Oscar Pistorius - Discussion Thread #68 *Appeal Verdict*

[JudgeJudi]

I don’t know when this was written but I notice it contains the wording….

‘Since the Court may only hear constitutional matters, an applicant must show that the case concerns a constitutional matter’.

However since 2013 the Constitution of SA has been changed to read in Chapter 8

(3) The Constitutional Court—

(a) is the highest court of the Republic; and

(b) may decide—

(i) constitutional matters; and

(ii) any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by that Court, and

(c) makes the final decision whether a matter is within its jurisdiction.

Unfortunately, after more than 2 years the CC website has yet to be amended to include the wording of 3 (ii) in Chapter 8 of the Constitution

I'm hoping the ConCourt denies leave to appeal and that he returns to the High Court and is given a sentence that reflects the gravity of what he's done. It's too bad the SCA isn't handing out his sentence.

 

[Estelle]

I'm hoping the ConCourt denies leave to appeal and that he returns to the High Court and is given a sentence that reflects the gravity of what he's done. It's too bad the SCA isn't handing out his sentence.

I totally agree with you, JJ. IMO it is strange to have a two-stage process as he should be in prison right now and if he wants to appeal, then that could still have been done.

 

[JudgeJudi]

Hi Estelle, It's good to have you back more often now. Are you coming home for Christmas or still galavanting around O/S.

 

[L2L]

I'm hoping the ConCourt denies leave to appeal and that he returns to the High Court and is given a sentence that reflects the gravity of what he's done. It's too bad the SCA isn't handing out his sentence.

Absolutely agree! Could the SCA have done so, JJ?

 

[Tortoise]

I'm hoping the ConCourt denies leave to appeal and that he returns to the High Court and is given a sentence that reflects the gravity of what he's done. It's too bad the SCA isn't handing out his sentence.

I might have misinterpreted the grounds of appeal that are contained within the affidavit, but I think it attempts to raise the following as 'an arguable point of law of general public importance' -

That if the trial court had made a finding (that being that he did not shoot in fear for his life) he would have had rights of appeal to the SCA, but since this finding has been made by the SCA such recourse is no longer available to him.

Am I understanding it correctly?

If that is right, it seems like a madness in itself, because if the trial court had made this finding and he had appealed, we already know how the SCA would have decided the issue - that he did not shoot in fear for his life - it would have agreed with the trial court in this instance.

If on the other hand it is the principle that is raised and not the subject of the finding, is it another backdoor attempt to say what they already said to the SCA at the appeal hearing and was rejected? That the SCA cannot apply the law because that would necessitate a rejection of the trial court's findings?

It seems to me that Pistorius' entire testimony was a fact of the trial, even if not entirely believed, so all the SCA has done is to apply the law to his testimony. It hasn't removed the trial court's finding that he was afraid, but it has filled in where the trial judgement remained silent on the issues and validity of the PPD and by doing so erred in law. The fact (that he did not fire to defend his life) existed but Masipa erred in not testing his PPD to the standards required by the law.

I know State appeals are rare, but surely a changed verdict must always be based on a legal error or omission of judgement by the trial court. It does rather frazzle my brain trying to think about it.

Can anyone else shed some clarity on this?

 

[Trotterly]

Hang on.....what?

We are talking about sound! Acoustics!

A decibel is just a unit of measurement. It's used in lots of different ways, in lots of different disciplines to stop the numbers being worked with getting too huge.

It's amplitude we're interested in here. How much the sound waves produced have displaced the normal atmospheric pressure. We can then measure that in relation to the smallest sound detectable to the human ear to find the sound pressure level. Here a gain of 20db is x10.

I'm sure that there is a relationship between power, voltage and bat sounds, but it's far beyond the expertise of me and you, that's for sure. And how does it help on this thread?

A gain of 60db gives a sound 1000 times louder. Yes....LOUDER. The sound is that much louder.

If we then want to work out how this translates to individual ears...the perception...then we need access to information neither of us have.

