Oscar Pistorius - Discussion Thread #65~ the appeal~

[cottonweaver]

State's argument

The Court in Seekoei, with reference to R v Gani and Others 1957 ... found that the Court of Appeal will have no option but to order a new trial if the Court of Appeal found that the Court a quo wrongly decided a point of law.

5.1. We respectfully argue that not only was the ratio based on an incorrect reading of Gani, but also an incorrect reading of the provisions of s322(4) of the Act.

5.2. We furthermore argue that s322(1)(b) and (c) of the Act specifically provided the Court of Appeal with a discretion. Section 322(4) adopts the word “may” and not “must” and is therefore discretionary

In Gani, the Court recognised that only if an order under the equivalent of s322(4) was given could a fresh trial be instituted. This, with respect, does not mean that the only option is a re-trial. An order under s322(4) is a necessary but not sufficient condition.

We re-iterate and respectfully submit that s322(1b) empowers the court of appeal to
“...give such judgements as ought to have been given at the trial..”

We respectfully argue that Seekoei was wrongly decided and if not, that the Constitutional Court’s decision in S v Basson....provides a post constitutional interpretation of s319(1) which led the Court to find that the legislative history of s319(1) indicates that its purpose was, amongst others, to allow the State to appeal on a point of law by requesting the reservation of a question of law

The Court found at 621 a – d that s319 was never intended to provide the State with a right to appeal a question of law in limited circumstances.

We respectfully argue that the Basson judgment renders the distinction between acquittal and / or conviction in Seekoei invalid.

 

[cottonweaver]

In essence, Seekoei established that the state can appeal against a high court judgment only if there is an acquittal. If there is a conviction on a competent verdict – in this case, Pistorius was found guilty of the lesser charge of culpable homicide – the state cannot appeal it.

Nel says Seekoei is not applicable here because the state is not appealing against the culpable homicide verdict, but against the acquittal on the murder charge

Further reading LOL: a translation of a legal argument originally in the Beeld newspaper with background reading on the Seekoei case itself

https://criminallaw101andbeyond.files.wordpress.com/2014/10/seekoei-beeld.pdf

ETA Correcting links

 

[cottonweaver]

Last one, easy read , from Oct 2014 just as Grant had been hired to consult

"In my view... that judgment isn't very well reasoned and I also don't think it would stand up to constitutional scrutiny," Wits law professor James Grant said.

However, the State could encounter a "hurdle" because of the Supreme Court of Appeal case, State vs Seekoei, which limited the State's right of appeal.

The 1982 Seekoei case held that the State could not appeal if a conviction was made on a competent verdict.

"It [the Pistorius judgment] was a competent verdict, he was acquitted of murder and convicted on a competent verdict," Grant said.

If the NPA could overcome the Seekoei issue and is given the opportunity to appeal, two things could happen.

"The question comes whether the appeal is heard in the SCA restricted to the record - and this would be my preference, it's only fair and right - or whether it is sent back to a different high court to retry the case entirely.

"This [retrial] is not impossible," he said.

but unlikely

http://beta.iol.co.za/news/crime-courts/oscar-case-can-be-appealed---expert-1770328

anyway, I was about to paste up the Defence response to these points, but I think 4 posts is enough- anyway page 38 in Defences.

Anyway, thanks to whoever posted that I need to set alarm for 7.30. I want to watch whatever feed Oscar is watching en famille tomorrow!

 

[atthelake]

Last one, easy read , from Oct 2014 just as Grant had been hired to consult

but unlikely

http://beta.iol.co.za/news/crime-courts/oscar-case-can-be-appealed---expert-1770328

anyway, I was about to paste up the Defence response to these points, but I think 4 posts is enough- anyway page 38 in Defences.

Anyway, thanks to whoever posted that I need to set alarm for 7.30. I want to watch whatever feed Oscar is watching en famille tomorrow!

I'm jealous you have to only set your alarm for 7:30. Lol 2:30 am for us Eastern US folks

 

[cottonweaver]

I'm jealous you have to only set your alarm for 7:30. Lol 2:30 am for us Eastern US folks

I KNOW atthelake -I did when I saw that now that is true dedication .:clap:

But, after two years of following this nonsense you can't fall at the final hurdle.

Set two alarms, just in case, one in the hallway

 

[soozieqtips]

Last one, easy read , from Oct 2014 just as Grant had been hired to consult

but unlikely

http://beta.iol.co.za/news/crime-courts/oscar-case-can-be-appealed---expert-1770328

anyway, I was about to paste up the Defence response to these points, but I think 4 posts is enough- anyway page 38 in Defences.

Anyway, thanks to whoever posted that I need to set alarm for 7.30. I want to watch whatever feed Oscar is watching en famille tomorrow!

That was me. I remember during the trial getting caught out by the clocks when they went forwards in March, so I wanted to make sure it didn't happen again. It will be like travelling back in time seeing everyone on here in the morning.

To those of you having to get up at an ungodly hour to view tomorrow - I salute you! Let's hope it's worth your while. See you all in the morning!

