Very interesting that Nel raised “Laws of Circumstantial Evidence” being an area to appeal. Could not agree more.
If the judge made any factual findings about the police investigations, or arguments regarding “tailoring” and so forth, we certainly don’t know what these were, let alone what the rationale was for discounting them from consideration. This strikes me as no different to a prosecution case in which witnesses to a crime were called, but the judge ignored the witnesses, and wrote a judgement as though they had not given any evidence (so that there were no witnesses). That must have legal ramifications when it happens. So i am not at all surprised this issue is being raised, as it is very serious.
This is not exhaustive criticism, just a few of the problems that can be discerned at first glance:
1. Some evidence was modified in the judgement compared to court record.
(a) For example in Nel’s heads it is made clear that the “shout” (Get the F—) includes an expletive, and also in the court record. In the judgement, it is written more politely as “Get out” – which sounds more timid, more consistent with Oscar being “profoundly fearful” as he approaches the bathroom.
(b) The judgement created a new time for the shots, 3:13-3:14, which neither defence nor state has argued, and for which there is no evidence. The latest time for first bangs ever discussed in trial evidence in court was 3:12. This is dubious because the judgement also notes he acted “promptly” which works towards the credibility of his version. But how prompt he was depends on the time of the shots, which the judgement made up.
It seems very unlikely Stipps, Nhelengethwas, Johnson etc would have completed all their activities before phoning in a mere 2 minutes, or that shots at 3:14 would be perceived by Mrs Van der Merwe, Mrs Stipp, and the security guards as occurring “around 3” (instead of “around quarter past 3”). These made up numbers favour the scenario of an accident but are contrary to evidence.
2. Selective data
An example of this is in summarizing Oscar’s sincere distress after the incident. The judgement lists many reasons to prove he was distressed, including that he phoned security but was “too upset to speak”. The words “I’m fine” in the reverse call are not mentioned anywhere, although this is part of the state’s circumstantial case. This was even one of their “key facts” I believe.
3. Unequal weighting for same evidence type.
It is telling that the Whatsapp messages indicating relationship turbulence are “not relevant” to decide between versions, but the same rigour was not applied to Oscar’s words “please let her live” overheard saying by Dr. Stipp. These are fundamentally the same kind of “evidence type” – each comprising of phrases in the context of the situation of Reeva’s death, either a few days before, or after the shots. The phrases written by Reeva in support of the state case were considered irrelevant, while a phrase spoken by Oscar after the shooting was considered relevant – even as part of an argument against criminal intent.
It is becoming hard to defend the treatment of circumstantial evidence when the gunman’s words carry a material weight to make inferences about circumstances but the victim’s words carry no material weight to make inferences about the same circumstances.
4. Inferential reasoning
The high standards applied to rejecting Mrs Van der Merwe hearing the voice, for example, are not applied to testing Oscar’s version on the “window opening” and the “door slamming”. The judgement states that “evidence” for Oscar’s version is to be found in photographs proving that the window was open, and the door was closed. And further that this shows it was NOT a figment of his imagination that the window slid open, as though an open window proves he did hear it slide open. This reasoning is ridiculous. The judgement implies you can deduce if a window was recently opened from the fact it was found to be open. The inference from the closed door to “corroboration” of a door slam moments earlier is even more surreal.
There is no mention, as was clearly shown by state, that the “versions” on the noises changed from bail, to plea, to evidence, to cross-exam. There is no acknowledgement that the “window slide and bang” and then the “door slam” were divulged well after the fact of the photographs.
The door might have been closed for minutes beforehand, or been recently closed, or been recently slammed. The judgement even states there is “no evidence before this court to contradict the version”. That is simply untrue. There is evidence before the court – it may not be good enough evidence to reject his version, but there is evidence and argument. To say there is none is to sweep aside extensive commentary on the subject of “tailoring”, which would be key to the assessment of his honesty in this case. It should have been discussed, and explained why the version was being accepted despite the changes.
5. Inadmissible and admissible evidence the wrong way round
And yes this does indeed violate laws of circumstantial evidence: Previous inconsistent statements are an admissible evidence which can prejudice a person, and they were admitted as such by the state; but previous consistent statements are inadmissible because you can’t have “I thought she was an intruder” as further evidence for the claim “i thought she was an intruder” – it’s circular. The judgement gets these the wrong way round, weighting the inadmissible repetitions as evidence of his version, but the admissible changes and contradictions are not even mentioned.
But it is even worse: The judgement mixes and matches versions accordingly to suit itself. For example, the sound that makes him fire is taken from the bail, as a “movement”, with no mention of the more problematic claim of “perceiving the door opening” – which is so central to his “perception of threat” being honest. No mention of any of Nel’s arguments about that. It is as though Oscar never even commented upon a magazine rack or had to justify what he claimed was a “wood on wood” noise. Did Reeva “moving” make this “wood on wood” noise then? The judgement avers from getting bogged down in the details. Instead, the panel took an element from the bail transcript, but then COMBINED IT with the door slam from the cross-examination to make a “new truth” – while leaving aside the rest of the cross-examination. How can that be? To recombine and mix and match parts of versions and make a story out of these – a new truth.
The judgement refers to his “version in general” and gives the impression of a single, consistent narrative – but does not acknowledge that even a single detail ever changed, despite the previous inconsistent evidence being admissible evidence. There is NOT A SINGLE ACKNOWLEDGEMENT of this previous inconsistent evidence. Instead, the evidence of repeating the claim “I thought she was an intruder” to several people – which is inadmissible – is given weight.
6. Instances of apparently adapting the evidence were ignored wholesale
The state presented a long list of examples of adapted evidence, but none was considered in the judgement. For example (and not exhaustively):
(a) Changing 1 fan to 2 fans to “buy time” after retracting the impression of a trip onto the balcony.
(b) Adding in brief conversation with Reeva to emphasize a belief she was still in bed
(c) Modifying a “whisper” to a “soft tone” after realizing he was standing too far away for a whisper to be heard
(d) Including “screams” during the “startle” to cover the possibility screams had been heard (even though none had been heard during first bangs)
(e) Saying he was “checking” on the balcony for Reeva, having previously been criticized that his search for Reeva was not very credible because he did not “check” on the balcony for her
This style of argument is most especially apparent in respect of the “snowball of lies” versus “major bedroom disturbance” as alternative explanations for everything Oscar said about missing Reeva leave the bedroom. Nel considered he had a complete proof due to the “blood spatter pattern” across duvet and carpet, as well since the police were never tasked to explain why they moved everything. He carefully laid out a chain of arguments in the case for fabrication.
Similar remarks apply to the cross-examination about the “door opening” leading to the “wood on wood” sound and finally debates about the magazine rack. Yet, none of this was not even discussed.
No counterarguments were supplied, in order to explain rationally the basis for rejecting the charge of adapting the evidence. This theme can also be developed extensively and is certainly one of the key issues in the case. It’s troubling that the judgement would not consider the charge of “tailoring” at any point, as though the matter simply never arose in the courtroom as a point of debate.
7. The police investigation in totality was ignored, as in not commented upon.
(1) The crime scene observations
(2) The photographs and blood trails
(3) The ballistics reconstructions which prove there was a pause between A … and C+D as Reeva’s body cannot fall into the path of bullet B on its way to E (at most this might glance through her left hand). As a result beyond a reasonable doubt the firing was not at “maximum speed”. This bound on the firing speed, proven beyond doubt by the state, was not considered.
If it had been discussed and then rejected as irrelevant, this would be a different matter. The concern is that investigations were ignored in toto. It would have been the same outcome without any police investigation or findings because no comment was made of any kind in the judgement about these investigations. The court therefore failed to consider the evidence before it in a systematic way.
