Oscar Pistorius - Discussion Thread #69 *Appeal Verdict*

[Tortoise]

Clearly Roux and company feel this, just like the PT felt the trial judge did them wrong. Cases go on and on, back and forth all the time with verdicts constantly changing. People feel vindicated or shocked depending upon whether the most recent verdict fits their mindset.

Let's see if the CC hears the trial and in the event that they change the verdict back to CH....again, let's see if posters here will say that this time the ConCourt "judges lacked the ability to assess his evidence".

The Con Court won't be assessing his evidence.

 

[Trotterly]

Really? An intruder who doesn’t care if they make a noise that may alert the homeowner who, especially in SA, may then shoot them. Don’t you think that’s a really stupid thing to do?. Even more incompetent than bypassing a downstairs broken window and scaled the outside wall in the hope the bathroom window was unlocked because they needed to go to the toilet.

In truth all we know is a window was found open by the police. When it was opened and by whom we don’t know, it could even have been Pistorius opened it after the murder. We don’t even know if it makes a noise when opening.

All we have is the word of an accepted liar who says it opened at a particular time as it conveniently fits his version of events.

<modsnip>

You still need to bone up on the putative part of defence. You are applying a reasonable man test to his thoughts. It has to be a subjective examination. He was focused on a threat, it was not simply an investigation with his gun this time.

You also know as well as I do that the open window is evidence. It just happens to support his story and you don't like it because you got it wrong about the PT version and you can't let it go.

 

[aftermath]

You still need to bone up on the putative part of defence. You are applying a reasonable man test to his thoughts. It has to be a subjective examination. He was focused on a threat, it was not simply an investigation with his gun this time.

You also know as well as I do that the open window is evidence. It just happens to support his story and you don't like it because you got it wrong about the PT version and you can't let it go.

I think Dr Stipp 's evidence confirmed the open bathroom window.

Also, would any screams have been heard at all if no window had been open?

 

[Trotterly]

I guess because I invested so much time reading all five of his articles, and because the defense has relied on his theory in their ConCourt appeal, Steyn's thesis that an analysis of DE should have a third test for knowledge of unlawfulness is still festering with me.

In a case like Oscar's where the accused seeks to justify a homicide as a legitimate PPD, it would seem to be entirely superfluous.

Bringing a self-defense claim, particularly PPD, automatically triggers an analysis to determine if the accused had reason to believe they were acting lawfully.

If it is determined they could not justify their reasons for thinking they were acting lawfully in self-defense, then they would be found to have acted unlawfully and their PPD claim negated.

There would be no reason to further consider whether the accused thought they were acting lawfully. It would be time to consider culpability in the form of either negligence or Dolus.

Despite the lengthy treatise on the subject, Steyn seems to have neglected to consider this obvious aspect of the legal framework for DE with a self-defense claim.

It took me awhile to sort through it as a layperson, but I would think this would be painfully obvious to a trained legal mind, as many on here have supported.

I have not had time to read all the articles yet but I would assume that the extra lawfulness leg of DE inherent to the rest rather than the lawfulness being considered without the test?

Most of the time lawfulness can be tested on its own.

 

[Trotterly]

I think Dr Stipp 's evidence confirmed the open bathroom window.

Also, would any screams have been heard at all if no window had been open?

He did see it open quite soon after it all kicked off and I really can't see OP carrying out a running battle with Reeva and tailoring the crime scene at the same time.

The screams from the bathroom could not have been heard 177m away with all windows closed that's for sure.

 

[Marfa Lights]

I have not had time to read all the articles yet but I would assume that the extra lawfulness leg of DE inherent to the rest rather than the lawfulness being considered without the test?

Most of the time lawfulness can be tested on its own.

Not sure I follow the BIB above.

 

[Belgarion]

You still need to bone up on the putative part of defence. You are applying a reasonable man test to his thoughts. It has to be a subjective examination. He was focused on a threat, it was not simply an investigation with his gun this time.

You also know as well as I do that the open window is evidence. It just happens to support his story and you don't like it because you got it wrong about the PT version and you can't let it go.

Of course I know it&#8217;s evidence I didn&#8217;t say otherwise did I?

My comment was related to the fact that we don&#8217;t know when it was opened. In my opinion it was probably opened earlier in the evening to assist with the cooling of the rooms hence the reason Reeva&#8217;s screams were heard more clearly

As for your comment about me getting it wrong about the PT version and can't let it go I don&#8217;t have a clue what you are talking about.

 

[Belgarion]

I think Dr Stipp 's evidence confirmed the open bathroom window.

Also, would any screams have been heard at all if no window had been open?

I would suggest not only screams but no sound of raised voices or argument would have been heard without the help of the window being open.

Just goes to prove the window was open long before Pistorius supposedly heard it open.

In my opinion the open window merely gave him the idea about intruders after he had murdered Reeva. Unfortunately because of the need to fit his intruder to the situation Pistorius&#8217; &#8216;intruder&#8217; was forced to act in the most strangest of ways.

