Discussion Thread #60 - 14.9.12 ~ the appeal~

[GR_Turner]

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

Her judgement has been so criticised I think because so many people expected or perhaps hoped for a different outcome. She didn't make many mistakes imo. She said they came to a unanimous decision based on all the evidence and explained about her reasoning for the key evidence. You can't really have expected the court to have found that Oscar knew it was Reeva once the heads of argument were in? Seriously, on what basis could she have rejected Oscar's account if the screams evidence didn't support the State's case and more than that, it did support Oscar's account. So it wasn't just that the State didn't do enough to prove their case, they actually went a very long way to 'proving' Oscar's.

 

[GR_Turner]

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.

Then there's no point going before Judge Masipa is there? The defense must think that she can overturn her decision and that it's in their interest for her to do so. Perhaps until all the appeals paperwork (court records, HoAs) is in it's still in her power to change her decision.

 

[cottonweaver]

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.

Not trying to "mess with your head" but I can identify with that feeling of getting sucked back into this. Especially when I go onto James grant's webpage after a long absence and find quite a few comments there re the facts of the case.
A few of those eg someone called TIM and another Jason*, sincerely believe stuff such as bat strikes came second etc. And these people definitely don't appear to be your typical Pistorian groupies.

Like GR Turner- if you're still here, they are very critical of the Prosecution's case.
As it is, a lot of those like * above probably wouldn't come onto this forum....

http://criminallawza.net/2014/10/29/the-seekoie-hurdle/

 

[AJ_DS]

Then there's no point going before Judge Masipa is there? The defense must think that she can overturn her decision and that it's in their interest for her to do so. Perhaps until all the appeals paperwork (court records, HoAs) is in it's still in her power to change her decision.

BiB… No… as I said it seem to be a procedural formality

Masipa cannot appeal or overturn anything… she can only grant (or deny) an application for leave to appeal

ACT 1

Nel asked Masipa : Please may I be given leave (permission) to petition a higher Court to examine what I believe was a mistaken verdict ?

Roux told Masipa : You should not grant Nel's application because ABC

Masipa ruled : Yes I will grant you leave to petition a higher Court about the verdict

ACT 2

Roux will ask Masipa : Please may I be given leave to petition a higher Court to examine what I believe was a mistaken ruling ?

 

[GR_Turner]

BiB… No… as I said it seem to be a procedural formality

Masipa cannot appeal or overturn anything… she can only grant (or deny) an application for leave to appeal

ACT 1

Nel asked Masipa : Please may I be given leave (permission) to petition a higher Court to examine what I believe was a mistaken verdict ?

Roux told Masipa : You should not grant Nel's application because ABC

Masipa ruled : Yes I will grant you leave to petition a higher Court about the verdict

ACT 2

Roux will ask Masipa : Please may I be given leave to petition a higher Court to examine what I believe was a mistaken ruling ?

The SCA is going to consider whether they can hear the appeal anyway no matter what - they won't take Judge Masipa's word for it. This is about asking Judge Masipa to overturn her permission to appeal judgement. I really can't see what else it can be and besides, that's what the statement by the Pistorius family spokesperson said it was.

 

[GR_Turner]

Not trying to "mess with your head" but I can identify with that feeling of getting sucked back into this. Especially when I go onto James grant's webpage after a long absence and find quite a few comments there re the facts of the case.
A few of those eg someone called TIM and another Jason*, sincerely believe stuff such as bat strikes came second etc. And these people definitely don't appear to be your typical Pistorian groupies.

Like GR Turner- if you're still here, they are very critical of the Prosecution's case.
As it is, a lot of those like * above probably wouldn't come onto this forum....

http://criminallawza.net/2014/10/29/the-seekoie-hurdle/

I've seen the comments (none of them are mine). I find the assumption that anyone who thinks Oscar's version is most likely broadly correct is a 'Pistorian' (clearly a pejorative term intended to convey images of balloons and flowers and fluffy messages for Oscar) very odd. It's as though no one can see the logic that the State's case must be wrong based on what we know. If there is a retrial and more evidence then I may change my mind. Though I don't think that the State will have any better success with the screams evidence than the first time if they can't produce the phone evidence to back up their case.

I can't see on what basis you are all so sure about the State's case. Citing packed bags, photos, one-sided female 'arguing' or even Oscar's poor evidence doesn't do it for me. All these things do is create an impression but they don't represent concrete evidence either alone or together imo as they are all explainable and do nothing to counter the witness evidence that actually does support Oscar's version.

 

[cottonweaver]

I've seen the comments (none of them are mine). I find the assumption that anyone who thinks Oscar's version is most likely broadly correct is a 'Pistorian' (clearly a pejorative term intended to convey images of balloons and flowers and fluffy messages for Oscar) very odd.

