Oscar Pistorius - Discussion Thread #69 *Appeal Verdict*

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Marfa Lights said:
Beg to differ. I understand what PPD is (and isn't) and I understand why Oscar and thousands of others before him have claimed they killed because they were in fear for their life (the Michael Dunn case comes to mind. You may recall the so-called "loud music murder" in the U.S. a few years ago. It didn't work for him either.)

It's nice of you to take a killer at their word (armchair supporter?) but you fail to acknowledge that the accused has to meet certain legal standards for their claim of self-defense to be legally justified or lawful. It's not enough to simply claim that's what you "thought" and expect to get off because no one can ever know what was in your mind at that moment but you.

If all you had to do was say "I killed them because I was in fear for my life. Turns out there was no reason for me to believe that. Sorry, but not my fault. Just a mistake." then NO ONE would ever get convicted of murder if there were no other witnesses present.

Someone hiding behind a closed and locked door just does not yet present the direct threat of imminent bodily harm. Perhaps if Oscar had been approaching the toilet just as Reeva suddenly and wildly swung the door open and he was startled and shot in response, well... that would at least present a more plausible threat or startle and Oscar might have a different future ahead of him today. But gosh, that door was locked.

Even if you believe the intruder story, hearing the sound of wood moving is not sufficient cause to presume an imminent threat. Oscar made a whopper of an erroneous assumption about who was in that toilet, and then took a loaded gun and went to them and without any direct or obvious threat against him, pumped four lethal rounds into them because he felt entitled to do so. Did he in fact know better? Yes, he knew the law for using lethal force against an intruder in your own home. He passed the firearms exam. Did he care? Apparently not.

This is how this amateur legal mind sees the situation:

Did his behavior constitute a crime? Yes, homicide.
Did his actions meet the standards for lawful self-defense? No, there was no real threat.
Did he act lawfully in putative private defense? No, although the accused claims to have thought his life was in danger, his subsequent actions violated the legal requirements for a lawful self-defense response to even a perceived threat.
Did his actions meet the tests for murder with intent in the form of Dolus eventualis? Yes. It checks all the boxes.
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In order to comply with the firearms regulations he would of course have to have waited until he could clearly see they were armed before firing.
 
Regardless of whether or not he was mistaken about an intruder, Pistorius was still not acting defensively.

Sorry for the sports metaphor but he did, in fact, "jump the gun" and took a pre-emptive action before he had any objective reason to believe he was under any imminent or direct attack.

Many people will say they can't blame him-- he thought an intruder was in his house and he was simply taking action to protect himself and Reeva.

It is not sufficient, however, to simply claim one thought they were in danger of their life-- that may well be the opening gambit for a case of PPD, but it is not the end-all.

No one had verbally or physically threatened Oscar. He had not even seen Masipa's 'shadowy figure' approaching him with a weapon in hand. There was nothing for him to defend himself against. There were no reasonably objective circumstances for Oscar to have subjectively believed he was under threat of imminent attack.

So yes, he claimed he "thought" he was acting legitimately in PPD (when he wasn't claiming involuntariness) but that's not enough! The court is obliged to examine all the circumstances of a particular situation to determine if an accused had genuine reason to subjectively believe their life was threatened.

It's not purely a subjective test that relies only on what an accused says they thought. Otherwise no one would ever be convicted of an intentional act. We would all just say "I was mistaken. Guilty of negligence at most."
 
Marfa Lights said:
Many people will say they can't blame him-- he thought an intruder was in his house and he was simply taking action to protect himself and Reeva.
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~snipped~

And if his actions were genuinely to protect himself (and Reeva), you'd think he'd have at least bothered to make sure she was where he 'thought' she was, especially after not actually seeing her or hearing her respond to any of his demands. He thought she was in bed. He thought there was an intruder. He was so desperate to protect himself (oh, and Reeva) that he didn't make the most cursory of checks to establish where she was before pumping 4 bullets into a door because he 'thought' there was an intruder. It's pure fiction and 99.9% of people know it.
 
Marfa Lights said:
It's not purely a subjective test that relies only on what an accused says they thought. Otherwise no one would ever be convicted of an intentional act. We would all just say "I was mistaken. Guilty of negligence at most."
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Another way to think of it is like this.

With self defence, we ask what were the objective circumstances, and whether they amount to self defence

With putative self defence we ask what must the accused have thought the circumstances were, and whether that could amount to self defence if the belief had been true.

OP's conduct does not amount to self defence, even after we believe in his mistake.
 
mrjitty said:
Another way to think of it is like this.

With self defence, we ask what were the objective circumstances, and whether they amount to self defence

With putative self defence we ask what must the accused have thought the circumstances were, and whether that could amount to self defence if the belief had been true.

OP's conduct does not amount to self defence, even after we believe in his mistake.
Click to expand...

