Trial Discussion Thread #34 - 14.05.06 Day 27

[ColonelMustard]

This has just a little more info on the Kim Myers incident. To be honest, I wished they'd couched it in slighter milder words than 'very sinister'. It's a shocker of him to say what he said for sure, to say anything to her really, but to say that in particular takes a lot of hide. But IMO 'sinister' is heavy enough for his more ardent and sometimes vicious supporters out there to go to town on, and indeed the 'hang him high' people can get in on it too. 'Deeply disturbing' maybe?

http://www.businessinsider.com/pistorius-accused-of-making-sinister-remark-to-witness-2014-5#!KCyS5

That pic was taken on a bad hair day for him.

 

[Cymbaline]

I used every filter i have and I can't get Reeva's black vest to show any absorption of blood.
This shirt is not making any sense in relation to the crime scene and her injuries.

Saayman said the night of the shooting she was wearing a pair of gray Nike shorts, covered in blood. One bullet hole was noted in the material on the thigh, indicating the first of Steenkamp's wounds revealed to the court. Saayman also examined a sleeveless black vest, torn in some areas and scattered with blood and tissue fragments, including bone.
Upon initial inspection, Saayman found a piece of a bullet tangled in the clothing, which was given to investigators.

http://www.iol.co.za/news/crime-courts/reeva-s-head-wound-fatal-pathologist-1.1659020

Torn area up close.

Saayman said the night of the shooting she was wearing a pair of gray Nike shorts, covered in blood.

The court heard that Steenkamp had a few bruises on her body that were not as a result of the shooting.

Her upper eyelids were blue-reddish and there was soft tissue swelling but no injury to the eyes.

This was not caused by direct trauma but a fracture to the skull.

There were also bruises on the upper part of the right thigh that were not linked to the shooting and behind the left knee and the left shin.

I think the shirt is made out of Kevlar.
I did some googling and found this website.

This website has been in business since 2008 and look at what it sells and look at the name.

Http://www.BladeRunner.tv

JMO

 

[Budgie]

Morning/Afternoon and Evening Everyone,

I see you've all got your front row court (of public opinion) seats. Just under two hours and let the games begin again.....and thank goodness Oscar isn't firing the starting gun.

 

[katydid23]

quite possibly. still trying to work this 'frank' guy's location...

looking at van rensburg: 14 march session 2 / 18:41
he says at 14:00 the police locked up the house, gave the gardener food for the dogs, and that this gardener lived in the back right of the garden. and that they took his housekeys away too.

is this 'frank'? or did op have two helpers on site?
imo, sad that the police do not give names to the people working/living at the house.

Yes, that's Frank, I believe. I remember reading that before, and it was what made me think he was living in a pool house or something. The 'back' right of the garden makes it sound like it is detached. But looking at pictures, it can't be.

 

[JudgeJudi]

I think someone has mentioned this but it's worth repeating in relation to the last couple of days. It's my understanding I can't quote people from other forums (and rightly so) so I'm going to paraphrase:

According to a Professor James Grant, the Standers' evidence relating to Pistorius' state of anguish is inadmissable because it is 'evidence of a previous consistent statement'. Apparantly, had Nel cross-examined on this it would have become admissable so he didn't, leaving it to the judge to 'ignore them'. Any legal minds know much about this aspect? TIA

Just added - the other poster has further clarified by saying that Roux was likely wanting Nel to cross-examine on this to make it admissable but he didn't take the bait, leaving Roux in the lurch both in terms of admitting the evidence and having no other witnesses lined up. Was also suggested that this whole issue was why Nel and M'lady wanted to see each other post-proceedings.

This was posted up thread re the comments made by Prof James Grant. Two other people were present during this round-table discussion - former High Court Judge Chris Greenland and Attorney Clifford Alexander. IMO the whole of the conversation is really worth listening to. It canvasses OP's emotional state, the Standers' evidence and the Judge's views as to the timeframe relating to the heads of argument (closing argument) up to the point of when sentence is likely to be given.

oscar trial legal panel 13 - YouTube

 

[Val1]

OK I give up. I can not listen to OP any longer to try and find out about:

The security in his house and the "open zone" (sorry Viper, can't handle it any longer),
Which day he talked about Sam T saying that it takes 4 minutes to put on his prosthetic legs (sorry Paysee, I tried to tough it out but I can't take his voice anymore),
The part where Nel asked him about if his screaming voice was tested and he said yes (sorry DebinGA, see the reason I gave to Paysee).

