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  1. #61
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    Quote Originally Posted by Tortoise View Post
    BIB can you explain this for me if you have the time? I'm not sure I understand it.
    Murder is the criminal offence.

    The criminal offence requires a physical action (the taking of life by unlawful act) and intention.

    Intention obviously includes deliberately killing someone. (i.e. DD)

    But the law in most countries broadens intention to include cases where the intention was indirect but the death was a natural consequence that was foreseen

    Exactly where the line is drawn varies country to country and in practice there tends to be a lot of overlap between murder and manslaughter.

    In any event - it is no lesser murder to be convicted via DE rather than DD in respect of the intruder. Its the same fact set either way.

    I actually prefer the law of England, where murder includes "intent to kill or cause grievous bodily harm (GBH)".

    So in other words if you intentionally shoot someone - it will obviously fall under the intent for murder straight away.

    SA law should in practice give the same result - but Masipa doesn't seem to understand the law of DE properly.

  2. #62
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    Quote Originally Posted by Interested Bystander View Post
    I have had a quick look at a few Appeals but they are generally against sentence by a lower court and if the SC think there is a case to answer there is a retrial but under a different judge.

    I haven't yet seen anywhere a case where it is the State who is appealing for different verdict. I will have a look at a few more later this evening (UK time) to see if I can find anything that equates with the current Appeal.
    It's not that unusual for an Appeal Court to reach a result by a different route, or to state that a different legal finding was also possible.

    In this case they can only confirm the verdict of culpable homicide, or upgrade it to murder, or order a retrial.

    They can't reach a different verdict that the ones under discussion.

  3. #63
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    Quote Originally Posted by mrjitty View Post
    It's not that unusual for an Appeal Court to reach a result by a different route, or to state that a different legal finding was also possible.

    In this case they can only confirm the verdict of culpable homicide, or upgrade it to murder, or order a retrial.

    They can't reach a different verdict that the ones under discussion.

    Thank you Mr Jitty. I understand what you are saying. There appear to be no SCA cases during 2015 that bear any resemblance to the one we are currently discussing. However, I do recall Nel quoting a few cases in support of his theory or am I wrong? I need to listen again to the Appeal to see what it was he said.


  4. #64
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    Quote Originally Posted by mrjitty View Post
    It's not that unusual for an Appeal Court to reach a result by a different route, or to state that a different legal finding was also possible.

    In this case they can only confirm the verdict of culpable homicide, or upgrade it to murder, or order a retrial.

    They can't reach a different verdict that the ones under discussion.
    I just don't believe they'll confirm culpable homicide. I'd be happy with the upgrade.

  5. #65
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    Don't make this complicated when it is not.

    The guy most likely shot his girlfriend while trying to protect her from home invaders.

    Remember it was his own home and it was 3 in the morning.

    He had warned the intruder(s) to get out and heard nothing back.

    He gave them time to leave before advancing, putting himself between Reeva and the threat.

    He was unbalanced on his stumps. He was scared moving the gun from the window to the toilet door and back again.

    Still there was no surrender or indication that the threat had diminished.

    Most likely it was Reeva locking the door that he fired at.

    She did not answer him because the whole thing was moving towards her and she didn't know he had mistaken her for the intruder. She probably thought they had come in from the balcony as Oscar was closing up the bedroom.

    Do you really want to sacrifice this young man for trying to protect his girlfriend in his own home at 3 in the morning?

    He made a mistake. Simple. People make mistakes. Read the news.

    He fired 4 quick shots from a gun that held 17 shots at a noise that startled him.

    He did not fire at a person. He fired at a noise. He did not fire at a person because he did not see a person. There was a door in the way. He fired at the noise. It was a reflex action to a sudden movement from a perceived threat.

    I do not believe that young man Oscar knew just exactly why he fired. His inability to articulate why he fired exactly should not be held against him. He is not an expert in how humans react to stress. What is being labeled as multiple defenses is nothing more than his attempt to articulate what he (and many others) do not understand.

    If you are serious about learning about adrenaline and stress with guns, research police shootings.

  6. #66
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    Quote Originally Posted by mrjitty View Post
    Murder is the criminal offence.

    The criminal offence requires a physical action (the taking of life by unlawful act) and intention.

    Intention obviously includes deliberately killing someone. (i.e. DD)

    But the law in most countries broadens intention to include cases where the intention was indirect but the death was a natural consequence that was foreseen

    Exactly where the line is drawn varies country to country and in practice there tends to be a lot of overlap between murder and manslaughter.

    In any event - it is no lesser murder to be convicted via DE rather than DD in respect of the intruder. Its the same fact set either way.

    I actually prefer the law of England, where murder includes "intent to kill or cause grievous bodily harm (GBH)".

    So in other words if you intentionally shoot someone - it will obviously fall under the intent for murder straight away.

    SA law should in practice give the same result - but Masipa doesn't seem to understand the law of DE properly.
    Thank you. I think my difficulty in understanding your post is because there are different grades of murder - DD is a more serious offence and carries a harsher penalty. The intent can be differentiated in relation to the intruder, it is having direct intent to kill under DD, rather than foreseeing the person will probably be killed, DE.

