b) A violent temper, extreme jealousy and a readiness to reach for a much loved gun are ingredients that make for a potent mix. Pistorius clearly possessed all those ingredients in abundance.
What was the prior history of Oscar using violence due to a temper? Had he any prior history of domestic violence? Had he any prior history of threatening someone he was in a relationship with?
If we're going to bring his readiness to reach for his gun into it then perhaps you should be fair to the trial and add that the previous example of him reaching for his gun at his home was due to his perception that there was an intruder in the bathroom during the night which upon investigation with his gun turned out to be the weather outside making a noise against the bathroom window.
However that is irrelevant as in this case as there has been a clear misinterpretation of the law not fact. Masipa erred in her understanding of DE when she referred to Pistorius not ‘knowingly’ shooting Reeva as he thought she was in the bedroom; of course the identity of the victim is irrelevant. This was an error Masipa clumsily tried to remedy at a later stage and indeed an error she indirectly acknowledged by granting leave to appeal.
Don't agree with this bit at all.
If OP had suspected Reeva could be behind the door - even while thinking it was probably an intruder - he would've been found guilty of murder DE. So having decided it was possible OP thought it was an intruder, how could Masipa not consider whether he also may have realized there was a possibility it was Reeva? That was a possibility she had to consider and exclude before acquitting him of murder.
Nel's argument really depends on the SC accepting that the judge made some legal error by saying it was possible OP believed there was an intruder and that he was in fear for his life. If he has no defence against shooting at an intruder, then of course the identity of the victim is irrelevant. But if he does have a defence against shooting an intruder, then it's right for the judge to consider whether he suspected he was really shooting at another person.
As Porky points out the power of the SCA is limited in regard to factual matters.
However that is irrelevant as in this case as there has been a clear misinterpretation of the law not fact. Masipa erred in her understanding of DE when she referred to Pistorius not ‘knowingly’ shooting Reeva as he thought she was in the bedroom; of course the identity of the victim is irrelevant. This was an error Masipa clumsily tried to remedy at a later stage and indeed an error she indirectly acknowledged by granting leave to appeal.
I agree there has not been a misinterpretation of fact. The verdict is unclear but as you imply the intentions of Masipa are clear. CH is her intended verdict based on her finding that OP did believe there was intruder and was scared enough to fire without DE and the verdict is not inconsistent with this intention.. Is it right for the SCA to seek to alter this finding?
However, that said it would be naïve not to expect the judges of the SCA to indirectly consider the following which may well impact on their findings.
a) The court whilst acknowledging that Pistorius had a propensity to be untruthful decided to be selective about which parts of his story were believable instead of taking the accepted route of dismissing all of his evidence as unreliable.
There is absolutely no direction in law and neither should there be, to dismiss all of an accused's evidence based on untruths. Clearly picking up a ready to fire gun shows intent, but not to murder.
OP did not fall apart under cross examination and the only significant discrepancy was when he failed to notice he position of the large fan when first shown photos 55/56.
Much of the rest was Nel trying to make hay out of OP filling in the gaps with the aid of what OP remembered and of course what he could never know but had to speculate upon.
b) A violent temper, extreme jealousy and a readiness to reach for a much loved gun are ingredients that make for a potent mix. Pistorius clearly possessed all those ingredients in abundance.
If the SCA have been reading the newspapers and watching the news reports I'm sure they would be more convinced about any "violent temper?"
c) In SA the fear of the ‘swart gevaar’ is deeply etched on the white subconscious and is therefore a ready-made and obvious ‘excuse’ to reach for in order to avoid a murder charge.
Yes it's an excellent "excuse" because it is a real phenomenon. Nel failed to prove it did not happen in this case.
d) In this instance there would be an extremely strong motivation to take all measures possible to avoid a murder verdict given the consequences of the loss of international reputation, a significant income totally reliant on sponsorship and of course freedom.
Agreed. I'm sure he tried to paint the situation in the best possible light.
In my opinion, had this been a trial by jury, the above would have had been given much greater consideration and in all likelihood would have resulted in a murder conviction.