Perhaps someone else doesn't mind a little torture and will be willing to do listen to his cross again. I stopped listening around 25:15 on 11 April.

Sorry again folks.

From lisasalinger's blog notes and if anyone wants the actual video testimony, just search youtube for the day her notes are for.

bbm1Just a little over 1/2 down the page, http://juror13lw.wordpress.com/2014/04/07/oscar-trial-day-17-oscar/

bbm2Search for 30 seconds, almost at the bottom of the page, http://juror13lw.wordpress.com/2014/04/11/oscar-trial-day-21-oscar/

bbm3About 2/3 down the page, http://juror13lw.wordpress.com/2014/04/11/oscar-trial-day-21-oscar/

 

[katydid23]

Agree. If Oscar could use his stumps that well, it could explain why he wouldn't necessarily put on his prosthesis to confront an intruder in his bedroom suite. It also shows that he could kneel on his stumps if, as was stated here, his amputations are the same. And those things are consistent with shots lower down on the door and his testimony about being on his stumps and kneeling down.

Were the bat marks up higher on the door than the shots?

but it wouldn't explain why he said he had to lean up against the wall for balance and to be able to shoot without falling over.

 

[Salsta]

Was just wondering if anyone can remember who testified to saying that the second/spare bedroom looked like it had been used recently? Now we know that Ms Stander was in there alone it makes me wonder if they had fought and she had been sleeping in there?

 

[JudgeJudi]

I'm hoping Cape Town Crim will be able to shed some light on this.

In England & Wales, there needs to be specific grounds for appeal; people can't just automatically appeal to have another go at getting the verdict they want, IYSWIM. I don't know what grounds would be required in SA.

Same here in Oz, you have to file grounds of appeal first. You have to have a good reason, ie the judge erred in law, or in the case of a jury misdirected them in some way. Someone did post earlier, and it may well have been Cape Town Crim, that pretty well anyone can file for an appeal in SA, similar to the situation in Italy I think.

 

[geevee]

http://www.youtube.com/watch?feature=player_detailpage&v=onX7NJguuHc

Dwayne Fernandes walking and running on his stumps. He comments on a posters question about OP not being able to balance on his stumps. He says its unlikely he cant balance.

Just jumping off your post, could Oscar walk on his stumps to carry the fan in from the balcony? I haven't watched much of the trial video but have been reading along here some and haven't seen if that was addressed by the prosecutor when OP testified.

 

[JudgeJudi]

It is assumed by all of the testimony that the alarm was on, I am assuming that too. The thing that bothers me is that OP could open the patio door and moments later someone else could open the bathroom window and yet the alarm, though armed, did not go off. I guess OPs system could have his bedroom disarmed while the rest of the house is armed, but it does not make sense for a security conscious person to do that, even if it could be done.

I stand to be corrected here Viper but I think the outside of the house didn't have an alarm. The alarm they're talking about is at the top of the stairs.

 

[PPKik]

Does anyone know if Geoffrey Boulton of Netcare 911 (Midrand) or Benise Kitshoff of Netcare 911 testified?

If so, when? These people are listed as witnesses #83 and #87 respectively, in the indictment, but I don't remember reading anything about anyone from Netcare testifying. TIA

http://www.scribd.com/doc/185695401/Full-document-–-Oscar-Pistorius-indictment

 

[Cymbaline]

Kevlar effect:

Oftentimes the impact from surviving a gunshot will temporarily knock the victim unconscious as well, leaving them vulnerable with a guy that has already made his feelings clear through the administration of bullets.

http://wtf.thebizzare.com/offbeat/science-and-technology/5-super-powers-you-can-have-today/

This possibly explains the time between the shots. Also, did Reeva grab that black vest and put it on in an attempt to save her life?

JMO

 

[PPKik]

Just jumping off your post, could Oscar walk on his stumps to carry the fan in from the balcony? I haven't watched much of the trial video but have been reading along here some and haven't seen if that was addressed by the prosecutor when OP testified.

Oscar testified that he carried in the fans, which were in the doorway between the bedroom and the balcony.

Yes he could, according to his own testimony. I'll see if I can find a youtube link. He was cross examined extensively by Nel, the prosecutor, on where he placed the fans after retrieving them.

ETA: Unable to stream or play youtube right now, but watched OP testify last night, and it was in one of three sessions on Thursday April 10, 2014, that he testified and answered questions about the fans. I believe it starts here, but this may not be the video just about the fans:

https://www.youtube.com/watch?v=M_o_S84TzGY

 

[Cape Town Crim.]