A gun shot is MASSIVELY louder than any bat sound. That's it.

Regarding my calculation - I worked out the difference between 70db and 160db as 512 times louder...I mean...more intense.

Then I got distracted, decided in the interests of simplicity to give you 90db (which I agree is more realistic than 70db) and didn't bother recalculating.

So, I accept your correction there. I was being lazy.

IMPORTANT EDIT: I missed out an important part of my explanation. Attenuation. The SPL is run through an electronic meter that mimics the way human ears hear high and low frequencies and this gives a numerical value of 1000. The actual db is called db(A) SPL and this is what's referenced with all those tables that show db levels for vacuum cleaners and jet engines. A bald statement saying 20db = x10 does not give a true reflection of what we hear because we don't hear sounds in the flat way that that suggests.

And since I am both boring and confusing myself now, I shall leave it there.

A bat sound is 1000 times (roughly) quieter than a gun shot. I'll stand firm on that.

Your physics is all over the place and you have made the same error again at the end.

 

[JudgeJudi]

Absolutely agree! Could the SCA have done so, JJ?

I wish I knew the answer to that myself. My understanding, such as it is, is that the SCA felt that the High Court would be best placed to impose the sentence as Masipa was the Judge during the entire trial and had seen all the witnesses testify. I don't know if this is always the case. All I can say is that I don't like the idea of Masipa sentencing him one little bit. I hope she takes heed of Judge Leach's closing words at the end of the Judgment as, to me, it seemed like he was imparting a message to her that she should take account of the SCA's findings. Would she be brazen enough to ignore them ... we'll have to wait and see.

 

[Val1]

Is this real? it seems so specific. I have never seen this before. It was sent on 13 February.

The original has now been wiped so I don't know how to verify it but here are some further comments about it, though of course it's now all been denied/buried/whatever. Now if it was legit, joke or not, and OP went ballistic over it... oh wait, he did...

http://www.mirror.co.uk/news/world-news/reeva-steenkamp-close-friendship-pistorius-1714096
http://www.news24.com/SouthAfrica/News/Did-SMS-cause-Oscar-and-Reeva-fight-20130218
http://sbeta.iol.co.za/news/crime-courts/hougaard-denies-sms-to-reeva-1583956
http://gawker.com/5985048/pistorius...d-with-cricket-bat-over-text-from-rugby-rival

 

[aftermath]

Any speculative theories of what might have been on his phone that needed to be wiped?

Presumably nothing directed at Reeva via her phone because that would have shown up on her phone.

There was some speculation way back (on here I think but not 100% sure), that the wipe could have been an accidental result of CP transferring all phone data to another place like a pc. I don't know anything about whether that is either possible or likely with an iPhone.

If there was anything to be deliberately removed, my guess would be any conversations with jenna edkins, as the fact that he was still in touch with her wouldn't look good from a pr perspective. However, even if this were the case, it wouldn't necessarily mean that Pistorius himself knew anything about his phone being removed and/or wiped.

 

[Colin de France]

....surely though Pistorius could appeal the extended sentence for what it is......

 

[Belgarion]

I wish I knew the answer to that myself. My understanding, such as it is, is that the SCA felt that the High Court would be best placed to impose the sentence as Masipa was the Judge during the entire trial and had seen all the witnesses testify. I don't know if this is always the case. All I can say is that I don't like the idea of Masipa sentencing him one little bit. I hope she takes heed of Judge Leach's closing words at the end of the Judgment as, to me, it seemed like he was imparting a message to her that she should take account of the SCA's findings. Would she be brazen enough to it ignore them ... we'll have to wait and see.

I would have been surprised if the SCA had ruled on sentencing as their judgment resulted in a new conviction with a new set of sentencing guidelines. Therefore the whole legal process of the argument for and against mitigating circumstances, etc has to be enacted before a High Court judge. The SCA as purely an appellant court cannot carry out this function.

