Oscar Pistorius - Discussion Thread #70 *Appeal Verdict*

[Tortoise]

I think the confusion has to do with different types of facts/findings.

Primary factual findings are different from inferences of fact. I think there is such a thing as secondary factual findings as well, but hopefully someone with legal training might step in to assist with their knowledge.

I think I'm right in thinking that a primary factual finding might be that 4 shots were fired. There is hard evidence for it and it has been agreed by both sides.

An inference of fact is, as was written in the trial judgement (p3329) - "the accused's erroneous belief that his life was in danger excludes dolus."

That is not a factual finding that cannot be overturned by the SCA - it is a conclusion that could be challenged if the law on dolus was not correctly applied.

 

[Tortoise]

No, you are looking in the right place, but I think you've made the same mistake as me ... we looked at 2016, but there are also matters outstanding from 2014 and 2015. Belgarion's comment alerted me to the fact that I'd overlooked something. There's still 1 outstanding from 2014 and the rest from 2015 plus the 14 for 2016. However this does not mean that these will all be heard before OP. Far from it. For example, the first case listed for 2015 is No. 40 in the list and the next after that is 89. There are a couple of cases that each have 18 respondents so these will take a lot of time while the parties comply with the directions, and in the meantime others will go forward in the queue if they're ready to proceed.

If leave is granted, we'll probably be sitting on our hands waiting for a good 6 months I think, or longer.

Thank you. Then there will be a matter of finding a slot for sentencing at the High Court to add in to the mix.

 

[JudgeJudi]

On the question of OP being granted bail:

Beetge v The State - (925/12) [2013] ZASCA 1 (11 February 2013)

The Appellant was indicted on a charge of the murder of her fiancé in the same court as OP. She was convicted and sentenced to a prison term of 15 years. Her application for leave to appeal against her conviction to the full court of the trial court’s division was successful. However, the court below refused her application to be released on bail pending the appeal. The matter then went to the SCA where her application for bail pending appeal was dismissed.

I’m not comparing this case to that of OP as all cases are dealt with on their merits and the circumstances are always different. (As a side note, the ballistic experts were Wolmarans for the defence and Mangena for the prosecution).

What I did find interesting however Are the BIB in the final paragraph of the judgment.

[13] It simply does not help the appellant to argue that the state did not contest the facts contained in her affidavit and that they are therefore sufficient. The burden to establish exceptional circumstances justifying her release by adducing the necessary facts to the court lies squarely on her shoulders. Whilst it is a fact to be considered in her favour that she diligently attended her trial on a mere R1 000 bail, the fact is that her situation has changed dramatically. She has been convicted of an extremely serious offence. As I have said, on the facts before us the state case can by no means be said to be subject to serious doubt. It is not a remote possibility that the appellant’s conviction may be confirmed. And if that should occur, she undoubtedly faces lengthy incarceration. In my view, her skimpy affidavit falls short of establishing her alleged ‘strong emotional ties to the country’ and that she has no independent financial means. …”

http://www.justice.gov.za/sca/judgments/sca_2013/sca2013-001.pdf

While I’m not a lawyer, these seem good reasons why bail should not have been granted to OP as it’s extremely rare for convicted murderers to get bail.

Roux said, “He’s lost his immovable property. He’s lost his moveable property. He’s lost his sponsors. It’s a person that’s down and out. He’s broke. Oscar was left with nothing, he is totally and utterly penniless, I mean zero. The shirt on his back and his underpants. That’s all he has”.
In other words, he has no independent financial means.

http://www.mirror.co.uk/news/world-news/oscar-pistorius-wants-work-disadvantaged-5669679

And yet, the penniless OP who has zero, can still afford to be studying for:

“BSc in management and law offered as an international programme by the University of London and which LSE provides academic support and direction for. Students have three to eight years to complete the programme or a minimum of two years on the graduate entry route, and the fees, based on 2015-16 figures, are £4,205 for the standard route or £3,175 as a graduate. Pistorius’s murder conviction carries a minimum sentence of 15 years in prison".

