Oscar Pistorius - Discussion Thread #69 *Appeal Verdict*

[JudgeJudi]

Western Edge Pictures is now producing Oscar Pistorius: Killing A Dream.

Vaughan Sivell, founder of Western Edge and director of Mr Calzaghe, will direct the new feature documentary, set to be delivered by early 2017.

The film will start shooting in March and will explore the tragedy of Reeva’s death; alongside a look at SA’s turbulent recent history. “For us it’s the story of South Africa alongside the story of Oscar, it’s so cinematic, it’s a real once-in-a lifetime project in terms of scale,” Sivell said.

The new film about OP will be made in exclusive collaboration with a journalist who has known OP since he was 16 years old. The production plans to try to interview OP as well as the Steenkamp family.

Sivell said, “The appeal ruling starts with the line ‘This is a tragedy of Shakespearean scale.’ It’s fascinating to me that judge was to write that…the story mirrors when Mandela was released, and we saw this nation of reliance and courage, and now there is so much violence and corruption. [Pistorius] self destructs in a way the country of South Africa destructs…There are so many levels to it. It’s what makes great films.”

http://www.screendaily.com/festival...ry-in-the-blocks/5100097.article?referrer=RSS

 

[Tortoise]

Unless of course Uncle Arnie produces his check book and demands Oscar be prioritised and fast tracked but somehow I can’t see happening!

I would think the April court appearance will be just ‘bail extended’ and carry on as usual.

The worry is how many psychiatric assessments can be ‘bought’ in the meanwhile to allow Pistorius to escape incarceration on mental grounds when he finally gets to sentencing

Do they not have secure mental hospitals in SA? Actually, he was in the prison hospital wing, so I'm sure they can cope with a bit of whatever he presents with, whether that be suicidal thoughts, or vomiting.

 

[Tortoise]

Western Edge Pictures is now producing Oscar Pistorius: Killing A Dream.

Vaughan Sivell, founder of Western Edge and director of Mr Calzaghe, will direct the new feature documentary, set to be delivered by early 2017.

The film will start shooting in March and will explore the tragedy of Reeva’s death; alongside a look at SA’s turbulent recent history. “For us it’s the story of South Africa alongside the story of Oscar, it’s so cinematic, it’s a real once-in-a lifetime project in terms of scale,” Sivell said.

The new film about OP will be made in exclusive collaboration with a journalist who has known OP since he was 16 years old. The production plans to try to interview OP as well as the Steenkamp family.

Sivell said, “The appeal ruling starts with the line ‘This is a tragedy of Shakespearean scale.’ It’s fascinating to me that judge was to write that…the story mirrors when Mandela was released, and we saw this nation of reliance and courage, and now there is so much violence and corruption. [Pistorius] self destructs in a way the country of South Africa destructs…There are so many levels to it. It’s what makes great films.”

http://www.screendaily.com/festival...ry-in-the-blocks/5100097.article?referrer=RSS

Ooh, documentary....any chance you and Monty would be able to assist the producers, with the work you have done on the evidence?

 

[Marfa Lights]

If you ignore OP's testimony then to prove murder you have to ask.

Could a SAfrican reasonably believe that an intruder could be in their house?

Could they reasonably think the worst that they were armed and dangerous?

Could they reasonably believe that, being unable to flee, they needed to shoot to defend themselves from an imagined attack?

Depends on the evidence they give regarding the specific circumstances they found themselves in.

Masipa found it was reasonably possibly true that OP believed an intruder might have entered his house and he was quite naturally in a fearful state. This finding was not called into further question.

The problem is what transpires from that moment in the bedroom when he froze in fear to the moment in the bathroom when he fired four rounds.

Under the circumstances of what he encountered in the bathroom, did his fear negate his responsibilities to act lawfully in the use of lethal force?

Steyn tries to excuse OP's actions by saying he had only one continuous mindset from the time he first heard the window open to the time he fired his gun.

This is just not reasonably possibly true-- yes, he may have been afraid and initially taken up his weapon in potential need of self-defense.

The problem is that a truly legitimate need for him to have acted in (putative) self-defense never arose in the sequence of events that followed. His story of being startled by a series of noises does not provide a sufficiently plausible rationale for him to have thought he was justified in the use of deadly force.