It is my understanding that if the State had appealed the sentencing based on a conviction of CH remaining extant then the SCA would have the power to modify the sentence

 

[sleuth-d-]

Is this real? it seems so specific. I have never seen this before. It was sent on 13 February.

no it is faked. the fake text starts after the first smiley...
n.b.
the inconsistent leading between the three lines of text.
the typefaces don't match:
tops of the letters d and l
second font is more condensed: compare letters s, e, c.
the two ) are different
position and shape of the dot above the i.
etc etc

 

[mrjitty]

I wish I knew the answer to that myself. My understanding, such as it is, is that the SCA felt that the High Court would be best placed to impose the sentence as Masipa was the Judge during the entire trial and had seen all the witnesses testify. I don't know if this is always the case. All I can say is that I don't like the idea of Masipa sentencing him one little bit. I hope she takes heed of Judge Leach's closing words at the end of the Judgment as, to me, it seemed like he was imparting a message to her that she should take account of the SCA's findings. Would she be brazen enough to it ignore them ... we'll have to wait and see.

The main reason for the High Court to do it is there will need to be a partial rerun of the sentencing hearing with evidence from witnesses.

So this is not the kind of thing the SC does.

The SC does sometimes hear appeals on sentences - but those are on the papers

So the High Court is the appropriate venue

 

[sleuth-d-]

The original has now been wiped so I don't know how to verify it but here are some further comments about it, though of course it's now all been denied/buried/whatever. Now if it was legit, joke or not, and OP went ballistic over it... oh wait, he did...

http://www.mirror.co.uk/news/world-news/reeva-steenkamp-close-friendship-pistorius-1714096
http://www.news24.com/SouthAfrica/News/Did-SMS-cause-Oscar-and-Reeva-fight-20130218
http://sbeta.iol.co.za/news/crime-courts/hougaard-denies-sms-to-reeva-1583956
http://gawker.com/5985048/pistorius...d-with-cricket-bat-over-text-from-rugby-rival

thanks for the links, from this one:
http://sbeta.iol.co.za/news/crime-courts/hougaard-denies-sms-to-reeva-1583956

bits of info that are news to me...

this on hougaard:
"Hougaard had, however, seen her about two weeks before her death, at a mutual friend’s engagement dinner, he told the magazine."
presumably this is the 27th party that ended in rs/op argument.

and this:
"Steenkamp was not the only woman both 25-year-old Hougaard and Pistorius had dated, the article pointed out. Both men had also gone out with Melissa Rom."

and this:
"Hougaard and Steenkamp met last year at the home of Darren Fresco, one of the State witnesses in Pistorius’s murder trial."

 

[mrjitty]

I would have been surprised if the SCA had ruled on sentencing as their judgment resulted in a new conviction with a new set of sentencing guidelines. Therefore the whole legal process of the argument for and against mitigating circumstances, etc has to be enacted before a High Court judge. The SCA as purely an appellant court cannot carry out this function.

It is my understanding that if the State had appealed the sentencing based on a conviction of CH remaining extant then the SCA would have the power to modify the sentence

Correct.

 

[mrjitty]

I might have misinterpreted the grounds of appeal that are contained within the affidavit, but I think it attempts to raise the following as 'an arguable point of law of general public importance' -

That if the trial court had made a finding (that being that he did not shoot in fear for his life) he would have had rights of appeal to the SCA, but since this finding has been made by the SCA such recourse is no longer available to him.

Am I understanding it correctly?


If that is right, it seems like a madness in itself, because if the trial court had made this finding and he had appealed, we already know how the SCA would have decided the issue - that he did not shoot in fear for his life - it would have agreed with the trial court in this instance.

If on the other hand it is the principle that is raised and not the subject of the finding, is it another backdoor attempt to say what they already said to the SCA at the appeal hearing and was rejected? That the SCA cannot apply the law because that would necessitate a rejection of the trial court's findings?