"In all likelihood" Not certainly though. In fact if we were going to guess a jury verdict we could do worse than use the poll data about a murder verdict. To be generous lets say that statistically the equivalent of no more than 1 "juror" would be required for a safe guilty verdict. That's 11/12 or 92%. I haven't seen any poll with that kind of majority - have you?
Therefore it is not inconceivable that in the interests of justice the SCA will take a similar view in using such issues and maybe others to ‘weight’ their findings on law.
The SCA ultimately have their hands tied here by the facts already found by Masipa.
The SCA ultimately have their hands tied here by the facts already found by Masipa.
No they don't. Otherwise what is the point of an appeal if not to change the course of correcting justice? Maybe that line simplifies the arguement but it really is that straightforward.
What was the prior history of Oscar using violence due to a temper? Had he any prior history of domestic violence? Had he any prior history of threatening someone he was in a relationship with?
If we're going to bring his readiness to reach for his gun into it then perhaps you should be fair to the trial and add that the previous example of him reaching for his gun at his home was due to his perception that there was an intruder in the bathroom during the night which upon investigation with his gun turned out to be the weather outside making a noise against the bathroom window.
There was the time he was taken to court after assaulting a girl he threw out of a party at his house after she returned to pick up her handbag. Plenty propensity to me. The matter was settled out of court IIRC.
ETA you'd be better off asking his ex-girlfriend Sam about his "ways"
What was the prior history of Oscar using violence due to a temper? Had he any prior history of domestic violence? Had he any prior history of threatening someone he was in a relationship with?
If we're going to bring his readiness to reach for his gun into it then perhaps you should be fair to the trial and add that the previous example of him reaching for his gun at his home was due to his perception that there was an intruder in the bathroom during the night which upon investigation with his gun turned out to be the weather outside making a noise against the bathroom window.
My reference was to a violent temper per se.
I would refer you to his public outburst at the 2012 Olympics and the furniture breaking episode in the changing room afterwards when he was so violent even his coach feared to enter the room.
Also of course the various ‘night club’ altercations, one of which occurred during the trial
Indeed Pistorius himself admitted during a television appearance to having “a temper issue” just three months before he shot Reeva.
I would say that is enough to qualify as 'prior history'
The SCA ultimately have their hands tied here by the facts already found by Masipa.
This may be wishful thinking on your behalf but it is certainly not correct.
The hands of the SCA are not tied by any of the facts found by Masipa, indeed when granting leave to appeal the verdict Masipa herself said that the possibility of another court coming to a different conclusion than hers was not remote.
If she was ‘confident’ in her verdict she would not have granted leave to appeal or accepted it may well be changed by another court.
Thanks for those links, booty! The second one was chilling reading. Hazel Kidson is a vile, evil woman, really cold and calculated too. And I suspect it could well have been her who was behind the attack on her husband in 1994 too, she could have staged the break-in! The poor husband.
There were a couple of things in that article about Kidson that reminded me of OP in court (although HK seemed to be calmer, more premeditated in her actions and less emotional than OP):
Ostentatiously religious and moaning about how much SHE was suffering... it seems to be a pattern with murderers in South Africa! >:(
Hi Charming
BIB I should think this is done by many accused all over the world on many occasions.
If OP had suspected Reeva could be behind the door - even while thinking it was probably an intruder - he would've been found guilty of murder DE. So having decided it was possible OP thought it was an intruder, how could Masipa not consider whether he also may have realized there was a possibility it was Reeva? That was a possibility she had to consider and exclude before acquitting him of murder.
Nel's argument really depends on the SC accepting that the judge made some legal error by saying it was possible OP believed there was an intruder and that he was in fear for his life. If he has no defence against shooting at an intruder, then of course the identity of the victim is irrelevant. But if he does have a defence against shooting an intruder, then it's right for the judge to consider whether he suspected he was really shooting at another person.
Having read this post a few times, I'm baffled by it.
I think that the finding that OP was in fact scared of an intruder is going to make it impossible to prove the presence of mind for DE.