Another way to think of it is that the prosecution proved that there were no possible circumstances or feelings OP could have had that would make him think that the intruder in the toilet could be armed and about to harm him when he heard them make a sudden move.
 
soozieqtips said:
~snipped~

And if his actions were genuinely to protect himself (and Reeva), you'd think he'd have at least bothered to make sure she was where he 'thought' she was, especially after not actually seeing her or hearing her respond to any of his demands. He thought she was in bed. He thought there was an intruder. He was so desperate to protect himself (oh, and Reeva) that he didn't make the most cursory of checks to establish where she was before pumping 4 bullets into a door because he 'thought' there was an intruder. It's pure fiction and 99.9% of people know it.
Click to expand...

I am firmly of the opinion that had this truly been a case of an intruder then Pistorius may well have followed his firearms training and waited to identify his target. Indeed I would suggest it is in his nature as a firearms freak to want to see the person he is shooting at, after all he would be using his beloved weapon for its ultimate design purpose.

The question is why did he not do so. It is quite simply because his version of events could not possibly allow him to see or hear another human being, be it an intruder or Reeva. In truth he did see Reeva and fired at her when she had locked herself in the toilet.

Unfortunately for Pistorius having shot through the door he was left with a very awkward set of circumstances around which to weave his version of event. A victim who had to remain silent from the moment she supposedly left the bed to dying in unimaginable pain and an intruder that he could not possibly see or hear.

A very strange set of circumstances but ones that some people chose to believe for reasons that totally escape me.
 
Trotterly said:
Another way to think of it is that the prosecution proved that there were no possible circumstances or feelings OP could have had that would make him think that the intruder in the toilet could be armed and about to harm him when he heard them make a sudden move.
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Whatever his feelings, OP was not entitled to shoot. And, moreover, the Defence failed to establish that it was reasonably possibly true that OP thought he was entitled to shoot in the circumstances as he believed them to be.
 
Sherbert said:
A vulnerable, disabled, man with a natural propensity for fight over flight?

Seems like oxymoron to me.
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Fight, flight , freeze or fawn are primitive instincts. Nothing to do with personality or disability.

It is the gun that makes a difference here, the gun cancelled out most if not all of any vulnerability.

What would he have done if he didn't have a weapon of any kind to hand?
 
Belgarion said:
A very strange set of circumstances but ones that some people chose to believe for reasons that totally escape me.
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~snipped~

BIB - The only 'reasonably possibly true' explanation is that celebrity influence has subconsciously clouded judgement. The fact an alternate world has to be invented where all the police conspire against the murderer (without knowing his version/versions of events), where all the friends and witnesses lie during testimony, and where a woman is 'mute' all the way up to her own murder pretty much proves it.
 
Belgarion said:
If one trawls through the media it is possible to find a series of articles entitled ‘Is the 'Link' in Dolus Eventualis still Missing’? by a Dr Roché Steyn, apparently not a lawyer but a lecturer in medico-legal matters. This has been commented on elsewhere.

Now call me suspicious but I find the timing of these articles and the adherence to the ‘theory’ of Dr Roche in the defence leave to appeal application more than coincidental.

At the SCA Masipa was roundly condemned for her errors in straying from the tried and tested formulation for establishing DE. Justice Leach corrected this by reference to the well-established principles of which we are all aware and in the process found Pistorius guilty of murder.

Then suddenly after the appeal hearing Dr Roche started publishing a series of articles which proposed the current approach to establishing DE was ‘inadequate’ and that a ‘second component’ should also be applied. It seems the speed at which the defence picked up on this new approach by Dr Roche one could surmise they have taken the approach that when the current legal principles are not to Pistorius’ advantage just try to change them in favour of the contents of recent publications. Some may even muse if these timely articles were perhaps commissioned by persons who have Pistorius’ interests at heart.

It was the inclusion of this proposed revision to how DE should have been established in the defence leave to appeal application that Andrea Johnson spent a lot of time demolishing in the State’s response, for example to paraphrase,

The applicant without any substantiation in law introduces an entirely alien and anomalous conception of dolus for this Court to consider.

Nowhere is there any authority in any case law or mainstream academic literature to the effect that dolus eventualis is or should be formulated as the Applicant argues it is or should be.

….. I was amused by her reference to ‘mainstream academic literature’ as it was obviously an oblique reference to the articles of Dr Roche not being worthy of this categorisation.
Click to expand...

Hi all, nice to see there's been some news on this ridiculous OP case.
This is interesting Belgarion - not come across your point before re Steyn in BIB

Remember reading the Steyn article when it was first published and wondered too why this academic was joining the debate so late in the day. (Interesting that the first reference to this article was brought to my attention by a Pistorian supporter, or one of the 0.01% of OP believers, to quote SoozieQ. :) )
(Also it reminds me of the K.Phelps academic research on error in objecto that Defence tried to use at SCA as I assumed they had commissioned that from Phelps, although it was not admitted of course. At least she could say it was part of Post Grad/Univ research or some such excuse.)

