Discussion Thread #60 - 14.9.12 ~ the appeal~

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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.

Is it just me, but this step in the appeal process appears to be a waste of time in this particular case?

I can understand how this step is used to avoid petty appeals, but in this case Judge Masipa's appeal decision has little or no effect. If Nel still wants to appeal the sentence and the ammo charge he can still petition the SCA to see if they want to hear his arguments. Masipa has stopped nothing.

Sure, the SCA will see that Masipa does not support the sentence and ammo appeal, but so what. If the SCA want to hear Nel's argument, they will.

Have I missed something ?
 
Is it just me, but this step in the appeal process appears to be a waste of time in this particular case?

I can understand how this step is used to avoid petty appeals, but in this case Judge Masipa's appeal decision has little or no effect. If Nel still wants to appeal the sentence and the ammo charge he can still petition the SCA to see if they want to hear his arguments. Masipa has stopped nothing.

Sure, the SCA will see that Masipa does not support the sentence and ammo appeal, but so what. If the SCA want to hear Nel's argument, they will.

Have I missed something ?

It seems to be little more than a formality.
 
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

BIB does the public get to hear the verdict and the rationale behind it from each of the judges like what we saw with Masipa or does the public just hear the final overall majority rule verdict?
 
Karyn Maughan ‏@karynmaughan 2m2 minutes ago
Mncube says state will ask that #OscarAppeal be heard as soon as possible. On normal timelines, would be heard in at least a year @eNCAnews

Why rush it, he's in prison until the appeal is heard anyway.
 
Yes

if he is convicted of murder a new sentence will be imposed.

if the state loses the appeal - his sentence on CH cannot be changed.

Of course the state can still apply direct to to the SC for leave to appeal sentence & ammo

Chicken or egg question.

BIB What comes first, the appeal to apply to the SC for leave to appeal sentence or do they first try and get a conviction for murder and if that fails, then they appeal the sentence?
 
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.

What I take away from her refusing this appeal, is that it clearly shows her lack of proper application of of the law(or bias) and if taken to the upper court along with the 1rst charge, should help the PT to illustrate just why both charges need review and clarification for future cases.:moo:
 
I have been thinking about her decision to deny the leave for appeal on the ammo not guilty verdict. Maybe the prosecution has a greater chance to win that appeal because Seekoei doesn't apply to it..on the other hand..Seekoei might apply to the appeal of the not guilty verdict of murder because he was found guilty of CH which is considered a competent verdict.
 
I remember reading somewhere way back, can't recall exactly where or when, but that Pistorius could apply for bail if leave to appeal was granted. Maybe I've got it wrong?

Just my thoughts, perhaps because of the judge's ruling on his sentence? Deep down I'm still hoping she is, at least now after "reflection", trying to make it right by making it so OP can't just walk free during this process, she must have known that she had opened the door for the PT to appeal the conviction(and should they win, it seems obvious that at least the minimum sentence for any conviction other than what she had given him, would replace it and if her conviction stands, so too would her sentence). Sorry if that doesn't make any sense to anyone but me...
 
I agree…

1- On a human nature level, when one is confident about something, one is not afraid of being challenged and welcomes scrutiny.

2- On a professional level, a Judges is a custodian of Justice and the Law, not a defender of their own personal beliefs and values… as such, a Judge should welcome any reasonable oversight of their decisions.

3- The Law is a living breathing organism ever evolving in the service of society… no one enjoys being proven wrong but accepting the possibility of having erred without embarrassment is one of the pillars of wisdom.

So well said AJ_DS.
 
Is it just me, but this step in the appeal process appears to be a waste of time in this particular case?

I can understand how this step is used to avoid petty appeals, but in this case Judge Masipa's appeal decision has little or no effect. If Nel still wants to appeal the sentence and the ammo charge he can still petition the SCA to see if they want to hear his arguments. Masipa has stopped nothing.