Hi GR, Re. my comment - hopefully you can see that I was making a distinction not an "assumption" as you put it. It's certainly the most visible, vocal white balloon OP supporter gets all the media attention. They, certainly are very odd because they are not even interested in the plausibility of the case facts, or trying (in vain!) to unravel the "howdunnit" aspects which I would think is part of the reason most people, including myself find it compelling still.

The two commenters I was referring to ( Jason and TIM) are not in that bag- their points are in very, many cases coherent and rational- that was my point.
No, I certainly didn't think they were you - I expect there's more than 3 of those people in the world!

 

[cottonweaver]

I can't see on what basis you are all so sure about the State's case. Citing packed bags, photos, one-sided female 'arguing' or even Oscar's poor evidence doesn't do it for me. All these things do is create an impression but they don't represent concrete evidence either alone or together imo as they are all explainable and do nothing to counter the witness evidence that actually does support Oscar's version.

Can I ask you which photos you are referring to?
I don't remember anything about "packed bags" , do you mean plastic bags to allegedly staunch wounds? If you mean OP packed bags as in he was about to do a runner, I haven't heard that here, it doesn't seem to be a mainstream view here.
OP's poor evidence - I can't remember verbatim Masipa's words on that ( I can no doubt find the quotes later ), but she summed him up as one of the poorest witnesses.

Regardless, I would expect lying in a Defendent anyway so no, that's not a clincher. I'd have been more interested in for example, Masipa talking about how and why she discounted Sayman the Path. who commented that he would have expected Reeva to scream after the shot to the hip. (linked in with the ballistics report and pause after shot 1)
I say for example, because we are talking about the weight of circumstantial evidence and Masipa didn't show that she really knew how to weigh C.Ev

 

[Sherbert]

The Defence will probably request the Supreme Court to consider the matter of jurisdiction as a preliminary issue. Masipa is not being asked to overturn her decision, but to give the go-ahead for the Supreme Court to consider the matter.

 

[mrjitty]

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 !

Well yes

But the Appeal Courts can be quite practical on such matters - so if they think there is a matter of substance to hear no doubt they will hear it,

 

[mrjitty]

The Defence will probably request the Supreme Court to consider the matter of jurisdiction as a preliminary issue. Masipa is not being asked to overturn her decision, but to give the go-ahead for the Supreme Court to consider the matter.

+1

I think that is what they will do.

They won't want to get into the substantive appeal if they possibly can avoid it.

The procedural aspect has always been their best chance - because the judgement being appealed is so obviously flawed.

Roux will not want the judgement opened up in the SC given the clear errors on its face

 

[GR_Turner]

Hi GR, Re. my comment - hopefully you can see that I was making a distinction not an "assumption" as you put it. It's certainly the most visible, vocal white balloon OP supporter gets all the media attention. They, certainly are very odd because they are not even interested in the plausibility of the case facts, or trying (in vain!) to unravel the "howdunnit" aspects which I would think is part of the reason most people, including myself find it compelling still.

The two commenters I was referring to ( Jason and TIM) are not in that bag- their points are in very, many cases coherent and rational- that was my point.
No, I certainly didn't think they were you - I expect there's more than 3 of those people in the world!

I didn't mean that you were saying that - sorry if it came across that way. But rather that a great many seem to.

 

[cottonweaver]

Sorry GR Turner ..
Forgot to add to last post - and apologies if you have already stated otherwise in a previous post - but are you saying that you don't think he
1) should even have been found guilty of Dolus Eventualis on the evidence presented?
2) and that regardless of the "State's poor case" you genuinely think this was a CH case?

 

[mrjitty]

I've seen the comments (none of them are mine). I find the assumption that anyone who thinks Oscar's version is most likely broadly correct is a 'Pistorian' (clearly a pejorative term intended to convey images of balloons and flowers and fluffy messages for Oscar) very odd. It's as though no one can see the logic that the State's case must be wrong based on what we know. If there is a retrial and more evidence then I may change my mind. Though I don't think that the State will have any better success with the screams evidence than the first time if they can't produce the phone evidence to back up their case.

I can't see on what basis you are all so sure about the State's case. Citing packed bags, photos, one-sided female 'arguing' or even Oscar's poor evidence doesn't do it for me. All these things do is create an impression but they don't represent concrete evidence either alone or together imo as they are all explainable and do nothing to counter the witness evidence that actually does support Oscar's version.

The concrete evidence is that Pistorious blew his girlfriend's head apart with a pistol.

The evidential burden was upon him to show how such action was legally justified.

A burden that was clearly not discharged given his highly implausible and dishonest account.

As such - it is hard to see where there is support for a "version" that does not amount to murder.

As someone who has read several thousand judgement in my time - i can't think of too cases that were more obviously proved

I tend to think people have a strange idea of what proof beyond reasonable doubt requires in a case where the accused has admitted to deliberately applying lethal force.