You wrote: “the judge ignored the witnesses, and wrote a judgement as though they had not given any evidence (so that there were no witnesses). ” This is the only thing I disagree…but it makes it worse for the Judge. She accepted the ear witnesses evidence but only based on the chronological order of the objective phone data (correctly). However, she rejects Mrs. Stipp who clearly saw the clock read 3:02(fast) when she was already up from a cough and heard the first set of gunshots(corroborating Merwe and security patrol time) and saw the bathroom lights on at OP home, but accepts that the 2nd set shots were at about 3:17 just as Mrs. Stipp again reads her clock 3:17. Seems like Judge picks and chooses what to accept to fit into the timeline of events set forth by Roux. To me the lights being on clearly contradicts the accused version of events and at that should have been rejected. The Stipp’s were the ONLY witnesses who directed the security as to exactly which house to go after hearing , seeing what they did. How else did they know where the screams ect was coming from? Yes , Dr. Stipp did get the sequence of his calls wrong, but that does not mean he and his wife (from her bed) were also wrong about when they saw OP’s bathroom lights on.
‘ Yes , Dr. Stipp did get the sequence of his calls wrong, but that does not mean he and his wife (from her bed) were also wrong about when they saw OP’s bathroom lights on.’
Completely agree. It was bizarre the way this was reasoned. I think the judgement said something like “his times were obviously wrong” and left it at that. As though an error in one part of the evidence renders the whole of the rest of the evidence unreliable – though the same principle will not apply for Oscar? And then, having discounted Stipp as unreliable, Stipp is then quoted as a source of reliable evidence when he overhears Oscar speaking a prayer of some kind. So some parts of Stipp’s evidence are ok – but not all – which is fine – but why specifically is the bathroom lights evidence unreliable?
@Rita. Hey, sorry i think you misunderstood, the part you snipped was only part of a sentence:
“You wrote: “the judge ignored the witnesses, and wrote a judgement as though they had not given any evidence (so that there were no witnesses). ” ”
No, I said – “This strikes me as no different to a prosecution case in which witnesses to a crime were called, but the judge ignored the witnesses…”
It’s an analogy. I’m not talking about “ear witnesses” to a crime – i’m talking about a principle of “witness evidence” not being considered – in this case, police eye + expert witnesses. Nothing to do with the ear witnesses at all.
The judge did talk about the ear witnesses, this was the majority of the factual part of the judgement.
The stuff she didn’t talk about was as listed above, police work etc, arguments about duvets and magazine racks and shot patterns.
Sorry about that. I misunderstood your point. The Judge mentioned that the evidence regarding the photos of the scene were contested by the defense as they felt there was some sort of tampering as some photos showed. That was all she said about that. Why did she also ignore Mangena’s excellent rendering of the reconstruction of the 4 shots, which indicated that Reeva indeed would have had a few seconds to scream as the 2nd shot missed her, and the first shot hit her hip making her fall. All she said is that the shots were in ‘quick’ succession and would not allow any time for the deceased to scream….just think about it , if one is shot in the hip and falls the immidiate response would be to scream in shock…as the 2nd one missed her and hit the wall…
PPD IS LARGELY INCONSISTENT WITH UNTRUTHFULNESS
Assuming at appeal this comes down to whether it is a valid PPD scenario, there are some arguments both ways for that (e.g. Schultz for defense, “provoking” situation for state, etc).
One area of much deeper concern though, and not at all specific to this case in terms of setting a precedent is in regard to having PPD “allowed” at the very same time as being “evasive” or even “untruthful”. This combination of PPD and “evasive defendant” is extremely problematic in general case.
So all this stuff about “plethora of / 2 mutually destructive defences” really needs to be cleared up. It doesn’t make sense to provide a defence against unlawful killing based on a mere “perception” in your mind UNLESS you are able to provide clear evidence about your state of mind. This should be obvious but it is not.
Some people get terribly confused and believe that the process of disproving a PRIVATE imagined mental perception is a bit like proving someone was at the scene of a crime, and then bang on about “defendant’s rights”, as though this was a typical case of “catch me if you can” involving DNA testing kits and other forensic paraphernalia. For those that do get it, i.e. the intelligent majority, the equivalent to “forensics” in a PPD is mainly about inner workings of a person’s mind, such as their memories, beliefs, and how these guided their actions in erroneously defending themselves.
In other words, the “forensics” is by and large the evidence in chief and then the cross-examination evidence.
However, the cross-examination “data” was barely touched upon by Masipa and the panel. But in this type of case, based on private perceptual errors, the cross-examination IS the bulk of criminal investigation and it takes place LIVE in the court room.
S v Olieviera 1993 shows an example what happens when the evidential burden is not satisfied by a defendant who skips the cross-exam out altogether while still alleging they perceived a threat privately. Result: Reasonable man was imputed to Mr. Oliviera. And he was therefore found guilty of dolus eventualis.
Occasionally people protest that a defendant or accused has “no onus” but that’s not true if you admit a killing and assert a PUTATIVE defense (based on your PRIVATE perceptions of reality).
This is to prevent such defences as “I briefly perceived an alien mother ship about to land on the bedroom floor so I fired and in the process killed my wife.”
Absolutely true, you are entitled to raise the defence, and if you do not talk about it under cross-examination, then clearly it will be rejected! 🙂 . However, if you talk, and are persuasive enough to cause the judge to believe in the alien mother ship, then your story might be accepted. However, if the state had painstakingly set out arguments to indicate the fact you were probably making all this stuff about the alien mother ship up, but the judge did not even remark upon your arguments, simply said “I am persuaded it is a possibility”, you would, as a prosecutor, be feeling a little bit in the mood to appeal the decision. Probably.
People that say its fine to lie – or even be evasive – while asserting perceptions only known to yourself in order to explain relatively innocently a killing you admit just really need to go for a walk and think about what they are saying, and then come back again, and try and be logical.
The “onus” being placed 100% on the state if that were true is equivalent to requiring omniscience – or absolute knowledge – of the innermost workings of people’s minds. Because there will never be another way to refute an innermost perception of a threat which was not real.
They are raising standard of proof from “beyond reasonable doubt” to “beyond philosophical doubt”. So the justice system breaks down and all defendants go free on pains of asserting, but failing to justify, imaginary perceptions known only to themselves. There is almost a tacit approval to the idea in certain remarks in the judgement e.g. “only he knows what was in his mind” – or – “it unfortunately will have to remain a matter of conjecture (e.g. why he fired four shots).”
This means the judge does not entirely trust the defendant, despite the fact that the defense is based entirely on trust.
There may be special considerations in the case as to why Oscar is given more “slack” to be evasive, and those can be argued – there are lots of ways for people to be misunderstood when verbalizing their thoughts, and that is understood, and we must be fair. It would have been lovely if the judgement had argued them as well. At the very least it must be explained why a “plethora of defenses” was tolerable in this case if not in the general case.
In the general case, to combine “evasion” with “PPD” is a deeply irrational idea which raises the burden of proof on the state to the level of “beyond a philosophical doubt” i.e. omniscience.
If you don’t get it, you’ll probably consider it part of a fair trial that a person can talk nonsense – true – but then their PPD breaks down? Where are the boundaries? How evasive is acceptable before this thing breaks down? And why were Oscar’s perceptions e.g. of the “door opening” not weighed up as a part of the analysis?
Does the right to a fair trial include the right to submit mutually contradictory claims and hope the judge picks whichever of these the state dedicated less attention to disproving? Do you still have this right when you already admitted killing someone?
All very deep and complicated questions – for which reason the SCA should take a look at this stuff for sure.
In particular, without a lot of further debate, I can’t see how S v Pistorius 2014 can be reconciled with S v Oliviera 1993, without admitting the proposition it is better to be evasive on the stand than to evade the stand altogether – and that one makes no logical sense at all. It would be very unjust to Oliviera for starters, since he was found guilty of “dolus eventualis” as a result of not testifying – despite not being found to be untruthful under oath.
I think Judge Grrenland hit the nail on the head when he says that, Masipa was just too inexperienced for this level of trial.
For example, Masipa said, just because OP was a poor witness who wasn’t candid with the court (a liar in other words), and was inconsistent with his version, doesn’t mean he is guilty. That`s fair enough, but surely she can draw SOME inferences from why he was doing it and not just completely ignore it.
When Nel told OP that he he had changed his defence, OP claimed that he didn’t know the law. But that`s no excuse. After 14 months of discussions with your very expensive legal team, the ONE thing he must be 100% sure about is why he pulled the trigger! OP`s goose should really have been cooked when Masipa described his reason as being a plethora of defences. I loved the part in the appeal where the NPA argued why the State should have to deal with all of them.