Sure, the SCA will see that Masipa does not support the sentence and ammo appeal, but so what. If the SCA want to hear Nel's argument, they will.

Have I missed something ?

No that is exactly right. The point is to prevent a rubbish appeal being scheduled for a full hearing, but nevertheless to allow the appellant to put an outline of their case to the Appeal Court if the High Court says no.

See for example the case of Ched Evans

He was refused leave to appeal after being convicted for Rape. He then appealed to the Court of Appeal who also refused leave.

More usually it is the accused who is appealing, and often these appeals are baseless - because the accused just wants a different decision.

So its just a way to streamline things.

I think I have it right that when you petition the Appeal Court it might be heard by one judge - but it could also be heard by more judges depending on how impt the issue is.

So you can sort of be into the real deal at that stage.

In practical terms if the Appeal Court thinks you have a crappy case then they will refuse leave which is pretty much the same as saying you lose.
 
It's virtually a certainty that it will be Roux. Counsel will just present heads of argument, and it will probably only take a day, with the decision being handed down a couple of days later.

Is there discussion with the bench in SA?

Back home this aspect could be fascinating with a full Court of the Court of Appeal

You can get some quite detailed questioning and Counsel really has to be super prepared!

However it is quite a different vibe to trial.

Some senior counsel are very relaxed with the judges. Of course often they are contemporaries.

Also is there just one decision?

In NZ often one judge will write the decision - but sometimes multiple judges will write their own judgement - including dissenting judges

I really feel this case is an important opportunity for the SCA to point out how far apart is the practice of citizens from the law.

Yes you can own a firearm for self defense.

But the circumstances in which you can shoot someone are really no different to NZ, AUST, UK etc - i.e. extremely limited

Yet people continue to lay in guns in their homes?
 
Chicken or egg question.

BIB What comes first, the appeal to apply to the SC for leave to appeal sentence or do they first try and get a conviction for murder and if that fails, then they appeal the sentence?

My guess is that timelimits will force them to petition the SC in the coming weeks if they are going to.
 
http://www.news.com.au/world/africa...storius-sentence/story-fnh81gzi-1227151716983
africa
Judge allows prosecutors to appeal her Oscar Pistorius sentence
DECEMBER 11, 2014

“Our argument was that he should have been convicted of murder, and then would have been sentenced to a minimum sentence of 15 years. That is of course what we would like to happen,” said the National Prosecuting Authority’s Nathi Ncube"...

Legal experts welcomed the ruling.
“I was at the National Prosecuting Authority in Johannesburg when the decision came through, and the feeling is that it was critical to get leave to appeal in order to restore faith in our ability to prosecute criminals,” said Martin Hood, a criminal lawyer based in Johannesburg.
“I think that would be the general feeling of the legal community, because we need to know that our prosecution can do its job and can do it properly.”
 
Judge Masipa announced the ruling in a Pretoria court on Wednesday.

"I cannot say... that the prospect of success at the Supreme Court of Appeal is remote," she said.

http://www.bbc.co.uk/news/world-africa-30408424

Is that the same standard she's applying to the ammunition and sentence appeal? I think she just doesn't want a complete win for the State (and a losing of face for herself), as it seems nearly impossible that he wasn't convicted of the ammunition charge, and 'a maximum of 5 years' for killing someone trapped in a small room seems ripe for a bit of a shaming, or at least questioning of her logic by the SCA.
 
It impugns law that State cannot appeal where accused convicted only on a competent verdict due to an error of law (Seekoei 1982 AD). 5/5


James Grant @CriminalLawZA · 12m 12 minutes ago

It impugns the law allowing circumstantial evidence to be considered in isolation, on a piecemeal basis, as decided in S v Blom 1939 AD. 4/
0 replies 3 retweets 0 favorites
James Grant @CriminalLawZA · 14m 14 minutes ago

It impugns the law that an inference drawn (in accordance with rules of law) from facts, is also a fact - as decided in Nzimande 2010 SCA.3/
0 replies 3 retweets 3 favorites
James Grant @CriminalLawZA · 21m 21 minutes ago

