Oscar Pistorius - Discussion Thread #69 *Appeal Verdict*

[sleuth-d-]

just reading through... particularly liked para 25, in reference to prima facie/burden of proof/absence of rebuttal. should have been stressed more in the initial case imho.

 

[Ochre Blue]

Just found this on my Twitter feed, thanks to @rdknowles2010:

#OscarPistorius prosecution explains SCA reasoning. Asserts that #justice requires OP be #sentenced NOW. @Truth2Come https://t.co/y8UaCwc9D0

 

[Ochre Blue]

I didn't understand the "tokelosh" reference, but now thanks to Twitter and @ParodyMinistry I now do:

Turns out #OscarPistorius should've cried #Tokelosh https://t.co/AGFF7hhG3L

 

[Deleted member 102539]

The Tokolosh are pathetic and fearful. Challenge them to mortal combat and most will blanch and flee. Of course, be wary of those with guns.

:giggle:

 

[mrjitty]

17.9 The two forms of dolus and, with respect, the correct and accepted definition of dolus eventualis were dealt with at paras [26]—[27]. Although this will receive further elucidation, it is perhaps apposite at this point to question the Applicant’s contention that there exists a so-called, or purported, “second component’ for dolus eventualis, namely that of knowledge of unlawfulness. The Applicant eschews any possible support that this definition for dolus eventualis has received in case-law and even in recognized and respected legal writing.

http://www.scribd.com/doc/296591638/Oscar-Cc-Final-Papers-Aj-Monday-25-Jan-Respondent

Yes this is a critical point.

Knowledge of unlawfulness is not some extra, special ingredient for Dolus E. Rather it is wrapped up in the concept of PPD.

In other words, if one acts legitimately in PPD, then one did not know one was acting unlawfully - indeed one (mistakenly) believes one is acting with lawful justification.

So Justice Leach has in fact addressed this question in finding that PPD was not made out.

The obvious sanity check on all this is simply to ask did OP know he was acting unlawfully?

The answer is clearly yes.

As a trained firearms owner, he knew from his training that you cannot shoot in that situation.

 

[sinth]

As a trained firearms owner, he knew from his training that you cannot shoot in that situation.

Exactly. I remember during the SCA appeal when Roux brought up his disability as an excuse for firing, one of the judges commented something to the effect of that they cannot just give a pass to every disabled person.

For me, it is pretty obvious that if the SCA judges did so they would have been giving anyone with a disability an amnesty from their responsibilities as a gun owner and effectively a license to kill.

For those who want to hear the firearms test that Oscar passed, here is the section of the court case which covers it.
https://youtu.be/PAWZWcw62KY?t=910

It starts at 15:10 incase the direct link does not work. Particularly damning are questions 4 and 5.

 

[GR_Turner]

Yes this is a critical point.

Knowledge of unlawfulness is not some extra, special ingredient for Dolus E. Rather it is wrapped up in the concept of PPD.

In other words, if one acts legitimately in PPD, then one did not know one was acting unlawfully - indeed one (mistakenly) believes one is acting with lawful justification.

So Justice Leach has in fact addressed this question in finding that PPD was not made out.

The obvious sanity check on all this is simply to ask did OP know he was acting unlawfully?

The answer is clearly yes.

As a trained firearms owner, he knew from his training that you cannot shoot in that situation.

Surely the court were supposed to look at things subjectively from OP's perspective and in the moment. I can't see how the SCA made any effort to do that at all. It makes no sense to argue that someone who correctly answers a question in a test would have time to think in a potentially dangerous situation. The court seems to have just dismissed all consideration that he was just acting on the spur of the moment even saying that he approached the bathroom knowing that someone was in there and when this was confirmed shot them dead, as though there was an intention to shoot before entering the bathroom. It's a very odd interpretation of OP's version of events.

 

[soozieqtips]

Surely the court were supposed to look at things subjectively from OP's perspective and in the moment. I can't see how the SCA made any effort to do that at all. It makes no sense to argue that someone who correctly answers a question in a test would have time to think in a potentially dangerous situation. The court seems to have just dismissed all consideration that he was just acting on the spur of the moment even saying that he approached the bathroom knowing that someone was in there and when this was confirmed shot them dead, as though there was an intention to shoot before entering the bathroom. It's a very odd interpretation of OP's version of events.

