Discussion Thread #60 - 14.9.12 ~ the appeal~

[sleuth-d-]

I agree.

That decision was clearly incorrect.

In such cases, intention relates only to positive knowledge of possession. As a question of fact - he was clearly in control, knowingly, of the ammo.

Masipa wrongly looked at cases where the accused takes no action to posses (e.g. someone puts a gun down next to you) or the accused does not intend to possess. e.g. you find a bag of cocaine at your front door and telephone the police to come get it.

Otherwise as you say, you could hold drugs or guns for someone else - but have no intention to possess?

Absurd.

it also seems absurd that, having had time to reflect, masipa is standing by this decision. especially after giving leave to appeal the main count.

 

[mrjitty]

it also seems absurd that, having had time to reflect, masipa is standing by this decision. especially after giving leave to appeal the main count.

Agreed

It's clearly up to the SC to decide what is the correct test - not the High Court.

So she should of allowed it even if she is still being so bone headed.

 

[Giles]

Interesting Roux didn't turn up

I guess he had an inkling which way the Supreme winds are blowing

Maybe, but he said he wouldn't be able to make it at the end of yesterday's proceedings...

 

[ColonelMustard]

How an appeal might work

The court decides cases upon the record of the proceedings before the lower court and after considering the written and oral arguments presented. Witnesses do not appear before the court, and the parties need not be present during the hearing of an appeal. A written judgment is usually handed down shortly after the argument.


The court hears appeals on fact and since there are no jury trials, it has a relatively wide discretion to make its own factual findings. Because of this jurisdiction, judges have to read the record of the full proceedings in the lower courts …

The court sits in panels of five or three judges, depending on the nature of the appeal. The composition of the panels differs for each case. The senior judge on each panel presides in that case. There may be more than one judgment in a case if there is a difference of opinion. The decision of the majority is the decision of the court.

The dates on which the SCA sits are also fairly limited – the next session does not start until 15 February 2015.

http://www.theguardian.com/world/live/2014/dec/10/oscar-pistorius-judge-appeal-murder-acquittal-live

"...judges have to read the record of the full proceedings in the lower courts …"

GREAT NEWS!!

Assuming any of the SC judges have their wits about them, unlike Masipa, they're going to have a field day reading OP's cross, Dixon, Wollie, Derman, the woman who had hair the color of Cruella DeVille (1001 Dalmations), and anyone else who rolls out of the clown car.

Ha! And they're also going to have to wade through page after page of that blowhard Oldwage.

Only about 50 comments from JM, though: "What page is that?", "What time is it?", "You are still under oath", Other?

And when they read her judgement they'll see that she didn't even get the locations of Reeva's correct!

As they turn every page, they're going to be thinking, "WTF?"

 

[sleuth-d-]

Yes.

In the end the SC can decide what cases it wants to hear.

These screening procedures exist primarily to stop defendants tying up Superior Courts with frivolous appeals.

The point of then is not to stop state seeking clarification of legal principles.

One hopes State seeks leave from the SC on the ammo possession.

IMO they might left sentence drop as it is not the main game in town.

i understand the point of law is important to clarify for the npa going forward... but surely it would also be absurd [if only as a precedent] for the verdict to be changed to murder and the sentence to be left at 5 years, especially if op only serves 10 months .

 

[sleuth-d-]

Karyn Maughan @karynmaughan · 37m 37 minutes ago
Henke Pistorius: I don't think we should have gone this far @eNCAnews #OscarPistorius

Karyn Maughan @karynmaughan · 41m 41 minutes ago
Henke Pistorius is only #OscarPistorius family member in court. He's talking to attorney Brian Webber @eNCAnews

bbm
ironic that henke was the one family member the npa couldn't get into court during the trial

 

[JudgeJudi]

Mandy Wiener @MandyWiener · 13m 13 minutes ago
Pistorius family on Masipa judgment: “We note the finding of the Court and abide by the ruling."


Mandy Wiener retweeted
James Grant @CriminalLawZA · 1h 1 hour ago
Whooohooo, legal history in the making, a lethal blow to that lumbering and lost Hippo (Seekoei)!


Mandy Wiener retweeted
James Grant @CriminalLawZA · 1h 1 hour ago
Leave to appeal to sentence denied; Leave to appeal murder acquittal granted - Pistorius again in jeopardy of murder conviction. 1/


Mandy Wiener retweeted
James Grant @CriminalLawZA · 51m 51 minutes ago
Cases of Seekoei 1982 AD, Nzimande 2010 SCA, and even Blom 1939 AD all now: under review - subject to further notice. ��

 

[ColonelMustard]

Oh, yes...

... and Reeva, this one's for you, babe.

Remember, it ain't over 'til its over - and this is not over.

Along with people all over the world, we've still got your back.

 

[Mr Fossil]

Karyn Maughan ‏@karynmaughan 7m7 minutes ago
Advocate Dup de Bruin on response of Reeva Steenkamp's parents to appeal ruling: "they say justice must run its course" @eNCAnews

 

[ColonelMustard]

bbm
ironic that henke was the one family member the npa couldn't get into court during the trial

He may be allergic to his family, which unfortunately includes his kids.

 

[eimajjjj]

Excellent result. Am I right in thinking that we're just one step away from a murder conviction? and if SCA deny the change of conviction that's game over on the other hand?

I'm starting to realise this trial will be going on pretty much for the next decade with appeals and such. Must. Ween. Myself. Away!