If Reeva had come bounding back into the pitch dark bedroom room just as he had unholstered his gun and he fired reflexively in mistaken belief it was the intruder coming at them, that might be reasonably possibly true and justifiable as PPD.

Approaching a closed door and firing four rounds into it with the excuse that you thought someone might be coming out to attack you is not acting defensively.

This is one of those situations where it's NOT true that "the best defense is a good offense." Not legally anyway, and not with the use of deadly force.

 

[Tortoise]

Roux never argued at the SCA that PPD was a finding of the court. It is inexplicable that they have not just changed their argument but blatantly lied in the appeal papers, as if it's never going to be spotted and the constitutional court won't question it.

I'm a bit unsure of this leave to appeal process. Presumably leave can be turned down without a full hearing (with representatives of the parties in attendance) of the matters, if the judges determine there is no merit in it? So would this have to be kept on a long waiting list if that is the case?

 

[mrjitty]

Roux never argued at the SCA that PPD was a finding of the court. It is inexplicable that they have not just changed their argument but blatantly lied in the appeal papers, as if it's never going to be spotted and the constitutional court won't question it.

I'm a bit unsure of this leave to appeal process. Presumably leave can be turned down without a full hearing (with representatives of the parties in attendance) of the matters, if the judges determine there is no merit in it? So would this have to be kept on a long waiting list if that is the case?

To be fair he did in a round about fashion

He tried to equate a finding of "fearing for his life" with PPD

This is what led to the whole disastrous sequence with Justice Leach in oral argument.

 

[Tortoise]

To be fair he did in a round about fashion

He tried to equate a finding of "fearing for his life" with PPD

This is what led to the whole disastrous sequence with Justice Leach in oral argument.

He stuck to the facts though, I don't recall hearing him say that the court found PPD was made out. That he was genuinely afraid, as we well know, and Roux appreciated, does not equate to PPD, or he would have been right on it.

 

[mrjitty]

IMO, the State proved it beyond a reasonable doubt.

closed door
four bullets
confined space
change of trajectory
compos mentis

All the above point to intention to kill. I don't see what more the State could have done.

IMO, Pistorius acted just as if he were absolutely determined to kill the intruder.

Also just a note on the Burden of Proof and Evidential onus

The state must prove the overall case beyond reasonable doubt.

Where the defence established sufficient evidential matters to raise PPD as a real issue at trial - the state must disprove PPD

This does not mean the state must prove each aspect relating to the defence to BARD standard.

This is also why Justice Leach spoke about "prima facie" proof and rational beliefs.

On the facts as established the Court should make natural and obvious inferences.

The natural and obvious inference is that OP knew he was not entitled to fire.

If just gets too hard to ever get a conviction if the prosecution must disprove "wild beliefs"

The onus was on the defence to prove that OP did in fact act in PPD despite the prima facie evidence to the contrary.

 

[mrjitty]

He stuck to the facts though, I don't recall hearing him say that the court found PPD was made out. That he was genuinely afraid, as we well know, and Roux appreciated, does not equate to PPD, or he would have been right on it.

As I said - that is where Roux tried to blur the lines.

If you go back and watch the oral argument Justice Leach then says something along the lines of "well you'll struggle to bring this case under PPD"

Then they joust over the finding of fear

So I think he did try to raise it but Leach basically slapped him down.

 

[Marfa Lights]

The outcome of two cases in the US where the shooter claimed to have been acting "in fear for their life":

http://www.reuters.com/article/us-usa-crime-dearbornheights-idUSKBN0GY14C20140903

http://www.cnn.com/2014/10/17/justice/michael-dunn-sentencing/

 

[JudgeJudi]

Roux never argued at the SCA that PPD was a finding of the court. It is inexplicable that they have not just changed their argument but blatantly lied in the appeal papers, as if it's never going to be spotted and the constitutional court won't question it.

I'm a bit unsure of this leave to appeal process. Presumably leave can be turned down without a full hearing (with representatives of the parties in attendance) of the matters, if the judges determine there is no merit in it? So would this have to be kept on a long waiting list if that is the case?

