Trial Discussion Thread #9 - 14.03.18, Day 12

[Rumpole]

My understanding is that the state must put on their case which is the murder was premeditated. Naturally, that means they believe Oscar is lying. But they don't have to prove he is lying, they have to prove their case. I'm not making any sense but it makes sense in my head. Their case is not he is lying, it's this murder is premeditated, here's why.

If the Judge accepts OP's version, then it certainly was not premeditated murder. That is the point of the trial?

The State have to PROVE that OP is lying. (Beyond Reasonable doubt)

If the Judge accepts that OP GENUINELY believed the Intruder scenario.... and he is not nuts to believe that (a reasonable belief to have had), then she will have to evaluate his actions in the context of there being an intruder (in his mind)

If, on the other hand the Judge thinks OP is lying then she evaluates things on that basis... Clearly a heinous crime deserving the full penalty of the law.

It all depends on the Judge resolving the question "is OP lying?" first up. The State have the burden to PROVE OP is lying. The rest would be a cake walk if they got on with that

 

[sorrell skye]

If a defendant claims self defense then the Burden is on the State to disprove it. We have that sort of situation here.

When a defendant is charged he remains INNOCENT until PROVEN guilty beyond reasonable doubt. The defendant can (but usually doesn't) present no defense explanation at all

I agree... if OP claimed Space Aliens then it's a "no-brainer"... 100% sure he is lying. The State would walk it as far as disproving that claim beyond reasonable doubt. However, in the real world there are a range of things people might claim, in some circumstances not so easy to dismiss beyond reasonable doubt.. like we have in this case.

BBM

OP hasn't claimed self defense. He claimed he believed an intruder or intruders had entered his home and he shot that person through a door in a state of terror, and afterward 'realized' it was not an intruder, but Reeva.

There's no self defense claim anywhere in his BH affidavit or in his statement that was read at the commencement of trial.

To claim self defense, under SA law, he would be required to be defending himself against an imminent attack from an armed assailant that he could see - and this armed assailant would have to be approaching him with the expressed intent to harm or kill him. Sean Rens, the State's firearm expert witness, recently testified to this fact.

Under SA law, one cannot shoot through a door at an unidentified, unseen person. At the very least, that's culpable homicide. If OP's intention was to kill that unidentified, unseen person behind the door, it could also be premeditated murder.

I would say that shooting 4 bullets through a door demonstrates the intent to kill whomever is behind that door.

 

[Trooper]

I mean I get that he will have to take the stand to help prove the defense's claims. But this isn't really something to agree to disagree on. It is in the South African constitution, in section 35.

http://ossafrica.com/esst/index.php..._35:_Arrested.2C_detained_and_accused_persons

There is a difference between the necessity of testifying due to him being the only one that can tell his story, and not having the legal right to remain silent during his trial. He could decline to testify if he wanted to. That's his constitutional right.

point taken, Meebee..

However, and I put it to you.. that there is only one event that would allow Oscar to NOT take the stand under SA law as it presently stands.. and that is, if , after the State puts its witnesses up, and before the Defence puts theirs up, the Judge in this instance, judge Masipa declares , after hearing the states witness, that there is no case to answer , and the case is dismissed..

this is the only event that prevents Oscar from being sent up to take the witness stand..

"If there is no discharge at end of the state case, the defence presents its case. It may deliver an opening address,[280] if it desires, and then call the accused and any witnesses it chooses. The state cross-examines these witnesses, and the defence may re-examine them. The accused is then obliged to testify before defence witnesses.[281]"

unless a dismissal of the case against Oscar occurs, which would happen when all the States witness have testified, then up on the stand he goes regardless of his preference.

 

[MeeBee]

point taken, Meebee..

However, and I put it to you.. that there is only one event that would allow Oscar to NOT take the stand under SA law as it presently stands.. and that is, if , after the State puts its witnesses up, and before the Defence puts theirs up, the Judge in this instance, judge Masipa declares , after hearing the states witness, that there is no case to answer , and the case is dismissed..

this is the only event that prevents Oscar from being sent up to take the witness stand..

"If there is no discharge at end of the state case, the defence presents its case. It may deliver an opening address,[280] if it desires, and then call the accused and any witnesses it chooses. The state cross-examines these witnesses, and the defence may re-examine them. The accused is then obliged to testify before defence witnesses.[281]"

unless a dismissal of the case against Oscar occurs, which would happen when all the States witness have testified, then up on the stand he goes regardless of his preference.

I believe this is saying that if the accused decides to testify, he would be obliged to go first in the defense's case, not obliged to testify at all.