Unfortunately if we thought the trial was long, the appeal will be even longer!
‘…just because OP was a poor witness who wasn’t candid with the court (a liar in other words), and was inconsistent with his version, doesn’t mean he is guilty. That`s fair enough, but surely she can draw SOME inferences from why he was doing it and not just completely ignore it.’
Yeah – some inferences would be good lol. 🙂
All the reasoning converged around the timeline and that became the solution to the case.
I would say, as found by the Judge “intent to shoot does not always mean intent to kill” … but in this circumstance it WAS (intent to shoot = intent to kill.
If I shoot at someone with a pea shooter that is intent to irritate. If I shoot someone with a rocket launcher that is intent to kill.
So the choice of weapon is itself a choice in intent. So I put it to you OPs premeditated choice of weapon was a premeditated choice of intent, a premeditated intent to kill.
I also put it to you that OP didn’t know the person behind the door was standing up. If he knew the person behind the door was standing up, then he must have known it was Reeva behind the door. Quod erat demonstrandum.
Surely the intruder would have been standing up? If he had intent to kill a standing person, he would fire higher up rather than risk to hit the leg and wind up with a chaos situation of a person falling over?
He might have been firing at a person sitting on the toilet (in his mind)?
I have to say I agree with the judge’s remark there. Intent to kill needs to be argued.
It would definitely be direct intent to kill if:
(a) he knew as a fact or believed with certainty that the target was sitting on the toilet, or right next to toilet [not argued]
(b) he was not severely emotionally compromised while firing
And certainly if
(c) the change in aim and number of bullets is a significant aspect. [DD: as Mangena]
But what about if he claims he thought the target was “coming out to attack him” and fired somewhat to the left and at waist height?
In that case it could be:
(d) indiscriminate firing without justification [This is the state case backup = DE of a harmless supposed perceived burglar due to an excess of testosterone]
(e) reckless firing because he was trying to “stop” the person coming out due to “genuine fear” but not really concentrating on where he was shooting [This is the defense case back up = CH on account of PPD]
(f) intentionally, and carefully, trying to shoot at waist height to immobilize the person (perhaps without realizing they might die, but if so, then it was PPD anyway) [Also CH: Judgement]
(g) a startle (no conscious involvement) [Defense case proper 4 the acquittal]
So clearly there’s quite a spectrum of “states of mind” there and the defendant is acquitted on any “more criminal” ones than can be proven. Well (g) is clearly a very long shot, (f) came as a surprise and would probably be denied by defense even now, i think they would argue (e) – but Nel will settle for (d) – so the whole debate over charge level in essence comes down to whether it would be (d) or (e).
Nel says it should be (d) because Pistorius gave alternative defenses so cannot be trusted (for lots of reasons), and was the attacker throughout. Defense says it should be (e) because Pistorius was “genuinely fearful” which has the backing of the Schultz report.
So really the question is this: Do they want a precedent set where the PPD is stretched far beyond its normal boundaries both in terms of force in response to practically nothing, and in terms of failing to take court into your confidence, simply because they found a psychologist who thinks Oscar is a nice boy?
Prof Schultz didn’t actually write up any analysis of the shooting incident so I’m puzzled how his views might perhaps have such generalized ramifications.
It feels a bit like that story of Moses with the red sea waters parting, like the waters parted so that Oscar could walk through the legal system relatively unscathed…??
Question is, who is going to order that the waters flood back in again after this case is on the books and can be cited? It’s clear someone will have to, in the end! We will have some very irritable judge bemoaning that there are no remaining methods with which to send people to prison otherwise!
Such as happened in the 1980s when the defense of “emotional outburst” became briefly popular as a complete defense to almost limitless amounts of violence. Until Eadie thundered away in defiance of the tendency and it made people stop and think whether it was a path they really wanted to go down or not…
Correction: Until in the Eadie SCA hearing, judges inc. Navsa thundered away…
Also was actually in 2002: So not “briefly” at all – roughly a decade before they clamped down on it.
S v Pistorius 2014 looks set to usher in a decade of very woolly reasoning w.r.t PPD – South Africa will become the “intruder mistake” capital of the world until then IMO.
I agree with Jason 100%. Choice of weapon tells it all. And, an intruder would most likely have taken position in a corner out of the line of possible gunshots, cowering. This guy shot to kill, and he knew exactly who he was killing.
A shame that we cloud ourselves with legal principles and term, but common sense tells me its murder. Not even DE, but premed.
Yeah in UK or US .. if you use a deadly weapon (gun, knife, or anything else) in the way it was designed for inflicting injuries on people, and they die as a result, you’ll definitely be charged with murder – even if the death was pretty indirect. It’s called “deadly weapon rule”. 5 teenagers in Liverpool were found guilty of murder after 1 of them stabbed a rival gang member in the leg … he died a few days later from complications. Still called murder.
Obviously Oscar used a lot more deadly force than that and much more targeted as well so no matter even if you call it “putative self-defense” still seems pretty crazy under such circumstances that it wouldn’t just flat out be a murder. That is common sense you are right.
Hard to see how you can call yourself the fearful, threatened one in the process of gunning down a harmless person that is trapped with no escape and who, on your own version, you didn’t actually set eyes on, or warn, and who actually retreated, and never made any threats, all they did was “move”.
That seems too illogical to make sense, but somehow his lawyers did spin it as a manslaughter, heaven knows how.
Maybe they turn a blind eye to quite a lot of gun related violence in South Africa, both at police level, and sometimes in court as well, making some pretty sympathetic findings such as suspended sentences, perhaps in an effort to bring down the prison numbers? And save long term prison for “very malicious acts” (such as shooting Reeva directly would have been). Maybe this is the thinking.
My view for some time now is there is an unwritten law that allows people like OP to kill and shoot dead intruders (almost always from the “ghetto”). It wouldn’t surprise me that OP knew this fact. Maybe most people know this in South Africa. You just need to read the newspapers and you will never read of a white homeowner being found guilty of murder of an intruder or a thief. I am certain there are many people like OP that would not hesitate to kill anybody they found on their property intruding or stealing. I am certain that many prepare for that eventuality by buying high calibre guns and receiving a lot of zombie stopping training. They would form zombie shooting clubs. They would chat about homeowner A shooting dead intruder B or intruder C killing homeowner D. They would build up a them and us ideology. Some might even hope to have an intruder to test themselves against. Be ready with their guns to bag themselves an intruder head – then be feted by the zombie stopping club afterwards over beers and loud music.
I think this attitude was revealed by Judge Masipa’s in clearing OP of the murder of the person behind the door(dolus eventualis) when she said:
“Clearly he did not subjectively foresee this as a possibility, that he would kill the person behind the door, … AS HE thought SHE was in the bedroom at the time.”
A sentence which is entirely illogical. It is a logical error that a primary school kid might make. It suggests the judge is not used to speaking logically of intruders as people – it suggests that Judge Masipa is only used to speaking of intruders as dead meat – target practice for fearful hard working homeowners. Unwritten rule 101: if an intruder is found in your house you can kill him.
This plays on the fears of home owners who read of home owners being killed by “dark” intruders and other home owners shooting dead “dark” intruders from the ghettos. It is a them and us social warfare. Wealthy hard working Christian home owners (“us”) and vicious hoodlum ghetto men (“them”).
Now IF OP shot at and killed Reeva in a heat of the moment argument – he would IMMEDIATELY know that if he claimed he thought Reeva was an intruder and he was believed he would get away with it. Get off with a warning, or a suspended sentence, or a few months prison sentence AT WORST.
Judge Masipa also being socially conditioned to the situation would know that if she could find a way of accepting the possibility that OP did think the person in his house was an intruder then she wouldn’t have to think logically anymore she could just say something to convey the unwritten law for finding an intruder in the house and then deliver her sentence:
you are free to go, or here is your suspended sentence, or here are your few months in prison with the rest being suspended or under nudge nudge wink wink house arrest.