BIB - why did he arm himself with a gun then if he had no intention of using it? It certainly wasn't to fire a warning shot, as we all know. And the fact is he did shoot when it was 'confirmed' someone was in the toilet, so I'm not sure what you're debating.

 

[Belgarion]

Surely the court were supposed to look at things subjectively from OP's perspective and in the moment. I can't see how the SCA made any effort to do that at all. It makes no sense to argue that someone who correctly answers a question in a test would have time to think in a potentially dangerous situation. The court seems to have just dismissed all consideration that he was just acting on the spur of the moment even saying that he approached the bathroom knowing that someone was in there and when this was confirmed shot them dead, as though there was an intention to shoot before entering the bathroom. It's a very odd interpretation of OP's version of events.

Now which version of events would that be. That he didn’t intend to shoot anyone but if the court found he did then he had that covered by saying he fired at intruders who were coming out to attack him in which case he realised he needed a ‘noise’ to give him the necessary fright and so the infamous ‘wood moving’ was born.

In fact it is well accepted that to this day no one really knows what is version was or the reason why he opened fire, as encapsulated by Justice Leach who said….

‘His evidence is so contradictory that one simply does not know his true explanation for firing his weapon’.

 

[Greater Than]

Surely the court were supposed to look at things subjectively from OP's perspective and in the moment. I can't see how the SCA made any effort to do that at all. It makes no sense to argue that someone who correctly answers a question in a test would have time to think in a potentially dangerous situation. The court seems to have just dismissed all consideration that he was just acting on the spur of the moment even saying that he approached the bathroom knowing that someone was in there and when this was confirmed shot them dead, as though there was an intention to shoot before entering the bathroom. It's a very odd interpretation of OP's version of events.

You can't be serious. A firearm competency test is given for a reason...to ensure licensed gun owners are aware of the circumstances in which they can and cannot legally shoot. You can't say after the fact, "oops, I was too scared to remember, so don't hold me accountable." It doesn't work like that. When you're given a license to own a lethal weapon, you are required to use it legally and responsibly.

Although Masipa was as all over the place in her judgement as OP was when he testified on the stand, even she very clearly ruled that he had every intention to shoot before he entered that bathroom, and that him passing the firearm competency test was indeed relevant:

"What is not conjecture, however, is that the accused armed himself with a loaded firearm when, on his own version, he suspected that an intruder might be coming in through the bathroom window. He was not truthful when asked about his intentions that morning, as he armed himself with a lethal weapon. The accused was clearly not candid with the court when he said that he had no intention to shoot at anyone, as he had a loaded firearm in his hand, ready to shoot."

"The accused knew that there was a person behind the toilet door and chose to use a firearm which was a legal weapon. He was competent in the use of firearms as he had undergone some training."

http://citizen.co.za/wp-content/uploads/sites/18/2014/09/140915OPJudgment.pdf?b644a6

 

[Greater Than]

Now which version of events would that be. That he didn’t intend to shoot anyone but if the court found he did then he had that covered by saying he fired at intruders who were coming out to attack him in which case he realised he needed a ‘noise’ to give him the necessary fright and so the infamous ‘wood moving’ was born.

In fact it is well accepted that to this day no one really knows what is version was or the reason why he opened fire, as encapsulated by Justice Leach who said….

‘His evidence is so contradictory that one simply does not know his true explanation for firing his weapon’.

Even Masipa said the same:

"The above extracts and the submissions by defence counsel show without a doubt that we are here dealing with a plethora of defences."

 

[Datchery]

To play devil's advocate for a moment, if, in fact, Oscar Pistorius had shot a burglar who had broken into his home one night while he lay sleeping, I would be fairly sympathetic to a self-defense claim EVEN IF his actions fell somewhat short of the threshold for a legally justifiable killing. IMO, once an intruder is in your home, it is reasonable to treat that person as a deadly threat and not wait to give him a sporting chance. So, in that respect, I agree with GR Turner.

