Oscar Pistorius - Discussion Thread #69 *Appeal Verdict*

[Interested Bystander]

Obviously it is going to be difficult for supporters of premeditated murder to come to terms with the fact that the evidence for premeditation has been rejected and see DE in that light.

I would rather be guided by the evidence presented in court.

I don't think it was premeditated murder. I think he was in a rage, argued, chased her into the bathroom and shot at her through the door. As for the evidence for this, Masipa wrongly discarded very strong circumstantial evidence that would have proved it. Hence the PT chasing down an Appeal for DE. It was all that was left open for them to do.

Did you know in SA that although there is no law allowing for Crime of Passion as such, there is precedence for handing down CH for murdering a partner after an argument but he did not have the honesty to admit anything at all, ie shooting in the restaurant, ownership of ammunition for which he was about to buy a gun, shooting through the roof of a car, let alone shooting in a rage. Had he been honest he might well have served a short sentence and be free by now. However, for me, he deserves a long sentence for murder due to his deceitful, dishonest account of the event. He has had his chance to tell the truth but failed to do so. I find him to be a thoroughly dishonest young man to whom lies seem second nature. He IMO is a narcissistic pathological liar.

I have to say that although the SC were not at liberty to call him a liar, they all but did so. I got the impression that the Appeal judges strongly felt that his Defence was a pack of lies and for all five to find him guilty of murder indicated that they were very unhappy with Masipa's verdict but it does seem to me that you are still clinging onto his dishonest account of events.

Neither you nor I are ever likely to change our opinion and mostly I avoid getting involved in a discussion with you for this reason. Just occasionally blinkered comments provoke me enough into doing so.

 

[Marfa Lights]

From Masipa's Judgment:

"Counsel submitted that in determining the issue of whether the accused was guilty of murder or culpable homicide, this court ought to consider that the accused lacked criminal capacity at the time, as he discharged his firearm because of an increase startled response. He pointed out that the startle response was reflexive. This meant that the accused could not be held accountable as he lacked capacity in the involuntary reflexive response.

He submitted that whether this reflex fell under the act actus reus or criminal capacity, made no difference as both negated liability. Counsel for the defence further submitted that a finding that the accused was guilty, could not be made as the accused could not be held liable for a reflex discharge,caused by the increased startled response.

I disagree with this submission. There is a huge difference as submitted by state counsel, between a reflex action and involuntary action. The latter concept has the hallmark of a defence of non- pathological insanity, as it gives the impression that the accused had no control over his action when he fired the shots at the door. That this cannot be, is clear from the steps that the accused took from the moment he heard the sounds of the window opening to the time he fired the four shots.

There was no lapse of memory or any confusion on the part of the accused. On his own version he froze, then decided to arm himself and go to the bathroom. In other words he took a conscious decision."

Even Masipa could not buy this pathetic attempt to evade responsibility.

 

[Tortoise]

Obviously it is going to be difficult for supporters of premeditated murder to come to terms with the fact that the evidence for premeditation has been rejected and see DE in that light.

I would rather be guided by the evidence presented in court.

If you mean that, then you will necessarily have to believe that Masipa got it wrong.

The evidence presented in court was that he didn't mean to fire. Since that is an absolute nonsense, if one fears an imminent threat to their life, it means he hasn't accounted yet for purposefully firing 4 shots.

When Masipa found that he could not rely on a defence of PPD because he said he did not intend to shoot, she should have thrown out his evidence completely, on the basis that his version was not reasonably possibly true. That is the only natural conclusion to draw, that the State proved its case by his failure to give a reasonably possibly true account for the shooting. There is no reason for you not to see that too as an observer of the trial.

Fortunately for justice though, it meant that the State could appeal, and see proper justice done securely in a higher court.

He is not going to be able to overturn the verdict of the SCA. I would even go as far as to say the DT knows this, and knew it at the SCA hearing. It's a lost cause.

It is evident in the appeal to the ConCourt and it was evident in Roux's last half hour of argument at the SCA - when he said wtte 'why would he shoot at 3 in the morning if he didn't honestly believe his life to be in danger?' He recognised that Masipa's verdict was not conclusive on the matter and I would argue, not logical. She found he had no claim to PPD, yet didn't reach the only logical verdict - that of murder, and not murder of the bogeyman, but murder of Reeva because the version was a lie.