This means that if OP murdered Reeva in a heat of the moment process he would automatically say it was an intruder and immediately begin to construct in his head the best way to make it seem that it was an intruder – if he wanted to get away with it.
We know from OPs past behaviour (Tashas, possibly the car incident etc) he AUTOMATICALLY switches to COVERING HIS ASS THINKING (to protect his image etc) as soon as he has fired the trigger (etc).
This is a weakness in the South African Justice System. This is the reason why the State paid so much attention to the woman’s scream – it was essentially their whole case to begin with and only started when one or two witnesses said they heard a woman screaming. If the police had thought it was a killing of an intruder – then they knew they could have an easy time rushing through the case:
You thought it was an intruder? Okay. There is no problem you taking your mobile phones away. No problem taking your girlfriends belongings away. Here sit down, you poor thing. Shooting dead your “loved” one that must be tough when you thought it was one of them, one of them intruder people. We don’t want to punish you twice. We will clear up here and you can get on with your life.
It was only when the police began talking to witnesses and heard of woman’s screams did they begin to change their mindset. Maybe this is murder. Wow. If it is clear cut we could make a name for ourselves. Woman screams = OP guilty of murdering girlfriend.
But as soon as it becomes – what? – it may not be womans screams it might be Oscar crying loudly? We can’t prove it was the woman screaming because we can’t make sense of the timeline from the phone records, or other witnesses don’t say there was a woman’s scream? So as soon as there is doubt that there was a woman screaming the case switches back to: Okay this is a standard mistaken identity of a homeowner thinking he was shooting dead vicious hoodlum ghetto people. Lets not punish him twice – collect your get out of jail pass at the exit.
Defence will oppose the appeal. Judge Masipa to decide whether to grant the appeal in an appeal hearing.
Judge Masipa to Nel: what is your case – be brief – cut to the heart of your argument.
Nel (State): You’re an idiot.
Judge Masipa to Mr Roux: what is your case to oppose the appeal.
Roux (defence): You are highly intelligent. You have years of experience. The rest of my argument is contained in this brown paper envelope.
Judge Masipa: I find in favour of the defence. The appeal is denied.
Nel: I will first of all say, I have the utmost of admiration for my esteemed colleague Mr. Roux. It was nothing short of a triumph how he bamboozled us all in the closing argument phase, myself included, so it is no reflection upon your honorable worshipfulness that the arguments appeared at a first, even a second, or a third, glance, reasonable.
We, the people of South Africa, we exhort you to look beyond these silken-prosed, and expensively manufactured, sophistries and embrace that small, quiet principle which will stand the test of time. M’lady, it is called “common sense”, it lies at the very heart of justice, M’lady, do what is right, choose fairness, choose reason, choose the courageous path, the logical path, four bullets, m’lady, for no reason, through a door, m’lady, it makes no sense, such things do not happen without a reason, m’lady, that stands to stands to common sense; and therefore, for the sake of our the law, for the sake of South Africa, grant this appeal, your most merciful ladyship, and i will personally ensure that some portion of an NPA pension pot can be diverted accordingly if you would kindly agree, as the court pleases. Most venerable one.
P.S. I am very sorry I said that “no reasonable court” would have imposed such a light sentence. Clearly, present company accepted. I slipped. Your humble, and most remorseful, servant, Nel
The Judge states the window was open because it is shown in photo’s and gives her opinion, as fact;my opinion is the window was opened by Oscar Pistorius after the shooting to make his version of events more plausible but the judge did not consider this OR IF SHE DID, SHE NOT STATE IT.She gives her opinion on why REEVA took her phone to the bathroom, it was to use because the light in the toilet did not work (how would she know, was she there at the time?) (it may have been working at the time of the incident)but she rejects this. The biggest mistake she made, however was not in these, But the thing she missed was the evidence of Carice Stander, who said see saw, OSCAR PISTORIUS walk upstairs, she followed (OSCAR was getting REEVA’S i.d. for paramedics apparently?)read Carice’s full statement or could admin put it in for me please as I do not want people reading this to believe my story is a lie. To continue they went downstairs with REEVA’S handbag which was then given to Aimee for safekeeping and to give to REEVA’S mother. Later that morning both Carice Stander and Aimee Pistorius went again upstairs (to collect items of clothing for Oscar?)
My point is : WHY DID THEY ENTER THE BEDROOM BECAUSE THIS WAS PART OF THE CRIME SCENE?
WHY DID THEY MOVE AND TAKE THINGS FROM THE BEDROOM OR POSSIBLY THE TOILET OR BATHROOM?
WHY THE POLICE PRESENT DID NOT STOP THEM?
WERE THEY NOT PERVERTING THE COARSE OF JUSTICE
As far as I remember, OP was charged pretty quickly with murder.
The police in South Africa deal with a lot of murders, including that night in Pretoria.
Whatever Botha was or wasn’t, he was a very experienced police officer and when he walked into the house, first policeman to arrive, he knew that things were not right.
A woman’s jeans and the duvet on the floor in the bedroom, blood spatter on the duvet and carpet, as if there had been a struggle and attack, the bullet holes in the door, he used a pencil and could see they were aimed at the target and no doubt when he walked around the property, he discovered Reeva’s jeans on the ground below the lavatory.
Op had time to interfere with the crime scene, but he be unlikely to see the story that would unfold to an experienced policeman.
It was obvious there was something more to it.
As with OJ Simpson, the defence discredited the first police officer to arrive.
Many of us have been watching CSI and we expect the police to go immediately into a perfect examination of the scene.
I expect Roux knows Reeva was murdered and I wonder why Aimee was not asked under oath, why she went into the house and removed Reeva’s handbag and Oscar’s belongings?
I remember having read shortly after OP murdered Reeva, that Hilton Botha was the officer who arrested him after/at the Taylor-Memmory-incident. OP was kept overnight in a cell – it seems like he and Botha didn’t had a friendly encounter.
(It’s the same police station, which covered the Taylor-Memmory-incident and Reevas murder.)
One could very well imagine, how OP might’ve reacted and behaved – ‘I’m OP!’ and also, that Botha might not have appreciated that attitude.
So when Botha arrived at the house in that night of 14 feb., having experienced OPs temper and also behaviour towards women, namely physical violence – and maybe being a bit biased – and being the leading officer – who knows what exchange they might have had.
I vaguely remember reading a reported dialog somewhere, between OP and a police office (Botha?), something like: ‘you’re not getting off that time’ – ‘I will, I always win’ ….
I’ve no idea, how this factor ‘Botha’ has influenced the investigation and whether – besides other glitches like walking over the door (handling the gun without protection was no problem imho due to the obvious) – or why ‘Botha could have sunken the states case’.
Anyhow I believe that the defence maybe was reliefed not to have to deal with Botha as a witness. Why was the already dismissed case of a seven-fold-murder-charge brought up again, just then?
Was this a coincident?
The conspirationists could argue that behind a) was the state to get Botha off the case or b) Oom Arnold for to get Botha off the case.
Dubios like the deal between state and defense considering OPs iphone – deleted messages and call-history of the night of the kill – undenyable by Carl Pistorius. I would bet, this MacBook isn’t available anymore for any investigation.
Seems like there was and is a lot going on behind the scenes.
But I hope for sure that the appeal is granted and that an other judge doesn’t needs a mindreader to conclude, that a man, a proven/tested gun-owner, walking towards an alleged ‘intruder’ with a cocked gun loaded with man-stopping ammonition and who shots then through a closed door in a very tiny room, considering ricochet in doing so – that this man MIGHT have foreseen, that, whoever is in that tiny room -wouldn’t have any chance to survive 4 hits with Black Talons.
If that isn’t intention to kill – what else?
I though Roux wanted Botha off the case. Same as OJ’s team wanted the first cop off OJ Simpson’s case. Botha knew about the aggression and damage to property. Actually, in cases where men kill women, one forewarning is damaged property.
Juror13 
Very interesting that Nel raised “Laws of Circumstantial Evidence” being an area to appeal. Could not agree more.