This fee is slightly less than the cost of OP’s bail fee agreed in court.

http://www.theguardian.com/world/20...s-court-studying-law-degree-london-university

No wonder the convicted murderer was laughing. I'm looking forward to the day when that smile is wiped off his face for many years.

 

[Tortoise]

Perhaps now that the appeal has been filed and its merits can be better assessed, the State might now have a better chance of opposing an extension of bail in April?

 

[mrjitty]

Very many thanks for going to so much trouble. I understand what you are saying. I have been struggling with the reported contents of the DT's appeal papers where almost every newspaper/commentator seems to paraphrase the content differently. I would really like to read the original documents. Do you know if there is a link to the actual papers?

What really confused me was that the DT, according to the press, were saying that it was impermissible for the SCA to intervene in the way they did.

"Lawyer Andrew Fawcett said in the application that the SCA went beyond its jurisdiction by rejecting the High Court's factual finding that Pistorius genuinely‚ though erroneously‚ believed that his and Steenkamp's lives were in danger. He said the SCA does not have the power to reject factual findings of the trial court".

http://www.timeslive.co.za/local/2016/01/12/This-is-how-appeal-court-went-wrong-Pistoriuss-lawyer

The SCA article I read and linked to in my previous post clearly said that the SCA does have the right to do this. Fawcett does seem to make a bit of a fool of himself. Is he is throwing as much mud at the wall in the hope some of it will stick?

There was another article in news24 that also confused me as I did not know the answer and had not seen it referred to anywhere else. It is this:-

"The legal requirements for putative private defence were not a question of law referred to the SCA under section 319 of the CPA (Criminal Procedure Act). Therefore, with respect, the SCA had no statutory authority to interfere with either the trial court's legal or factual finding of putative private defence."

http://www.news24.com/SouthAfrica/News/sca-discriminated-against-oscar-court-papers-20160112


Even if this were correct, as far as I am aware Judge Masipa did not find putative private defence.

From your explanation it seems that the Con Court will likely throw the Appeal out and it appears that the DT are attempting to stall the proceedings in the hope of keeping OP out of jail.

Again, thank you for your help.

Well first up the defence is throwing whatever mud on the wall it can - so don't expect it all to make sense!

Some notes - these are more general principles as I don't now much about RSA appeal procedure

1. These are the same tired arguments already rejected by the SCA

Masipa made some factual findings relevant to PPD, this is true. However she never set out the step by step application of the PPD test to the facts. Therefore the SCA was entitled to complete this process. A finding of fearing for your life is not equal to a finding of PPD.

2. The defence team explicitly raised PPD in its argument as a reason the State should not succeed. Clearly the SCA can rule on the defence's arguments. To argue otherwise is plainly silly. As usual the question of onus is important. Why would the reserved questions by the State raise the issue of PPD which is a defence? Obviously it was the job of the defence to raise PPD as a reason the State could not succeed via DE. Especially as Masipa made no explicit finding on PPD, it seems strange to argue the state should raise a question of law in relation to it!

3. The DE test was erroneously applied by Masipa. The SCA applied the test correctly. This is a question of mixed fact and law which the SCA has jurisdiction over.

Per Justice Leach

This conclusion shows the fallacy in the submission of counsel for the accused that the first question of law raised solely a question of fact. Since the question as to the form of the intention of an accused in a case of murder invokes a factual enquiry, at best for the accused the first question reserved invokes an issue of mixed fact and law. As there was an incorrect application of the legal issue, the first point of law reserved must be determined in favour of the State.

Further (my markup in red_

If an accused honestly believes his life or property to be in danger, [i.e. as in this case] but objectively viewed they are not, the defensive steps he takes cannot constitute private defence. If in those circumstances he kills someone his conduct is unlawful. His erroneous belief that his life or property was in danger may well (depending upon the precise circumstances) [i.e. belief is not sufficient of itself] exclude dolus in which case liability for the person's death based on intention will also be excluded; at worst for him he can then be convicted of culpable homicide.

Further

In order to disturb the natural inference that a person intends the probable consequences of his actions, the accused was required to establish at least a factual foundation for his alleged genuine belief of an imminent attack upon him. This the accused did not do.