Same here in Oz, you have to file grounds of appeal first. You have to have a good reason, ie the judge erred in law, or in the case of a jury misdirected them in some way. Someone did post earlier, and it may well have been Cape Town Crim, that pretty well anyone can file for an appeal in SA, similar to the situation in Italy I think.

I have just logged on for a quick scan around and found your post first :blushing:

There have to be grounds for appeal of course. M'lady will use her discretion in either granting or denying leave to appeal the conviction and sentence. If she denies, OP can take it further of course, and in South Africa most convicted persons are granted this leave eventually (I believe this is due to our liberal constitution and the effects of it's adaptation in relation to the rights of a convicted person)

I'm sorry this copy and paste is so long. But because I'm just rushing in and out, this might give you the answers I can't stick around to answer myself :scared: I will try and log in later. Some of the principles in here are relevant to appeals in general. There is also mention of the 36 chapters that cover appeals etc. Also note the state's rights. This case is obviously of little relevance to what might happen in Oscar's: but the general principles etc might give you more information. You can actually find the relevant sections of the act online mentioned to below and you may then apply them to Oscar's future legal processes.

Also of interest: http://www.news24.com/SouthAfrica/News/KZN-cop-gets-bail-20121119

I did post a link last night to the Criminal Procedure act, a PDF file which will direct you to all of the sections mentioned below.

http://www.justice.gov.za/legislation/acts/1977-051.pdf

N THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, GRAHAMSTOWN)
CASE NO: CC70/2011
Date Heard: 28 September 2012
Date Delivered: 4 October 2012

In the matter between:

IAIN CAMERON McLAGGAN Applicant

and

THE STATE Respondent
______________________________________________________________________

JUDGMENT
(APPLICATIONS FOR LEAVE TO APPEAL)
______________________________________________________________________

GOOSEN, J:

[1] The applicant was convicted of rape on 20 August 2012 and sentenced on 28 September 2012. He now seeks leave to appeal against his conviction. The Director of Public Prosecutions, representing the State, also seeks leave to appeal, in terms of section 316B of the Criminal Procedure Act, 51 of 1977, against the sentence imposed on the applicant. Although both applications were made immediately after sentence was delivered both the applicant and respondent filed their respective notices of application for leave setting out the grounds upon which leave to appeal was sought. I shall deal with each of these applications in turn hereunder.

[2] The notice of application for leave to appeal filed on behalf of the applicant is a lengthy document comprising some 33 typewritten pages. The “grounds” of appeal are set out in 36 paragraphs, one of which consists of 57 sub-paragraphs. Although the respondent did not take issue with the form of the notice of application and this issue was not addressed in argument before me, I nevertheless consider it appropriate to deal with this aspect before addressing the merits of the application for leave to appeal.

[3] In terms of section 316 of the Criminal Procedure Act an accused person convicted of any offence may apply for leave to appeal against such conviction or any resultant sentence or order. Such application must be made within 14 days after the passing of sentence or the making of the order. Subsection (4) provides as follows:

“(a) Every application for leave to appeal must set forth clearly and specifically the grounds upon which the accused desires to appeal.
(b) If the accused applies orally for such leave immediately after the passing of sentence or order, he or she must state such grounds, which must be recorded and form part of the record.”

[4] In S v Van Heerden 2010 (1) SACR 539 (ECP) at par. 17, Liebenberg J, dealing with an application for leave to appeal, held that the principles set out in relation to a civil application for leave in Songono v Minister of Law and Order 1996 (4) SA 384 (E) apply equally in criminal cases.

[5] In the Songono matter, Leach J (as he then was) was called upon to consider what was required in an application for leave to appeal made pursuant to Rule 49(1)(b) of the Uniform Rules. The learned judge was there dealing with an application for leave in a form not dissimilar to that which is now before me, which he described (at 385C – E) in the following terms:

“In attempted compliance therewith the applicant filed a document headed ‘Application for Leave to Appeal’, in which he purported to set out the grounds upon which leave to appeal was to be sought. These so-called ‘grounds’ constitute a diatribe of some 17 pages criticising the judgment, analysing (at times incorrectly) certain of the evidence and the findings made, putting forward certain submissions and quoting various authorities. This lengthy, convoluted and at times disjointed criticism of the judgment did not clearly and succinctly spell out the grounds upon which leave to appeal is sought in clear and unambiguous terms - ….”