In that case why did Masipa concede when she granted leave to appeal that a different court may interpret the law differently to her and the prospect for the appeal to succeed was not "remote."
If she was as convinced as you are that the CH verdict will not change she would not have granted leave to appeal – simple as that.
In that case why did Masipa concede when she granted leave to appeal that a different court may interpret the law differently to her and the prospect for the appeal to succeed was not "remote."
If she was as convinced as you are that the CH verdict will not change she would not have granted leave to appeal – simple as that.
So I think we can agree that a verdict which is not sound or as you say a 'bit of a mess' is a candidate for change by the SCA.
Any appeal could obviously result in a change in the verdict/sentence, but that doesn't mean it's likely to happen and especially not that, in allowing the appeal, Masipa thinks it's likely to happen. I'm not sure we can draw too many conclusions as to her view on that.
In the UK, the prosecution can appeal a point of law in order to clarify the law on that aspect, but it has no effect on the verdict or sentence of the particular case. If Masipa realized she'd worded the verdict poorly and left holes for the prosecution to appeal, it makes sense she'd allow the appeal to gain some clarity. That doesn't mean to say she thinks the SC will overturn the entire verdict. I agree with Porky that the finding that OP feared an intruder will be a difficult hurdle to overcome for the prosecution.
Any appeal could obviously result in a change in the verdict/sentence, but that doesn't mean it's likely to happen and especially not that, in allowing the appeal, Masipa thinks it's likely to happen. I'm not sure we can draw too many conclusions as to her view on that.
In the UK, the prosecution can appeal a point of law in order to clarify the law on that aspect, but it has no effect on the verdict or sentence of the particular case. If Masipa realized she'd worded the verdict poorly and left holes for the prosecution to appeal, it makes sense she'd allow the appeal to gain some clarity. That doesn't mean to say she thinks the SC will overturn the entire verdict. I agree with Porky that the finding that OP feared an intruder will be a difficult hurdle to overcome for the prosecution.
Firstly one of the perquisites for granting leave to appeal is that Masipa had to be convinced there was a reasonable possibility that another court could come to a different conclusion than she did.
That is a standard criteria in most countries where there is an appeal system.
In this respect Masipa expressed two things when deciding in favour of the State on Count 1.
She said she was satisfied that Nel had raised “questions of law” that another court could interpret differently when considering Pistorius’ intentions in shooting dead Reeva
She also said “I cannot say that the prospect of success at the supreme court of appeal is remote.”
Therefore in my opinion it will come as less of a surprise to Masipa if the SCA rules in favour of murder than some posters on DS
Firstly one of the perquisites for granting leave to appeal is that Masipa had to be convinced there was a reasonable possibility that another court could come to a different conclusion than she did.
That is a standard criteria in most countries where there is an appeal system.
In this respect Masipa expressed two things when deciding in favour of the State on Count 1.
She said she was satisfied that Nel had raised “questions of law” that another court could interpret differently when considering Pistorius’ intentions in shooting dead Reeva
She also said “I cannot say that the prospect of success at the supreme court of appeal is remote.”
Therefore in my opinion it will come as less of a surprise to Masipa if the SCA rules in favour of murder than some posters on DS
The prosecution's appeal was obviously focused on legal questions, particularly whether dolus eventualis was properly applied. When the judge said the prospect of success is "not remote", she was talking about the legal points raised by the prosecution, not the question of whether the culpable homicide verdict would be overturned and replaced by a murder conviction, though of course that's one possible outcome.
I think it's simplistic to argue that in allowing the appeal, Masipa is saying there's a chance Pistorius will be convicted of murder. She's acknowledging that she may have erred or been unclear on a legal point. Even if the SC finds she was unclear, they could clarify the legal point while leaving the verdict exactly as it is. By the way, even though Masipa allowed the prosecution appeal on the "multiple defences" issue, I bet you anything she doesn't think she's wrong on that and that she doesn't believe she's going to be overturned.