However, for me, all of this is a moot point, because there isn't a scintilla of an iota of a reason for OP to have assumed that the person in the bathroom wasn't, you know, the other person actually sleeping in his home that night. This was Dolus Directus. I don't believe Oscar ever made a conscious decision to kill Reeva, and I believe he was horrified when it hit him that she was actually dead, but it seems clear to me that he shot through the door in a rage knowing full well that Reeva was behind it. Unfortunately, there was no mistake in fact to give grounds for appeal on DD, so the best the courts can do is reverse the call on Dolus Eventualis, even if I'm not sure they would apply precisely the same reasoning to a case in which a person had, in fact, killed a burglar.

 

[Colin de France]

To play devil's advocate for a moment, if, in fact, Oscar Pistorius had shot a burglar who had broken into his home one night while he lay sleeping, I would be fairly sympathetic to a self-defense claim EVEN IF his actions fell somewhat short of the threshold for a legally justifiable killing. IMO, once an intruder is in your home, it is reasonable to treat that person as a deadly threat and not wait to give him a sporting chance. So, in that respect, I agree with GR Turner.

However, for me, all of this is a moot point, because there isn't a scintilla of an iota of a reason for OP to have assumed that the person in the bathroom wasn't, you know, the other person actually sleeping in his home that night. This was Dolus Directus. I don't believe Oscar ever made a conscious decision to kill Reeva, and I believe he was horrified when it hit him that she was actually dead, but it seems clear to me that he shot through the door in a rage knowing full well that Reeva was behind it. Unfortunately, there was no mistake in fact to give grounds for appeal on DD, so the best the courts can do is reverse the call on Dolus Eventualis, even if I'm not sure they would apply precisely the same reasoning to a case in which a person had, in fact, killed a burglar.

....totally agree.....the problem now is that the whole situation is a right mess, how can he now come out with the scenario that he shot knowing it was Reeva but without having the intention to kill ....

 

[Tortoise]

The Constitutional Court sits to hear cases during 4 terms a year, the next one being 1st Feb to 31st March.

 

[GR_Turner]

BIB - why did he arm himself with a gun then if he had no intention of using it? It certainly wasn't to fire a warning shot, as we all know. And the fact is he did shoot when it was 'confirmed' someone was in the toilet, so I'm not sure what you're debating.

Op made it clear that he shot believing someone was coming out of the toilet, not just because he thought someone was there. There's a huge difference between grabbing a gun planning to kill an intruder up front, and taking the gun for self defence and then reacting strongly when thinking an attack was imminent. I can't see why this is such a difficult distinction to understand.

 

[Tortoise]

Op made it clear that he shot believing someone was coming out of the toilet, not just because he thought someone was there. There's a huge difference between grabbing a gun planning to kill an intruder up front, and taking the gun for self defence and then reacting strongly when thinking an attack was imminent. I can't see why this is such a difficult distinction to understand.

As the DPP says in its opposition to the appeal, at point 25 http://www.scribd.com/doc/296591638/Oscar-Cc-Final-Papers-Aj-Monday-25-Jan-Respondent

"the Applicant has himself to blame for the Court a quo and the SCA's negative comments about his credibility. The end result is that there exists no credible explanation by the Applicant for the killing of the deceased..."

He made nothing clear, as you state. Lest we forget his testimony it was laid out neatly by Greater Than in the previous thread at post #459 here http://www.websleuths.com/forums/sh...d-68-*Appeal-Verdict*&p=12240029#post12240029

 

[Belgarion]

....totally agree.....the problem now is that the whole situation is a right mess, how can he now come out with the scenario that he shot knowing it was Reeva but without having the intention to kill ....

Much is made about the mess that Pistorius created in his testimony but in my opinion Masipa is equally to blame.

It is interesting to examine parts of her judgement as it reveals what I would consider incredible naivety on her part

She says.....

‘His version was that he genuinely, though erroneously, believed that his life and that of the deceased was in danger. There is nothing in the evidence to suggest that this belief was not honestly entertained. I say this for the following reasons: The bathroom window was indeed open, so it was not his imagination at work when he thought he heard the window slide open. He armed himself with a loaded firearm and went to the direction of the noise. He heard a door slam shut. The door toilet was indeed shut when he fired four shots at it’

So her belief that his life was in danger rests on two things, the window being open and the door being shut.

