Oscar Pistorius Trial part 9

[JillJ72]

Starting a new thread as part 8 is nearly full, here - www.mumsnet.com/Talk/in_the_news/2080468-Oscar-Pistorius-Trial-Part-8

I tend to agree Sabrina, that is what I am struggling with.

I was more surprised by the possession of ammunition decision.
She said that there had to be intent to possess the ammunition
That is nonsense in my opinion
The law is strict - if you don't have a license for it, you don't have it in your possession
Intent is not part of the picture.

She used the case of someone handing in a gun and being caught on his way and another case where a robber was with another robber who was in possession of a gun and ammo and absconded leaving the ammo behind. The first robber was caught and the ammo was found. He said he wasn't aware the other robber even had the ammo.
She extrapolated that this therefore meant that you had to have intent to possess ammo to actually be found guilty. That the state didn't prove it's case as OP's father refused to sign an affidavit.

From now on then can anyone say...oh, this ammo? I know that ?I have it but I never intended to have it. Someone else must have left it there?
I thought that was a rubbish interpretation of the law

Ronald, did she not also say that there was no gun in his possession that he could use the ammo in, which then linked to his "possession" of the ammo. I can't explain it very well, but i thought she meant it wasn't "his" as such, even though stored in a safe in his house, as they could not be used in any of his guns.

I didn't understand the affidavit from dad part, though.

Ipity. Thanks for link.

The one thing that worries me in all this is the stomach contents evidence.
I get that the case failed to prove the charge of murder but the food in her belly clearly shows Oscar was lying about part of the night.

Yes Sabrina - that's the crux of the matter - firing 4 rounds into a tiny occupied toilet. How can the judge not see that as intent to kill.

In the UK if you have ammo and no gun you are still prosecuted with the possession of the ammo
Having it is the key

Thinking about it then it works for all searches of property of cars that turns up illegal goods
if you claim you didn't know they were there then there is no intent on your part to possess them and you are now innocent

I was also surprised most by the ammunition decision. He indisputably had in his house ammunition that he indisputably had no licence to have.

He couldn't argue he didn't know it was there like the test case.

The more I think about this, the more incredulous I am about the judge's decisions.

Me too sabrinnnnnnnna...
I had confidence in masipa at the start.
Looks like he really has got away with murder.
Let's hope for the strongest sentencing wrt the culpable homicide charge.

Totally shocked by the ruling. Feel so sad for reeva's family.

I've lurked on all the threads and found them fascinating, so thank you to all the regular contributors and your very thoughtful posts.

I accept that the judge has to follow a points of law process, and that the State can be seen not to have conclusively proved Pistorius' account wrong or their view right. They do seem to have ignored some points, like the damaged bedroom door, that raise questions in my mind, but they may know things about them that explain that decision. I can't say Oscar's account is that convincing to me although I think some things can be explained to fit his story, and the judge appeared to think that way too.

But what I really can't get my head round is the idea that he wouldn't have known that shooting at the door wouldn't kill the person behind it. That is the utterly inexplicable part of it to me.

I copied and pasted this from the Heads of arguments. It really helped me understand the laws.

In order for Oscar Pistorius to be found guilty of murder he had to have intent to kill Reeva and Reeva only. He had to know it was her in the toilet and he had to reconcile himself to that fact and fire into the door anyway.

It was not proven by the State that there was an argument. Mrs van de Merwe's testimony was that she heard a woman's voice that sounded like she was arguing. She could not say where it was coming from, what they were saying or what language was being spoken. She also only heard one person's voice on and off for an hour. That does not prove it was indeed Oscar Pistorius and Reeva Steencamp were in an argument. The security guard activated his guard track in front of his immediate neighbors house at 2:20am and saw no sign of trouble at the house.

Mr Nel tried to imply Error in Persona by saying

The accused said to witnesses on the scene that he thought
she was an intruder. Even then, the accused shot with the direct intention to kill a person. An error in persona, will not affect, the intention to kill a human being.

Error in persona” (mistake about the identity of the person) only finds
application where an accused intended to kill the identified “specific
predetermined individual” but made a mistake as to the identity of that
individual . His mistake will not constitute a defence.

Error in persona” does not apply to the present case. Rather, what
the State seeks to do is to introduce the doctrine of transferred intent/malice, which does not form part of SA law.

Doctrine of Transferred Intent/Malice

The State’s argument is that even if the State did not prove the fundamental requirement that the Accused subjectively foresaw the possibility that the Deceased could be killed, he ought still to be convicted of murder in respect of the Deceased.

Here us an example

“X’s intent to kill must relate to the very person killed. This does
not mean that X must know the identity of the intended victim. It
means that cases of aberratio ictus
are not murder for our law rejects the doctrine of ‘transferred malice’; if

Here is an example:
X shoots Z intending to kill him and not foreseeing the possibility that the shot may kill Y instead, X has no intent to kill Y, and cannot be convicted of murdering Y. If in the situation X foresees that his bullet may kill Y)
(notwithstanding that he has no desire, in the emotional sense, to kill Y)
X has intent to kill Y and is guilty of murder.

Opps, ignore the first paragraph under here is an example. I some how got that screwed up when I cut and paste. The second paragraph is he correct example.