I think you're making too big a leap from "Masipa acknowledged possible error on a legal point, which naturally might have an impact on the verdict" to "Masipa allowed the appeal, which supports my belief the culpable homicide conviction will be overturned".
I don't think OP's thoughts or feelings can be a finding of fact. It can't be proved.
I think it has to be an unproven and untested assumption of Masipa's which the SCA can disregard if it sees fit.
JMO
Morning Claire
I agree. How can Masipa read OP's mind and why would she even be expected to?
I realise that she has put herself in this position for whatever reason only known to her.
And surely it should be down to the evidence when the defence put forward a defence that the accused "thought" it was an intruder?
How does the evidence corroborate OP's claim? And how much force used towards a supposed intruder?
If Masipa disregards most of the evidence in order to clear the way for a certain verdict. Won't the SCA take on board the fact also that Masipa said OP was an "unreliable witness" and "lied" plus what she did to the evidence to consider their conclusions?
I don't think OP's thoughts or feelings can be a finding of fact. It can't be proved.
I think it has to be an unproven and untested assumption of Masipa's which the SCA can disregard if it sees fit.
JMO
A finding of fact doesn't mean something which has unequivocally been proven true, it means a decision made about the facts of the case. Whether OP feared for his life is a conclusion drawn from the factual evidence presented by the defence and prosecution, as opposed to a legal question.
Comments
What was the prior history of Oscar using violence due to a temper? Had he any prior history of domestic violence? Had he any prior history of threatening someone he was in a relationship with?
If we're going to bring his readiness to reach for his gun into it then perhaps you should be fair to the trial and add that the previous example of him reaching for his gun at his home was due to his perception that there was an intruder in the bathroom during the night which upon investigation with his gun turned out to be the weather outside making a noise against the bathroom window.
Don't agree with this bit at all.
If OP had suspected Reeva could be behind the door - even while thinking it was probably an intruder - he would've been found guilty of murder DE. So having decided it was possible OP thought it was an intruder, how could Masipa not consider whether he also may have realized there was a possibility it was Reeva? That was a possibility she had to consider and exclude before acquitting him of murder.
Nel's argument really depends on the SC accepting that the judge made some legal error by saying it was possible OP believed there was an intruder and that he was in fear for his life. If he has no defence against shooting at an intruder, then of course the identity of the victim is irrelevant. But if he does have a defence against shooting an intruder, then it's right for the judge to consider whether he suspected he was really shooting at another person.
The SCA ultimately have their hands tied here by the facts already found by Masipa.
No they don't. Otherwise what is the point of an appeal if not to change the course of correcting justice? Maybe that line simplifies the arguement but it really is that straightforward.
There was the time he was taken to court after assaulting a girl he threw out of a party at his house after she returned to pick up her handbag. Plenty propensity to me. The matter was settled out of court IIRC.
ETA you'd be better off asking his ex-girlfriend Sam about his "ways"
My reference was to a violent temper per se.
I would refer you to his public outburst at the 2012 Olympics and the furniture breaking episode in the changing room afterwards when he was so violent even his coach feared to enter the room.
Also of course the various ‘night club’ altercations, one of which occurred during the trial
Indeed Pistorius himself admitted during a television appearance to having “a temper issue” just three months before he shot Reeva.
I would say that is enough to qualify as 'prior history'
This may be wishful thinking on your behalf but it is certainly not correct.
The hands of the SCA are not tied by any of the facts found by Masipa, indeed when granting leave to appeal the verdict Masipa herself said that the possibility of another court coming to a different conclusion than hers was not remote.
If she was ‘confident’ in her verdict she would not have granted leave to appeal or accepted it may well be changed by another court.
Hi Charming
BIB I should think this is done by many accused all over the world on many occasions.
But yes Hazel Kidson is one sick person.
Why do you say that porky?
Can the appeal court call for a retrial do you know?
Sadly I don't think so.
Having read this post a few times, I'm baffled by it.
I think that the finding that OP was in fact scared of an intruder is going to make it impossible to prove the presence of mind for DE.