Anyway, your suspicions make sense but you'd think any decent Defence lawyer with expertise wouldn't be resorting to citing non-expert opinion ( medical litigation) that appeared in MSM ( as opposed to specialist legal journals) even if they couldn't find any case law to argue. (Maybe Steyn was the only taker?)

I know they're desperate but surely this is not the "form" for how things go in jurisprudence in SA? Are standards really that low? ( Not a question for Masipa of course!)
Just catching up and interesting that Nel doesn't even bother to put his name to the State's response and Webber ( close family friend) is conveniently too busy/has moved yet is still listed as one of the Directors of the firm Ramsay Webber in SA. ( I read this as a reflection of the hopelessness of this final Appeal but may be reading too much into it.)
http://ramweb.co.za/people/#

Quick Question - from pre-Xmas statement in MSM that if CC knock back Defence Appeal, OP can go to Chief Justice as his final recourse. Is this actually true? The most recent links posted here are not mentioning this any more.
 
cottonweaver said:
Quick Question - from pre-Xmas statement in MSM that if CC knock back Defence Appeal, OP can go to Chief Justice as his final recourse. Is this actually true? The most recent links posted here are not mentioning this any more.
Click to expand...


As far as I can see if leave to appeal is refused the possibility of direct appeal to Chief Justice Mogoeng Mogoeng to ask him to reconsider has only ever been mentioned by the defence lawyer Llewelyn Curlewis.

There appears to be no written authority for such a course of action either in the rules of the ConCourt or the Constitution.

I can understand Government Minister involvement such as during Pistorius’ release on licence but for the head of an appeal organisation to be able to singularly overrule a collective judicial decision of that organisation should he be asked to do so by the aggrieved party seems very undemocratic. Indeed it could open up the Chief Justice to accusations of bribery and corruption.

A number of legal commentators have remarked on Pistorius’ chances at the ConCourt but only one seems to have mentioned the direct appeal.

So I would suggest logically an approach to the Chief Justice is not permissible and that Llewelyn Curlewis was probably incorrect on this occasion (he has never mentioned it since)

This being SA I would suggest somewhat cynically that should anyone be ‘persuaded’ to assist Pistorius it would probably be behind closed doors and not by direct approach which would be open to public scrutiny.
 
I agree with your comments Belgarion. I too spent some time reading the relevant parts of the ConCourt rules and Constitution.

To date, the only criminal law expert I’ve found who has mentioned a direct approach to the Chief Justice is Llewellyn Curlewis, who I might add has made a number of incorrect predictions in this matter. He said, that if the Constitutional Court refuses to hear OP’s appeal‚ he may approach Chief Justice Mogoeng directly and ask him to reconsider.

It would be strange indeed if the ConCourt Judges ruled against the application and then that same court’s Chief Justice reversed their ruling. One can only imagine what people would make of that. I don’t see that happening at all.

http://www.rdm.co.za/politics/2015/12/09/why-oscar-s-appeal-to-the-constitutional-court-will-fail

Barry Roux told Deputy Judge President Ledwaba that if an application for leave to appeal was unsuccessful, he would return to the high court for sentencing.

I read on this forum that the CC may take several weeks to make a decision, but I’ve also read somewhere that it could take 3-4 months. I’m hoping they make that decision prior to the commencement of the sentencing hearing.
 
JudgeJudi said:
I agree with your comments Belgarion. I too spent some time reading the relevant parts of the ConCourt rules and Constitution.

To date, the only criminal law expert I’ve found who has mentioned a direct approach to the Chief Justice is Llewellyn Curlewis, who I might add has made a number of incorrect predictions in this matter. He said,
that if the Constitutional Court refuses to hear OP’s appeal‚ he may approach Chief Justice Mogoeng directly and ask him to reconsider.

It would be strange indeed if the ConCourt Judges ruled against the application and then that same court’s Chief Justice reversed their ruling. One can only imagine what people would make of that. I don’t see that happening at all.

http://www.rdm.co.za/politics/2015/12/09/why-oscar-s-appeal-to-the-constitutional-court-will-fail

Barry Roux told Deputy Judge President Ledwaba that if an application for leave to appeal was unsuccessful, he would return to the high court for sentencing.

I read on this forum that the CC may take several weeks to make a decision, but I’ve also read somewhere that it could take 3-4 months. I’m hoping they make that decision prior to the commencement of the sentencing hearing.
Click to expand...

He did correctly predict that there was insufficient evidence to prove that OP did not believe that there was an intruder.
 
JudgeJudi said:
I agree with your comments Belgarion. I too spent some time reading the relevant parts of the ConCourt rules and Constitution.

