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  1. #46
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    Quote Originally Posted by Tortoise View Post
    This is my first post in this thread, although I recognise a few of you from the Becky Watts threads. So hi!

    Am in complete awe of Judge Judi and Monty Fossil for their painstaking and brilliant work and blog. Very grateful to you both.

    I am just going to throw my thoughts into the mix.

    I think the outcome of the appeal will be DD of the person behind the door, which I base on the following -

    1. I think there was an appetite for it from the SCA judges.
    2. I don't think Nel's case for DE will stand in the way of a substituted verdict of DD, because SCA has the authority* to deliver the verdict that ought have been made by the judge a quo.
    3. If the question of law regarding the approach to assessing the circumstantial evidence by Masipa succeeds, the SCA may decide that the case should be evaluated on the objective facts.
    4. It may decide that the requirements for PPD were not met. Pistorius was not entitled to believe he was acting lawfully. His evidence is that he did not shoot willfully.
    5. It may look at the objective evidence for the finding that Pistorius said he was fearful and that he thought someone was coming out of the toilet, and find there is none.
    6. It may find that his defence of automatism does not support his claim to have acted on a thought, and reject his defences.
    7. It may say that Cpt Mangena's evidence negates Pistorius' evidence that he fired in rapid succession. If he paused for a second or two, he was in thinking mode and in control.
    8. It may say that four bullets shows intent to cause fatal injury, where the person behind the door is given no warning and has no room for manoeuvre.


    ETA * and the judicial obligation in terms of defining what took place in terms of the law of SA


    Very interesting... I had a brief moment of optimism re: DD when Leach asked Nel if he was interested in pursuing DD. Not sure if it is off the table because the prosecution declines to pursue their original charge on appeal.

  2. #47
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    Does anyone know what kind of community service Oscar was assigned?

  3. #48
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    Quote Originally Posted by Marfa Lights View Post


    Very interesting... I had a brief moment of optimism re: DD when Leach asked Nel if he was interested in pursuing DD. Not sure if it is off the table because the prosecution declines to pursue their original charge on appeal.
    I can't be sure either, but it seems to me to be the only correct legal outcome, in the absence of any accepted defence to the charge.

    I think Nel was tied to his answer because otherwise the Defence would have jumped on that as an appeal against the factual findings masquerading as an appeal on the legalities.

  4. #49
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    Quote Originally Posted by Tortoise View Post
    I can't be sure either, but it seems to me to be the only correct legal outcome, in the absence of any accepted defence to the charge.

    I think Nel was tied to his answer because otherwise the Defence would have jumped on that as an appeal against the factual findings masquerading as an appeal on the legalities.
    Tortoise. That was a great first post.

    By the end of OP's first day of cross-examination I was of the view that it was DD, and I'm more certain of that now than I was back then. In fact, I have absolutely no doubt about it irrespective of the outcome of the appeal.

    I too am uncertain whether the judges will bite the bullet and upgrade it to DD but at the very least I'm sure they'll reach a finding of DE.

    I'm going to stick my neck out here but I believe if it's DE it will be a unanimous decision (and I too may be in a minority of 1).

    In the event they decide on DD it may only be a majority. I can't help but wonder if this was the reason Mpati, P decided not to deliver the verdict at the end of the appeal in order that this alternative be given consideration.
    Last edited by JudgeJudi; 11-15-2015 at 09:29 AM.

  5. #50
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    Quote Originally Posted by JudgeJudi View Post
    Tortoise. That was a great first post.

    By the end of OP's first day of cross-examination I was of the view that it was DD, and I'm more certain of that now than I was back then. In fact, I have absolutely no doubt about it irrespective of the outcome of the appeal.

    I too am uncertain whether the judges will bite the bullet and upgrade it to DD but at the very least I'm sure they'll reach a finding of DE.

    I'm going to stick my neck out here but I believe if it's DE it will be a unanimous decision (and I too may be in a minority of 1), and in the event they decide on DD it may only be a majority.
    Thanks for the welcome.

    I don't want to turn this civilised thread into a Masipa-bashing arena, but IMO she was not enquiring and did not engage with the proceedings. She is just a listener, and appeared to have some difficulty hearing, and following too, combined with not keeping control of her Court unless she was asked to step in, and then she had to be told why she was being asked to step in.