So in other words the SCA was not making factual findings - it was noting the failure of the defence to prove key matters.

4. Returning to Masipa - the problem with her judgment remains that she mixed up the PPD and DE tests at 3327

In the present case, on his own version the accused suspected that an intruder had entered his house through the bathroom window.
His version was that he genuinely, though erroneously, believed that his life and that of the deceased was in danger. There is nothing in the evidence to suggest that this belief was not honestly entertained.

I now deal with dolus eventualis or legal intent. The question is:
1. Did the accused subjectively foresee that it could be the deceased behind the toilet door and
2. Notwithstanding the foresight did he then fire the shots, thereby reconciling himself to the possibility that it could be the deceased in the toilet.
The evidence before this court does not support the state’s contention that this could be a case of dolus eventualis.
On the contrary the evidence shows that from the onset the accused believed that, at the time he fired shots into the toilet door, the deceased was in the bedroom while the intruders were in the toilet.

AND

The question is: Did the accused foresee the possibility of the resultant death, yet persisted in his deed reckless whether death ensued or not? In the circumstances of this case the answer has to be
no. How could the accused reasonably have foreseen that the shots he fired would kill the deceased? Clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door, let
alone the deceased, as he thought she was in the bedroom at the time.

This is of course an error of law and not the PPD test but the DE test!

But then....

It follows that the accused’s erroneous belief that his life was in danger excludes dolus

This finding makes not sense given what came above.

The SCA instead correctly approached the mixed question of fact and law.

Did the accused’s erroneous belief meet the test for PPD? Only if it does, can Dolus be excluded.

So lets go back to Leach

The immediate difficulty that I have with the accused's reliance upon putative private defence is that when he testified, he stated that he had not intended to shoot the person whom he felt was an intruder. This immediately placed himself beyond the ambit of the defence, [this is a huge problem for the defence who must be able to point to factual evidence of the belief!] although as I have said, his evidence is so contradictory that one does just not know his true explanation for firing the weapon. His counsel argued that it had to be inferred [i.e a legal inference] that he must have viewed whoever was in the toilet as a danger.

The trouble is Roux is begging the question here. The question of what state of mind should be inferred is basically the legal standard to be met. Did the accused act in PPD?

This is a mixed question of fact and law.

Roux wants to pretend that the inference is a fact - but actually it is the very legal test the Court must consider. Worse - Roux cannot point to his clients own evidence as to state of mind!

So what can the SCA infer?

Even if the accused believed that there was someone else in the toilet, his expressed fear that such a person was a danger to his life was not the product of any rational thought. The person concerned was behind a door and although the accused stated that he had heard a noise which he thought might be caused by the door being opened, it did not open. Thus not only did he not know who was behind the door, he did not know whether that person in fact constituted any threat to him.

So as you can see - the SCA is considering the test for PPD based on the evidence before it.

The SCA as a superior Court is not bound by Masiapa's legal findings on this point.

....it is inconceivable that a rational person could have believed he was entitled to fire [not considered by Masipa!] at this person with a heavy calibre firearm, without taking even that most elementary precaution of firing a warning shot (which the accused said he elected not to fire as he thought the ricochet might harm him). This constituted prima facie proof that the accused did not entertain an honest and genuine belief that he was acting lawfully, which was in no way disturbed by his vacillating and untruthful evidence in regard to his state of mind when he fired his weapon.

cf Masipa

The accused has not admitted that he had the intention to shoot and kill the deceased or any other person for that matter. On the contrary, he stated that he had no intention to shoot and kill the deceased. The court is however entitled to look at the evidence as a whole and the circumstances of the case to determine the presence or absence of intention at the time of the incident.

i.e. Masipa is going to make a legal finding of intention based on the evidence. It should be noted, on the evidence, the accused did not admit the intention

There is nothing in the evidence [i.e. facts] to suggest that this belief was not honestly entertained.

So may the SCA make the opposite legal finding?

yet he fired without having a rational or genuine fear that his life was in danger.

