Discussion Thread #60 - 14.9.12 ~ the appeal~

mrjitty said:

I haven't posted for some months but in the interim i did discuss the case with a couple of experienced litigators who crystalized it better than me.

The point is that the timeline at best can only corroborate some aspects of Pistorius version.

However it was certainly open to the Court to find that OP was in the most part dishonest, deceitful and unreliable. Indeed quite a lot of circumstantial evidence proved he was lying about the key minutes - e.g. the duvet & blood stains.

Therefore a typical approach would be to reject all of OPs evidence except where it is independently corroborated - because an accused pleading self defence ought to be expected to be able to offer an honest account of the critical circumstances. If he cannot - then the Court simply ignores his unreliable testimony.

On this analysis - there is no reliable evidence Reeva went into the toilet without OP knowing.

Now also - and this is critical.

Defences to murder must be based on an evidential foundation. So the defence must establish some facts which allow the Court to find the mistake (plus PDD).

What facts were established which would allow the court to find that OP was mistaken as to who was in the toilet?

IMO this is where the Court went badly wrong because the manner of mistake as narrated by OP was highly unlikely and he was also a highly unreliable witness.

His version is not reasonably possibly true at all - in fact we know he is lying. Nel proved that.

It gets philosophical / jurisprudential at this point - but reasonable doubt does not mean the prosecution needs to disprove each of the facts of OPs version beyond reasonable doubt.

The Court instead should ask what facts have been established.

In order for the defence to succeed - the mistake actually needed to be proven as a fact.

Yet what actually happened was that his account of the mistake was highly implausible and demonstrably dishonest.

Now given that the defence never offered any evidence at all that OP screams like a woman - then you are left with the logical & natural conclusion that the witnesses heard Reeva screaming and there was no mistake.

Otherwise it starts to get impossible for the prosecution to win cases because the defense can simply invent a highly implausible story the facts of which the prosecution cannot 100% rule out

However that is not how the evidential burdern at trial works.

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mrjitty said:

I haven't posted for some months but in the interim i did discuss the case with a couple of experienced litigators who crystalized it better than me.

The point is that the timeline at best can only corroborate some aspects of Pistorius version.

However it was certainly open to the Court to find that OP was in the most part dishonest, deceitful and unreliable. Indeed quite a lot of circumstantial evidence proved he was lying about the key minutes - e.g. the duvet & blood stains.

Therefore a typical approach would be to reject all of OPs evidence except where it is independently corroborated - because an accused pleading self defence ought to be expected to be able to offer an honest account of the critical circumstances. If he cannot - then the Court simply ignores his unreliable testimony.

On this analysis - there is no reliable evidence Reeva went into the toilet without OP knowing.

Now also - and this is critical.

Defences to murder must be based on an evidential foundation. So the defence must establish some facts which allow the Court to find the mistake (plus PDD).

What facts were established which would allow the court to find that OP was mistaken as to who was in the toilet?

IMO this is where the Court went badly wrong because the manner of mistake as narrated by OP was highly unlikely and he was also a highly unreliable witness.

His version is not reasonably possibly true at all - in fact we know he is lying. Nel proved that.

It gets philosophical / jurisprudential at this point - but reasonable doubt does not mean the prosecution needs to disprove each of the facts of OPs version beyond reasonable doubt.

The Court instead should ask what facts have been established.

In order for the defence to succeed - the mistake actually needed to be proven as a fact.

Yet what actually happened was that his account of the mistake was highly implausible and demonstrably dishonest.

Now given that the defence never offered any evidence at all that OP screams like a woman - then you are left with the logical & natural conclusion that the witnesses heard Reeva screaming and there was no mistake.

Otherwise it starts to get impossible for the prosecution to win cases because the defense can simply invent a highly implausible story the facts of which the prosecution cannot 100% rule out

However that is not how the evidential burdern at trial works.[/QUOTE]

BIB 1 and 2. Exactly.

Mr Jitty -
Regarding this appeal for leave to appeal do you think this is correct?
1) The Defence don't want the case heard by the SCA
2) They're trying to stop this by arguing that Masipa's potential errors were those of fact and not law
3) They're not actually expecting Masipa to change her mind in March but procedure dictates that they need to go through her before they can appeal to the SCA
4) There will likely then be a preliminary ruling by the SCA as to whether the errors were factually based or a potential legal mistake; if the former then the full case won't be heard
5) The fact that this is unprecedented suggests that they are either tactically brilliant or desperate

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L2L said:

Where are you, mrjitty? This is driving me crazy! Would someone find mrjitty and let him know there are longstanding, unanswered questions here?

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L2L said:

That's alright, Jake18... just another of life's little mysteries! Now, if we can only entice mrjitty away from that cricket to things of greater importance! BTW, thanks for your excellent and concise 5 point summary for which I'm daring to predict .... "desperate"!

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GR_Turner said:

Yes, I see that's what the State's case was in essence. But I still don't see why the timeline is a huge white elephant. Surely one of the strands of deciding whether to believe a witness' version involves looking at what else corroborates it and what contradicts it. All the things that Nel said were a problem seemed to me to be things that could be explained or could be mistakes. And Roux's timeline is hard to dispute and indeed Nel didn't even try. Do you say then that an experienced court will look at the timeline and say, oh well, that doesn't matter because of his poor testimony? I'd expect them to see that the evidence from the neighbours agrees with his version and conclude that it represented very strong evidence in his favour, at least as regards the primary case. DE is another matter but I was talking about the DD case.

If you don't want to discuss further as all this is just repetition to you now, I understand.

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mrjitty said:

I could go on but we already had these discussions last year

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