Did it not occur to Masipa the window could have been opened at any time, indeed Pistorius could have opened it himself when he went back upstairs. There is nothing to support the window being opened at the time he says it was. However, Masipa uses this imprecise event to justify her conclusion ‘his imagination was not at work’.

Likewise for the door slamming. The fact the door was closed does not support Masipa’s assertions that the closure was at the moment he heard a door slam. Indeed Reeva may well have slammed the door thereby giving Pistorius the idea to feed this into his intruder story.

Also Masipa’s naivety shows through in the following when she commented on the ‘intruder story’

'Counsel for the defence correctly argued that it was highly improbable that the accused would have made this up so quickly and be consistent in his version, even at the bail application before he had access to the police docket and before he was privy to the evidence on behalf of the state at the bail application. To find otherwise would be tantamount to saying that the accused’s reaction after he realised that he had shot the deceased was faked; that he was play acting merely to delude the onlookers at the time'.

Personally I would have concluded he had very good reason and plenty of time to concoct the intruder story.

He had just killed his girlfriend and given his nature he would instantly have recognised if found guilty of murder it would change his lifestyle for ever (loss of sponsors, reputation, etc and possible incarceration). It is basic human nature for self-preservation to kick in and attempt to initially shift the blame – it happens all the time, especially in someone like Pistorius, who I consider has some degree of narcissism in his personality. In fact he didn’t even need to think, he had a ready-made excuse as the concern over intruders is always present in SA and it would be something that people would understand and maybe even show sympathy for his ‘terrible mistake’

Why did Masipa not see this? The clue is in the number of times he mentioned intruders after the event. From the moment he phoned Stander he tells all and sundry he thought it was an intruder as if trying to convince as many people as possible and perhaps even himself.

In my opinion I am surprised Masipa didn’t fall over given how far she leant over to reach some very debatable ‘conclusions ‘ merely to support his ‘version of events’

 

[GR_Turner]

As the DPP says in its opposition to the appeal, at point 25 http://www.scribd.com/doc/296591638/Oscar-Cc-Final-Papers-Aj-Monday-25-Jan-Respondent

"the Applicant has himself to blame for the Court a quo and the SCA's negative comments about his credibility. The end result is that there exists no credible explanation by the Applicant for the killing of the deceased..."

He made nothing clear, as you state. Lest we forget his testimony it was laid out neatly by Greater Than in the previous thread at post #459 here http://www.websleuths.com/forums/sh...d-68-*Appeal-Verdict*&p=12240029#post12240029

I think he was pretty clear actually. He fired when he thought the door was about to open, in fright and without time to think. The problem I think is the word intent. OP is clear that he didn't think before shooting and that's why he says he didn't have intention to shoot. This is an understandable perspective when the word is used colloquially and is surely different from intention when used in a legal sense. Given that OP was consistent about his version regarding the belief that the door was about to open, that he was afraid as he thought there was an intruder and that just fired without thinking, the question of legal intent should have been decided by the court and not OP's answer to the question of whether he intended to shoot imo. Masipa decided there was intention so PPD should have been based on that finding, not on OP's fuzzy and colloquial understanding of intention. In effect he had one version that could raise 2 possible defences depending on how you dealt with it legally.

Try looking at the excerpts from this perspective: see my bolds


Roux: At any time did you intend to kill reeva
Oscar: I did not intend to kill Reeva or anybody else Mi'Lady.

http://live.nydailynews.com/Event/Os..._Death?Page=49


Oscar: It was accidental. My understanding is I didn't intent to shoot the intruder. I got a fright from someone inside the toilet.
Nel: You never fired at the intruders intentionally, the gun went off unintentionally?
Oscar: I didn't have much time to think. I dealt with a set of circumstances.
Nel: you're giving evidence. Did you shoot intentionally?
Oscar: I shot out of fear.
Nel: Because of fear you shot at them.
Oscar: I didn't intend to shoot at them, I didnt intend to kill someone. When I heard the noise from the toilet, I thought someone was coming out to kill me. I didn't have time to think.