It impugns the law on dolus eventualis as decided in S v Ngubane 1985 AD; confirmed in S v Humphreys 2013 SCA. 2/


James Grant ‏@CriminalLawZA

The grant of appeal against acquittal of murder is, in itself, a massive breakthrough because it impugns a host of long standing bad law: 1/


James Grant @CriminalLawZA · 27m 27 minutes ago

In the absence of an appeal against sentence, if SCA finds murder, the case has to be sent back to High Court for new sentence. 1/

James Grant @CriminalLawZA · 3m 3 minutes ago

In any event, if the verdict of culp hom is changed to murder, the sentence will have to follow and a sentence for murder imposed.
0 replies 0 retweets 0 favorites
James Grant @CriminalLawZA · 4m 4 minutes ago

The state may petition the Supreme Court of Appeal (SCA) to allow the appeals against sentence & the unlawful possession acquittal.
0 replies 0 retweets 0 favorites
James Grant @CriminalLawZA · 6m 6 minutes ago

Leave to appeal was granted on the #OP murder acquittal - this is by far the most important appeal.
0 replies 0 retweets 2 favorites
James Grant @CriminalLawZA · 10m 10 minutes ago

Some (abstract) answers to some queries - they are not comments on the #OP case nor necessarily what the State will do:
0 replies 1 retweet 1 favorite
James Grant @CriminalLawZA · 10h 10 hours ago

Today I helped throw a starfish back into the sea. Was it worth it, is it worth it? Hell yes, even if it's dark!
0 replies 9 retweets 24 favorites
James Grant @CriminalLawZA · 11h 11 hours ago

Thanks to everyone who sent such kind messages of support & congratulations. I am overwhelmed & cannot thank & respond as I would like to.
0 replies 11 retweets 27 favorites
James Grant @CriminalLawZA · 13h 13 hours ago

http://m.news24.com/news24/SouthAfr...t-does-Masipas-ruling-mean-for-Oscar-20141210 …
0 replies 10 retweets 12 favorites
James Grant @CriminalLawZA · 21h 21 hours ago

Cases of Seekoei 1982 AD, Nzimande 2010 SCA, and even Blom 1939 AD all now: under review - subject to further notice. ��
0 replies 35 retweets 27 favorites
James Grant @CriminalLawZA · 21h 21 hours ago

Also, if successful on the murder appeal, so that #OP is convicted of murder, new sentence will have to be imposed in any event.
0 replies 54 retweets 33 favorites

https://twitter.com/criminallawza
 
...

I was surprised when Masipa said the State had to pay. Is that usual? Or is it because Masipa believes that this member of a family worth millions can't afford to pay OP's legal costs?

It sounded like sour grapes to me.
 
Comments on broadcasting the SCA proceedings


Dianne Hawker ‏@diannehawke

#OscarTrial. I hope the SCA proceedings are also live so that people can see how the different courts work.

Dario Milo ‏@Dariomilo 20h20 hours ago

@diannehawker Under SCA practice directive should be application to broadcast and ought in my view to be granted #televisingOscarappeal

Dianne Hawker ‏@diannehawker 20h20 hours ago

You mean a broadcast from the SCA? Yes it has. More than once. @BulelwaMak @Dariomilo


EskomLegacy ‏@ComradeFreedom 20h20 hours ago

@dariomilo @diannehawker I think as many cases as possible should be televised to assist public to understand how justice system works

https://twitter.com/diannehawker/status/542605359568158720


Dianne Hawker
@diannehawker

Multimedia journalist @eNCAnews Online. Love working with words and visuals. Love rock music, books, life. travel, people.

Johannesburg · enca.com
 
David Dadic @DavidDadic · 21h 21 hours ago

But I reckon for the ammo charge she should also have allowed leave. I think State should petition SCA directly for leave on that one.

https://twitter.com/criminallawza
 
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