Discussion Thread #60 - 14.9.12 ~ the appeal~

[GR_Turner]

If Masipa grants the application she is NOT reversing her first ruling…

Roux pleaded that Nel was incorrect and therefore Masipa should not grant the application to appeal the verdict

Now Roux will plead Masipa was incorrect in granting the application to appeal the verdict and therefore should grant the application to appeal that decision... so that a higher Court may explore and decide whether she made a mistake or not.

If Masipa grants the application, she will be, for all intents and purposes, transferring responsibility for the verdict to a higher Court.

I suspect Masipa will grant Roux's application.

Yes, she would be. The State applied for leave to appeal to the SCA. They got it. Now the defense are appealing Judge Masipa's decision. If she grants the defense appeal, she is agreeing that her earlier permission to appeal was wrong. The State are still free to appeal to the SCA anyway (or I guess back to Judge Masipa in an appeal against this appeal-I hope not as this then gets silly). If she doesn't grant the defense appeal then everything remains as it is now, the case goes to the SCA for an appeal.

 

[Colin de France]

The moment he supposedly froze was after picking up the jeans, if he has trouble balancing at the best of times it is very difficult to believe he would be able to balance with the apparent terror he felt at that moment.

Yes i've always had trouble believing an able bodied person would
(a) Not assist a severely disabled man in bringing the fans in etc
(b) At the very least help him out by turning the light on when she got up.

.....if he put the light on the his story is blown, if she put the light on, any light on, his story is also blown....and what about the intruder how did he/she see their way around ? Then there's the toilet door, it had to of been locked to explain why he busted it in, so if it was locked in the dark in the middle of the night, why.....it just goes, on and on..

 

[AJ_DS]

Yes, she would be. The State applied for leave to appeal to the SCA. They got it. Now the defense are appealing Judge Masipa's decision. If she grants the defense appeal, she is agreeing that her earlier permission to appeal was wrong. The State are still free to appeal to the SCA anyway (or I guess back to Judge Masipa in an appeal against this appeal-I hope not as this then gets silly). If she doesn't grant the defense appeal then everything remains as it is now, the case goes to the SCA for an appeal.

That's not how I'm understanding matters…

I believe BiB is incorrect and should read "she is agreeing her earlier permission to appeal may have been wrong"

Same as Masipa did not agree with Nel that her verdict was wrong… only that it may have been wrong

… hence she grants permission for the matters to be examined and decided by a higher Court.

Therefore if Masipa grants Roux's request, the Appellate Court will first decide if Masipa was incorrect in her decision to grant an appeal on the verdict…

… if she was correct, then the Appellate Court will decide if Masipa was incorrect on the verdict.

As I understand it, attorneys cannot petition the Appellate Court without first asking permission to do so…

If permission is granted, the Appellate Court can then either accept or deny

if permission is denied, the attorney can petition the Appellate Court directly, which then can also accept or deny

 

[Sherbert]

It was always going to the SCA. This must be about Oscar's status when he applies for home release this year imo. If he has an appeal ongoing that could increase his sentence they may keep him in prison, against the clear intentions of the trial judge. But if the defense overturn Judge Masipa's permission to appeal judgement then the State must appeal direct to the SCA which I guess will take them till next year. So it's not about trying to avoid it getting to the SCA it's about how long Oscar spends in prison waiting for the State to get the appeal to court imo. Note that his has happened just after the State took a day shy of the limit to put in their appeal documents.

I'm not sure what the deadline was for the current application, but ten weeks seems an awfully long time. As you say, I imagine the Defence are responding to the State's relatively recent confirmation that it is proceeding with the Appeal.

I wonder if the State will now apply for leave to Appeal Masipa's refusal to grant leave on the possession verdict.

As I understand the position, Masipa is not at liberty to reverse her decision to grant the State leave. She will simply give the Defence permission to Appeal it or not.

 

[mrjitty]

And that is why this case will forever mess with the mind's of those(me included) who believe that he knew exactly who was behind that door, seriously frustrating not knowing every detail of the real truth, honestly this and the Madeleine Mccann case will drive me insane one day.

Why?

Surely the truth is beyond obvious in both cases?

 

[L2L]

Yes, she would be. The State applied for leave to appeal to the SCA. They got it. Now the defense are appealing Judge Masipa's decision. If she grants the defense appeal, she is agreeing that her earlier permission to appeal was wrong. The State are still free to appeal to the SCA anyway (or I guess back to Judge Masipa in an appeal against this appeal-I hope not as this then gets silly). If she doesn't grant the defense appeal then everything remains as it is now, the case goes to the SCA for an appeal.

That's the way I looked at it too.

 

[mrjitty]

I agree… but not being able to know the real truth is far less frustrating than realizing that no meaningful effort was made to uncovered said truth.

E.g.