The SCA asked Nel if a lack of a known motive was a bar to a finding of murder. Of course it wasn't. That doesn't mean that anyone has to wonder why he would shoot a perceived intruder if he didn't fear for his life - it means, when stuck with Masipa's erroneous finding that he was afraid of intruders (for which there is only the word of the killer and which cannot be overturned by any court in the land), that he has been found by the SCA to have killed with criminal intent and given no credible explanation. You aren't forced to think that this isn't logical, you can view it in the light that he hasn't been believed - his version did not withstand the scrutiny of the SCA judges, and the majority of the public who heard the evidence. All it means is that he hasn't got a defence of PPD, so if you think logically, he didn't think there was an intruder. That only leaves his 4 bullets intentionally aimed at Reeva and the SCA having its hands tied by the CPA, not being able to touch the factual findings, so not having the power to pronounce that he knew Reeva was in the toilet, but in the interests of justice, delivering the correct verdict on the whole of the evidence.

In its appeal to the ConCourt, Fawcett exposes the weakness in his own argument quite succinctly -

"114. The only difference in his evidence was whether he purposefully discharged the shots or whether he discharged the shots in reaction to a startle response triggered by fear.

115. The Trial Court analysed the Applicant's evidence and rejected the evidence that he had discharged the shots as a result of a startle response and found that he purposefully discharged the shots.

116. The finding by the Trial Court that the Applicant had purposefully discharged the shots must be considered in view of the Trial Court's finding that the Applicant had genuinely, though erroneously, believed his life and that of the Deceased were in danger."

There you have it. We can't point to anywhere in the Applicant's evidence where he said he fired purposefully in fear for his life, but the trial court found he did intend to shoot so please now consider that as his version. But hang on a minute - haven't they also just exposed that the trial court REJECTED his version that he shot in fear?

They also devote quite a few pages to his ability as a witness being compromised by his depressed mood. What are they trying to excuse here? The fact that his version wasn't credible? Unfortunately for them, Masipa already considered that very thoroughly and REJECTED it as an excuse. He was only evasive under cross-examination she found.

I would say it is very apparent that they know they are hamstrung by his evidence. Trying to avert the inevitable. As Andrea Johnson says so clearly, the appeal is without merit and contrived.

 

[sinth]

Did you know in SA that although there is no law allowing for Crime of Passion as such, there is precedence for handing down CH for murdering a partner after an argument

Surely that case cannot be similar to this one in respect to the cause of death i.e. 4 expanding bullets ?

 

[Trotterly]

If you mean that, then you will necessarily have to believe that Masipa got it wrong.

The evidence presented in court was that he didn't mean to fire. Since that is an absolute nonsense, if one fears an imminent threat to their life, it means he hasn't accounted yet for purposefully firing 4 shots.

When Masipa found that he could not rely on a defence of PPD because he said he did not intend to shoot, she should have thrown out his evidence completely, on the basis that his version was not reasonably possibly true. That is the only natural conclusion to draw, that the State proved its case by his failure to give a reasonably possibly true account for the shooting. There is no reason for you not to see that too as an observer of the trial.

Fortunately for justice though, it meant that the State could appeal, and see proper justice done securely in a higher court.

He is not going to be able to overturn the verdict of the SCA. I would even go as far as to say the DT knows this, and knew it at the SCA hearing. It's a lost cause.

It is evident in the appeal to the ConCourt and it was evident in Roux's last half hour of argument at the SCA - when he said wtte 'why would he shoot at 3 in the morning if he didn't honestly believe his life to be in danger?' He recognised that Masipa's verdict was not conclusive on the matter and I would argue, not logical. She found he had no claim to PPD, yet didn't reach the only logical verdict - that of murder, and not murder of the bogeyman, but murder of Reeva because the version was a lie.

The SCA asked Nel if a lack of a known motive was a bar to a finding of murder. Of course it wasn't. That doesn't mean that anyone has to wonder why he would shoot a perceived intruder if he didn't fear for his life - it means, when stuck with Masipa's erroneous finding that he was afraid of intruders (for which there is only the word of the killer and which cannot be overturned by any court in the land), that he has been found by the SCA to have killed with criminal intent and given no credible explanation. You aren't forced to think that this isn't logical, you can view it in the light that he hasn't been believed - his version did not withstand the scrutiny of the SCA judges, and the majority of the public who heard the evidence. All it means is that he hasn't got a defence of PPD, so if you think logically, he didn't think there was an intruder. That only leaves his 4 bullets intentionally aimed at Reeva and the SCA having its hands tied by the CPA, not being able to touch the factual findings, so not having the power to pronounce that he knew Reeva was in the toilet, but in the interests of justice, delivering the correct verdict on the whole of the evidence.

In its appeal to the ConCourt, Fawcett exposes the weakness in his own argument quite succinctly -

"114. The only difference in his evidence was whether he purposefully discharged the shots or whether he discharged the shots in reaction to a startle response triggered by fear.