 

[G.bng]

No, not necessarily. Usually the way it works is if the defendant claims self defense, then the defendant must allege facts that facially support self defense if taken as true. OP has done that by his bail affidavit and plea statement. Typically the burden is then on the prosecution to prove that it was not self defense or justified. I'm not sure that is how it goes in SA but that is the way it is done in most US jurisdictions.

But OP is not claiming self defence, nor can he ! For starters there was no attacker for him to claim he was self defending himself from, except as a figment of his imagination, and Reeva was not threatening him. The most he can claim is as he has already done, i.e. that she was shot accidentally while he was self defending himself from what he thought to be an intruder holed up in his loo but who neither threatened nor attacked him ; - )

 

[Trooper]

Like maybe his brother & what his name? Oldwage. Let's not forget that OP handed over his extra phone, that the police didn't know about, to his lawyer. His lawyer didn't hand it over to police straight away either.

possibly the original count of the watches was one out.. no pics were taken of exactly 8 watches, then , whoof, 7..

its all a bit iffy.. even Oscar doesn't know exactly HOW MANY watches were there in total in that box..

anyways... Courtney Love will solve the watch problem. simples!!

 

[minor4th]

But OP is not claiming self defence, nor can he ! For starters there was no attacker for him to claim he was self defending himself from, except as a figment of his imagination, and Reeva was not threatening him. The most he can claim is as he has already done, i.e. that she was shot accidentally while he was self defending himself from what he thought to be an intruder holed up in his loo but who neither threatened nor attacked him ; - )

Well, I thought that was the crux of his defense - he shot in self defense, believing a bathroom intruder was about to come out and attack him and Reeva.

 

[Trooper]

I believe this is saying that if the accused decides to testify, he would be obliged to go first in the defense's case, not obliged to testify at all.

testify before defence witnesses

no sorry, but 'before' in this instance doesn't mean in sequence or order, it means in the presence of and within the hearing and sight of the judge and the prosecution and his defence attorney. and also his own witnesses.. and the public.

the meaning of the word is in the context of .. I stand before you all and state my case..

not in the meaning of , I will be before you in the queue .... :truce:

 

[G.bng]

If a defendant claims self defense, then the burden shifts to the defense, no? It is now up to them to prove that the defendant is in fear for their life? But OP is not claiming self defense, is he? Right now the burden of proof is on the state to prove that the murder was premeditated, not that Oscar is lying.

From my understanding of SA law "premeditation" is not the same as we interpret it in the US, and other anglophile countries. From my understanding in SA law the State in this case will have to prove either intention, or that the reasonable person could have foreseen the possibility that the person behind the door could be killed whether that person were Reeva or a burglaar.

 

[MeeBee]

testify before defence witnesses

no sorry, but 'before' in this instance doesn't mean in sequence or order, it means in the presence of and within the hearing and sight of the judge and the prosecution and his defence attorney. and also his own witnesses.. and the public.

the meaning of the word is in the context of .. I stand before you all and state my case..

not in the meaning of , I will be before you in the queue .... :truce:

I don't think so troops, otherwise it would say before the court or before the judge. Why would it say before the defense witnesses, of all things?

I also suggest you read the other link I posted which points out the rights of the accused which includes the right to not testify. It's there, plain as day, in black and white, in the constitution.

 

[Trooper]

Well, I thought that was the crux of his defense - he shot in self defense, believing a bathroom intruder was about to come out and attack him and Reeva.

there is no provision in SA law to claim self defence merely because one believes an intruder 'may come out and attack'..

Oscar knows this.. its also one of his conditions of being a firearm owner.. the foundation for shooting an intruder is quite well covered..

otherwise, one could shoot the local postal delivery or the milkman. or the electricity meter reader or even a copper delivering a fine notice or summons..your MIL, your dreadful Aunt who is calling to tell you off, just bang at anyone willy nilly who appears. .. merely because one thought they may attack..


there has to be a foundation for the belief..

 

[G.bng]

Minor, I agree with you.. OP could be convicted of manslaughter if a USA trial, but not premeditated murder partially because of the incompetent police work. I think some are covering for each other's mistakes...not a conspiracy! Sad, because the outcome might be different. Then again, who knows. People in SA must be upset with their police force in this case. Reeva deserves better. MOO.


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Trouble with that is that, if I understand it correctly under SA law murder and premeditation are not the same as in the US or other anglophile countries. So, if I have read it correctly, in this case the prosecution would only have to prove thatthat a reasonable person should have foreseen that shooting 4 times blind at a door to a tiny toilet had to possibility of killing any person in there whether Reeva or an unknown burglar.