If the judge made any factual findings about the police investigations, or arguments regarding “tailoring” and so forth, we certainly don’t know what these were, let alone what the rationale was for discounting them from consideration. This strikes me as no different to a prosecution case in which witnesses to a crime were called, but the judge ignored the witnesses, and wrote a judgement as though they had not given any evidence (so that there were no witnesses). That must have legal ramifications when it happens. So i am not at all surprised this issue is being raised, as it is very serious.
This is not exhaustive criticism, just a few of the problems that can be discerned at first glance:
1. Some evidence was modified in the judgement compared to court record.
(a) For example in Nel’s heads it is made clear that the “shout” (Get the F—) includes an expletive, and also in the court record. In the judgement, it is written more politely as “Get out” – which sounds more timid, more consistent with Oscar being “profoundly fearful” as he approaches the bathroom.
(b) The judgement created a new time for the shots, 3:13-3:14, which neither defence nor state has argued, and for which there is no evidence. The latest time for first bangs ever discussed in trial evidence in court was 3:12. This is dubious because the judgement also notes he acted “promptly” which works towards the credibility of his version. But how prompt he was depends on the time of the shots, which the judgement made up.
It seems very unlikely Stipps, Nhelengethwas, Johnson etc would have completed all their activities before phoning in a mere 2 minutes, or that shots at 3:14 would be perceived by Mrs Van der Merwe, Mrs Stipp, and the security guards as occurring “around 3” (instead of “around quarter past 3”). These made up numbers favour the scenario of an accident but are contrary to evidence.
2. Selective data
An example of this is in summarizing Oscar’s sincere distress after the incident. The judgement lists many reasons to prove he was distressed, including that he phoned security but was “too upset to speak”. The words “I’m fine” in the reverse call are not mentioned anywhere, although this is part of the state’s circumstantial case. This was even one of their “key facts” I believe.
3. Unequal weighting for same evidence type.
It is telling that the Whatsapp messages indicating relationship turbulence are “not relevant” to decide between versions, but the same rigour was not applied to Oscar’s words “please let her live” overheard saying by Dr. Stipp. These are fundamentally the same kind of “evidence type” – each comprising of phrases in the context of the situation of Reeva’s death, either a few days before, or after the shots. The phrases written by Reeva in support of the state case were considered irrelevant, while a phrase spoken by Oscar after the shooting was considered relevant – even as part of an argument against criminal intent.
It is becoming hard to defend the treatment of circumstantial evidence when the gunman’s words carry a material weight to make inferences about circumstances but the victim’s words carry no material weight to make inferences about the same circumstances.
4. Inferential reasoning
The high standards applied to rejecting Mrs Van der Merwe hearing the voice, for example, are not applied to testing Oscar’s version on the “window opening” and the “door slamming”. The judgement states that “evidence” for Oscar’s version is to be found in photographs proving that the window was open, and the door was closed. And further that this shows it was NOT a figment of his imagination that the window slid open, as though an open window proves he did hear it slide open. This reasoning is ridiculous. The judgement implies you can deduce if a window was recently opened from the fact it was found to be open. The inference from the closed door to “corroboration” of a door slam moments earlier is even more surreal.
There is no mention, as was clearly shown by state, that the “versions” on the noises changed from bail, to plea, to evidence, to cross-exam. There is no acknowledgement that the “window slide and bang” and then the “door slam” were divulged well after the fact of the photographs.
The door might have been closed for minutes beforehand, or been recently closed, or been recently slammed. The judgement even states there is “no evidence before this court to contradict the version”. That is simply untrue. There is evidence before the court – it may not be good enough evidence to reject his version, but there is evidence and argument. To say there is none is to sweep aside extensive commentary on the subject of “tailoring”, which would be key to the assessment of his honesty in this case. It should have been discussed, and explained why the version was being accepted despite the changes.
5. Inadmissible and admissible evidence the wrong way round
And yes this does indeed violate laws of circumstantial evidence: Previous inconsistent statements are an admissible evidence which can prejudice a person, and they were admitted as such by the state; but previous consistent statements are inadmissible because you can’t have “I thought she was an intruder” as further evidence for the claim “i thought she was an intruder” – it’s circular. The judgement gets these the wrong way round, weighting the inadmissible repetitions as evidence of his version, but the admissible changes and contradictions are not even mentioned.
But it is even worse: The judgement mixes and matches versions accordingly to suit itself. For example, the sound that makes him fire is taken from the bail, as a “movement”, with no mention of the more problematic claim of “perceiving the door opening” – which is so central to his “perception of threat” being honest. No mention of any of Nel’s arguments about that. It is as though Oscar never even commented upon a magazine rack or had to justify what he claimed was a “wood on wood” noise. Did Reeva “moving” make this “wood on wood” noise then? The judgement avers from getting bogged down in the details. Instead, the panel took an element from the bail transcript, but then COMBINED IT with the door slam from the cross-examination to make a “new truth” – while leaving aside the rest of the cross-examination. How can that be? To recombine and mix and match parts of versions and make a story out of these – a new truth.
The judgement refers to his “version in general” and gives the impression of a single, consistent narrative – but does not acknowledge that even a single detail ever changed, despite the previous inconsistent evidence being admissible evidence. There is NOT A SINGLE ACKNOWLEDGEMENT of this previous inconsistent evidence. Instead, the evidence of repeating the claim “I thought she was an intruder” to several people – which is inadmissible – is given weight.
6. Instances of apparently adapting the evidence were ignored wholesale
The state presented a long list of examples of adapted evidence, but none was considered in the judgement. For example (and not exhaustively):
(a) Changing 1 fan to 2 fans to “buy time” after retracting the impression of a trip onto the balcony.
(b) Adding in brief conversation with Reeva to emphasize a belief she was still in bed
(c) Modifying a “whisper” to a “soft tone” after realizing he was standing too far away for a whisper to be heard
(d) Including “screams” during the “startle” to cover the possibility screams had been heard (even though none had been heard during first bangs)
(e) Saying he was “checking” on the balcony for Reeva, having previously been criticized that his search for Reeva was not very credible because he did not “check” on the balcony for her
This style of argument is most especially apparent in respect of the “snowball of lies” versus “major bedroom disturbance” as alternative explanations for everything Oscar said about missing Reeva leave the bedroom. Nel considered he had a complete proof due to the “blood spatter pattern” across duvet and carpet, as well since the police were never tasked to explain why they moved everything. He carefully laid out a chain of arguments in the case for fabrication.
Similar remarks apply to the cross-examination about the “door opening” leading to the “wood on wood” sound and finally debates about the magazine rack. Yet, none of this was not even discussed.
No counterarguments were supplied, in order to explain rationally the basis for rejecting the charge of adapting the evidence. This theme can also be developed extensively and is certainly one of the key issues in the case. It’s troubling that the judgement would not consider the charge of “tailoring” at any point, as though the matter simply never arose in the courtroom as a point of debate.
7. The police investigation in totality was ignored, as in not commented upon.
(1) The crime scene observations
(2) The photographs and blood trails
(3) The ballistics reconstructions which prove there was a pause between A … and C+D as Reeva’s body cannot fall into the path of bullet B on its way to E (at most this might glance through her left hand). As a result beyond a reasonable doubt the firing was not at “maximum speed”. This bound on the firing speed, proven beyond doubt by the state, was not considered.
If it had been discussed and then rejected as irrelevant, this would be a different matter. The concern is that investigations were ignored in toto. It would have been the same outcome without any police investigation or findings because no comment was made of any kind in the judgement about these investigations. The court therefore failed to consider the evidence before it in a systematic way.
You wrote: “the judge ignored the witnesses, and wrote a judgement as though they had not given any evidence (so that there were no witnesses). ” This is the only thing I disagree…but it makes it worse for the Judge. She accepted the ear witnesses evidence but only based on the chronological order of the objective phone data (correctly). However, she rejects Mrs. Stipp who clearly saw the clock read 3:02(fast) when she was already up from a cough and heard the first set of gunshots(corroborating Merwe and security patrol time) and saw the bathroom lights on at OP home, but accepts that the 2nd set shots were at about 3:17 just as Mrs. Stipp again reads her clock 3:17. Seems like Judge picks and chooses what to accept to fit into the timeline of events set forth by Roux. To me the lights being on clearly contradicts the accused version of events and at that should have been rejected. The Stipp’s were the ONLY witnesses who directed the security as to exactly which house to go after hearing , seeing what they did. How else did they know where the screams ect was coming from? Yes , Dr. Stipp did get the sequence of his calls wrong, but that does not mean he and his wife (from her bed) were also wrong about when they saw OP’s bathroom lights on.