 

[aftermath]

I would suggest not only screams but no sound of raised voices or argument would have been heard without the help of the window being open.

Just goes to prove the window was open long before Pistorius supposedly heard it open.

In my opinion the open window merely gave him the idea about intruders after he had murdered Reeva. Unfortunately because of the need to fit his intruder to the situation Pistorius’ ‘intruder’ was forced to act in the most strangest of ways.

I don't think it proves the window was open before Pistorius claims to have heard it at all.

No argument between two people was heard and the female raised voice heard by estelle vdm could never convincingly be placed at pistorius's house.

The sounds of shouts and screams reported by various neighbours came after the first set of bangs - which on pistorius's version were the shots, so after the window was heard to open.

Is there a commonly accepted 'normal' way for an intruder to act?

 

[Belgarion]

I don't think it proves the window was open before Pistorius claims to have heard it at all.

No argument between two people was heard and the female raised voice heard by estelle vdm could never convincingly be placed at pistorius's house.

The sounds of shouts and screams reported by various neighbours came after the first set of bangs - which on pistorius's version were the shots, so after the window was heard to open.

Is there a commonly accepted 'normal' way for an intruder to act?

For a start be quiet and don&#8217;t slam windows and doors, gain access on ground floor to facilitate escape, don&#8217;t get entrapped in a small room.

Intruders aim to steal from a property and not get caught they certainly don&#8217;t make noises loud enough to provoke possible armed confrontation

Of course most unlike the intruder who was a figment of Pistorius&#8217; imagination.

 

[aftermath]

For a start be quiet and don&#8217;t slam windows and doors, gain access on ground floor to facilitate escape, don&#8217;t get entrapped in a small room.

Intruders aim to steal from a property and not get caught they certainly don&#8217;t make noises loud enough to provoke possible armed confrontation

Of course most unlike the intruder who was a figment of Pistorius&#8217; imagination.

Perhaps the imaginary intruder didn't 'imagine' someone would be awake at that time of the morning. Would Pistorius even have heard the noise of a window opening if he had still been asleep?

ETA also..wouldn't ground floor windows be more likely to be alarmed for obvious reasons?

BIB is that based on evidence about home invasions in south Africa?

 

[Sherbert]

I guess because I invested so much time reading all five of his articles, and because the defense has relied on his theory in their ConCourt appeal, Steyn's thesis that an analysis of DE should have a third test for knowledge of unlawfulness is still festering with me.

In a case like Oscar's where the accused seeks to justify a homicide as a legitimate PPD, it would seem to be entirely superfluous.

Bringing a self-defense claim, particularly PPD, automatically triggers an analysis to determine if the accused had reason to believe they were acting lawfully.

If it is determined they could not justify their reasons for thinking they were acting lawfully in self-defense, then they would be found to have acted unlawfully and their PPD claim negated.

There would be no reason to further consider whether the accused thought they were acting lawfully. It would be time to consider culpability in the form of either negligence or Dolus.

Despite the lengthy treatise on the subject, Steyn seems to have neglected to consider this obvious aspect of the legal framework for DE with a self-defense claim.

It took me awhile to sort through it as a layperson, but I would think this would be painfully obvious to a trained legal mind, as many on here have supported.

As I understand it, in a self defence case, knowledge of unlawfulness has always been part of the enquiry into mens rea. Because, to be guilty of murder, there must be unlawful intent. And this must ultimately be a subjective enquiry.

Personally, therefore, from my brief scan of his articles, I don't see anything particularly new or outlandish in what Steyn is saying.

The PPD enquiry deals with knowledge of unlawfulness in terms of the reasonable man. For example, a reasonable man would consider other options and would not not use excessive force. This is an objective assessment.

If the test is not satisfied, IMO, this constitutes prima facie proof that a rational perpetrator knew he was behaving unlawfully. (Rational meaning a person not suffering from a mental disorder).

However, the court must then proceed to examine whether or not there is any evidence to rebut this prima facie proof.

The SCA found no evidence to rebut the prima facie proof that Pistorius knew he was behaving unlawfully. In fact, not only did he fail to fire a warning shot, but, also, they described his testimony as so vacillating and untruthful that it was impossible to know what he was thinking when he pulled the trigger.

So, as far as I can see, the issue of unlawful intent has already been dealt with adequately by the SCA.

And, moreover, we must not forget that Pistorius claimed that he had fired involuntarily as a result of a startle and didn't actually claim that he thought he was acting in lawful self defence. Therefore, given that he was found not to be suffering from a mental disorder, it is arguable that, in relation to the question of knowledge of unlawfulness, the SCA need only have considered the issue of whether or not he was suffering from automatism, to which the answer can only have been a resounding 'no'.

 

[aftermath]

As I understand it, in a self defence case, knowledge of unlawfulness has always been part of the enquiry into mens rea. Because, to be guilty of murder, there must be unlawful intent. And this must ultimately be a subjective enquiry.