 

[MeeBee]

Trouble with that is that, if I understand it correctly under SA law murder and premeditation are not the same as in the US or other anglophile countries. So, if I have read it correctly, in this case the prosecution would only have to prove thatthat a reasonable person should have foreseen that shooting 4 times blind at a door to a tiny toilet had to possibility of killing any person in there whether Reeva or an unknown burglar.

I think when it goes to culpable homicide and his belief of there being an intruder In there, then yes, maybe. But the state believes he knew Reeva was in there and shot her on purpose, for whatever reason.

I could be wrong. But you're saying to prove premeditation they have to prove Oscar intended to kill the person behind the door, regardless of who it was or why? In that case, easy peasy, lol.

 

[sorrell skye]

Well, I thought that was the crux of his defense - he shot in self defense, believing a bathroom intruder was about to come out and attack him and Reeva.

That doesn't meet the legal requirement for self defense, under SA law.

Firearms expert, Sean Rens, laid it all out for the Court when he testified about the firearms competency tests that are required prior to purchasing firearms - tests which OP took, passed, and signed off on.

Believing that an intruder is in one's toilet room and discharging 4 rounds through a door at an unknown, unseen person who has posed no expressed threat to one's safety or life does not meet the legal requirement for self defense according to SA law, but may result in OP being found guilty of either culpable homicide or premeditated murder.

This is why Roux is trying so hard to discredit all the witnesses - because he knows (as an attorney with many years experience) that the law is not on his client's side. So he's attacking the investigation and the witnesses. He has no other option.

 

[strydohj]

The accused has the right not to testify but if he does decide to, he must testify before other defence witnesses. Reason is he is present in all the proceedings and is not suppose to hear what other defence witnesses is saying so that he cannot adapt his testimony based on their testimonies.

 

[Trooper]

Well, I thought that was the crux of his defense - he shot in self defense, believing a bathroom intruder was about to come out and attack him and Reeva.

May I ask if that thought he shot in self defense, believing a bathroom intruder was about to come out and attack him and Reeva was also the crux of your belief that this entire Prosecution case is a matter of conspiracy , collaboration , lies and incompetence by the police??

I ask because it is astonishing to me that this far into the trial, anyone is under the belief that this claim ' he shot in self defense, believing a bathroom intruder was about to come out and attack him and Reeva'is the basis for Oscars defence..

 

[Trooper]

The accused has the right not to testify but if he does decide to, he must testify before other defence witnesses. Reason is he is present in all the proceedings and is not suppose to hear what other defence witnesses is saying so that he cannot adapt his testimony based on their testimonies.

thankyou, Stry.. is this right ascertained under South African law?? that he has the right not to testify if he pleads not guilty?

(if he had pleaded guilty, there would be no reason for him to enter the witness box at all. He would have to state that he understood the charges, and pleaded guilty to them from the witness bench. not the witness stand.. )

 

[Rumpole]

Well, I thought that was the crux of his defense - he shot in self defense, believing a bathroom intruder was about to come out and attack him and Reeva.

OP has plead Not Guilty... but admits the shooting. That IS a claim of justifiable killing (self defense).

 

[G.bng]

However, that doesn't mean Pistorius walks. Not even close.

Even if the prosecution can't make out premeditated murder, it can still get Pistorius on the lesser charge of murder. In order establish murder, they only need to show that he intended to kill Steenkamp (no planning element needed).

Should the prosecution fail on murder, there is another lesser charge that could come into play: culpable homicide. This charge means that Pistorius negligently killed Steenkamp (or that the killing was an accident).

And this is what Pistorius is alleging - he killed Steenkamp by accident. He thought she was an intruder.

I think you may find that under SA law "premeditation" or "intention" could in this case be the fact OP fired blind 4 times at a closed door leading to a tiny room, and even if OP didn't intend to kill the supposed burglar, the reasonable person should have known that this action could cause death to the person holed up in there, which apparently also comes under the charge of murder in South Africa. Basically, it could be that it matters not whether he intended to kill a burglar or Reeva, only whether he should have reasonably known that he could kill whichever person was in there by firing in that way through the door.

 

[MeeBee]

thankyou, Stry.. is this right ascertained under South African law?? that he has the right not to testify if he pleads not guilty?

(if he had pleaded guilty, there would be no reason for him to enter the witness box at all. He would have to state that he understood the charges, and pleaded guilty to them from the witness bench. not the witness stand.. )

Anyone who is accused of a crime has a right to not testify in their trial. If the person pleads guilty then there's no trial. So, obviously, it is if they plead not guilty, because then there is a trial.