    But I can understand that if, as you say, they cannot deviate from what is sought by the State, an upgrade to DD is not on the cards.

  7. #67
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    Quote Originally Posted by Noisy Fan View Post
    Don't make this complicated when it is not.

    The guy most likely shot his girlfriend while trying to protect her from home invaders.

    Remember it was his own home and it was 3 in the morning.

    He had warned the intruder(s) to get out and heard nothing back.

    He gave them time to leave before advancing, putting himself between Reeva and the threat.

    He was unbalanced on his stumps. He was scared moving the gun from the window to the toilet door and back again.

    Still there was no surrender or indication that the threat had diminished.

    Most likely it was Reeva locking the door that he fired at.

    She did not answer him because the whole thing was moving towards her and she didn't know he had mistaken her for the intruder. She probably thought they had come in from the balcony as Oscar was closing up the bedroom.

    Do you really want to sacrifice this young man for trying to protect his girlfriend in his own home at 3 in the morning?

    He made a mistake. Simple. People make mistakes. Read the news.

    He fired 4 quick shots from a gun that held 17 shots at a noise that startled him.

    He did not fire at a person. He fired at a noise. He did not fire at a person because he did not see a person. There was a door in the way. He fired at the noise. It was a reflex action to a sudden movement from a perceived threat.

    I do not believe that young man Oscar knew just exactly why he fired. His inability to articulate why he fired exactly should not be held against him. He is not an expert in how humans react to stress. What is being labeled as multiple defenses is nothing more than his attempt to articulate what he (and many others) do not understand.

    If you are serious about learning about adrenaline and stress with guns, research police shootings.
    BIB This is oxymoronic.

  8. #68
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    RSBM
    Quote Originally Posted by foxbluff View Post
    This is the first photo I've seen since OP was released from prison. (I recall someone posting a photo here soon after his release, but I was unable to access it.) He really looks rough... unkept... sideburns, scruffy beard, hairy chest... not at all the style we're accustomed to seeing, imo.
    He's certainly lost a huge amount of weight, not to mention muscle.

    I hope Lois has started stockpiling food. She may need a warehouse.

    Here's a screen grab: http://www.theguardian.com/world/201...e-south-africa
    Attached Images Attached Images

  9. #69
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    Quote Originally Posted by Noisy Fan View Post
    Don't make this complicated when it is not.

    The guy most likely shot his girlfriend while trying to protect her from home invaders.

    Remember it was his own home and it was 3 in the morning.

    He had warned the intruder(s) to get out and heard nothing back.

    He gave them time to leave before advancing, putting himself between Reeva and the threat.

    He was unbalanced on his stumps. He was scared moving the gun from the window to the toilet door and back again.

    Still there was no surrender or indication that the threat had diminished.

    Most likely it was Reeva locking the door that he fired at.

    She did not answer him because the whole thing was moving towards her and she didn't know he had mistaken her for the intruder. She probably thought they had come in from the balcony as Oscar was closing up the bedroom.

    Do you really want to sacrifice this young man for trying to protect his girlfriend in his own home at 3 in the morning?

    He made a mistake. Simple. People make mistakes. Read the news.

    He fired 4 quick shots from a gun that held 17 shots at a noise that startled him.

    He did not fire at a person. He fired at a noise. He did not fire at a person because he did not see a person. There was a door in the way. He fired at the noise. It was a reflex action to a sudden movement from a perceived threat.

    I do not believe that young man Oscar knew just exactly why he fired. His inability to articulate why he fired exactly should not be held against him. He is not an expert in how humans react to stress. What is being labeled as multiple defenses is nothing more than his attempt to articulate what he (and many others) do not understand.

    If you are serious about learning about adrenaline and stress with guns, research police shootings.
    Really? None of the circumstantial evidence gave you pause for thought? Dismissed all of it??
    What do you think should be the consequences for making such a "mistake"?

  10. #70
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    Quote Originally Posted by Noisy Fan View Post
    Don't make this complicated when it is not.

    The guy most likely shot his girlfriend while trying to protect her from home invaders.

    Remember it was his own home and it was 3 in the morning.

    He had warned the intruder(s) to get out and heard nothing back.

    He gave them time to leave before advancing, putting himself between Reeva and the threat.

    He was unbalanced on his stumps. He was scared moving the gun from the window to the toilet door and back again.

    Still there was no surrender or indication that the threat had diminished.

    Most likely it was Reeva locking the door that he fired at.

    She did not answer him because the whole thing was moving towards her and she didn't know he had mistaken her for the intruder. She probably thought they had come in from the balcony as Oscar was closing up the bedroom.

    Do you really want to sacrifice this young man for trying to protect his girlfriend in his own home at 3 in the morning?

    He made a mistake. Simple. People make mistakes. Read the news.

    He fired 4 quick shots from a gun that held 17 shots at a noise that startled him.

