Trial Discussion Thread #59 - 14.21.10, Day 48 ~ sentencing~

[pandax81]

I agree

But in order to act fully in putative private defence, the limitations of private defence apply (on the facts as you mistakenly believe them to be).

So therefore one cannot act in putative private defence if one deploys excessive or unnecessary force.

We call this self defence elsewhere - but the law is basically the same.

If one has subjective intention to deploy excessive or unnecessary force, yes. The point was correct, just I foresaw the terminology getting very confusing if you carried on down that road!

By the way, if you see that post of mine I quoted from a while back: it is exactly what I say for OP's case

Remember you said findings were weaselled out of, and I do agree, so much vital stuff is missing... What about this one: Did the magazine rack move? according to the court: who knows, who cares!

 

[JudgeJudi]

OK - lets leave it there.

I disagree with you that we can say the Judge held self defence.

She might have thought she did - but it is nowhere in the judgement

In the end, the defence must be one of justification, or one of lack of intent.

It cannot be 50/50

Nel told OP during the trial words to the effect, "You cannot have two defences".

 

[JudgeJudi]

It's like 2 different people wrote it. :idea:

You may well be right, Masipa and Henzen du-Toit. That could also be the reason why she made amendments ("I'll rephrase that") a number of times as she was reading the verdict out.

 

[Paul_1900]

What really annoyed me yesterday, with the judge delivering her sentence, was when she was trying to paint a picture of how Pistorius had lost his love, his friend (can't remember the exact words now, but she was trying to suggest it would've been lifelong), and was making it sound as if they were in such a loving relationship and on the verge of making it more permanent, when the evidence does not support that at all, in fact taken as a whole, it suggests the complete opposite, with the final act of that 'wonderful relationship' being Pistorius blasting Reeva to bits in a hail of black talon bullets! That judge must be living on a different planet.

More twists I found deeply annoying during sentencing phase . .

DT presenting things as FACTS because they were written in JM judgement. These in my view are still FINDINGS of a judge, i.e. a mere interpretation of evidence. A judge can be at fault (as we have seen) - just writing it down doesn't make it a FACT. And even worse the more it was repeated the more it will sound like " the truth". This is terrible.

All this based on Masipa taking ( her very personal choice of ) OPs words at face value and stating these as FACTS in her finding, i.e. " he heard the window opening, heard the door slam, noise inside toilet " . . . just to give a few. Their was never any objective evidence for what he claimed to have happened, just he said so !

Plus her making purely wrong statements like " shots fired in quick succession, Reeva couldn"t have screamed, he was trying to resuscitate" . All this was contrary to the expert witnesses, whom she didn't even bother to mention. I am leaving out the "intent to shoot but no intent to kill" part, as it is too mind boggling.

It's truly beyond belief ! And somehow it feels as if Reeva was killed not only once but twice.:tears:

I know that lawyers are paid to twist words for the benefit of their clients, but a judge IMO s/b able to see through and try hard to get to the truth. Not always possible maybe, surely never easy - but I did not see her putting much effort into it.

 

[mrjitty]

This is a totally different point to the one you made.

You said one cannot claim justification in killing and also claim lack of intention to kill. I showed you can.

This is different to your new point: if one did have intention to kill, one must be justified. I think this is obvious, I do not disagree.

I have already showed you and quoted myself: I have always been of the view OP must have had legal intention to kill! why do you keep arguing with me as though I don't? lol :scared:

(I really am unsure why you direct these points at me in the first place, to be honest, I am not the court! But I answer them anyway, foolish as I am, haha)

We are probably just at cross purposes.

I agree with you in general terms.

But in this specific case, i do not think you can argue both justification and lack of intent. This is really apparent in the original defence pleadings. If one is pleading lack of intent then it should have been in the defence documentation and appeared in Examination in Chief.

I can imagine lack of intent AND self defence applying for example where I am chased by bad guys trying to hurt me and deploy defensive fire to scare them off but end up hitting one of them.

However even then, the lethal capability of my gun is known to me. So my defence is that I did not try to shoot anyone - only to scare them.

 

[Cloen]

Has anyone got the link to the letter Oscar wrote to the Taylor family ?
I couldn't open the last link - could someone please post it or provide a post number so I can view it ?
thanks !

 

[mrjitty]

Nel told OP during the trial words to the effect, "You cannot have two defences".

Yes

The bigger reason is actually a practical one.

Had OP shared this new defence with Roux in advance, Roux would have pleaded it properly in the first place and delivered it in EiC

Instead it came out in a haphazard way in X

Which is a huge indication that OP was lying.

 

[Paul_1900]

Nel told OP during the trial words to the effect, "You cannot have two defences".

Yes, and to use a word I picked up from Judge Greenland . . . I was gobsmacked . . not only did she NOT REJECT both as being mutually exclusive, she made a mix and match of both in favour of OP. Somebody said at that time it's as if she was inventing his defence for him.

 

[pandax81]

Yes I suppose the issues are as follows

1. It looks like a pre-emptive strike. What if it was just an unarmed kid in there?
2. The force is excessive
3. The force was not necessary, as he can simply leave the scene

Of course this is all artificial as he never perceived a threat anyway in my view.

Too true mr jitty. When I first studied the bail application (no mention of thinking someone started to come out of toilet), this was immediately my view. I used that exact phrase here before to describe it.

Based on this, I was always absolutely expecting a rock-solid defence and a watertight testimony from OP based around a perceived inevitability of attack and putative self defence. I never ever foresaw the shenanigans ahead, let alone that OP would get away with them.

 

[mrjitty]

If one has subjective intention to deploy excessive or unnecessary force, yes. The point was correct, just I foresaw the terminology getting very confusing if you carried on down that road!