Sometimes an accused simply gets lucky

 

[cottonweaver]

I didn't mean that you were saying that - sorry if it came across that way. But rather that a great many seem to.

No offence taken, none intended. Just wanted to clarify my intention.

 

[mrjitty]

I say for example, because we are talking about the weight of circumstantial evidence and Masipa didn't show that she really knew how to weigh C.Ev

As I have said before - she is a laughable lightweight compared to the judges you would find on the bench in England.

I was pleased to see Nel's appeal docs savage her handling of the circumstantial evidence.

Rather than being "merely circumstantial" - the circumstantial evidence is extremely powerful - as anyone who has a grasp of maths understands.

 

[GR_Turner]

Can I ask you which photos you are referring to?
I don't remember anything about "packed bags" , do you mean plastic bags to allegedly staunch wounds? If you mean OP packed bags as in he was about to do a runner, I haven't heard that here, it doesn't seem to be a mainstream view here.
OP's poor evidence - I can't remember verbatim Masipa's words on that ( I can no doubt find the quotes later ), but she summed him up as one of the poorest witnesses.

Regardless, I would expect lying in a Defendent anyway so no, that's not a clincher. I'd have been more interested in for example, Masipa talking about how and why she discounted Sayman the Path. who commented that he would have expected Reeva to scream after the shot to the hip. (linked in with the ballistics report and pause after shot 1)
I say for example, because we are talking about the weight of circumstantial evidence and Masipa didn't show that she really knew how to weigh C.Ev

The photos of the bedroom and where things were. It may not have been much discussed on here. The packed bag(s) I meant was Reeva's overnight bag. It was Nel who said the Oscar was almost the worst witness he'd ever seen not Judge Masipa. She did say he was a very poor witness though as he gave the impression of being more concerned by the consequences of his answers than just giving his evidence, and that his answers often led to arguments about other witness' testimony.

I'm not really sure why Judge Masipa should have referred to Prof. Saayman's evidence on that once she had accepted that the screams evidence was wrong and that it backed up Oscar's version. The problem is that the phone's evidence is something concrete that could have been refuted and wasn't so it was taken to be correct. Once that's correct then the shots were probably four in quick succession and Reeva had no idea that she was about to be shot and there's no reason to think that she would have had time to start screaming on the first shot. It would probably all have been too quick.

We don't actually know that Judge Masipa didn't weight up all the evidence properly though. I can't see how she could have ignored the phones evidence and instead decided that the position of jeans, disputed evidence about when Reeva last ate, one-sided female arguing heard by only one witness etc or even Oscar's poor testimony all added up to proof beyond reasonable doubt of guilt. Do you really think that the State's case stands up without the screams evidence?

 

[Jake18]

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.

I think this showed Masipa's relative inexperience or else emphasised her bias.

There's a difference between deeming him not guilty of killing Reeva because of a degree of doubt and skewing large pieces of evidence in his favour to support this not guilty assertion. The latter is what junior doctors do when they desperately want a particular diagnosis to fit the symptoms but they do so at their peril, to an extent. Had she acknowledged the contradictory evidence but carefully explained her weighting of said evidence then I'd have had a lot more respect for her and the verdict.

 

[mrjitty]

The photos of the bedroom and where things were. It may not have been much discussed on here. The packed bag(s) I meant was Reeva's overnight bag. It was Nel who said the Oscar was almost the worst witness he'd ever seen not Judge Masipa. She did say he was a very poor witness though as he gave the impression of being more concerned by the consequences of his answers than just giving his evidence, and that his answers often led to arguments about other witness' testimony.

I'm not really sure why Judge Masipa should have referred to Prof. Saayman's evidence on that once she had accepted that the screams evidence was wrong and that it backed up Oscar's version. The problem is that the phone's evidence is something concrete that could have been refuted and wasn't so it was taken to be correct. Once that's correct then the shots were probably four in quick succession and Reeva had no idea that she was about to be shot and there's no reason to think that she would have had time to start screaming on the first shot. It would probably all have been too quick.

We don't actually know that Judge Masipa didn't weight up all the evidence properly though. I can't see how she could have ignored the phones evidence and instead decided that the position of jeans, disputed evidence about when Reeva last ate, one-sided female arguing heard by only one witness etc or even Oscar's poor testimony all added up to proof beyond reasonable doubt of guilt. Do you really think that the State's case stands up without the screams evidence?

Are you a lawyer?

Because I wonder at how you frame the burden of proof in the case.

It was not denied that OP shot Reeva

Therefore there was an evidential burden on the accused to make out a lawful justification.

Such justification was not made out on the face of Masipa's judgement. Hence the appeal.

The case is not about "reasonable doubt".

 

[mrjitty]

I think this showed Masipa's relative inexperience or else emphasised her bias.

If you look at her career she is a journeyman who would never get near the high court in England, Australia or NZ