Personally, therefore, from my brief scan of his articles, I don't see anything particularly new or outlandish in what Steyn is saying.

The PPD enquiry deals with knowledge of unlawfulness in terms of the reasonable man. For example, a reasonable man would consider other options and would not not use excessive force. This is an objective assessment.

If the test is not satisfied, IMO, this constitutes prima facie proof that a rational perpetrator knew he was behaving unlawfully. (Rational meaning a person not suffering from a mental disorder).

However, the court must then proceed to examine whether or not there is any evidence to rebut this prima facie proof.

The SCA found no evidence to rebut the prima facie proof that Pistorius knew he was behaving unlawfully. In fact, not only did he fail to fire a warning shot, but, also, they described his testimony as so vacillating and untruthful that it was impossible to know what he was thinking when he pulled the trigger.

So, as far as I can see, the issue of unlawful intent has already been dealt with adequately by the SCA.

And, moreover, we must not forget that Pistorius claimed that he had fired involuntarily as a result of a startle and didn't actually claim that he thought he was acting in lawful self defence. Therefore, given that he was found not to be suffering from a mental disorder, it is arguable that, in relation to the question of knowledge of unlawfulness, the SCA need only have considered the issue of whether or not he was suffering from automatism, to which the answer can only have been a resounding 'no'.

He did say wtte that he fired because he believed someone was coming out to attack him. Why does that bit always have to be ignored in favour of the 'i fired without thinking ' response?

 

[Sherbert]

He did say wtte that he fired because he believed someone was coming out to attack him. Why does that bit always have to be ignored in favour of the 'i fired without thinking ' response?

I don't think it was ignored. The SCA made it clear that they considered the possibility that he thought he was acting lawfully, but found it inconceivable that he did.

 

[aftermath]

I don't think it was ignored. The SCA made it clear that they considered the possibility that he thought he was acting lawfully, but found it inconceivable that he did.

Why though?

 

[Sherbert]

Why though?

Because he used a heavy calibre firearm and fired four times into a confined space without even firing a warning shot or providing an adequate explanation as to why he thought he was in imminent danger.

If we accept that he may have had the intention to defend himself against an attack, even though he didn't actually accept this, then we must examine how legitimate his response would have been, had there been a real intruder about to come out of the bathroom.

 

[Belgarion]

Why though?

It&#8217;s quite simple

When Pistorius said he fired 4 shots &#8216;before he knew it&#8217; he wasn&#8217;t sure there was anyone in the toilet. Only later did he give another version when he said that&#8217; he fired as he believed someone was coming out to attack him&#8217;

He then later changed his version again saying he never intended to shoot at all and had not fired at the door on purpose and he didn&#8217;t want to shoot anyone

So many contradictions that to this day no one knows why he fired the fatal shots.

Of course an innocent man would have told the truth instead of vacillating continuously

 

[aftermath]

Because he used a heavy calibre firearm and fired four times into a confined space without even firing a warning shot or providing an adequate explanation as to why he thought he was in imminent danger.

If we accept that he may have had the intention to defend himself against an attack, even though he didn't actually accept this, then we must examine how legitimate his response would have been, had there been a real intruder about to come out of the bathroom.

He thought he was imminent danger because he thought there was an intruder in the house and there is a high incidence of violence associated with home invasions in south Africa.

If we accept that he had the intention to defend himself against an attack, then how would that intention be deemed as unlawful? Had there been a real intruder, his response would still have been unlawful because it was put into action too hastily, but the intent behind the action would not automatically have been unlawful.

 

[aftermath]

It’s quite simple

When Pistorius said he fired 4 shots ‘before he knew it’ he wasn’t sure there was anyone in the toilet. Only later did he give another version when he said that’ he fired as he believed someone was coming out to attack him’

He then later changed his version again saying he never intended to shoot at all and had not fired at the door on purpose and he didn’t want to shoot anyone

So many contradictions that to this day no one knows why he fired the fatal shots.

Of course an innocent man would have told the truth instead of vacillating continuously

Do you have a link to where he said this, as my memory of his testimony is that he said he heard a noise from inside the cubicle that he perceived to be someone coming out to attack him and before he knew it he fired (in response to that perception of an attack)

What would someone scared for their own safety, panicking, not initially setting out to deliberately shoot anyone, believing themselves to be under attack, later accused of the murder of their partner say about it all? Confusing , eh?

 

[Trotterly]

It’s quite simple

When Pistorius said he fired 4 shots ‘before he knew it’ he wasn’t sure there was anyone in the toilet. Only later did he give another version when he said that’ he fired as he believed someone was coming out to attack him’

He then later changed his version again saying he never intended to shoot at all and had not fired at the door on purpose and he didn’t want to shoot anyone

So many contradictions that to this day no one knows why he fired the fatal shots.

Of course an innocent man would have told the truth instead of vacillating continuously

BIB Not his evidence at all. Where did you read this?