‘ Yes , Dr. Stipp did get the sequence of his calls wrong, but that does not mean he and his wife (from her bed) were also wrong about when they saw OP’s bathroom lights on.’
Completely agree. It was bizarre the way this was reasoned. I think the judgement said something like “his times were obviously wrong” and left it at that. As though an error in one part of the evidence renders the whole of the rest of the evidence unreliable – though the same principle will not apply for Oscar? And then, having discounted Stipp as unreliable, Stipp is then quoted as a source of reliable evidence when he overhears Oscar speaking a prayer of some kind. So some parts of Stipp’s evidence are ok – but not all – which is fine – but why specifically is the bathroom lights evidence unreliable?
@Rita. Hey, sorry i think you misunderstood, the part you snipped was only part of a sentence:
“You wrote: “the judge ignored the witnesses, and wrote a judgement as though they had not given any evidence (so that there were no witnesses). ” ”
No, I said – “This strikes me as no different to a prosecution case in which witnesses to a crime were called, but the judge ignored the witnesses…”
It’s an analogy. I’m not talking about “ear witnesses” to a crime – i’m talking about a principle of “witness evidence” not being considered – in this case, police eye + expert witnesses. Nothing to do with the ear witnesses at all.
The judge did talk about the ear witnesses, this was the majority of the factual part of the judgement.
The stuff she didn’t talk about was as listed above, police work etc, arguments about duvets and magazine racks and shot patterns.
Sorry about that. I misunderstood your point. The Judge mentioned that the evidence regarding the photos of the scene were contested by the defense as they felt there was some sort of tampering as some photos showed. That was all she said about that. Why did she also ignore Mangena’s excellent rendering of the reconstruction of the 4 shots, which indicated that Reeva indeed would have had a few seconds to scream as the 2nd shot missed her, and the first shot hit her hip making her fall. All she said is that the shots were in ‘quick’ succession and would not allow any time for the deceased to scream….just think about it , if one is shot in the hip and falls the immidiate response would be to scream in shock…as the 2nd one missed her and hit the wall…
PPD IS LARGELY INCONSISTENT WITH UNTRUTHFULNESS
Assuming at appeal this comes down to whether it is a valid PPD scenario, there are some arguments both ways for that (e.g. Schultz for defense, “provoking” situation for state, etc).
One area of much deeper concern though, and not at all specific to this case in terms of setting a precedent is in regard to having PPD “allowed” at the very same time as being “evasive” or even “untruthful”. This combination of PPD and “evasive defendant” is extremely problematic in general case.
So all this stuff about “plethora of / 2 mutually destructive defences” really needs to be cleared up. It doesn’t make sense to provide a defence against unlawful killing based on a mere “perception” in your mind UNLESS you are able to provide clear evidence about your state of mind. This should be obvious but it is not.
Some people get terribly confused and believe that the process of disproving a PRIVATE imagined mental perception is a bit like proving someone was at the scene of a crime, and then bang on about “defendant’s rights”, as though this was a typical case of “catch me if you can” involving DNA testing kits and other forensic paraphernalia. For those that do get it, i.e. the intelligent majority, the equivalent to “forensics” in a PPD is mainly about inner workings of a person’s mind, such as their memories, beliefs, and how these guided their actions in erroneously defending themselves.
In other words, the “forensics” is by and large the evidence in chief and then the cross-examination evidence.
However, the cross-examination “data” was barely touched upon by Masipa and the panel. But in this type of case, based on private perceptual errors, the cross-examination IS the bulk of criminal investigation and it takes place LIVE in the court room.
S v Olieviera 1993 shows an example what happens when the evidential burden is not satisfied by a defendant who skips the cross-exam out altogether while still alleging they perceived a threat privately. Result: Reasonable man was imputed to Mr. Oliviera. And he was therefore found guilty of dolus eventualis.
Occasionally people protest that a defendant or accused has “no onus” but that’s not true if you admit a killing and assert a PUTATIVE defense (based on your PRIVATE perceptions of reality).
This is to prevent such defences as “I briefly perceived an alien mother ship about to land on the bedroom floor so I fired and in the process killed my wife.”
Absolutely true, you are entitled to raise the defence, and if you do not talk about it under cross-examination, then clearly it will be rejected! 🙂 . However, if you talk, and are persuasive enough to cause the judge to believe in the alien mother ship, then your story might be accepted. However, if the state had painstakingly set out arguments to indicate the fact you were probably making all this stuff about the alien mother ship up, but the judge did not even remark upon your arguments, simply said “I am persuaded it is a possibility”, you would, as a prosecutor, be feeling a little bit in the mood to appeal the decision. Probably.
People that say its fine to lie – or even be evasive – while asserting perceptions only known to yourself in order to explain relatively innocently a killing you admit just really need to go for a walk and think about what they are saying, and then come back again, and try and be logical.
The “onus” being placed 100% on the state if that were true is equivalent to requiring omniscience – or absolute knowledge – of the innermost workings of people’s minds. Because there will never be another way to refute an innermost perception of a threat which was not real.
They are raising standard of proof from “beyond reasonable doubt” to “beyond philosophical doubt”. So the justice system breaks down and all defendants go free on pains of asserting, but failing to justify, imaginary perceptions known only to themselves. There is almost a tacit approval to the idea in certain remarks in the judgement e.g. “only he knows what was in his mind” – or – “it unfortunately will have to remain a matter of conjecture (e.g. why he fired four shots).”
This means the judge does not entirely trust the defendant, despite the fact that the defense is based entirely on trust.
There may be special considerations in the case as to why Oscar is given more “slack” to be evasive, and those can be argued – there are lots of ways for people to be misunderstood when verbalizing their thoughts, and that is understood, and we must be fair. It would have been lovely if the judgement had argued them as well. At the very least it must be explained why a “plethora of defenses” was tolerable in this case if not in the general case.
In the general case, to combine “evasion” with “PPD” is a deeply irrational idea which raises the burden of proof on the state to the level of “beyond a philosophical doubt” i.e. omniscience.
If you don’t get it, you’ll probably consider it part of a fair trial that a person can talk nonsense – true – but then their PPD breaks down? Where are the boundaries? How evasive is acceptable before this thing breaks down? And why were Oscar’s perceptions e.g. of the “door opening” not weighed up as a part of the analysis?
Does the right to a fair trial include the right to submit mutually contradictory claims and hope the judge picks whichever of these the state dedicated less attention to disproving? Do you still have this right when you already admitted killing someone?
All very deep and complicated questions – for which reason the SCA should take a look at this stuff for sure.
In particular, without a lot of further debate, I can’t see how S v Pistorius 2014 can be reconciled with S v Oliviera 1993, without admitting the proposition it is better to be evasive on the stand than to evade the stand altogether – and that one makes no logical sense at all. It would be very unjust to Oliviera for starters, since he was found guilty of “dolus eventualis” as a result of not testifying – despite not being found to be untruthful under oath.
Nice write up.
I think Judge Grrenland hit the nail on the head when he says that, Masipa was just too inexperienced for this level of trial.
For example, Masipa said, just because OP was a poor witness who wasn’t candid with the court (a liar in other words), and was inconsistent with his version, doesn’t mean he is guilty. That`s fair enough, but surely she can draw SOME inferences from why he was doing it and not just completely ignore it.
When Nel told OP that he he had changed his defence, OP claimed that he didn’t know the law. But that`s no excuse. After 14 months of discussions with your very expensive legal team, the ONE thing he must be 100% sure about is why he pulled the trigger! OP`s goose should really have been cooked when Masipa described his reason as being a plethora of defences. I loved the part in the appeal where the NPA argued why the State should have to deal with all of them.
Unfortunately if we thought the trial was long, the appeal will be even longer!