It seems to me that Pistorius' entire testimony was a fact of the trial, even if not entirely believed, so all the SCA has done is to apply the law to his testimony. It hasn't removed the trial court's finding that he was afraid, but it has filled in where the trial judgement remained silent on the issues and validity of the PPD and by doing so erred in law. The fact (that he did not fire to defend his life) existed but Masipa erred in not testing his PPD to the standards required by the law.

I know State appeals are rare, but surely a changed verdict must always be based on a legal error or omission of judgement by the trial court. It does rather frazzle my brain trying to think about it.

Can anyone else shed some clarity on this?

you are understanding it correctly.

What sucks for Roux and essentially is his major headache is the fact that Masipa made some very favourable findings for his client, but then proceeded to make a pigs ear of the legal analysis

Had she done her job properly it would have essentially left the result appeal proof.

But because she did not, she left the door open for Justice Leach to stroll in and clean house.

So now Masipa's judgement is an ironic albatross about Roux's neck.

He's got these favourable findings but no decent case to argue.

This was actually clear in the very first leave to appeal. He doesn't have any decent cards to play

 

[Tortoise]

you are understanding it correctly.

What sucks for Roux and essentially is his major headache is the fact that Masipa made some very favourable findings for his client, but then proceeded to make a pigs ear of the legal analysis

Had she done her job properly it would have essentially left the result appeal proof.

But because she did not, she left the door open for Justice Leach to stroll in and clean house.

So now Masipa's judgement is an ironic albatross about Roux's neck.

He's got these favourable findings but no decent case to argue.

This was actually clear in the very first leave to appeal. He doesn't have any decent cards to play

Thank you. Well I can't see the Constitutional Court removing the SCA's powers to correct legal errors.

To boil it down is Roux again saying that the SCA in effect misdirected itself by deciding questions of fact and not law?

 

[WilliamMunter]

Austrian woman says Oscar Pistorius flirted with her for months online while awaiting trial for killing Reeva Steenkamp... but broke off all contact when he was convicted

http://www.dailymail.co.uk/news/art...-Reeva-Steenkamp-broke-contact-convicted.html

 

[cottonweaver]

Bit of gossip from today's D.Mail - apols if this has already been posted

Austrian woman says Oscar Pistorius flirted with her for months online while awaiting trial for killing Reeva Steenkamp... but broke off all contact when he was convicted

Oscar Pistorius flirted with an Austrian woman in a bizarre series of messages while he was awaiting trial for killing his girlfriend Reeva Steenkamp, it was claimed today.
Pistorius allegedly called himself Liam in the thousands of messages he is said to have exchanged with a leggy blonde, named only as Nina F, 30, before she learned his true identity.
Nina told Germany's Bild newspaper she fell in love with him over the Internet and that they 'flirted' for months via Instagram and WhatsApp.
She claimed the Paralympian even told her he wanted to marry her.
They sent each other dozens of photos and talked for hours each day, she claimed.
But whenever she suggested flying out to visit him, he changed the subject.
During their cyberspace romance, he allegedly used prepaid mobile phone cards and switched his mobile phone number several times.
Then on October 14 last year – ten days before he was found guilty of killing Reeva in his Pretoria home on Valentine's Day 2013 – he sent her a message saying: 'You don't know who I am?'

texts printed in the article itself

Read more: http://www.dailymail.co.uk/news/art...mp-broke-contact-convicted.html#ixzz3ufxGTgAQ

 

[aftermath]

Bit of gossip from today's D.Mail - apols if this has already been posted

Austrian woman says Oscar Pistorius flirted with her for months online while awaiting trial for killing Reeva Steenkamp... but broke off all contact when he was convicted


texts printed in the article itself

Read more: http://www.dailymail.co.uk/news/art...mp-broke-contact-convicted.html#ixzz3ufxGTgAQ

I call BS on that.
Dangerous (non)'story' to even publish. It's almost hard to follow for all the 'alledgedly', 'reportedly', 'it is claimed ' etc insertions.