You bet!

 

[Interested Bystander]

Well first up the defence is throwing whatever mud on the wall it can - so don't expect it all to make sense!

Some notes - these are more general principles as I don't now much about RSA appeal procedure

1. These are the same tired arguments already rejected by the SCA

Masipa made some factual findings relevant to PPD, this is true. However she never set out the step by step application of the PPD test to the facts. Therefore the SCA was entitled to complete this process. A finding of fearing for your life is not equal to a finding of PPD.

2. The defence team explicitly raised PPD in its argument as a reason the State should not succeed. Clearly the SCA can rule on the defence's arguments. To argue otherwise is plainly silly. As usual the question of onus is important. Why would the reserved questions by the State raise the issue of PPD which is a defence? Obviously it was the job of the defence to raise PPD as a reason the State could not succeed via DE. Especially as Masipa made no explicit finding on PPD, it seems strange to argue the state should raise a question of law in relation to it!

3. The DE test was erroneously applied by Masipa. The SCA applied the test correctly. This is a question of mixed fact and law which the SCA has jurisdiction over.

Per Justice Leach



Further (my markup in red_



Further



So in other words the SCA was not making factual findings - it was noting the failure of the defence to prove key matters.

4. Returning to Masipa - the problem with her judgment remains that she mixed up the PPD and DE tests at 3327





AND



This is of course an error of law and not the PPD test but the DE test!

But then....



This finding makes not sense given what came above.

The SCA instead correctly approached the mixed question of fact and law.

Did the accused’s erroneous belief meet the test for PPD? Only if it does, can Dolus be excluded.

So lets go back to Leach



The trouble is Roux is begging the question here. The question of what state of mind should be inferred is basically the legal standard to be met. Did the accused act in PPD?

This is a mixed question of fact and law.

Roux wants to pretend that the inference is a fact - but actually it is the very legal test the Court must consider. Worse - Roux cannot point to his clients own evidence as to state of mind!

So what can the SCA infer?



So as you can see - the SCA is considering the test for PPD based on the evidence before it.

The SCA as a superior Court is not bound by Masiapa's legal findings on this point.



cf Masipa



i.e. Masipa is going to make a legal finding of intention based on the evidence. It should be noted, on the evidence, the accused did not admit the intention


So may the SCA make the opposite legal finding?



You bet!

Thank you Mr Jitty for going to so much trouble to explain. Thank goodness we have some legal experts on here. I cannot imagine what the forum would be like without their expertise.

 

[JudgeJudi]

Here’s a South African case where a convicted murderer was granted bail. It isn't the one IB mentioned that I found a page or two ago. I can't remember where I saw that one but it was very light on detail IIRC.

This is one story you won’t like reading … another convicted murderer out on bail. But there’s more, and it’s a shocking indictment of how the law can play out in South Africa.

Monika Manilall, was shot dead in February 2006.
Her husband, Sunesh Manilall, was convicted along with Mumtaz Osman, the woman he was having an affair with at the time and whom he later married, and Viktor Mbatha. Monika was gunned down in their home by four men found to have been hired to carry out the murder for a fee of R10 000. An alleged accomplice to the murder testified that after Monika was shot and lay bleeding on the floor of the passage next to her baby, she suddenly jumped up and ran to a bedroom where she activated a panic alarm. Moments later, her executioner fired a second shot through the back of her head.

The late KZN Judge President Herbert Msimang who presided over the case found that Manilall and Osman, assisted by Victor Mbatha, had procured hitmen to murder Monika because she found out about the affair and threatened to divorce him. All three were sentenced to life imprisonment in 2010.

Osman and Mbatha are serving their sentences.

Manilall was released on bail of R40 000 in June 2011 after he successfully petitioned the SCA for leave to appeal against his conviction. In 2013 his appeal was adjourned to enable the court record to be reconstructed.

In 2014 he pleaded for more time to raise funds to pay an advocate to handle his appeal. Judge Kruger granted the adjournment but at that time refused to consider relaxing Manilall’s bail conditions. He was given until January 30 2015 to place his legal representatives in funds to deal with the appeal.