‘…just because OP was a poor witness who wasn’t candid with the court (a liar in other words), and was inconsistent with his version, doesn’t mean he is guilty. That`s fair enough, but surely she can draw SOME inferences from why he was doing it and not just completely ignore it.’
Yeah – some inferences would be good lol. 🙂
All the reasoning converged around the timeline and that became the solution to the case.
I would say, as found by the Judge “intent to shoot does not always mean intent to kill” … but in this circumstance it WAS (intent to shoot = intent to kill.
If I shoot at someone with a pea shooter that is intent to irritate. If I shoot someone with a rocket launcher that is intent to kill.
So the choice of weapon is itself a choice in intent. So I put it to you OPs premeditated choice of weapon was a premeditated choice of intent, a premeditated intent to kill.
I also put it to you that OP didn’t know the person behind the door was standing up. If he knew the person behind the door was standing up, then he must have known it was Reeva behind the door. Quod erat demonstrandum.
Surely the intruder would have been standing up? If he had intent to kill a standing person, he would fire higher up rather than risk to hit the leg and wind up with a chaos situation of a person falling over?
He might have been firing at a person sitting on the toilet (in his mind)?
I have to say I agree with the judge’s remark there. Intent to kill needs to be argued.
It would definitely be direct intent to kill if:
(a) he knew as a fact or believed with certainty that the target was sitting on the toilet, or right next to toilet [not argued]
(b) he was not severely emotionally compromised while firing
And certainly if
(c) the change in aim and number of bullets is a significant aspect. [DD: as Mangena]
But what about if he claims he thought the target was “coming out to attack him” and fired somewhat to the left and at waist height?
In that case it could be:
(d) indiscriminate firing without justification [This is the state case backup = DE of a harmless supposed perceived burglar due to an excess of testosterone]
(e) reckless firing because he was trying to “stop” the person coming out due to “genuine fear” but not really concentrating on where he was shooting [This is the defense case back up = CH on account of PPD]
(f) intentionally, and carefully, trying to shoot at waist height to immobilize the person (perhaps without realizing they might die, but if so, then it was PPD anyway) [Also CH: Judgement]
(g) a startle (no conscious involvement) [Defense case proper 4 the acquittal]
So clearly there’s quite a spectrum of “states of mind” there and the defendant is acquitted on any “more criminal” ones than can be proven. Well (g) is clearly a very long shot, (f) came as a surprise and would probably be denied by defense even now, i think they would argue (e) – but Nel will settle for (d) – so the whole debate over charge level in essence comes down to whether it would be (d) or (e).
Nel says it should be (d) because Pistorius gave alternative defenses so cannot be trusted (for lots of reasons), and was the attacker throughout. Defense says it should be (e) because Pistorius was “genuinely fearful” which has the backing of the Schultz report.
So really the question is this: Do they want a precedent set where the PPD is stretched far beyond its normal boundaries both in terms of force in response to practically nothing, and in terms of failing to take court into your confidence, simply because they found a psychologist who thinks Oscar is a nice boy?
Prof Schultz didn’t actually write up any analysis of the shooting incident so I’m puzzled how his views might perhaps have such generalized ramifications.
It feels a bit like that story of Moses with the red sea waters parting, like the waters parted so that Oscar could walk through the legal system relatively unscathed…??
Question is, who is going to order that the waters flood back in again after this case is on the books and can be cited? It’s clear someone will have to, in the end! We will have some very irritable judge bemoaning that there are no remaining methods with which to send people to prison otherwise!
Such as happened in the 1980s when the defense of “emotional outburst” became briefly popular as a complete defense to almost limitless amounts of violence. Until Eadie thundered away in defiance of the tendency and it made people stop and think whether it was a path they really wanted to go down or not…
Correction: Until in the Eadie SCA hearing, judges inc. Navsa thundered away…
Also was actually in 2002: So not “briefly” at all – roughly a decade before they clamped down on it.
S v Pistorius 2014 looks set to usher in a decade of very woolly reasoning w.r.t PPD – South Africa will become the “intruder mistake” capital of the world until then IMO.
I agree with Jason 100%. Choice of weapon tells it all. And, an intruder would most likely have taken position in a corner out of the line of possible gunshots, cowering. This guy shot to kill, and he knew exactly who he was killing.
A shame that we cloud ourselves with legal principles and term, but common sense tells me its murder. Not even DE, but premed.
Yeah in UK or US .. if you use a deadly weapon (gun, knife, or anything else) in the way it was designed for inflicting injuries on people, and they die as a result, you’ll definitely be charged with murder – even if the death was pretty indirect. It’s called “deadly weapon rule”. 5 teenagers in Liverpool were found guilty of murder after 1 of them stabbed a rival gang member in the leg … he died a few days later from complications. Still called murder.
Obviously Oscar used a lot more deadly force than that and much more targeted as well so no matter even if you call it “putative self-defense” still seems pretty crazy under such circumstances that it wouldn’t just flat out be a murder. That is common sense you are right.
Hard to see how you can call yourself the fearful, threatened one in the process of gunning down a harmless person that is trapped with no escape and who, on your own version, you didn’t actually set eyes on, or warn, and who actually retreated, and never made any threats, all they did was “move”.
That seems too illogical to make sense, but somehow his lawyers did spin it as a manslaughter, heaven knows how.
Maybe they turn a blind eye to quite a lot of gun related violence in South Africa, both at police level, and sometimes in court as well, making some pretty sympathetic findings such as suspended sentences, perhaps in an effort to bring down the prison numbers? And save long term prison for “very malicious acts” (such as shooting Reeva directly would have been). Maybe this is the thinking.
My view for some time now is there is an unwritten law that allows people like OP to kill and shoot dead intruders (almost always from the “ghetto”). It wouldn’t surprise me that OP knew this fact. Maybe most people know this in South Africa. You just need to read the newspapers and you will never read of a white homeowner being found guilty of murder of an intruder or a thief. I am certain there are many people like OP that would not hesitate to kill anybody they found on their property intruding or stealing. I am certain that many prepare for that eventuality by buying high calibre guns and receiving a lot of zombie stopping training. They would form zombie shooting clubs. They would chat about homeowner A shooting dead intruder B or intruder C killing homeowner D. They would build up a them and us ideology. Some might even hope to have an intruder to test themselves against. Be ready with their guns to bag themselves an intruder head – then be feted by the zombie stopping club afterwards over beers and loud music.
I think this attitude was revealed by Judge Masipa’s in clearing OP of the murder of the person behind the door(dolus eventualis) when she said:
“Clearly he did not subjectively foresee this as a possibility, that he would kill the person behind the door, … AS HE thought SHE was in the bedroom at the time.”
A sentence which is entirely illogical. It is a logical error that a primary school kid might make. It suggests the judge is not used to speaking logically of intruders as people – it suggests that Judge Masipa is only used to speaking of intruders as dead meat – target practice for fearful hard working homeowners. Unwritten rule 101: if an intruder is found in your house you can kill him.
This plays on the fears of home owners who read of home owners being killed by “dark” intruders and other home owners shooting dead “dark” intruders from the ghettos. It is a them and us social warfare. Wealthy hard working Christian home owners (“us”) and vicious hoodlum ghetto men (“them”).
Now IF OP shot at and killed Reeva in a heat of the moment argument – he would IMMEDIATELY know that if he claimed he thought Reeva was an intruder and he was believed he would get away with it. Get off with a warning, or a suspended sentence, or a few months prison sentence AT WORST.
Judge Masipa also being socially conditioned to the situation would know that if she could find a way of accepting the possibility that OP did think the person in his house was an intruder then she wouldn’t have to think logically anymore she could just say something to convey the unwritten law for finding an intruder in the house and then deliver her sentence:
you are free to go, or here is your suspended sentence, or here are your few months in prison with the rest being suspended or under nudge nudge wink wink house arrest.
This means that if OP murdered Reeva in a heat of the moment process he would automatically say it was an intruder and immediately begin to construct in his head the best way to make it seem that it was an intruder – if he wanted to get away with it.
We know from OPs past behaviour (Tashas, possibly the car incident etc) he AUTOMATICALLY switches to COVERING HIS ASS THINKING (to protect his image etc) as soon as he has fired the trigger (etc).
