Oscar Pistorius - Discussion Thread #70 *Appeal Verdict*

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Tortoise said:
Surely you can see that legally Masipa didn't establish lawful intent or exclude unlawful intent with that reasoning? The legal test to determine lawfulness of shooting requires much more than that, as has been discussed quite fully on this forum.
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It was an ' in short ' kind of response as I can't compose lengthy explanatory posts at the moment. One of the issues -i think - with Masipa's wording of her judgement was that it wasn't clear enough at times, and that there were quite a few places where the implicit 'lawful' or ' unlawful ' needed to be stated explicitly for clarity.
The shooting itself would never have been lawful - even if a heavily armed intruder with previous convictions for violence had been behind the door. The act itself was always going to be found to be unlawful, but Masipa found that his intentions when he fired were not necessarily so
 
aftermath said:
No- i think it's relevant to the SCA judgement
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Okay, I'll start with the first ground of appeal -

"41.4. the SCA exceeded its jurisdiction by impermissibly reconsidering the factual finding of the trial court concerning putative private defence."

In the absence of such a factual finding by the trial court, this ground of appeal can be seen to be groundless.

As Masipa's finding of his belief in danger did not meet the required legal standard for establishing lawfulness, is his complaint really against the SCA, or is it more accurately against Masipa's judgement because her written judgement was lacking in that respect?
 
aftermath said:
It was an ' in short ' kind of response as I can't compose lengthy explanatory posts at the moment. One of the issues -i think - with Masipa's wording of her judgement was that it wasn't clear enough at times, and that there were quite a few places where the implicit 'lawful' or ' unlawful ' needed to be stated explicitly for clarity.
The shooting itself would never have been lawful - even if a heavily armed intruder with previous convictions for violence had been behind the door. The act itself was always going to be found to be unlawful, but Masipa found that his intentions when he fired were not necessarily so
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At last! So you agree he is attacking her judgement, because it lacked the necessary explicit findings to acquit him, safely. That is, it left room for the State to appeal, so it didn't help him, rather, it helped secure his conviction for murder.

He needed an explicit finding from the trial court and he didn't get it, so the SCA isn't wrong and he has no grounds for taking Masipa's errors/failings to the con court.
 
Tortoise said:
At last! So you agree he is attacking her judgement, because it lacked the necessary explicit findings to acquit him, safely. That is, it left room for the State to appeal, so it didn't help him, rather, it helped secure his conviction for murder.

He needed an explicit finding from the trial court and he didn't get it, so the SCA isn't wrong and he has no grounds for taking Masipa's errors/failings to the con court.
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No- i am not saying he is attacking her judgment at all. That's my opinion about her judgment!
 
Tortoise said:
Okay, I'll start with the first ground of appeal -

"41.4. the SCA exceeded its jurisdiction by impermissibly reconsidering the factual finding of the trial court concerning putative private defence."

In the absence of such a factual finding by the trial court, this ground of appeal can be seen to be groundless.

As Masipa's finding of his belief in danger did not meet the required legal standard for establishing lawfulness, is his complaint really against the SCA, or is it more accurately against Masipa's judgement because her written judgement was lacking in that respect?
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When you say ' did not meet the required legal standard for establishing lawfulness ' do you mean in terms of his actions or his intention whilst carrying out those actions?
 
aftermath said:
No- i am not saying he is attacking her judgment at all. That's my opinion about her judgment!
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With respect, that makes no sense - all that matters in this discussion is our own opinions. And you have said that in your opinion her judgement was not explicit regarding the lawfulness or unlawfulness of his intent, which means you inherently disagree with the defence submission that PPD was a factual finding disturbed by the SCA. I was never asking you about Pistorius' opinion.
 
aftermath said:
When you say ' did not meet the required legal standard for establishing lawfulness ' do you mean in terms of his actions or his intention whilst carrying out those actions?
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The lawfulness of his intention.

The unlawfulness of his actions is clear.
 
Tortoise said:
With respect, that makes no sense - all that matters in this discussion is our own opinions. And you have said that in your opinion her judgement was not explicit regarding the lawfulness or unlawfulness of his intent, which means you inherently disagree with the defence submission that PPD was a factual finding disturbed by the SCA. I was never asking you about Pistorius' opinion.
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You said I was agreeing that he was attacking her judgement. I am not agreeing that.