The Application for Leave is just that ... they're only asking the ConCourt if they can appeal.

It’s my understanding that counsel will argue “on the papers”, meaning that oral evidence is not heard; the arguments are limited to legal submissions contained within the Application for Leave to Appeal and Andrea Johnson’s affidavit in support of the Notice to Oppose. Argument will take place in front of all 11 Judges and a judgment will be delivered.

If leave is granted, then it will get added to the queue to await hearing.

And all the while, the murderer will probably still be on bail enjoying the comforts of the mansion.
ullhair: :tantrum:

 

[Belgarion]

Roux never argued at the SCA that PPD was a finding of the court. It is inexplicable that they have not just changed their argument but blatantly lied in the appeal papers, as if it's never going to be spotted and the constitutional court won't question it.

I'm a bit unsure of this leave to appeal process. Presumably leave can be turned down without a full hearing (with representatives of the parties in attendance) of the matters, if the judges determine there is no merit in it? So would this have to be kept on a long waiting list if that is the case?

Unfortunately if one looks at the ConCourt caseload summary those cases which are simply applications for leave to appeal are still allotted a date for a hearing before the 11 justices.

For example Merafong City Local Municipality v Anglogold Ashanti Limited where application for leave to appeal was received on 18 June 2015 and the date of the hearing has been set for 18 February 2016

 

[Marfa Lights]

Also just a note on the Burden of Proof and Evidential onus

The state must prove the overall case beyond reasonable doubt.

Where the defence established sufficient evidential matters to raise PPD as a real issue at trial - the state must disprove PPD

This does not mean the state must prove each aspect relating to the defence to BARD standard.

This is also why Justice Leach spoke about "prima facie" proof and rational beliefs.

On the facts as established the Court should make natural and obvious inferences.

The natural and obvious inference is that OP knew he was not entitled to fire.

If just gets too hard to ever get a conviction if the prosecution must disprove "wild beliefs"

The onus was on the defence to prove that OP did in fact act in PPD despite the prima facie evidence to the contrary.

Beyond simply submitting that the accused acted in fear for their life with a PPD claim, in a prima facie case of homicide like this, isn't the onus on the accused to justify how they "knew" or what made them believe they were acting in lawful self-defense (PPD)?

As I understand it, the prosecution would still have the burden to prove that the accused's justification for lawfulness could not be reasonably possibly true beyond a reasonable doubt.

Contrary to what some seem to believe, I just don't see how the subjective state of fearfulness is all that is necessary to substantiate the use of lethal force.

 

[mrjitty]

I think "knowledge" of unlawfulness in this legal sense refers to whether or not the accused fired four shots into the toilet door knowing beyond a reasonable doubt that:
1. No attack had commenced nor was there an imminent threat of bodily harm;
2. It was not necessary in this instance to use lethal force to prevent any attack;
3. He had not even identified who was behind the door much less determined whether or not they presented a threat.

He does not need to know all these things beyond reasonable doubt.

These were facts established at trial.

The Court properly inferred that based on these facts OP must have known he was not able to shoot.

Given the defence of PPD was not made out, this meant the prosecution had proved their overall case beyond reasonable doubt.

 

[Tortoise]

Beyond simply submitting that the accused acted in fear for their life with a PPD claim, in a prima facie case of homicide like this, isn't the onus on the accused to justify how they "knew" or what made them believe they were acting in lawful self-defense (PPD)?

As I understand it, the prosecution would still has the burden to prove that the accused's justification for lawfulness could not be reasonably possibly true beyond a reasonable doubt.

Contrary to what some seem to believe, I just don't see how the subjective state of fearfulness is all that is necessary to substantiate the use of lethal force.

His version was not just not reasonably possibly true it was impossible. He dropped his defence of PPD midway through cross-examination when he admitted he hadn't aimed at the intruder and it became non-intentional firing, and then Derman was wheeled in to try and rescue the situation. When Derman's evidence of startle-fire was rejected there was no defence left. I'd say the State proved its case to the standard required.

 

[Tortoise]

Constitutional court session dates -

1st Feb - 31st Mar
1st - 31st May
1st Aug - 30th Sep
1st - 30th Nov

 

[aftermath]

Under the circumstances, was it reasonably possible for him to have believed he was actually under direct attack or even threat of imminent bodily harm?