This is a weakness in the South African Justice System. This is the reason why the State paid so much attention to the woman’s scream – it was essentially their whole case to begin with and only started when one or two witnesses said they heard a woman screaming. If the police had thought it was a killing of an intruder – then they knew they could have an easy time rushing through the case:
You thought it was an intruder? Okay. There is no problem you taking your mobile phones away. No problem taking your girlfriends belongings away. Here sit down, you poor thing. Shooting dead your “loved” one that must be tough when you thought it was one of them, one of them intruder people. We don’t want to punish you twice. We will clear up here and you can get on with your life.
It was only when the police began talking to witnesses and heard of woman’s screams did they begin to change their mindset. Maybe this is murder. Wow. If it is clear cut we could make a name for ourselves. Woman screams = OP guilty of murdering girlfriend.
But as soon as it becomes – what? – it may not be womans screams it might be Oscar crying loudly? We can’t prove it was the woman screaming because we can’t make sense of the timeline from the phone records, or other witnesses don’t say there was a woman’s scream? So as soon as there is doubt that there was a woman screaming the case switches back to: Okay this is a standard mistaken identity of a homeowner thinking he was shooting dead vicious hoodlum ghetto people. Lets not punish him twice – collect your get out of jail pass at the exit.
Defence will oppose the appeal. Judge Masipa to decide whether to grant the appeal in an appeal hearing.
Judge Masipa to Nel: what is your case – be brief – cut to the heart of your argument.
Nel (State): You’re an idiot.
Judge Masipa to Mr Roux: what is your case to oppose the appeal.
Roux (defence): You are highly intelligent. You have years of experience. The rest of my argument is contained in this brown paper envelope.
Judge Masipa: I find in favour of the defence. The appeal is denied.
Or perhaps:
Nel: I will first of all say, I have the utmost of admiration for my esteemed colleague Mr. Roux. It was nothing short of a triumph how he bamboozled us all in the closing argument phase, myself included, so it is no reflection upon your honorable worshipfulness that the arguments appeared at a first, even a second, or a third, glance, reasonable.
We, the people of South Africa, we exhort you to look beyond these silken-prosed, and expensively manufactured, sophistries and embrace that small, quiet principle which will stand the test of time. M’lady, it is called “common sense”, it lies at the very heart of justice, M’lady, do what is right, choose fairness, choose reason, choose the courageous path, the logical path, four bullets, m’lady, for no reason, through a door, m’lady, it makes no sense, such things do not happen without a reason, m’lady, that stands to stands to common sense; and therefore, for the sake of our the law, for the sake of South Africa, grant this appeal, your most merciful ladyship, and i will personally ensure that some portion of an NPA pension pot can be diverted accordingly if you would kindly agree, as the court pleases. Most venerable one.
P.S. I am very sorry I said that “no reasonable court” would have imposed such a light sentence. Clearly, present company accepted. I slipped. Your humble, and most remorseful, servant, Nel
” A shame that we cloud ourselves ….” well said jaymes, well said
The Judge states the window was open because it is shown in photo’s and gives her opinion, as fact;my opinion is the window was opened by Oscar Pistorius after the shooting to make his version of events more plausible but the judge did not consider this OR IF SHE DID, SHE NOT STATE IT.She gives her opinion on why REEVA took her phone to the bathroom, it was to use because the light in the toilet did not work (how would she know, was she there at the time?) (it may have been working at the time of the incident)but she rejects this. The biggest mistake she made, however was not in these, But the thing she missed was the evidence of Carice Stander, who said see saw, OSCAR PISTORIUS walk upstairs, she followed (OSCAR was getting REEVA’S i.d. for paramedics apparently?)read Carice’s full statement or could admin put it in for me please as I do not want people reading this to believe my story is a lie. To continue they went downstairs with REEVA’S handbag which was then given to Aimee for safekeeping and to give to REEVA’S mother. Later that morning both Carice Stander and Aimee Pistorius went again upstairs (to collect items of clothing for Oscar?)
My point is : WHY DID THEY ENTER THE BEDROOM BECAUSE THIS WAS PART OF THE CRIME SCENE?
WHY DID THEY MOVE AND TAKE THINGS FROM THE BEDROOM OR POSSIBLY THE TOILET OR BATHROOM?
WHY THE POLICE PRESENT DID NOT STOP THEM?
WERE THEY NOT PERVERTING THE COARSE OF JUSTICE
THESE COMMENTS ARE MY OWN MICHAEL JAKEMAN
I think these reasons re: Carice Stander evidence was not argued in court was because after the Pistorius trial has finished another will commence
Why did Judge Masipa REJECT the accused notion that he never intended to shoot but ACCEPTED that he never intended to kill??
As far as I remember, OP was charged pretty quickly with murder.
The police in South Africa deal with a lot of murders, including that night in Pretoria.
Whatever Botha was or wasn’t, he was a very experienced police officer and when he walked into the house, first policeman to arrive, he knew that things were not right.
A woman’s jeans and the duvet on the floor in the bedroom, blood spatter on the duvet and carpet, as if there had been a struggle and attack, the bullet holes in the door, he used a pencil and could see they were aimed at the target and no doubt when he walked around the property, he discovered Reeva’s jeans on the ground below the lavatory.
Op had time to interfere with the crime scene, but he be unlikely to see the story that would unfold to an experienced policeman.
It was obvious there was something more to it.
As with OJ Simpson, the defence discredited the first police officer to arrive.
Many of us have been watching CSI and we expect the police to go immediately into a perfect examination of the scene.
I expect Roux knows Reeva was murdered and I wonder why Aimee was not asked under oath, why she went into the house and removed Reeva’s handbag and Oscar’s belongings?
I remember having read shortly after OP murdered Reeva, that Hilton Botha was the officer who arrested him after/at the Taylor-Memmory-incident. OP was kept overnight in a cell – it seems like he and Botha didn’t had a friendly encounter.
(It’s the same police station, which covered the Taylor-Memmory-incident and Reevas murder.)
One could very well imagine, how OP might’ve reacted and behaved – ‘I’m OP!’ and also, that Botha might not have appreciated that attitude.
So when Botha arrived at the house in that night of 14 feb., having experienced OPs temper and also behaviour towards women, namely physical violence – and maybe being a bit biased – and being the leading officer – who knows what exchange they might have had.
I vaguely remember reading a reported dialog somewhere, between OP and a police office (Botha?), something like: ‘you’re not getting off that time’ – ‘I will, I always win’ ….
I’ve no idea, how this factor ‘Botha’ has influenced the investigation and whether – besides other glitches like walking over the door (handling the gun without protection was no problem imho due to the obvious) – or why ‘Botha could have sunken the states case’.
Anyhow I believe that the defence maybe was reliefed not to have to deal with Botha as a witness. Why was the already dismissed case of a seven-fold-murder-charge brought up again, just then?
Was this a coincident?
The conspirationists could argue that behind a) was the state to get Botha off the case or b) Oom Arnold for to get Botha off the case.
Dubios like the deal between state and defense considering OPs iphone – deleted messages and call-history of the night of the kill – undenyable by Carl Pistorius. I would bet, this MacBook isn’t available anymore for any investigation.
Seems like there was and is a lot going on behind the scenes.
But I hope for sure that the appeal is granted and that an other judge doesn’t needs a mindreader to conclude, that a man, a proven/tested gun-owner, walking towards an alleged ‘intruder’ with a cocked gun loaded with man-stopping ammonition and who shots then through a closed door in a very tiny room, considering ricochet in doing so – that this man MIGHT have foreseen, that, whoever is in that tiny room -wouldn’t have any chance to survive 4 hits with Black Talons.
If that isn’t intention to kill – what else?
The defense was DESPERATE to cross Botha! His testimony alone could of seen OP acquitted once Roux had finished with him.
I though Roux wanted Botha off the case. Same as OJ’s team wanted the first cop off OJ Simpson’s case. Botha knew about the aggression and damage to property. Actually, in cases where men kill women, one forewarning is damaged property.
Maybe the ricocheting bullet broke the lightbulb in the loo. Whatever, neighbours saw the light on in the bathroom.