In that case why did Masipa concede when she granted leave to appeal that a different court may interpret the law differently to her and the prospect for the appeal to succeed was not "remote."
If she was as convinced as you are that the CH verdict will not change she would not have granted leave to appeal – simple as that.
Because she knew her verdict was a bit of a mess.
So I think we can agree that a verdict which is not sound or as you say a 'bit of a mess' is a candidate for change by the SCA.
Any appeal could obviously result in a change in the verdict/sentence, but that doesn't mean it's likely to happen and especially not that, in allowing the appeal, Masipa thinks it's likely to happen. I'm not sure we can draw too many conclusions as to her view on that.
In the UK, the prosecution can appeal a point of law in order to clarify the law on that aspect, but it has no effect on the verdict or sentence of the particular case. If Masipa realized she'd worded the verdict poorly and left holes for the prosecution to appeal, it makes sense she'd allow the appeal to gain some clarity. That doesn't mean to say she thinks the SC will overturn the entire verdict. I agree with Porky that the finding that OP feared an intruder will be a difficult hurdle to overcome for the prosecution.
Firstly one of the perquisites for granting leave to appeal is that Masipa had to be convinced there was a reasonable possibility that another court could come to a different conclusion than she did.
That is a standard criteria in most countries where there is an appeal system.
In this respect Masipa expressed two things when deciding in favour of the State on Count 1.
She said she was satisfied that Nel had raised “questions of law” that another court could interpret differently when considering Pistorius’ intentions in shooting dead Reeva
She also said “I cannot say that the prospect of success at the supreme court of appeal is remote.”
Therefore in my opinion it will come as less of a surprise to Masipa if the SCA rules in favour of murder than some posters on DS
Morning
I don't think OP's thoughts or feelings can be a finding of fact. It can't be proved.
I think it has to be an unproven and untested assumption of Masipa's which the SCA can disregard if it sees fit.
JMO
Hi Jeremy.
Do you know the circumstances needed for a case to be retried?
Is it possible in the OP case?
Or is there no way that could happen now?
The prosecution's appeal was obviously focused on legal questions, particularly whether dolus eventualis was properly applied. When the judge said the prospect of success is "not remote", she was talking about the legal points raised by the prosecution, not the question of whether the culpable homicide verdict would be overturned and replaced by a murder conviction, though of course that's one possible outcome.
I think it's simplistic to argue that in allowing the appeal, Masipa is saying there's a chance Pistorius will be convicted of murder. She's acknowledging that she may have erred or been unclear on a legal point. Even if the SC finds she was unclear, they could clarify the legal point while leaving the verdict exactly as it is. By the way, even though Masipa allowed the prosecution appeal on the "multiple defences" issue, I bet you anything she doesn't think she's wrong on that and that she doesn't believe she's going to be overturned.
I think you're making too big a leap from "Masipa acknowledged possible error on a legal point, which naturally might have an impact on the verdict" to "Masipa allowed the appeal, which supports my belief the culpable homicide conviction will be overturned".
I found this but it give little clarity for grounds for a retrial.
I thought that only the introduction on entirely new evidence would be grounds for a retrial .
http://www.telegraph.co.uk/news/worldnews/oscar-pistorius/11091295/Could-Oscar-Pistorius-face-a-retrial.html
Morning Claire
I agree. How can Masipa read OP's mind and why would she even be expected to?
I realise that she has put herself in this position for whatever reason only known to her.
And surely it should be down to the evidence when the defence put forward a defence that the accused "thought" it was an intruder?
How does the evidence corroborate OP's claim? And how much force used towards a supposed intruder?
If Masipa disregards most of the evidence in order to clear the way for a certain verdict. Won't the SCA take on board the fact also that Masipa said OP was an "unreliable witness" and "lied" plus what she did to the evidence to consider their conclusions?
A finding of fact doesn't mean something which has unequivocally been proven true, it means a decision made about the facts of the case. Whether OP feared for his life is a conclusion drawn from the factual evidence presented by the defence and prosecution, as opposed to a legal question.