Nel: Did your gun accidentally go off or did you fire at the intruders
Oscar: My firearm went off, it was an accident it happened. I fired my firearm before I could think

Oscar: At the time I fired the shot, I didn't have time to think. I didn't intend to shoot at anyone. I can't say I didn't. I never fired shots purposely into a door.

http://live.nydailynews.com/Event/Os..._Death?Page=50


Nel: Did you fire deliberately, still accidentally.
Oscar: I'm still that I fired the gun out of fear. I didn't mean to pull the trigger so in that sense it was an accident.
Nel: I never meant to pull the trigger. You never wanted to shoot at intruders coming out of the bathroom.
Oscar: I didn't have time to think. I didn't want to shoot at anyone.
Nel: Whatever happened never caused you to shoot - it happened accidentally.
Oscar: The noise came from the toilet, caused me to pull the trigger. I didn't have time to think about it, I heard a noise, and I discharged my firearm.

http://live.nydailynews.com/Event/Os..._Death?Page=52


Oscar: I didn't intend to shoot, when I heard a noise, I didn't have time to think. I fired my weapon. It was an accident.

http://live.nydailynews.com/Event/Os..._Death?Page=53


Nel: If you did not want to shoot the person, what did you want to do.
Oscar: My intention was to make the person flee.
Nel: Nothing else.
Oscar: correct
Nel: And when you got into the bathroom there was nobody there.
Oscar: correct

http://live.nydailynews.com/Event/Os..._Death?Page=55


Nel: But isn't your defence that you thought you were in danger and wanted to shoot the person in the bathroom.
Oscar: No
Nel: Is it your defence that you fired at the perceived attacker.
Oscar: I fired at the door

Nel: Is it your defence that you fired at the perceived attacker.
Oscar: No.
Nel: Then what is your defence
Oscar: I heard the noise and I didn't have time to interpret it and I fired my firearm out of fear.

Nel: I don't understand your defence you can't have two
Oscar: I understand
Nel: The way I understand the defence is that you acted in putitive self defence. that you fired at the attacker to ward off an attack.
Oscar: I didn't have time to think. I fired my firearm.
Nel: you defence has changed from putitive self defence to involuntary action.
Oscar: I don't understand the law.

http://live.nydailynews.com/Event/Os..._Death?Page=56


Nel: IF your version now is that you fired because you were scared? Why only four, why not empty the magazine? Why not fire at the window. Did you not think there was someone on the window.
Oscar: My firearm was pointed at the door.
Nel: Did you not think of firing into the shower
Oscar: If I fired into the shower it could ricochet and hit me.
Nel: But firing into the door you should know it could hit someone.
Oscar: I didn't intend to fire my gun.

Nel: you thought the intuder was coming out, and they would have to turned the door handle. For them to get out the door they have to use the handle, and you could see it.
Oscar: I guess I didn't focus on the handle, I focused on the door as a whole.
Nel: Did you not fire at the handle.
Oscar: I can see that is not the case
Nel: If you wanted to fire at the intruder, where would you have fired.
Oscar: Probably at chest height, probably on the right.
Nel: So we can exclude that you fired to protect yourself.Did you fire to shoot an intruder.
Oscar: No I fired because I had a fright.
Nel: If there was an intruder in the toilet, would it have been an accident.
Oscar: I never intended to shoot anyone, yes.

http://live.nydailynews.com/Event/Os..._Death?Page=57

This all seems very consistent to me.

 

[Hazy]

So

I intended to make them flee. As if he was gonna let them come out.....

I THOUGHT someone was coming out

I didn't have time to THINK

I fired out of fear

Consistent?

As for fear I will borrow some words from the Lady judge at the SCA ' one shot maybe...'

4 shots ain't so easy to explain away.

 

[Belgarion]

The Constitutional Court sits to hear cases during 4 terms a year, the next one being 1st Feb to 31st March.

I would imagine much goes on outside those times including judges working on cases in progress and leaves to appeal.

Interestingly it has been reported in the media, admittedly only from a comment from one lawyer as far as I can see, that should the ConCourt refuse leave to appeal then Pistorius can petition the Chief Justice of the court directly.

However, I am beginning to doubt this as there seems to be nothing in the Rules of the ConCourt or indeed the Constitution that would allow such a direct appeal. Personally I would be surprised if it were permissible as it could open up a person in high office to possible suspicious of corruption should he override a previous collective judicial decision.