115. The Trial Court analysed the Applicant's evidence and rejected the evidence that he had discharged the shots as a result of a startle response and found that he purposefully discharged the shots.

116. The finding by the Trial Court that the Applicant had purposefully discharged the shots must be considered in view of the Trial Court's finding that the Applicant had genuinely, though erroneously, believed his life and that of the Deceased were in danger."

There you have it. We can't point to anywhere in the Applicant's evidence where he said he fired purposefully in fear for his life, but the trial court found he did intend to shoot so please now consider that as his version. But hang on a minute - haven't they also just exposed that the trial court REJECTED his version that he shot in fear?

They also devote quite a few pages to his ability as a witness being compromised by his depressed mood. What are they trying to excuse here? The fact that his version wasn't credible? Unfortunately for them, Masipa already considered that very thoroughly and REJECTED it as an excuse. He was only evasive under cross-examination she found.

I would say it is very apparent that they know they are hamstrung by his evidence. Trying to avert the inevitable. As Andrea Johnson says so clearly, the appeal is without merit and contrived.

BIB She did not find that he did not intend to shoot.

She found that he said he didn't intend to shoot and that the state were right that being the case that he could not rely on PPD, but then went on to determine that he picked up the gun to use it to shoot. That is quite clear if you read that part of the judgement in full.

 

[Tortoise]

From the State's response to the Application to Concourt

"14. ...It is our respectful submission that the Constitutional Court will be loath to consider aspects that were not raised in argument before the SCA."

I wonder what specifically this refers to.

Could it be the test for dolus eventualis must include knowledge of unlawfulness?

Could it be that when Justice Leach said to Roux "you are going to be hard pressed on the evidence to establish a defence of PPD" or wtte, Roux did not argue that a finding of PPD was established by the Trial court?

Could it be that Roux did not argue that the SCA was not empowered or within its jurisdiction to make the order that it did on the questions of law if they were answered in favour of the prosecutor?

 

[Tortoise]

BIB She did not find that he did not intend to shoot.

She found that he said he didn't intend to shoot and that the state were right that being the case that he could not rely on PPD, but then went on to determine that he picked up the gun to use it to shoot. That is quite clear if you read that part of the judgement in full.

If you look at the part you have highlighted you will see I wrote "he said he did not intend to shoot"

When she determined that he intended to shoot it was a rejection of his evidence, it does not alter his version. His version is all that matters when the SCA determine whether he has a defence of PPD or not.

The DT knows it. You for some reason, are ignoring it.

 

[Trotterly]

If you look at the part you have highlighted you will see I wrote "he said he did not intend to shoot"

When she determined that he intended to shoot it was a rejection of his evidence, it does not alter his version. His version is all that matters when the SCA determine whether he has a defence of PPD or not.

The DT knows it. You for some reason, are ignoring it.

No and Leach also misunderstood the judgement when he said that Masipa had found that he did not intend to shoot.

 

[WilliamMunter]

ONE OF SA’S TOP CRIME PROFILERS RESIGNS AFTER 14 YEARS

"Brigadier Labuschagne, who led the Investigative Psychology Section, resigned from the police this week. Labuschagne has worked on over 300 serial murder and rape cases and was recently involved in the Oscar Pistorius investigation."

"One of the police’s top psychologists and profilers Gerard Labuschagne, says while there are brilliant detectives working cases, the overall quality of investigations has been slipping."

http://ewn.co.za/2016/02/02/Gerard-Labuschagne-believes-in-his-former-unit-to-solve-cases

You will remember he was often seen sitting behind Gerrie Nel:

 

[soozieqtips]

No and Leach also misunderstood the judgement when he said that Masipa had found that he did not intend to shoot.

So you have it right and 5 top judges have 'misunderstood' the judgement?

 

[Belgarion]

No and Leach also misunderstood the judgement when he said that Masipa had found that he did not intend to shoot.

I am continually amazed how senior judiciaries with many years of experience are simply judged not to have ‘understood’ when it suits laypersons who choose not to want to understand themselves

I recall the old adage, ‘don’t confuse me with facts as I have made up my mind’

 

[Interested Bystander]

Surely that case cannot be similar to this one in respect to the cause of death i.e. 4 expanding bullets ?

Yes, you may well be right. Four shots is three too many. I cannot remember how many shots were fired in the case I read about but I will see if I can find it again.

 

[Tortoise]

No and Leach also misunderstood the judgement when he said that Masipa had found that he did not intend to shoot.

It doesn't matter to me if you want to continue to refuse to see the fallacy in your stance.

Problem is, you will still not understand why you are wrong when he is sentenced for murder.