Do I personally think she could have been clearer? yes. But I also think her verdict made her meaning clear. (whether it was clear enough in legal terms, I don't think I am qualified to say)
So..I think she did find PPD in her judgement, but probably didn't express it clearly enough, (even though the verdict ultimately made it clear that she found PPD), SCA reconsidered the factual finding upon which she based her not-clearly-explained-enough-acceptance-of-ppd, (which I am not sure they should have done), and the defence has requested an appeal on the basis of the SCA's reconsideration of this factual finding (amongst other things).
 
aftermath said:
You said I was agreeing that he was attacking her judgement. I am not agreeing that.

Do I personally think she could have been clearer? yes. But I also think her verdict made her meaning clear. (whether it was clear enough in legal terms, I don't think I am qualified to say)
So..I think she did find PPD in her judgement, but probably didn't express it clearly enough, (even though the verdict ultimately made it clear that she found PPD), SCA reconsidered the factual finding upon which she based her not-clearly-explained-enough-acceptance-of-ppd, (which I am not sure they should have done), and the defence has requested an appeal on the basis of the SCA's reconsideration of this factual finding (amongst other things).
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So to be clear, in your opinion you think the justices of the SCA acted inappropriately and exceeded their authority?
 
aftermath said:
So what is the required legal standard for establishing lawfulness of intention when the outcome is unlawful action?
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It is the test used by judges to determine whether PPD has been made out, often referred to in this thread.

I think I'll leave it there, because I'm not sure I can get my head around the fact that we have been discussing PPD virtually all day, while you lend support to the appeal, and then you ask this. It rather puts things into perspective.
 
Tortoise said:
It is the test used by judges to determine whether PPD has been made out, often referred to in this thread.

I think I'll leave it there, because I'm not sure I can get my head around the fact that we have been discussing PPD virtually all day, while you lend support to the appeal, and then you ask this. It rather puts things into perspective.
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I believe you have encountered the ‘treadmill defence’ which involves going around in circles but never actually getting anywhere :)
 
aftermath said:
I think the con court should hear the appeal but have no idea whether they will or not.
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Rest assured this case will be heard by the con court. I was just looking at their website yesterday and they've already rejected cases that were submitted this year. The fact that they haven't rejected Oscar's case already means that they are giving it a serious reading and there are items in the appeal papers that warrant this case be heard.
 
Tortoise said:
It is the test used by judges to determine whether PPD has been made out, often referred to in this thread.

I think I'll leave it there, because I'm not sure I can get my head around the fact that we have been discussing PPD virtually all day, while you lend support to the appeal, and then you ask this. It rather puts things into perspective.
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If you choose to read it that way, it's up to you. Perhaps my post suffered from Masipa syndrome: where I assumed the meaning would be clear but didn't spell out what I was saying clearly enough for some.

To be clearer then, what I was asking was in what way you believe the unlawfulness of intention to have been proved, as I don't see that it was.

This was quite an interesting look at PPD in za:http://www.derebus.org.za/fight-back-might-found-guilty-putative-self-defence/
 
mhiforme said:
Rest assured this case will be heard by the con court. I was just looking at their website yesterday and they've already rejected cases that were submitted this year. The fact that they haven't rejected Oscar's case already means that they are giving it a serious reading and there are items in the appeal papers that warrant this case be heard.
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BIB When I highlighted the cases dismissed accessible through the CC site, the day before yesterday, I wasn't interpreting that as a positive sign for OP's appeal.
As I said, it appears they process the appeals received in a similar way to the SCA Judges, with each CC Justice (plus their clerks/research assistants) having an allotted case-load for this pre-consideration phase so you can't infer anything of any consequence from it.
 
ConCourt denies Pistorius leave to appeal, murder sentence looms
Thursday 3 March 2016

The court says the defence had no reasonable grounds of success.

The Olympian will now be sentenced for murder on 18 April.

After a discussion with other Admin this thread will remain closed. A new thread will be generated for sentencing in June so check back then please.

Thank you
 
South Africa: Pistorius To Be Sentenced In June For Murder


PRETORIA, South Africa (AP) - South Africa's former Olympic track star Oscar Pistorius appeared briefly in a Pretoria court where a judge scheduled five days in June to determine his sentence for the conviction of murdering his girlfriend.

The sentencing hearing for Pistorius will be held from June 13 to 17 at Pretoria High Court.

http://www.lex18.com/story/31749126/south-africa-pistorius-to-be-sentenced-in-june-for-murder

Folks I'll create a discussion thread Saturday for the sentencing.

Thank you for your patience. :smile:
 
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