I wonder if you are perhaps granting too much leeway with regard to the concept of "imminent." If the attack had commenced, he would obviously be in the throes of physically defending himself.

However, for an attack to be so imminent as to justify the use of lethal force, you would IMO need to at least see the attack coming at you. Not merely presuppose that it might be about to happen (if your assumptions about the identity of the presumed attacker are correct.)

He didn't just suppose he was under attack... he presupposed it (P-PPD).

To an extent, in breaking in in the first place, the 'intruder' has initiated an attack of sorts. - Just being in the house uninvited is a violation.

In a place where armed home invasions that often ended in violence /death were not especially unusual, I think it is completely possible that on believing someone to have broken into his house in the early hours of the morning, he would also have believed that person to be -in all likelihood -armed, and their own lives to be in danger as a result.

On his evidence, whilst he didn't see the attack coming at him, he believed that he heard it coming at him.

 

[soozieqtips]

To an extent, in breaking in in the first place, the 'intruder' has initiated an attack of sorts. - Just being in the house uninvited is a violation.

In a place where armed home invasions that often ended in violence /death were not especially unusual, I think it is completely possible that on believing someone to have broken into his house in the early hours of the morning, he would also have believed that person to be -in all likelihood -armed, and their own lives to be in danger as a result.

On his evidence, whilst he didn't see the attack coming at him, he believed that he heard it coming at him.

Except he wasn't in a place where 'armed home invasions that often ended in violence /death were not especially unusual'. He was in a high-security gated estate where home invasions weren't the norm at all. Not at all. And this was someone not really that bothered about security, as evidenced by sleeping with open balcony doors (as did many of his neighbours), not bothering to fix a broken downstairs window, and not being sure if his alarm was working or not. For someone who you think had a very real fear of a home invasion (despite the estate having had something like one minor incident in 5 years), why was he so lax about security? He was so petrified of intruders but yet relaxed enough to go to sleep with his balcony doors open.

When I lived briefly in a very rough part of London many moons ago (near a very famous prison) we were always worried about burglaries and violence and would never ever dream of sleeping with open windows, not unless we wanted our throats cut and our money stolen. When I moved to a leafy suburb years later, no one worried about that kind of thing at all. It was a completely different environment. OP's secured and monitored home was a totally different environment to the one where home invasions are a real threat. That's no doubt why he chose to live there, so he could feel safe enough to sleep with his windows open and not worry too much about fixing broken windows. His casual approach to security doesn't tally with the highly vulnerable disabled man in constant fear of intruders and violence. I think he felt quite safe at home.

 

[Marfa Lights]

To an extent, in breaking in in the first place, the 'intruder' has initiated an attack of sorts. - Just being in the house uninvited is a violation.

In a place where armed home invasions that often ended in violence /death were not especially unusual, I think it is completely possible that on believing someone to have broken into his house in the early hours of the morning, he would also have believed that person to be -in all likelihood -armed, and their own lives to be in danger as a result.

On his evidence, whilst he didn't see the attack coming at him, he believed that he heard it coming at him.

So he opted to shoot first and ask questions later.

 

[Belgarion]

To an extent, in breaking in in the first place, the 'intruder' has initiated an attack of sorts. - Just being in the house uninvited is a violation.

In a place where armed home invasions that often ended in violence /death were not especially unusual, I think it is completely possible that on believing someone to have broken into his house in the early hours of the morning, he would also have believed that person to be -in all likelihood -armed, and their own lives to be in danger as a result.

On his evidence, whilst he didn't see the attack coming at him, he believed that he heard it coming at him.

Of course one could also argue that if Pistorius is supposed to know that ‘armed home invasions that often ended in violence /death were not especially unusual’ then it is perfectly rational to conclude he had to hand a ready-made basis for the ‘intruder story’ he concocted after murdering Reeva. Furthermore if he was supposed to know this then he would conclude others may share that opinion thus hopefully making his version of events more believable.

Quite why Masipa decided he didn’t have time for ‘play acting’ when he already had a partially written script is quite amazing