In May 2015 he was once again granted a postponement of his appeal against his conviction and life sentence. This was after the defence complained that portions of the court record were not transcribed. The matter was adjourned until May 6 2016.

Monika’s brother said “He [Manilall] gets to be free now for another year. It is just an easy way for him to buy time. He needs to go to prison and not look for loopholes”. He was equally angered by the fact that Manilall negotiated a relaxation of his bail conditions, allowing him to reduce the times he has to report to a police station from twice weekly to once weekly, and be allowed to travel freely within the boundaries of KwaZulu-Natal. Manilall’s counsel said the change was necessary for the purposes of running his towing business.


http://www.news24.com/SouthAfrica/News/Manilall-family-livid-20150517
http://www.lawlibrary.co.za/professionalupdate/2009/06_01/recentjudgments_kzp.htm

Here's a man who has been given a life sentence, not 15 years, and he's out on bail!!!! What sort of justice is there in SA? I'm beyond words.

 

[sinth]

My feeling was, if he appeared before Masipa, that she'd sentence him to 15 less 1 for time served. That's a far cry from 4, but then we were all shocked to learn he was only required to serve 10 months of a 5 year sentence for CH.

Until I find out more, I believe he'll serve 10 years inside, but it looks like I'm an outsider here.

If you look at S v Adair Oliveira the accepted facts of the cases are somewhat similar. Both murders fired multiple shots at someone who they thought was an intruder. Oliveira was originally sentenced to 12 years jail but that was reduced to 8 years on appeal to the SCA.

This is why I think Pistorius may receive an 8 year sentence too. In which case he will just end up serving 3 years in prison (8÷2 - 1) = 3.

 

[JudgeJudi]

Thank you mrjitty for that brilliant post. What would we do without you. You're the best.
:tyou: :takeabow:

 

[Tortoise]

If you look at S v Adair Oliveira the accepted facts of the cases are somewhat similar. Both murders fired multiple shots at someone who they thought was an intruder. Oliveira was originally sentenced to 12 years jail but that was reduced to 8 years on appeal to the SCA.

This is why I think Pistorius may receive an 8 year sentence too. In which case he will just end up serving 3 years in prison (8÷2 - 1) = 3.

I've just found the Oliveira judgement for his sentencing appeal http://www.saflii.org/za/cases/ZASCA/1993/62.html

His sentence was reduced to 9 years on appeal, but I do see quite a difference between his and Pistorius' cases.

As far as the courts rejecting that either of them had a valid defence of PPD, the cases are the same. However, in Oliveira's case there was no question that he thought the men outside were strangers/intruders on his driveway, he saw them and didn't recognise them. So there was an overreaction and while there was intent to harm them, there was nothing dishonest or to raise suspicion about his evidence, that he was hiding a reason for taking his gun and shooting.

In Pistorius' case, I have to say that if Masipa had drawn the correct legal inference during the trial, and concluded that he was not in genuine fear for his life and not acting in private defence, there was a much bigger inference to be drawn from this, an irresistible inference which would have required her to revisit the State's main charge and reject his version as a fabrication. This alternative version/charge/motive was absent from Oliveira's case.

I believe that without a genuine justification for shooting the perceived intruder he should be sentenced on the grounds that he is an unconfessed murderer, and he has gone to exceptional lengths to deceive the court and avoid responsibility.

That is my personal view, that he has so far not explained to anyone what happened, so the courts should not have mercy. I don't think Oliveira is comparable in that respect.

 

[mhiforme]

Here’s a South African case where a convicted murderer was granted bail. It isn't the one IB mentioned that I found a page or two ago. I can't remember where I saw that one but it was very light on detail IIRC.

This is one story you won’t like reading … another convicted murderer out on bail. But there’s more, and it’s a shocking indictment of how the law can play out in South Africa.