By the way, if you see that post of mine I quoted from a while back: it is exactly what I say for OP's case

Remember you said findings were weaselled out of, and I do agree, so much vital stuff is missing... What about this one: Did the magazine rack move? according to the court: who knows, who cares!

Yeah - I saw that now.

I think we are largely on the same page.

We differ on the private defence bit.

I am used to judges who clearly spell out what is held.

 

[pandax81]

oh my god, we are going full circle on this. Putative private defence should become as popular a defence to murder as a hanky is to a sneeze.

Ha, I don't think so, lol. Mr jitty understands the point and principle perfectly, he just got mixed up with the terminology because he is not used to it. (I was worried he was going to use 'self-defence' for the murder part, and 'putative self defence' for the negligence part)

 

[mrjitty]

Too true mr jitty. When I first studied the bail application (no mention of thinking someone started to come out of toilet), this was immediately my view. I used that exact phrase here before to describe it.

Based on this, I was always absolutely expecting a rock-solid defence and a watertight testimony from OP based around a perceived inevitability of attack and putative self defence. I never ever foresaw the shenanigans ahead, let alone that OP would get away with them.

Agreed

I think he just messed up on the stand.

I doubt Roux planned it that way.

 

[OZe]

This is a totally different point to the one you made.

You said one cannot claim justification in killing and also claim lack of intention to kill. I showed you can.

This is different to your new point: if one did have intention to kill, one must be justified. I think this is obvious, I do not disagree.

I have already showed you and quoted myself: I have always been of the view OP must have had legal intention to kill! why do you keep arguing with me as though I don't? lol :scared:

(I really am unsure why you direct these points at me in the first place, to be honest, I am not the court! But I answer them anyway, foolish as I am, haha)

Pandax and mrjitty,

Reading your posts is like watching a tough six-setter between Federer and Nadal. Enthralling, grueling and exhausting. Just when one seems to have the perfect lob a volley shoots back across the court. I, for one, am enjoying it and hope neither of you retires frustrated or hurt. Thanks for your insights and commitment, Three set all; who'e to serve?

:deepbreaths::deepbreaths:

 

[mrjitty]

Too true mr jitty. When I first studied the bail application (no mention of thinking someone started to come out of toilet), this was immediately my view. I used that exact phrase here before to describe it.

Based on this, I was always absolutely expecting a rock-solid defence and a watertight testimony from OP based around a perceived inevitability of attack and putative self defence. I never ever foresaw the shenanigans ahead, let alone that OP would get away with them.

My belief is that he heard the magazine rack sound after he shot her, so he worked that back into his testimony.

Of course his real problem all along was the locked door, which meant that no one could come out.

 

[mirage1]

I agree 100%

But in order to act fully in putative private defence, the limitations of private defence apply (on the facts as you mistakenly believe them to be).

So therefore one cannot act in putative private defence if one deploys excessive or unnecessary force.

If the Court find that you acted (mistakenly, but genuinely) in private defence - then the question of whether the mistake was reasonable arises.

We call this self defence elsewhere - but the law is basically the same.

.

Are you sure?

If this defence of putative private defence succeeds, that would not, however, be the end of the matter. A court could still find that a reasonable person would have foreseen that his actions would have caused the death of a person and would not have proceeded with his actions despite foreseeing the consequences. In such a case the accused can be convicted of culpable homicide. In other words if a court finds that a reasonable person would not have proceeded with the conduct, then he would be found guilty of culpable homicide.

This all pretty confusing especially the part about if a reasonable person would have foreseen death, because I thought the accused already concedes intentionally killing under the mistaken impression his life was under threat, when he applies for PPD.






http://constitutionallyspeaking.co.za/oscar-pistorius-criminal-law-101/

 

[mrjitty]

Pandax and mrjitty,

Reading your posts is like watching a tough six-setter between Federer and Nadal. Enthralling, grueling and exhausting. Just when one seems to have the perfect lob a volley shoots back across the court. I, for one, am enjoying it and hope neither of you retires frustrated or hurt. Thanks for your insights and commitment, Three set all; who'e to serve?

:deepbreaths::deepbreaths:

Well its 3.08pm in germany so I am going for lunch :dance:

 

[OZe]

Well its 3.08pm in germany so I am going for lunch :dance:

As Monty Python would say: "Come back and fight!" :tantrum:

 

[pandax81]

Well its 3.08pm in germany so I am going for lunch :dance:

even the breakfasts are more efficient in Germany!

 

[patCee]

Has anyone got the link to the letter Oscar wrote to the Taylor family ?
I couldn't open the last link - could someone please post it or provide a post number so I can view it ?
thanks !

I hope it works
http://cl.ly/Xses

 

[RosieC]

I'd compare it to the assassination of John F. Kennedy (US President) in 1963 by alleged "lone gunman," Lee Harvey Oswald. Very few people believed that then and, even after all these decades, fewer still buy that cr@p.

I'd also, of course, compare it to OJ Simpson. Almost no one ever believed that he didn't do it, even most African Americans.

As people, we can be often be :thud:dumb :thud:but we're not always stupid. :scale:

The JFK assassination conspiracy: this is a little off-topic but I'll tie it back. Recent research by police detective Colin McLaren finds that there was a second shooter and there was a cover-up. But it was a Secret Service agent who fired the fatal shot BY ACCIDENT. It's an impressive piece of detective work and there is archive footage of the "shooter". Whether Kennedy would have died anyway from the Lee Harvey Oswald shots, who knows.

What this shows re Pistorius is that people do not readily "buy it" when it doesn't add up, and especially when it's a high profile case, many do not give up. (sorry, Pistorius siblings)