- Mac notebook seized in OP's house ?
- Reeva's uninterrupted internet connections ?
- Detailed phone billing of Stipp, Johnson and van der Merwe ?
- State timeline ?
- Metal tub panel ?
- etc...

… not to mention the various irreconcilable conflicts between the State's contentions and the way the State's case was conducted ?

Much could have been done to successfully disprove OP's version of events… but it simply wasn't done.

Or the judge simply screwed up a slam dunk case with the most laughable judgement I have seen since Hellmann/Knox

 

[mrjitty]

Yes, she would be. The State applied for leave to appeal to the SCA. They got it. Now the defense are appealing Judge Masipa's decision. If she grants the defense appeal, she is agreeing that her earlier permission to appeal was wrong. The State are still free to appeal to the SCA anyway (or I guess back to Judge Masipa in an appeal against this appeal-I hope not as this then gets silly). If she doesn't grant the defense appeal then everything remains as it is now, the case goes to the SCA for an appeal.

I think you are wrong about this.

As far as I am aware the high court cannot reverse the leave to Appel it granted.

The defence can only contest that matter in a higher court.

 

[mrjitty]

That's not how I'm understanding matters…

I believe BiB is incorrect and should read "she is agreeing her earlier permission to appeal may have been wrong"

Same as Masipa did not agree with Nel that her verdict was wrong… only that it may have been wrong

… hence she grants permission for the matters to be examined and decided by a higher Court.

Therefore if Masipa grants Roux's request, the Appellate Court will first decide if Masipa was incorrect in her decision to grant an appeal on the verdict…

… if she was correct, then the Appellate Court will decide if Masipa was incorrect on the verdict.

As I understand it, attorneys cannot petition the Appellate Court without first asking permission to do so…

If permission is granted, the Appellate Court can then either accept or deny

if permission is denied, the attorney can petition the Appellate Court directly, which then can also accept or deny

I think this is correct.

I guess in practice both matters will be rolled together.

The defence might be trying to avoid the cost of a full hearing at the SC

 

[L2L]

I think you are wrong about this.

As far as I am aware the high court cannot reverse the leave to Appel it granted.

The defence can only contest that matter in a higher court.

Ah, I understand that more clearly now.

 

[mrjitty]

Ah, I understand that more clearly now.

Such an approach could simply be tactical.

For instance an appeal before the SC that Masipa was wrong to grant leave is a smaller proceeding which avoids getting into the entire substantive appeal. Instead it is purely procedural.

I am no expert on procedure but I do know that where the SC has already decided it wants to hear the appeal - it may just roll it all together

 

[AJ_DS]

I think this is correct.

I guess in practice both matters will be rolled together.

The defence might be trying to avoid the cost of a full hearing at the SC

Does anyone truly believe OP is destitute and without financial support ?

The whole bit about OP having to liquidate assets to fund his Defence and offer compensation to Reeva's parents was dog and pony show for the Court's benefit.

I strongly doubt anything the Defence does or doesn't do in OP's case has ever been motivated by a desire to reduce cost… the Appeals process will be no different.

 

[cottonweaver]

Even today i still keep finding holes in his story

"I can't stand still on my stumps. I seldom have time when I'm not wearing my prosthetic legs... I don't have very good balance," he said in response to questioning from his lawyer Barry Roux.

I just froze, I heard this noise, I interpreted it as someone climbing into the bathoom.

Can't balance on stumps at the best of times, but yet in the pitch black no problem.

It's the holes in Masipa's findings that still baffle me even more.

Just one example - her view shooting at waist height supports his case that he did not foresee/intend to kill.

With that lethal ammunition, with that number and grouping of shots, at an unseen target and the target's unknown position, in a room where an "intruder" was effectively boxed in.... how could she possibly state that even when believing the intruder story? Oscar was aware of all those factors. Waist -height alone covered a lot of bases for him, even on his version.

 

[AJ_DS]

Such an approach could simply be tactical.

For instance an appeal before the SC that Masipa was wrong to grant leave is a smaller proceeding which avoids getting into the entire substantive appeal. Instead it is purely procedural.

I am no expert on procedure but I do know that where the SC has already decided it wants to hear the appeal - it may just roll it all together

My guess is that it is purely tactical…

It wouldn't make any sense for the SC to go forth with hearing arguments and deliberating on a matter which fundamentally had no legal basis of being in front of the SC in the first place.

Therefore, it is an attempt by Roux to quash the Appeals process on the verdict before it even begins.

… but I'm no expert either and this is SA after all… anything is possible !

 

[GR_Turner]

That's not how I'm understanding matters…

I believe BiB is incorrect and should read "she is agreeing her earlier permission to appeal may have been wrong"

Same as Masipa did not agree with Nel that her verdict was wrong… only that it may have been wrong

… hence she grants permission for the matters to be examined and decided by a higher Court.

