this?

2. Force not excessive. Ditto???

3. Course of action reasonable? Masipa seems to find the opposite???!!??

These are clear legal errors on the face. So PDD really has not been found.

So then you are left with the obvious problem that OP does not have any other defence.

I do think the law needs to be clarified, though, as there are quite a few cases where PPD is not established, but the verdict is still CH.

 

[Giles]

I am reminded of Uncle Arnold's comment during closing arguments last year. Referring to Roux and Nel, he said it was like watching a "Mercedes versus a Fiat". Well, the Mercedes has been coughing and spluttering and stopped abrubtly on the hard shoulder - The Fiat is still trundling along, just fine!

 

[Sherbert]

It was pleased that attention was being focused on DE rather than DD but it was surprising that they seemed to have missed the point about the sequence of events that were heard. I see why Roux thought he needed the extra time for his argument and to place Maispa's comments about DE into the context of the dismissed DD.

If they have regard for the wider evidence then I don't see the appeal being successful. Either way one hopes that will be clear from their hopefully detailed decision.

BBM

I wasn't pleased - if OP intended to kill the person behind the door, be it Reeva or the intruder, it's directus.

Four bullets points to directus.

 

[Trotterly]

Masipa rejected that defence.

No she did not. If you think so then please point to it in the verdict.

 

[Trotterly]

BBM

I wasn't pleased - if OP intended to kill the person behind the door, be it Reeva or the intruder, it's directus.

Four bullets points to directus.

Well not quite but I agree that like Greenland said it should be more directus. It's like Nel is hoping that the meat of directus is going to rub off on his eventualis. Its sour grapes.

Sorry about the culinary refs it's nearly my dinner time.

 

[soozieqtips]

I'm definitely optimistic, cotton. I remember when Nel kept asking OP during testimony how he could have reasonably gone from hearing a 'noise' to believing his life was in danger so fast. So, it was interesting to watch Leach probing Roux about if there was anything else other than the 'noise' that led OP to believe his life was in danger! It's a very valid question to ask, since we all know OP was never under any threat at all and therefore had no legitimate reason to shoot. OP even knows he wasn't under threat as he admits never seeing anyone.

If the appeal is successful and referred back to Masipa for sentencing, wouldn't that be really embarrassing for her? This whole shambles would have been her fault meaning she wasn't fit for the job. Not to mention all the time and money that's been spent on the appeal. It's hard for me to believe that someone who could have got something so wrong (identity - irrelevant, much?) should have been given this high-profile case in the first place.

 

[Sherbert]

Well not quite but I agree that like Greenland said it should be more directus. It's like Nel is hoping that the meat of directus is going to rub off on his eventualis. Its sour grapes.

Sorry about the culinary refs it's nearly my dinner time.

If the primary purpose of the Appeal is to clarify the law on DE, I'm not sure how this aim can be achieved if the facts actually point to directus.

PPD is a difficult Defence to run because, unlike PD, it's invariably going to be tricky to satisfy all three elements, due to the fact that the threat isn't real. Of course, in this case, none of the elements were satisfied because OP overreacted to a threat that existed only in his mind - if, indeed, it existed at all.

What needs to be cleared up, IMO, is, what happens if all three elements are not satisfied, but the TJ finds that the killer was genuinely motivated by fear. Should it be DE or CH?

The caselaw points in both directions.

 

[Susza]

Thanks for all the updates guys - I'm stuck at work (I would have taken the day off but I don't think following it that closely would be good for the blood pressure!) and the posts have been brilliant.

:tyou:

Me too, I'd like to thank you for your updates. I couldn't follow the live session because I had to work the whole day. Once I'll have finished reading your posts I'll watch the video and it will be so much easier for me to follow and understand thanks to your posts.
I started to read with a very high heartbeat rate, I was so anxious not knowing which way the judges may tend and wether Roux might succeed in fooling them, too...
Now I'm feeling MUCH BETTER, happy that the judges seemed to have asked the essential questions.
:loveyou:

 

[lithgow1]

Well not quite but I agree that like Greenland said it should be more directus. It's like Nel is hoping that the meat of directus is going to rub off on his eventualis. Its sour grapes.

Sorry about the culinary refs it's nearly my dinner time.

Why would you refer to this appeal as sour grapes on Nel's behalf? His department, after seeking advice, decided Masipa's decision was so flawed it warranted an appeal. And, going by their comments, the judges today don`t seem to see it as 'sour grapes' but rather as a legitimate appeal. Do you mean that because he didn't get the DD verdict he is after something, anything? If so, I totally disagree. Nothing sour grape'ish about appealing a perceived miscarriage of justice because of an incompetent judge IMO. Simply the right thing to do, whether the beneficiary of the original poor decision is Oscar Pistorius or Joe Bloggs.

 

[Trotterly]

If the primary purpose of the Appeal is to clarify the law on DE, I'm not sure how this aim can be achieved if the facts actually point to directus.

Yes. DE would truly be a consolation prize but one which the state had set itself up for. Interesting that the defence were accused of saying that he did not fire deliberately but if he did it was in response to a fright but the state can quietly prosecute on two completely different versions and no one bats an eye.

 

[Trotterly]

The sour grapes was a comment I caught being spouted by one of those legal "experts" that were around daily at the time of the trial. I thought it was quite appropriate.

 

[akp]

Listening to the recording now. Roux is an artist in doling out utter garbage in the guise of legal/logical reasoning, and confusing everyone around. But perhaps this is an essential item in a good defence lawyer's toolbox. So can't really blame him.

 

[lithgow1]

The sour grapes was a comment I caught being spouted by one of those legal "experts" that were around daily at the time of the trial. I thought it was quite appropriate.

Still don`t see how you make the leap from legitimate appeal by the state to sour grapes on the part of the prosecutor. It may have been said by someone back when the trial was on but you said it just a minute ago in relation to today's events. Anyway, if successful, then I hope Nel's sour grapes taste as sweet as nectar to him and Reeva Steenkamp's family and friends.

 

[Sherbert]

Why would you refer to this appeal as sour grapes on Nel's behalf? His department, after seeking advice, decided Masipa's decision was so flawed it warranted an appeal. And, going by their comments, the judges today don`t seem to see it as 'sour grapes' but rather as a legitimate appeal. Do you mean that because he didn't get the DD verdict he is after something, anything? If so, I totally disagree. Nothing sour grape'ish about appealing a perceived miscarriage of justice because of an incompetent judge IMO. Simply the right thing to do, whether the beneficiary of the original poor decision is Oscar Pistorius or Joe Bloggs.

Yes, it is a great shame that Masipa made such a hash of things, placing the State in a very difficult position.

For Reeva's sake, I am glad that Nel put in an Appeal.

 

[Trotterly]

Yes, it is a great shame that Masipa made such a hash of things, placing the State in a very difficult position.

For Reeva's sake, I am glad that Nel put in an Appeal.

But Reeva won't even feature if he shoots an intruder DE.