Monika Manilall, was shot dead in February 2006.
Her husband, Sunesh Manilall, was convicted along with Mumtaz Osman, the woman he was having an affair with at the time and whom he later married, and Viktor Mbatha. Monika was gunned down in their home by four men found to have been hired to carry out the murder for a fee of R10 000. An alleged accomplice to the murder testified that after Monika was shot and lay bleeding on the floor of the passage next to her baby, she suddenly jumped up and ran to a bedroom where she activated a panic alarm. Moments later, her executioner fired a second shot through the back of her head.

The late KZN Judge President Herbert Msimang who presided over the case found that Manilall and Osman, assisted by Victor Mbatha, had procured hitmen to murder Monika because she found out about the affair and threatened to divorce him. All three were sentenced to life imprisonment in 2010.

Osman and Mbatha are serving their sentences.

Manilall was released on bail of R40 000 in June 2011 after he successfully petitioned the SCA for leave to appeal against his conviction. In 2013 his appeal was adjourned to enable the court record to be reconstructed.

In 2014 he pleaded for more time to raise funds to pay an advocate to handle his appeal. Judge Kruger granted the adjournment but at that time refused to consider relaxing Manilall’s bail conditions. He was given until January 30 2015 to place his legal representatives in funds to deal with the appeal.

In May 2015 he was once again granted a postponement of his appeal against his conviction and life sentence. This was after the defence complained that portions of the court record were not transcribed. The matter was adjourned until May 6 2016.

Monika’s brother said “He [Manilall] gets to be free now for another year. It is just an easy way for him to buy time. He needs to go to prison and not look for loopholes”. He was equally angered by the fact that Manilall negotiated a relaxation of his bail conditions, allowing him to reduce the times he has to report to a police station from twice weekly to once weekly, and be allowed to travel freely within the boundaries of KwaZulu-Natal. Manilall’s counsel said the change was necessary for the purposes of running his towing business.


http://www.news24.com/SouthAfrica/News/Manilall-family-livid-20150517
http://www.lawlibrary.co.za/professionalupdate/2009/06_01/recentjudgments_kzp.htm

Here's a man who has been given a life sentence, not 15 years, and he's out on bail!!!! What sort of justice is there in SA? I'm beyond words.

BIB, While many on this board may not like the fact that someone that has a life sentence is out on bail, one has to stop judging the judicial system of another country through the eyes of the judicial system of their own home country.

S. Africa like every other region of this world has their share of intellects and they have decided that this system works best for their country. If it didn't work, the law would change and so far it hasn't, so it works.

I suspect many would look at the US legal system and call it a laugh as well. Where in the world do you have people given life sentences for minor drug offences and coincidentally most of the people serving these sentences are poor and a minority.

The only reason that this happens in the US is not for justice and it's not to make the streets safer but it's because the prison system makes billions of dollars every year and needs inmates to remain profitable. It's a sad fact.

 

[JudgeJudi]

RSBM

BIB, While many on this board may not like the fact that someone that has a life sentence is out on bail, one has to stop judging the judicial system of another country through the eyes of the judicial system of their own home country.

Totally incorrect. I was not making a comparison between South Africa and any other country. In the period April 2014 to March 2015 there were 17,805 murders. I've only been able to find 2 instances of convicted murderers being granted bail, in any period.

 

[JudgeJudi]

“After how long can a person serving a sentence apply for parole?

The parole board has a wide discretion to grant parole, although the law puts limits in the case of more serious offences. Offenders sentenced to life imprisonment must serve 25 years before being eligible for parole, and even if they are released will remain on parole until they die.

Offenders sentenced to more than two years (but less than life) in prison must serve half their sentence before being eligible for parole”.

http://www.news24.com/SouthAfrica/O...ing-tried-for-murder-in-South-Africa-20140516

And the following from the SA Criminal Procedure Act, 1977

276B. Fixing of non-parole-period
(1)
(a) If a court sentences a person convicted of an offence to imprisonment for a period of two years or longer, the court may as part of the sentence, fix a period during which the person shall not be placed on parole.
(b) Such period shall be referred to as the non-parole-period, and may not exceed two thirds of the term of imprisonment imposed or 25 years, whichever is the shorter.

Of course it's conceivably possible he could be sentenced to more than 15, but before Masipa ... no, I don't think so.