[6] The learned judge then went on to set out the applicable principles (at 385F – 386B) in terms which bear repeating in full, as follows:

“I am not aware of any judgment dealing specifically with grounds of appeal as envisaged by Rule 49(1)(b); however, Rule 49(3) is couched in similar terms and also requires the filing of a notice of appeal which shall specify ‘the grounds upon which the appeal is founded’. In regard to that sub-rule it is now well established that the provisions thereof are peremptory and that the grounds of appeal are required, inter alia, to give the respondent an opportunity of abandoning the judgment, to inform the respondent of the case he has to meet and to notify the Court of the points to be raised. Accordingly, insofar as Rule 49(3) is concerned, it has been held that grounds of appeal are bad if they are so widely expressed that it leaves the appellant free to canvas every finding of fact and every ruling of law made by the court a quo, or if they specify the findings of fact or rulings of law appealed against so vaguely as to be of no value to either the Court or the respondent, or if they, in general, fail to specify clearly and in unambiguous terms exactly what case the respondent must be prepared to meet – see, for example, Harvey v Brown 1964 (3) SA 381 (E) at 383; Kilian v Geregsbode, Uitenhage,1980 (1) SA 808 (A) at 815 and Erasmus Superior Court Practice B1-356-357 and the various authorities there cited.
It seems to me that, by parity of reasoning, the grounds of appeal required under Rule 49(1)(b) must similarly be clearly and succinctly set out in clear and unambiguous terms so as to enable the Court and the respondent to be fully and properly informed of the case which the applicant seeks to make out and which the respondent is to meet in opposing the application for leave to appeal. Just as Rule 49(3) is peremptory in that regard, Rule 49(1)(b) must also be regarded as being peremptory. In my view the lengthy and rambling notice of appeal file in casu falls woefully short of what is required. Mr Bursey suggested that grounds of appeal could be gleaned from the notice but that is not the point – the point is that the notice must clearly set out the grounds and it is not for the Court to have to analyse a lengthy document in an attempt to establish what grounds the applicant intended to rely upon but did not clearly set out. On this basis alone the application seems to me to me fatally defective and must be dismissed.”

[7] These remarks and the principles espoused therein were specifically approved by the Full Court of this division in Xayimpi and Others v Chairman Judge White Commission (formerly known as Browde Commission) and Others [2006] 2 All SA 442 (E). The approach was also applied in a carefully reasoned judgment by Thring J in S v McKenzie 2003 (2) SACR 616 (C).

[8] The notice of application in this instance sets out an elaborate discussion of and analysis of the minutiae of the judgment and the evidence which apparently exists to contradict it. At times the “grounds” are couched in exaggerated terms reflecting the apparent failings of the judgment. Reference is made to authorities and in many respects the so-called grounds of appeal are formulated as submissions ordinarily advanced in argument. The tone indicates a lack of respect.

[9] Perhaps the clearest indication of this is to be found in a concluding submission which is presented as a “ground” of appeal. In it the applicant’s counsel asserts that:

“In generalised terms it is respectfully submitted that the Court allowed the State to repeatedly ambush the defence with new evidence, new facts and with applications such as in ito s158 (sic) of the Criminal Procedure Act: the Court was entirely aware that the Applicant was running on a very limited budget (despite this, 3 court days were wasted entirely at the instance of the State) and specialist witnesses were called in circumstances where the Applicant was unable to afford to call any witness to contradict or challenge such witness.”

[10] The allegation contained in this submission is a serious one, the import of which cannot be ignored. The submission carries with it the imputation of deliberate bias exercised in favour of the prosecution. If that indeed were found to be substantiated it would constitute a grave failure of justice. If the applicant wished to raise this as a basis upon which leave to appeal was to be sought then the proper procedure would have been to have applied, in terms of section 317 of the Criminal Procedure Act, for a special entry relating to this alleged irregularity to be made into the record and thereafter to prosecute the appeal on such basis. That has not been done. Instead an inappropriate and groundless submission is made in a notice of application for leave to appeal which serves no purpose other than to impugn the integrity of the Court.

[11] Legal practitioners are, of course, required to represent their clients fearlessly and ought never to baulk at confronting injustice even where it may earn the displeasure of a court. Yet they remain bound to comply not only with the rules of practice but also with the rules of etiquette and to ensure that their conduct meets the high standards of ethics the profession demands. Where they do not do so, they do not serve the best interests of their clients.