Therefore if Masipa grants Roux's request, the Appellate Court will first decide if Masipa was incorrect in her decision to grant an appeal on the verdict…

… if she was correct, then the Appellate Court will decide if Masipa was incorrect on the verdict.

As I understand it, attorneys cannot petition the Appellate Court without first asking permission to do so…

If permission is granted, the Appellate Court can then either accept or deny

if permission is denied, the attorney can petition the Appellate Court directly, which then can also accept or deny

Which they did. And it was granted. If it had been refused they would have applied direct to the SCA. The system is that they apply to the original trial judge first and only then take it to the SCA if leave to appeal is not granted. It's to stop too many unwarranted appeals going to the SCA I think.

I understand what the State's appeal to Judge Masipa was - an application to grant leave to appeal. This appeal by the defense is against that judgement. It doesn't actually matter what Judge Masipa decides in terms of it going to the SCA if the State can just appeal direct to the SCA anyway. That's why I think it's about Oscar's status in prison this summer. Either he's officially done his jail time (if permission to appeal is refused by Judge Masipa and he's behaved and fulfils all the requirements to be released to home detention) or he's still officially under threat at that time of a successful appeal that could increase his sentence in which case it's quite possible they would keep him in prison till the SCA appeal hearing, sometime in mid-2016 I guess. This is just my assumption anyway.

 

[cottonweaver]

Such an approach could simply be tactical.

For instance an appeal before the SC that Masipa was wrong to grant leave is a smaller proceeding which avoids getting into the entire substantive appeal. Instead it is purely procedural.

I am no expert on procedure but I do know that where the SC has already decided it wants to hear the appeal - it may just roll it all together

James Grant's twitter page has a few comments from legal professionals which express surprise at this development - even though he states that he himself can't comment ( except the wry "Interesting times" comment ) due to his ongoing involvement in the case - for example :

"Difficult to understand how Pistorius can ask H.Court to overturn leave to appeal. Normally for SCA to say leave wrongly granted (if it was) and It does happen (rarely) that SCA hears appeal & decides that leave was wrongly granted. But unaware of HC having done so" (S.Budlender )
and
"Very weird James, never in 18 years have I seen leave applied(sic?) for in respect of leave granted. Surely question for SCA ?"(D.Dadic)

Another news source - can't remember now - said this was a strategy to disrupt the Prosecution's "momentum"

 

[AJ_DS]

It's the holes in Masipa's findings that still baffle me even more.

Just one example - her view shooting at waist height supports his case that he did not foresee/intend to kill.

With that lethal ammunition, with that number and grouping of shots, at an unseen target and the target's unknown position, in a room where an "intruder" was effectively boxed in.... how could she possibly state that even when believing the intruder story? Oscar was aware of all those factors. Waist -height alone covered a lot of bases for him, even on his version.

Indeed… Masipa was trying her best to find OP not guilty… no matter how nonsensical her reasoning was.

Forget the black talons, forget the grouping, forget the unseen target, forget the small toilet… since when does shooting someone in the gut indicate an absence of intent to kill ?… or make it unforeseeable that a person may die as a result of being shot 4 times in the gut ??

 

[GR_Turner]

I think you are wrong about this.

As far as I am aware the high court cannot reverse the leave to Appel it granted.

The defence can only contest that matter in a higher court.

So what is this appeal for then?

 

[cottonweaver]

More reassuringly in terms of the Appeal already granted and the SCA, Grants states:

" I am told to expect though that once the case gets there, the judges will know the record backward" which certainly sounds more promising than the patchy understanding Masipa & Co seemed to have with the case facts.

https://twitter.com/JamesGrantZA/status/569435779107328000

 

[AJ_DS]

Which they did. And it was granted. If it had been refused they would have applied direct to the SCA. The system is that they apply to the original trial judge first and only then take it to the SCA if leave to appeal is not granted. It's to stop too many unwarranted appeals going to the SCA I think.

I understand what the State's appeal to Judge Masipa was - an application to grant leave to appeal. This appeal by the defense is against that judgement. It doesn't actually matter what Judge Masipa decides in terms of it going to the SCA if the State can just appeal direct to the SCA anyway. That's why I think it's about Oscar's status in prison this summer. Either he's officially done his jail time (if permission to appeal is refused by Judge Masipa and he's behaved and fulfils all the requirements to be released to home detention) or he's still officially under threat at that time of a successful appeal that could increase his sentence in which case it's quite possible they would keep him in prison till the SCA appeal hearing, sometime in mid-2016 I guess. This is just my assumption anyway.

Interesting analysis on the reasons why.

On the how… my guess is Roux could not care less whether Masipa grants or not his application because the SCA already accepted to hear the State on the verdict and Masipa can't change that… so going in front of Masipa is a simply a necessary procedural formality.

Wether Masipa grants Roux's application or not, Roux will be presenting it to the SCA anyways.