 

[Belgarion]

“After how long can a person serving a sentence apply for parole?

The parole board has a wide discretion to grant parole, although the law puts limits in the case of more serious offences. Offenders sentenced to life imprisonment must serve 25 years before being eligible for parole, and even if they are released will remain on parole until they die.

Offenders sentenced to more than two years (but less than life) in prison must serve half their sentence before being eligible for parole”.

http://www.news24.com/SouthAfrica/O...ing-tried-for-murder-in-South-Africa-20140516

And the following from the SA Criminal Procedure Act, 1977

276B. Fixing of non-parole-period
(1)
(a) If a court sentences a person convicted of an offence to imprisonment for a period of two years or longer, the court may as part of the sentence, fix a period during which the person shall not be placed on parole.
(b) Such period shall be referred to as the non-parole-period, and may not exceed two thirds of the term of imprisonment imposed or 25 years, whichever is the shorter.

Of course it's conceivably possible he could be sentenced to more than 15, but before Masipa ... no, I don't think so.

If he was given a year for every time the camera caught him smirking in court he will be in for life!

On a similar issue and one which in my opinion shows bias on the part of Masipa was the number of times he was observed using his phone in court. Who knows what he was doing, maybe on Facebook as far as the court knows.

I can well imagine the reaction in a UK High Court judge if the accused disrespected the court and got his mobile out and started using it. It would immediately be removed. What did Masipa do – tell him to put it way, get the court usher to take it away from him? No, she did nothing

 

[JudgeJudi]

If he was given a year for every time the camera caught him smirking in court he will be in for life!

On a similar issue and one which in my opinion shows bias on the part of Masipa was the number of times he was observed using his phone in court. Who knows what he was doing, maybe on Facebook as far as the court knows.

I can well imagine the reaction in a UK High Court judge if the accused disrespected the court and got his mobile out and started using it. It would immediately be removed. What did Masipa do – tell him to put it way, get the court usher to take it away from him? No, she did nothing

He allegedly sent messages to Katie Price direct from court.

http://www.independent.co.uk/news/p...-chit-chat-messages-during-trial-9824956.html

No-one would get away with sending texts from court in Oz. Appalling lack of courtesy to the court.

 

[Belgarion]

He allegedly sent messages to Katie Price direct from court.

http://www.independent.co.uk/news/p...-chit-chat-messages-during-trial-9824956.html

No-one would get away with sending texts from court in Oz. Appalling lack courtesy to the court.

This has been the theme all along and is an indicator of how ‘serious’ Pistorius was taking the proceedings.

From the outset I’m sure after he had concocted the ‘intruder story’ his ego was such he didn’t expect to be charged. After all it was just a ‘terrible accident’ and who is not going to believe superstar Oscar Pistorius.

His belief is that because HE says things no matter how outrageous the public MUST believe him. That was evident in court when under oath he told such transparent lies no doubt in the full expectation of being believed.

He seems to live in non-accountable bubble divorced from the real world where unfortunately people have to take responsibility for their actions.

It is interesting to wonder if he actually believes some of the lies he tells. On balance I am of the opinion he does for one reason – his faith.

Of course Pistorius could well be a charlatan using religion to his advantage but probably not as he has always been deeply religious throughout his life. Therefore how does he square telling lies after swearing to his God on the Bible to tell the truth knowing that God really doesn’t like liars. Quite simply in his own mind he isn’t lying and therefore will not face retribution from God.

Now what was that medical condition called when people believe their own lies…….

 

[Interested Bystander]

This has been the theme all along and is an indicator of how ‘serious’ Pistorius was taking the proceedings.

From the outset I’m sure after he had concocted the ‘intruder story’ his ego was such he didn’t expect to be charged. After all it was just a ‘terrible accident’ and who is not going to believe superstar Oscar Pistorius.

His belief is that because HE says things no matter how outrageous the public MUST believe him. That was evident in court when under oath he told such transparent lies no doubt in the full expectation of being believed.

He seems to live in non-accountable bubble divorced from the real world where unfortunately people have to take responsibility for their actions.

