Oscar Pistorius - Discussion Thread #70 *Appeal Verdict*

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Tortoise said:
I disagree. His version was disproved IMO, which is no mean feat considering only he was there. I don't think any other judge would have believed one word of his version, or concluded that it was anything other than an argument that turned to violence and escalated to murder.

If you study the SCA judgement you'll notice that the judges questioned Masipa's handling of DD as well, but it wasn't under appeal. I think Nel went for the safer option.
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And yet at the time of the verdict, whilst many of the legal commentators often cited on here appeared to question the CH verdict, few appeared to question her dismissal of DD.
 
aftermath said:
I think the con court should hear the appeal but have no idea whether they will or not.
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Interesting, given that there are very good reasons why they should not entertain the appeal, some have been mentioned previously on here, specifically on what grounds mentioned in Pistorius' application to the ConCourt do you think they should hear the appeal?
 
aftermath said:
And yet at the time of the verdict, whilst many of the legal commentators often cited on here appeared to question the CH verdict, few appeared to question her dismissal of DD.
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I can't speak for the legal commentators, but it was obvious to me that DD was never considered in relation to anyone other than Reeva. She said -

"Counsel for the state submitted that even if the court were to find that the accused shot the deceased, thinking that he was firing the shots at an intruder, this would not assist him as he had intended to kill a human being. This was so because all the elements of the crime of murder had been met, it was argued." [Judgement 3322]

then she said -

"We are clearly dealing with error in objecto or error in persona, in that the blow was meant for the person behind the toilet door, who the accused believed was an intruder. The blow struck and killed the person behind the door. The fact that the person behind the door turned out to be the deceased and not an intruder, is irrelevant." [Judgement 3325]

And that is where it fizzled out and she never got back to answering the State's submission.

It happened so frequently in her judgement that it wasn't funny any more. She would start one line of thinking and then move swiftly on to another issue as if she had been coshed over the head just as she was leading up to a conclusion.

DD is as you know direct intent. She seemed to give a perfect finding on it in her explanation as to why it was error in objecto - "the blow was meant for the person", but then she moved straight into dolus eventualis without further ado..

Do you have a theory as to why she did that?
 
This is what the SCA had to say about DD -

"It [the trial court] therefore concluded that it could not be said that the accused did not entertain a genuine belief that there was an intruder in the toilet who posed a threat to him, and therefore 'he cannot be found guilty of murder dolus directus'. Although it is not clear from the judgement, this finding appears to have been based on the reasoning that the accused could not be found guilty of murder with direct intent as he had not known Reeva was in the toilet. (the correctness of this latter conclusion was not an issue raised in this appeal.)" [Judgement Para 18]

She made the same error with DD as she did with DE - excluding murder because of identity. I expect the State didn't appeal DD because of the door, as Judge Greenland hypothesises. In fact I seem to recall Nel saying as much at the SCA if I'm not mistaken.
 
Tortoise said:
I can't speak for the legal commentators, but it was obvious to me that DD was never considered in relation to anyone other than Reeva. She said -

"Counsel for the state submitted that even if the court were to find that the accused shot the deceased, thinking that he was firing the shots at an intruder, this would not assist him as he had intended to kill a human being. This was so because all the elements of the crime of murder had been met, it was argued." [Judgement 3322]

then she said -

"We are clearly dealing with error in objecto or error in persona, in that the blow was meant for the person behind the toilet door, who the accused believed was an intruder. The blow struck and killed the person behind the door. The fact that the person behind the door turned out to be the deceased and not an intruder, is irrelevant." [Judgement 3325]

And that is where it fizzled out and she never got back to answering the State's submission.

It happened so frequently in her judgement that it wasn't funny any more. She would start one line of thinking and then move swiftly on to another issue as if she had been coshed over the head just as she was leading up to a conclusion.

DD is as you know direct intent. She seemed to give a perfect finding on it in her explanation as to why it was error in objecto - "the blow was meant for the person", but then she moved straight into dolus eventualis without further ado..

Do you have a theory as to why she did that?
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Did the state ever suggest it was DD even on the intruder version?
 
aftermath said:
I think the con court should hear the appeal but have no idea whether they will or not.
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I posted a few pages back that all of Pistorius' complaints to the con court should have been brought in the SCA as the first court to appeal findings of the trial court regarding his disability, vulnerability and anxiety (his subjective state of mind when shooting) and where he could have raised argument that PPD and lawful intent was a finding already made.

Do you think his complaint to the con court is really an attack on Masipa's findings?
 
Tortoise said:
Of course they did. Masipa stated it in the extract of the judgement I quoted for you.
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Thanks - i just wondered whether they had explicitly used a ref to the term 'DD'- and they did in the Heads of Argument. (**I went and checked - Hence the delayed reply)
I think the reason Masipa didn't go there was because once she accepted it was reasonably possibly true that Pistorius believed there was an intruder and that he was in fear for his life, she accepted that he believed he was defending himself and therefore didn't have the necessary dolus.
 
Tortoise said:
I posted a few pages back that all of Pistorius' complaints to the con court should have been brought in the SCA as the first court to appeal findings of the trial court regarding his disability, vulnerability and anxiety (his subjective state of mind when shooting) and where he could have raised argument that PPD and lawful intent was a finding already made.

Do you think his complaint to the con court is really an attack on Masipa's findings?
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Not really - he appeared to have accepted her findings, her verdict, her sentence. However, if the verdict had been DE and/or had the sentence been higher, I wouldn't have been surprised if the defence /Pistorius had tried to appeal.
 
aftermath said:
Thanks - i just wondered whether they had explicitly used a ref to the term 'DD'- and they did in the Heads of Argument. (**I went and checked - Hence the delayed reply)
I think the reason Masipa didn't go there was because once she accepted it was reasonably possibly true that Pistorius believed there was an intruder and that he was in fear for his life, she accepted that he believed he was defending himself and therefore didn't have the necessary dolus.
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But you agree, presumably, she didn't make a finding on his intent, whether it was lawful or not?
 
aftermath said:
Not really - he appeared to have accepted her findings, her verdict, her sentence. However, if the verdict had been DE and/or had the sentence been higher, I wouldn't have been surprised if the defence /Pistorius had tried to appeal.
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I'm sure he would have.

But even if he seemed to accept her findings at the time, can you see why his appeal in the con court is misplaced?
 
Tortoise said:
But you agree, presumably, she didn't make a finding on his intent, whether it was lawful or not?
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I think that in finding that he held a genuine belief that his life was in danger from an intruder, she excluded unlawful intent /dolus
 
aftermath said:
I think that in finding that he held a genuine belief that his life was in danger from an intruder, she excluded unlawful intent /dolus
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Surely you can see that legally Masipa didn't establish lawful intent or exclude unlawful intent with that reasoning? The legal test to determine lawfulness of shooting requires much more than that, as has been discussed quite fully on this forum.
 
aftermath said:
It's probably easier for you to just say which bit(s)you think are misplaced
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That's easy there is no merit in any part of the application, I believe contrived to be the appropriate description. So back to my original question what part of his application for leave to appeal to the ConCourt do you think is not misplaced. You must have faith in some parts of the application as you think it should be heard.
 
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