[12] Notwithstanding my misgivings about the form of the notice of application for leave to appeal I do not consider that it would be appropriate to dispose of this application by striking it from the roll or postponing it so that the notice of appeal can be corrected. Such a course would prejudice the applicant for the failure by his legal practitioner to prepare an appropriate notice of application. In the light of what I set out hereunder regarding the merits of the application, the defects in the notice of application may be overlooked.

[13] The test to be applied in determining whether or not leave to appeal should be granted is well settled. Leave to appeal will be granted where there is a reasonable possibility that another court may come to a different conclusion either on the facts or law or both. In this instance the finding that the state proved the guilt of the applicant beyond a reasonable doubt involved consideration of the evidence of a single witness on certain critical aspects. It involved also an assessment of the reliability of the complainant’s evidence in circumstances where it was common cause that she had been intoxicated; had suffered a series of seizures which would have had and did have an effect upon the complainant’s state of mind and her ability to recall and or relate events. The judgment also involved the consideration of the probabilities relevant to mutually destructive versions of events.

[14] In the light of this it cannot, in my view, be said that there is no reasonable possibility that another court may come to different conclusions in respect of the various findings of fact made by me. I need not of course be persuaded that there is any probability that this may be so, only that it is reasonably possible. For this reason leave to appeal against the conviction must be granted.

[15] Insofar as the application of the respondent for leave to appeal against the sentence is concerned, the essential ground upon which reliance is placed is that I erred in finding that substantial and compelling circumstances exist which would justify the imposition of a sentence less than that prescribed. The effect of this error was that I imposed a sentence which is too lenient having regard to the nature of the offence and the aggravating features attendant upon the commission of the offence.

[16] An appeal court does not readily interfere with the exercise of a trial court’s discretion in the imposition of sentence. Where however the exercise of such discretion

is dependant upon a finding of fact regarding the existence or otherwise of substantial and compelling circumstances, I need only be satisfied that there is a reasonable prospect that a court of appeal may come to a different finding of fact in this regard. If so satisfied leave ought to be granted to appeal against the sentence imposed. In this instance I am indeed satisfied that there is a reasonable prospect that another court may find that those mitigating factors found to be present in this matter, even cumulatively considered, do not constitute substantial and compelling circumstances justifying the imposition of a sentence less than that prescribed by section 51(2) of Act 105 of 1997.

[17] I accordingly make the following order:
(a) The applicant is granted leave to appeal to the Full Court against his conviction on a charge of rape.
The respondent is granted leave to appeal to the Full Court, in terms of section 316B of the Criminal Procedure Act, against the sentence imposed upon the applicant.

 

[Warren Levine]

New here and with an hour to go before curtain lifts for the day, would like to know when 8 May forum opens. It seems to be locked.

Also, pls note, some of those livestream links contain virus-laden fake Adobe update screens - persistent ones.

Thanks from the Pacific Northwest!

 

[Suthrnqt]

Kevlar effect:

Oftentimes the impact from surviving a gunshot will temporarily knock the victim unconscious as well, leaving them vulnerable with a guy that has already made his feelings clear through the administration of bullets.

http://wtf.thebizzare.com/offbeat/science-and-technology/5-super-powers-you-can-have-today/

This possibly explains the time between the shots. Also, did Reeva grab that black vest and put it on in an attempt to save her life?

JMO

If the top was indeed Kevlar, wouldn't it stop the ammo? I think so. jmo

 

[Budgie]

If the top was indeed Kevlar, wouldn't it stop the ammo? I think so. jmo

Maybe not the bullets Oscar used that night...those horrible mass destruction ones....Black Talons?

 

[PPKik]

New here and with an hour to go before curtain lifts for the day, would like to know when 8 May forum opens. It seems to be locked.

Also, pls note, some of those livestream links contain virus-laden fake Adobe update screens - persistent ones.

Thanks from the Pacific Northwest!

I don't think you have to worry! :scared:They always open!

Which livestream links are bad? Not that it matters to me at this point, since I can't stream. TIA

 

[Warren Levine]

Maybe not the bullets Oscar used that night...those horrible mass destruction ones....Black Talons?

This discussion is really irrelevant considering a VEST doesn't cover any of the places Oscar shot Reeva: right hip, right upper arm, right side of head.

And, yes, a bulletproof vest would stop a hollow-point because a FMJHP is designed to spread like a mushroom on impact, so it would lose energy upon hitting the first layer of either clothing or the vest itself and not go through. It's not an armor-piercing round, which would go through.