To date, the only criminal law expert I’ve found who has mentioned a direct approach to the Chief Justice is Llewellyn Curlewis, who I might add has made a number of incorrect predictions in this matter. He said,
that if the Constitutional Court refuses to hear OP’s appeal‚ he may approach Chief Justice Mogoeng directly and ask him to reconsider.

It would be strange indeed if the ConCourt Judges ruled against the application and then that same court’s Chief Justice reversed their ruling. One can only imagine what people would make of that. I don’t see that happening at all.

http://www.rdm.co.za/politics/2015/12/09/why-oscar-s-appeal-to-the-constitutional-court-will-fail

Barry Roux told Deputy Judge President Ledwaba that if an application for leave to appeal was unsuccessful, he would return to the high court for sentencing.

I read on this forum that the CC may take several weeks to make a decision, but I’ve also read somewhere that it could take 3-4 months. I’m hoping they make that decision prior to the commencement of the sentencing hearing.
Click to expand...

Thanks for the confirmation.

Out of interest what do you make of the ‘missing link’ articles by Dr Roché Steyn. I am very suspicious from the timing and content these were written directly maybe even commissioned to support the Pistorius approach to the ConCourt

The author almost says as much as he can’t seem to resist ‘blowing his own trumpet’ with the following comment in the final article.

My article of 2 December 2015 sought to clarify the essential ‘missing link’ in this case, and central parts of the article were subsequently used in the first arguments for grounds to appeal to the Constitutional Court presented in the Pistorius affidavit on 8 December 2015.
 
Belgarion said:
Thanks for the confirmation.

Out of interest what do you make of the ‘missing link’ articles by Dr Roché Steyn. I am very suspicious from the timing and content these were written directly maybe even commissioned to support the Pistorius approach to the ConCourt

The author almost says as much as he can’t seem to resist ‘blowing his own trumpet’ with the following comment in the final article.

My article of 2 December 2015 sought to clarify the essential ‘missing link’ in this case, and central parts of the article were subsequently used in the first arguments for grounds to appeal to the Constitutional Court presented in the Pistorius affidavit on 8 December 2015.
Click to expand...

If I may:

BIB
"On Snyman’s definition, there are two requirements for existence of dolus eventualis:

that the accused should subjectively foresee the possibility that, in striving towards his main aim, the unlawful act or result may ensue; and

that he should reconcile himself to this possibility, or at least be reckless as to the possibility."

Please note the unlawful element.

BIB
Grant did the same thing when he joined the PT but I'm sure he would describe it as being pleased to help. Why can the same thing not be said of someone assisting the defence?
 
Trotterly said:
If I may:

BIB
"On Snyman’s definition, there are two requirements for existence of dolus eventualis:

that the accused should subjectively foresee the possibility that, in striving towards his main aim, the unlawful act or result may ensue; and

that he should reconcile himself to this possibility, or at least be reckless as to the possibility."

Please note the unlawful element.

BIB
Grant did the same thing when he joined the PT but I'm sure he would describe it as being pleased to help. Why can the same thing not be said of someone assisting the defence?
Click to expand...

Indeed, Grant did join the PT but in an open and public manner, even appearing at the SCA.

On the other hand there appears to be a series of very lengthy articles written by a Dr Roche the content of which have been used by the DT to further the cause of Pistorius’ appeal. The DT did not acknowledge the work of the author, for reasons we can well imagine.

I think it unhelpful to compare the contributions of Grant and Roche

As mentioned it was obvious to all Grant was assisting the PT whilst on the other hand Roche’s contribution seems to have been in an unacknowledged and clandestine manner
 
A continual source of amusement is the ‘inspirational’ quotes that are tweeted by Carl Pistorius

He never seems to think how these may be interpreted in regard to his brother.

His latest offering being ‘Never make permanent decisions on temporary feelings’.

Such a shame brother Oscar didn’t take note and realise that getting into a temporary blind rage and deciding to shoot his girlfriend was inevitably going to have a permanent effect on the rest of his life.

CP also offers the following, ‘The best bridge between despair and hope is a good night's sleep’

I’m sure when his brother falls asleep in despair in his cell as he starts of his inevitable prison sentence he will bear this in mind knowing that his life should be full of hope in the morning despite only 10 more years to go
 
Trotterly said:
If I may:

BIB
"On Snyman’s definition, there are two requirements for existence of dolus eventualis:

that the accused should subjectively foresee the possibility that, in striving towards his main aim, the unlawful act or result may ensue; and

that he should reconcile himself to this possibility, or at least be reckless as to the possibility."

Please note the unlawful element.

BIB
Grant did the same thing when he joined the PT but I'm sure he would describe it as being pleased to help. Why can the same thing not be said of someone assisting the defence?
Click to expand...

Of course murder is unlawful.

In the absence of a lawful intent to kill (PPD) there is dolus.

You don't even need firearms training to know that.
 
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