    I cannot see this having been the outcome in any other court.

  6. #51
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    Quote Originally Posted by Tortoise View Post
    Thanks for the welcome.

    I don't want to turn this civilised thread into a Masipa-bashing arena, but IMO she was not enquiring and did not engage with the proceedings. She is just a listener, and appeared to have some difficulty hearing, and following too, combined with not keeping control of her Court unless she was asked to step in, and then she had to be told why she was being asked to step in.

    I cannot see this having been the outcome in any other court.
    I agree with your observations. I've never seen a judge who wasn't in control of their court before. There were many occasions when she should have stepped in and taken control of the proceedings, but this only really occurred when OP needed a timeout or when she needed advice from Helen du Toit (who quite possibly wrote the judgment) in my respectful submission.

  7. #52
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    Quote Originally Posted by Tortoise View Post
    This is my first post in this thread, although I recognise a few of you from the Becky Watts threads. So hi!

    Am in complete awe of Judge Judi and Monty Fossil for their painstaking and brilliant work and blog. Very grateful to you both.

    I am just going to throw my thoughts into the mix.

    I think the outcome of the appeal will be DD of the person behind the door, which I base on the following -

    1. I think there was an appetite for it from the SCA judges.
    2. I don't think Nel's case for DE will stand in the way of a substituted verdict of DD, because SCA has the authority* to deliver the verdict that ought have been made by the judge a quo.
    3. If the question of law regarding the approach to assessing the circumstantial evidence by Masipa succeeds, the SCA may decide that the case should be evaluated on the objective facts.
    4. It may decide that the requirements for PPD were not met. Pistorius was not entitled to believe he was acting lawfully. His evidence is that he did not shoot willfully.
    5. It may look at the objective evidence for the finding that Pistorius said he was fearful and that he thought someone was coming out of the toilet, and find there is none.
    6. It may find that his defence of automatism does not support his claim to have acted on a thought, and reject his defences.
    7. It may say that Cpt Mangena's evidence negates Pistorius' evidence that he fired in rapid succession. If he paused for a second or two, he was in thinking mode and in control.
    8. It may say that four bullets shows intent to cause fatal injury, where the person behind the door is given no warning and has no room for manoeuvre.


    ETA * and the judicial obligation in terms of defining what took place in terms of the law of SA
    BIB

    You may be right, but I'd wager $1 against it

    The Court might issue some obiter on DD (seeing as the Justice mentioned it) but seeing the DD thing is not at issue, I don't think they will rule on it.

  8. #53
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    Quote Originally Posted by JudgeJudi View Post
    I agree with your observations. I've never seen a judge who wasn't in control of their court before. There were many occasions when she should have stepped in and taken control of the proceedings, but this only really occurred when OP needed a timeout.
    This is why High Court Judges in the UK or Australia or NZ have had careers like Nel or Roux before they hit the bench

    They are the senior guys or gals who have thrown their weight around for many years and there is no intimidation factor with senior counsel.

    Indeed often they will know each other quite well.

  9. #54
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    Quote Originally Posted by mrjitty View Post
    BIB

    You may be right, but I'd wager $1 against it

    The Court might issue some obiter on DD (seeing as the Justice mentioned it) but seeing the DD thing is not at issue, I don't think they will rule on it.
    Part of what makes me think they might is the wider repercussions. For 5 judges at the SCA not to be very clear on this, it will be massive and will muddy the waters even further. If they accept 4 bullets with unlawful intent fired where the person cannot escape as being within the definition of DE, I don't know what DD is.

    This case must go further than foresight of and reconciliation with possible fatal injury. In my opinion.

  10. #55
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    Quote Originally Posted by Tortoise View Post
    This is my first post in this thread, although I recognise a few of you from the Becky Watts threads. So hi!

    Am in complete awe of Judge Judi and Monty Fossil for their painstaking and brilliant work and blog. Very grateful to you both.

    I am just going to throw my thoughts into the mix.