It is interesting to wonder if he actually believes some of the lies he tells. On balance I am of the opinion he does for one reason – his faith.

Of course Pistorius could well be a charlatan using religion to his advantage but probably not as he has always been deeply religious throughout his life. Therefore how does he square telling lies after swearing to his God on the Bible to tell the truth knowing that God really doesn’t like liars. Quite simply in his own mind he isn’t lying and therefore will not face retribution from God.

Now what was that medical condition called when people believe their own lies…….

:floorlaugh:

 

[Tortoise]

I really can't understand their persistence in arguing error in objecto.

I can only think they have put someone very inexperienced on the case, and don't care very much about their reputation as lawyers.

Masipa identified the error in their argument of transferred malice and so too did the SCA, so I want to know what is their game exactly?

Are they saying Pistorius should have been charged with the murder of the figment of his imagination?

 

[jilly]

Well first up the defence is throwing whatever mud on the wall it can - so don't expect it all to make sense!

Some notes - these are more general principles as I don't now much about RSA appeal procedure

1. These are the same tired arguments already rejected by the SCA

Masipa made some factual findings relevant to PPD, this is true. However she never set out the step by step application of the PPD test to the facts. Therefore the SCA was entitled to complete this process. A finding of fearing for your life is not equal to a finding of PPD.

2. The defence team explicitly raised PPD in its argument as a reason the State should not succeed. Clearly the SCA can rule on the defence's arguments. To argue otherwise is plainly silly. As usual the question of onus is important. Why would the reserved questions by the State raise the issue of PPD which is a defence? Obviously it was the job of the defence to raise PPD as a reason the State could not succeed via DE. Especially as Masipa made no explicit finding on PPD, it seems strange to argue the state should raise a question of law in relation to it!

3. The DE test was erroneously applied by Masipa. The SCA applied the test correctly. This is a question of mixed fact and law which the SCA has jurisdiction over.

Per Justice Leach



Further (my markup in red_



Further



So in other words the SCA was not making factual findings - it was noting the failure of the defence to prove key matters.

4. Returning to Masipa - the problem with her judgment remains that she mixed up the PPD and DE tests at 3327





AND



This is of course an error of law and not the PPD test but the DE test!

But then....



This finding makes not sense given what came above.

The SCA instead correctly approached the mixed question of fact and law.

Did the accused’s erroneous belief meet the test for PPD? Only if it does, can Dolus be excluded.

So lets go back to Leach



The trouble is Roux is begging the question here. The question of what state of mind should be inferred is basically the legal standard to be met. Did the accused act in PPD?

This is a mixed question of fact and law.

Roux wants to pretend that the inference is a fact - but actually it is the very legal test the Court must consider. Worse - Roux cannot point to his clients own evidence as to state of mind!

So what can the SCA infer?



So as you can see - the SCA is considering the test for PPD based on the evidence before it.

The SCA as a superior Court is not bound by Masiapa's legal findings on this point.



cf Masipa



i.e. Masipa is going to make a legal finding of intention based on the evidence. It should be noted, on the evidence, the accused did not admit the intention


So may the SCA make the opposite legal finding?



You bet!

:clap::clap::clap:

 

[Trotterly]

If he was given a year for every time the camera caught him smirking in court he will be in for life!

On a similar issue and one which in my opinion shows bias on the part of Masipa was the number of times he was observed using his phone in court. Who knows what he was doing, maybe on Facebook as far as the court knows.

I can well imagine the reaction in a UK High Court judge if the accused disrespected the court and got his mobile out and started using it. It would immediately be removed. What did Masipa do – tell him to put it way, get the court usher to take it away from him? No, she did nothing

I assume you are referring to an accused using their phone whilst the court was active?

I never saw OP doing this.

The newspaper story concerning Katie Price only mentioned tweets during the period of the trial not from court.

The photos I've seen from court are just him on his phone presumably during breaks as there are people wandering about. I have not seen any photos of him when the court was active.

I would have thought that the photographer would have been keen to capture him on the phone with the court obviously active, but no.