    He did not fire at a person. He fired at a noise. He did not fire at a person because he did not see a person. There was a door in the way. He fired at the noise. It was a reflex action to a sudden movement from a perceived threat.

    I do not believe that young man Oscar knew just exactly why he fired. His inability to articulate why he fired exactly should not be held against him. He is not an expert in how humans react to stress. What is being labeled as multiple defenses is nothing more than his attempt to articulate what he (and many others) do not understand.

    If you are serious about learning about adrenaline and stress with guns, research police shootings.
    Your post clearly shows you bought everything OP said in court, despite the fact he was deemed a 'poor' and 'unreliable' witness who was happy to let others take the blame for his previous misdeeds (read the news...).


  11. #71
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    In response to Noisy Fan's post, itemizing the defense team's position of the events that night, I think it is time to resurrect the famous post by Donmack on Digital Spy that was reprinted here:

    https://phil51089.wordpress.com/2014...ed-by-donmack/

    Offered by donmack

    [modsnip]

    And I have one more curiosity to add-- if he believed she was awake and still in bed, why would Oscar not expect Reeva to have ALSO heard the window slam open in the bath and why then would she not have asked him "what was that noise?" We are told she was awake, but NEITHER one of them checked with each other to confirm a noise in the middle of the night.
    Last edited by Coldpizza; 11-16-2015 at 09:04 AM. Reason: Copy and paste from a blog is not allowed.

  12. #72
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    This was an interesting case before the SCA.

    Supreme Court of Appeal
    Director of Public Prosecutions v Mtshweni
    Case No. 52/06

    … If the error is one on which the acquittal of an accused turns then there is a grave irregularity in the proceedings and the court of appeal is bound to order a retrial on the same or amended charges. Question of law reserved answered in favour of the State, and institution of retrial ordered.

    [32] It is clear, therefore, that there is no argument before this court that where a trial court has erred on a question of law, the institution of a new trial will infringe s 35(3)(m). The possibility of double jeopardy does not arise. And, as the State argues, there will be a serious miscarriage of justice should a proper trial not ensue. It is not only an accused whose interests must be protected by the criminal justice system. There must be fairness to the public, represented by the State, as well. There must be fairness to the victims of the crime and their families. In S v Jaipal17 the Constitutional Court said:

    ‘The right of an accused to a fair trial requires fairness to the accused as well as fairness to the public as represented by the State. It has to instil confidence in the criminal justice system with the public, including those close to the accused, as well as those distressed by the audacity and horror of crime.’

    Paras. 28-34 are all well worth reading.

    http://www.saflii.org/za/cases/ZASCA/2006/165.html

  13. #73
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    Quote Originally Posted by JudgeJudi View Post
    This was an interesting case before the SCA.

    Supreme Court of Appeal
    Director of Public Prosecutions v Mtshweni
    Case No. 52/06

    … If the error is one on which the acquittal of an accused turns then there is a grave irregularity in the proceedings and the court of appeal is bound to order a retrial on the same or amended charges. Question of law reserved answered in favour of the State, and institution of retrial ordered.

    [32] It is clear, therefore, that there is no argument before this court that where a trial court has erred on a question of law, the institution of a new trial will infringe s 35(3)(m). The possibility of double jeopardy does not arise. And, as the State argues, there will be a serious miscarriage of justice should a proper trial not ensue. It is not only an accused whose interests must be protected by the criminal justice system. There must be fairness to the public, represented by the State, as well. There must be fairness to the victims of the crime and their families. In S v Jaipal17 the Constitutional Court said:

    ‘The right of an accused to a fair trial requires fairness to the accused as well as fairness to the public as represented by the State. It has to instil confidence in the criminal justice system with the public, including those close to the accused, as well as those distressed by the audacity and horror of crime.’

    Paras. 28-34 are all well worth reading.

    http://www.saflii.org/za/cases/ZASCA/2006/165.html

    Good find.


  14. #74
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    Quote Originally Posted by Marfa Lights View Post
    In response to Noisy Fan's post, itemizing the defense team's position of the events that night, I think it is time to resurrect the famous post by Donmack on Digital Spy that was reprinted here:

    https://phil51089.wordpress.com/2014...ed-by-donmack/

    Offered by donmack



    And I have one more curiosity to add-- if he believed she was awake and still in bed, why would Oscar not expect Reeva to have ALSO heard the window slam open in the bath and why then would she not have asked him "what was that noise?" We are told she was awake, but NEITHER one of them checked with each other to confirm a noise in the middle of the night.
    I still have that saved. It's too good to ever go into the trash can.

    Another curiosity is that he told the court that after the shooting he returned to the bedroom and felt the bed and Reeva wasn't there. Huh??? All that screaming, get the **** out of my house, shouting, shooting and he thought she was still in bed. Right. Probably looking for her favourite cars on the iPad.

  15. #75
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    Quote Originally Posted by Marfa Lights View Post
    Really? None of the circumstantial evidence gave you pause for thought? Dismissed all of it??
    What do you think should be the consequences for making such a "mistake"?
    A CH conviction and a 5 year sentence?

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