And when he is, he will have much difficulty submitting any mitigating circumstances, not having given an acceptable, credible explanation for murdering Reeva. He won't be able to say he shot because he feared for his life. Well he will probably try, but the judgement rather militates against it being accepted.

 

[J2000LT]

I have always loved the fireworks and fantastic show the Australians put on each year! Thanks for sharing this !

Just before we return to all things Oscar, I just saw this 1:29 video of the very end of our Sydney NYE celebrations and thought you might like to see it. Just beautiful.

[video=youtube;tLW2i3kUjg0]https://www.youtube.com/watch?v=tLW2i3kUjg0[/video]

 

[Greater Than]

No and Leach also misunderstood the judgement when he said that Masipa had found that he did not intend to shoot.

No he didn't. Please go back and reread the judgement again before misstating facts.

What he said was Masipa had found that OP had intent to shoot, but that he did not have intent to kill, which is why she convicted him of negligence rather than murder.

But as has been said over and over, when she concluded that he had not foreseen the possibility of death because she found that he did not have the direct intent to kill, she applied the test for DE incorrectly. He didn't need to have direct intent to kill to be found guilty of DE. When he pumped four black talon bullets through the door of his tiny toilet cubicle where there was nowhere for the person on the other side to hide, he knew that his actions would possibly result in death, but he fired...and fired...and fired...and fired anyway. He was trained in the use of firearms, he knew the ammunition in his gun caused maximum damage, he knew the size of his toilet, he knew there was a person behind the door, he knew that person had nowhere to hide, and he knew putting four bullets through the door would possibly (if not likely) kill that person. Foreseeing the possibility of death, but continuing the act knowing death may occur is criminal intent in the form of DE, and that is why he has been convicted of murder.

 

[mrjitty]

If you look at the part you have highlighted you will see I wrote "he said he did not intend to shoot"

When she determined that he intended to shoot it was a rejection of his evidence, it does not alter his version. His version is all that matters when the SCA determine whether he has a defence of PPD or not.

The DT knows it. You for some reason, are ignoring it.

The associated problem is Masipa drafted her judgement so badly that some of her findings are completely unclear

That is what opens the door to the SC

 

[mrjitty]

So you have it right and 5 top judges have 'misunderstood' the judgement?

This is also why it is important that High Court Judges draft their judgements to a high standard

Of course we will get cases where they make legal errors - that is why we have appeal Courts

But there is no excuse for lack of clarity in their drafting

So we should see the format where the test for PPD is discussed, then applied to the facts and then a decision reached with reasoning

Instead Masipa jumps all over the place and also leaves out key matters she was supposed to address

Of course when a High Court Judge lacks clarity and leaves things out - the SC is more than entitled to fix things up.

 

[Belgarion]

The associated problem is Masipa drafted her judgement so badly that some of her findings are completely unclear

That is what opens the door to the SC

In addition, what makes this even more unsettling is that one has to assume the 2 assessors also read this poorly constructed judgement before she delivered it. Also I felt in her reading of the wording she appeared somewhat ‘unfamiliar’ with the text. Altogether, not the best example of the higher echelons of the SA judicial system

 

[Tortoise]

In addition, what makes this even more unsettling is that one has to assume the 2 assessors also read this poorly constructed judgement before she delivered it. Also I felt in her reading of the wording she appeared somewhat ‘unfamiliar’ with the text. Altogether, not the best example of the higher echelons of the SA judicial system

It was immediately apparent when listening to the reading of her judgement that it was illogical and that she had applied the test of DE incorrectly.

To a QC, it must have been even more apparent that it was appealable.

Roux had an insurmountable challenge to convince the SCA that the judgement was correct. He tried to convince the judges that Masipa had already dealt with dolus in relation to the intruder before she examined DE only in relation to Reeva, on some spurious ground that he may have still considered whether it was Reeva in the cubicle before firing the shots. The problem with this argument was that she had already also by that stage of the judgement found that he thought she was in the bedroom, so logically there was no need to ask that question again, and she may as well have not even bothered to consider DE at all if Roux's interpretation was correct.

The final nail in Roux's coffin came when Leach pointed out that if Roux was right in thinking that she needed at that stage only to check to see if DE applied only in relation to Reeva, she then added in a second paragraph about him not having been able to foresee killing Reeva, "or anyone else for that matter".

This unravelled Roux's argument completely, and when pressed to say how this made sense he couldn't and he thanked Justice Leach for letting him off the hook.

That is how Roux knew he had lost.

 

[JudgeJudi]

The following is an interesting discussion with Judge Greenland.

[video=youtube;-WE5nzW92GY]http://www.youtube.com/watch?v=-WE5nzW92GY"]http://www.youtube.com/watch?v=-WE5nzW92GY[/video]