Should be oops. I need another cup of coffee or something!!!!!

Judge Masipa said at ruling that the verdicts were the unanimous verdicts of the court.

So her two assessors, who were there to advise on points of law, agreed with her.

they sat through months of testimony, had all the transcripts, Heads of argument, plus were able to see all the witnesses (NVC is important)

regardless of what some - and it is some, not all - talking heads think, I accept her judgement.

Of course, if there is an appeal, he decision will be scrutinised again.

Someone on twitter commented that if the media had reported accurately, fewer people would be surprised at the verdict. I might go some way to agreeing with that.

I think she made the right decision, its's solid and leaves no room for appeal by the defence. Plus he will get a custodial sentence, of that I'm sure.

The NPA (the SA CPS) said yesterday that they were disappointed with the verdict, but that they accepted it, so I don't imagine there will be an appeal against the verdict.

I think they've also said they will consider their position following sentencing, so it seemed to me that they might be reserving their position in case it's a non-custodial sentence, or a very short one.

Good post AmIthatHot. It is a very good point to mention that the two Accessors were also involved in the decision. The Judge did not come to this decision on her own.

I also agree that overall with some exceptions the media was so slanted on what they reported that if you didn't actually follow the trial yourself you could definitely be misled on some issues. I spent countless hours going over the evidence and the biggest thing that was ignored was the immediate neighbor testimony. Their testimony pulled all the far off ear witness testimony together. When Mr Roux presented a time line in his Heads of Arguments it made me revisit all the ear witness testimony not just the far off neighbor testimony and discovered all the witnesses were hearing the exact same thing but interpreting them differently. There were several things that confirmed for me that they were all hearing Oscar Pistorius the entire time. But the biggest thing was that the far off neighbors testified to hearing the screams loud and clear, never muffled. That is not possible as Reeva was in the toilet with the door shut. It would have had to have sounded muffled. Impossible to explain otherwise.

I totally agree with you, AmIThatHot.

I remain depressed that it's shown that it's pretty much OK to shoot an unarmed woman four times through a locked door until she's dead.

I accept Masipa's decision - I followed the law on the case, I thought both Nel and Roux were very good, but I still hold that I got on better with Nel for a variety of reasons.

I'm perfectly capable of thinking all of that while still thinking it's awful that there is no justice for Reeva and no justice for her family.

Actually, Barry Bateman has just put it better than me. The law has been followed impeccably - therefore Masipa's judgement is right.

The question is whether this suggests the fact that the law is wrong.

I think yes. I don't think you should be allowed to kill someone and walk away free to go out to nightclubs and the like. I don't think you can ever say if someone 'intends' to kill unless they're conveniently saying out loud 'die you bastard! Die!'

I think this case highlights that grey area in 'you should have known you would kill' (Culpable homicide) and 'you intended to kill' (murder indirectus) and I think that needs addressing. Though obviously, not being South African, not by me.

I honestly think that Pistorius intended to kill the intruder he thought was behind the door. He didn't stop firing after one bullet when there was at least a hope that he might just incapacitate them. However, I agree that it was not proven in court that he did. Because we can't take a recording of his exact thoughts that day.

What I don't think at all is 'Oh, poor Oscar'. Even according to his own story, he could have done some nine or ten things to prevent Reeva Steenkamp dying that day, ranging from having less destructive bullets in his gun from getting verbal confirmation that she was in the bedroom, and he didn't do any of them.

Was having a interesting chat today with a friend about this case and we raised the question of what if it had been a intruder behind the door, obviously op wouldn't have seen whether they were armed or any danger - would people still be reacting to the judgement the same way? I don't know but is a interesting question I think.
I agree the law was followed and by law the right judgment was made. But should the law state differently again I don't know. We can never climb inside someone's mind. We cannot know the truth of op s thoughts that night and in the absence of that ability could any other judgement be made simply for fear of getting it wrong?
The stakes are just too high we have to maintain the Innocent until proven guilty approach.

What did the judge say about the stomach contents evidence?

Not an exact science and nothing could be established for sure to prove one way or another.

I have been thinking about the question a lot of people are confused about regarding how could he still not be convicted of murder for shooting through the door.. But how could he be convicted for murder when he wasn't charged with the murder of the person that ended up being killed? Who would they charge him with murdering? By finding him not guilty of murdering Reeva it takes the intent away. Which means he did not have intent to kill period.

I think this is where the Doctrine of Transferred Intent/Malice comes in. Which does not form part of the SA law.

The State’s argument is that even if the State did not prove the fundamental requirement that the Accused subjectively foresaw the possibility that the Deceased could be killed, he ought still to be convicted of murder in respect of the Deceased.

Here is an example:
X shoots Z intending to kill him and not foreseeing the possibility that the shot may kill Y instead, X has no intent to kill Y, and cannot be convicted of murdering Y. If in the situation X foresees that his bullet may kill Y)
(notwithstanding that he has no desire, in the emotional sense, to kill Y)
X has intent to kill Y and is guilty of murder.

Does that make any sense?

I get what you're saying upnorth. So it's technically correct. I personally still think it sucks. But there it is.