 

[JudgeJudi]

Nel and Roux squared off in court for just the second time in their careers in the OP trial.

"Both of them have huge, huge personas that are going to completely outlive this trial,''

The last time Nel and Roux faced off in court, Nel won.

http://www.today.com/news/teddy-bear-vs-pitbull-pistorius-trials-larger-life-lawyers-1D79543972


Let's make it 2 love.

 

[Sherbert]

Well, the sentence bit was never going to be easy. After all, what were the chances of her saying, "I find the sentence that I passed so inadequate that I am shocked that I ever thought it appropriate..."

 

[soozieqtips]

Denying the right to appeal the ammo possession was a bad decision, in my opinion. I don't think there's a single legal person who would say that storing ammo in your own safe in your own house doesn't amount to possession. OP was not en route to the police station with this illegal ammo. He didn't find it. It was in his bloody safe. Getting Masipa to decide whether her own decision was incorrect or not is like getting schoolkids to mark their own homework. If Masipa was so confident in all her rulings, she should have just given permission to appeal all of them.

 

[eimajjjj]

I've learnt more about law during this trial than the rest of my life combined.

 

[K.T]

While I'm still here has anyone read the John Carlin book on Pistorius? I read some reviews and it's said to be sympathetic to Pistorius, and he gained access to the subject and his family. Reviews have suggested it's well written, best of the mainstream books out on Pistorius books so far etc.

I can't find the review but there was one where it mentioned Pistorius was seen taking out his rage on Frank was well? Now THAT is an interesting detail, anyone know more? The power dynamic and amount of information between a long-term domestic worker and their volatile employer could be one of the reasons Frank was fearful about testimony, external pressure and internal pressure becoming too much from an 'overlord'.

I think all those Pistorius books suffer from zero knowledge (or at least very little...) about gender crimes and domestic abuse psychology/research. Mandy Wiener talked about her love of Capote's 'In True Blood', perhaps that the reason for the more florid descriptions in their book, but it feels weird in a trial the prosecution believes is about partner homicide?

 

[Interested Bystander]

"...judges have to read the record of the full proceedings in the lower courts …"

GREAT NEWS!!

Assuming any of the SC judges have their wits about them, unlike Masipa, they're going to have a field day reading OP's cross, Dixon, Wollie, Derman, the woman who had hair the color of Cruella DeVille (1001 Dalmations), and anyone else who rolls out of the clown car.

Ha! And they're also going to have to wade through page after page of that blowhard Oldwage.

Only about 50 comments from JM, though: "What page is that?", "What time is it?", "You are still under oath", Other?

And when they read her judgement they'll see that she didn't even get the locations of Reeva's correct!

As they turn every page, they're going to be thinking, "WTF?"

I imagine every judge in SA has been following the televised case. It certainly was the case with lawyers. They already may well have a very good feel for what took place.

 

[JudgeJudi]

Remember these words of yours Arnold?

As LIGHT destroy DARKNESS TRUTH will destroy the EVIL

 

[alioop]

Well I was wrong, I thought she would grant leave on all 3. Should have realised she would dig her heels in. At least she granted leave on the biggie, appeal against the conviction. That's the most important one.

Though I would not be surprised if the state appeals her decision on the gun incident and the sentence, but they may just decide to press ahead just on the conviction, particularly if Grant is convinced she got the foreseeability application of law incorrect.

 

[mrjitty]

Some reposting of Prof Grant's analysis

What did OP foresee when he deliberately shot the intruder?

It is also notable that the defence never argued (as some commentators are now suggesting) that the accused had not intended to kill – but only, perhaps, at most, intended to injure. This would have been a valid defence against murder, but it was not a defence claimed, and certainly not one – from the wording of her judgement – relied on by Masipa as a basis on which to acquit the accused of murder. I don’t see how it could possibly make Masipa’s judgement right to refer to a basis on which she could have relied, but did not.

Putative Private Defence

He could however, and did, rely on a defence of putative private defence. This defence was the original defence raised by Pistorius and persisted in by his defence team in the alternative. This defence required that Masipa asked whether the accused foresaw the possibility that his conduct could unlawfully kill.

The problem is that, after specifically stating that she was turning her attention to this defence (of putative private defence), Masipa erroneously states that the question is whether the accused foresaw that his conduct could kill [full stop]. As discussed, this is not the right question.

It does not make her decision right to say, as many commentators have,[12] that if Masipa had asked the right question, she would have (possibly) arrived at the same or right conclusion. We cannot know what conclusion she would have come to if she had asked a different question.

What is the correct legal question?

Both Masipa and Burchell[8] correctly observe that the facts of the Pistorius case disclose a scenario of error in objecto – in which the nominal/name identity of the victim is irrelevant.[9]

After noting that, in error in objecto scenarios, the identity of the actual victim is irrelevant, Masipa asks what she says is required by the test of dolus eventualis (legal intention): Did the accused foresee the possibility of killing the deceased. This is the wrong question for two reasons. As discussed below, the accused’s defence was that he did not intend to unlawfully kill anyone. This focus – the very basis of the defence of putative private defence – is lost. But, putting that aside, secondly, it is wrong because it deviates from, even contradicts, the recognition that the facts disclose an error in objecto scenario and that the identity of the victim is irrelevant. The question then, correcting also for the defence of putative private defence, should have been: did the accused foresee the possibility of unlawfully killing whoever was behind the door.

http://criminallawza.net/2014/09/28...ustify-judge-masipas-errors-revised-expanded/