    I think the outcome of the appeal will be DD of the person behind the door, which I base on the following -

    1. I think there was an appetite for it from the SCA judges.
    2. I don't think Nel's case for DE will stand in the way of a substituted verdict of DD, because SCA has the authority* to deliver the verdict that ought have been made by the judge a quo.
    3. If the question of law regarding the approach to assessing the circumstantial evidence by Masipa succeeds, the SCA may decide that the case should be evaluated on the objective facts.
    4. It may decide that the requirements for PPD were not met. Pistorius was not entitled to believe he was acting lawfully. His evidence is that he did not shoot willfully.
    5. It may look at the objective evidence for the finding that Pistorius said he was fearful and that he thought someone was coming out of the toilet, and find there is none.
    6. It may find that his defence of automatism does not support his claim to have acted on a thought, and reject his defences.
    7. It may say that Cpt Mangena's evidence negates Pistorius' evidence that he fired in rapid succession. If he paused for a second or two, he was in thinking mode and in control.
    8. It may say that four bullets shows intent to cause fatal injury, where the person behind the door is given no warning and has no room for manoeuvre.


    ETA * and the judicial obligation in terms of defining what took place in terms of the law of SA
    Whilst I agree with all you say, as Nel didn't take that route I doubt whether it will be considered, even if the SCA Judges think it would have been a better call. Leach made a point of asking Nel what verdict he was asking for and I don't think they can row back on Nel's answer. I still have misgivings that there will even be a DE verdict, although DE/DD is what he deserves. I shall be very happy to be proved wrong.



  11. #56
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    Quote Originally Posted by Interested Bystander View Post
    Whilst I agree with all you say, as Nel didn't take that route I doubt whether it will be considered, even if the SCA Judges think it would have been a better call. Leach made a point of asking Nel what verdict he was asking for and I don't think they can row back on Nel's answer. I still have misgivings that there will even be a DE verdict, although DE/DD is what he deserves. I shall be very happy to be proved wrong.
    It would be an interesting exercise to see if there are any other cases at appeal where they have deviated from the conviction sought. But not that interesting that I am going to do it.

  12. #57
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    Quote Originally Posted by Tortoise View Post
    It would be an interesting exercise to see if there are any other cases at appeal where they have deviated from the conviction sought. But not that interesting that I am going to do it.
    The conviction sought is the same either way - Murder.

    DE is just broadening of what counts as murder. It isn't a downgrade on DD

    Given DD was not one of the questions of law stated - I doubt they will rule on it.

    However they might comment on it.

  13. #58
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    Quote Originally Posted by mrjitty View Post
    The conviction sought is the same either way - Murder.

    DE is just broadening of what counts as murder. It isn't a downgrade on DD

    Given DD was not one of the questions of law stated - I doubt they will rule on it.

    However they might comment on it.
    BIB can you explain this for me if you have the time? I'm not sure I understand it.

  14. #59
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    Quote Originally Posted by Tortoise View Post
    It would be an interesting exercise to see if there are any other cases at appeal where they have deviated from the conviction sought. But not that interesting that I am going to do it.
    I have had a quick look at a few Appeals but they are generally against sentence by a lower court and if the SC think there is a case to answer there is a retrial but under a different judge.

    I haven't yet seen anywhere a case where it is the State who is appealing for different verdict. I will have a look at a few more later this evening (UK time) to see if I can find anything that equates with the current Appeal.


  15. #60
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    Quote Originally Posted by saraomar View Post
    Just in.....Pistorius arrives for community service.... After 3 weeks of being released???

    http://www.theguardian.com/world/201...e-south-africa
    Thanks for this link... interesting on a couple of levels.

    I'm very surprised that they would have him start community service before court of appeal rules.

    I can understand OP not being willing to speak with reporters, but don't reporters have means to find out what kind of community service he's doing?? (:

    Is it possible that he will be performing community service at the police station? And, if not, will he have to have a LE officer accompany him for his protection? or private bodyguard?

    This is the first photo I've seen since OP was released from prison. (I recall someone posting a photo here soon after his release, but I was unable to access it.) He really looks rough... unkept... sideburns, scruffy beard, hairy chest... not at all the style we're accustomed to seeing, imo.

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