 

[44ALLAN]

I KNOW atthelake -I did when I saw that now that is true dedication .:clap:

But, after two years of following this nonsense you can't fall at the final hurdle.

Set two alarms, just in case, one in the hallway

ok so 7.30 for us UK folk?

That gives me time for prunes /walnuts and sugar free alpen with walnut milk for brekkie before going to work and watching the feed on my office computer with a coffee
Bloody hard life I tell you lol.

Massive thanks once again to everyone on here for the brilliant research and theories...............much appreciated *advertiser censored*

 

[atthelake]

And sending out a bat alert for Zwiebel... who always made breakfast for us!

 

[Suthrnqt]

And sending out a bat alert for Zwiebel... who always made breakfast for us!

So what time do we need to set our alarms ATL?? I know we are in the same time zone. I can't believe we've been doing this for almost 2 years now. [emoji15]

 

[Deleted member 102539]

http://ewn.co.za/2015/10/21/CARTOON-Oscar-Walks

 

[foxbluff]

Even the vocal majority here don't get to vote where it counts tomorrow.

My gut opinion is that the majority of the panel of five Supreme Court of Appeal Judges of South Africa will not overturn Judge Masipa's verdict of CH.

I happen to believe that Judge Masipa "got it right." (I changed my opinion on this case after reading the State's HOA near the end of the trial. Not only did the prosecution fail to carry the Burden of Proof beyond a reasonable doubt, it was a dismal fail... whereas Roux's HOA showed him to be worth every cent he was paid.

I firmly believe that Judge Masipa deserves to be held in the same high regard she enjoyed/earned before OP killed an innocent young woman.

Moo

 

[atthelake]

So what time do we need to set our alarms ATL?? I know we are in the same time zone. I can't believe we've been doing this for almost 2 years now. [emoji15]

Court starts at 3 a.m. our time Eastern. :seeya: so set your alarm for 2:30 to figure out that late at night how to set everything up and make sure it works lol

 

[soozieqtips]

Only a few hours to go and I haven't gone to bed yet! Does anyone know if the new judges will let Roux go on and on all day and then cut Nel short if he runs out of time? I ask because I remember Masipa sometimes rushing Nel while allowing Roux as much time as he wanted.

 

[lisasalinger]

Hey guys,

I look forward to following along with you in just a little bit Should be an interesting day. Nick's there today and I'll pass along any info he gives to me. I'll be in South Africa as of next Friday and hope to be there for the judgement being handed down or (fingers crossed) sentencing... wouldn't that be nice.

 

[Deleted member 102539]

Good morning at 06:15h in GER!

I think, Zwiebel will follow with an Official Breakfast-Photo ...

 

[JudgeJudi]

And hello to everyone from the rain-drenched Blue Mountains of Sydney.

We had the race that stops the nation today, the Melbourne Cup, and what a race it was. “In what will go down as not just one of the greatest upsets the race has seen but one of the most memorable results in the storied history of the $6.2 million race, Prince of Penzance was paying $101 earlier today and was just the fourth horse to win at odds that long, and the first in 75 years. The owners only paid $50,000 for Prince.

The horse was ridden by Michelle Payne, 30, who is the youngest of 11 children. To make this fairytale even more memorable, Michelle has a brother who has Down Syndrome who dreamed of picking barrier 1 and that's exactly what he selected! What a wonderful day for this family.

http://www.businessinsider.com.au/heres-the-melbourne-cup-2015-11

Down to business. Here's my offering for those in a time zone other than breakfast time:

 

[JudgeJudi]

Karyn Maughan ‏@karynmaughan · Oct 31
Karyn Maughan Retweeted Jasper Kok
Yes. Broadcast live from 9:45am. #OscarAppeal

#OscarPistorius appeal hearing will take a day - but could run for up to ten hours @eNCA

Court personnel say up to 100 people can fit in the gallery of Court A, where #OscarPistorius appeal being heard @eNCA

OscarPistorius state appeal happening in same court where Gerrie Nel successfully fought Jackie Selebi corruption appeal: Court A.

Barry Bateman ‏@barrybateman · 22m22 minutes ago
#OscarPistorius the courtroom is gradually filling up. The legal teams are in their places, piling through files and textbooks. BB

#OscarPistorius proceedings are scheduled to start at 10am. One day has been set down for argument.We’l return for judgment. BB

 

[JudgeJudi]

This link is now on standby and ready to go, and so am I.

[video=youtube;P2j0epnX4yo]https://www.youtube.com/watch?v=P2j0epnX4yo[/video]

 

[Mr Fossil]

Watch live: Oscar Pistorius faces prosecutors in Courtof Appeal
http://www.telegraph.co.uk/news/wor...ius-faces-prosecutors-in-Court-of-Appeal.html

Live video from outside the court at the moment

 

[Mr Fossil]

SABC live feed (just in case something above breaks)
[video=youtube;50ph2UinK3o]https://www.youtube.com/watch?v=50ph2UinK3o[/video]