awaiting sentencing phase

[pandax81]

James Grant @CriminalLawZA Oct 2
@MizQue @sudz_dbn @barrybateman This is going to sound crazy - but the rule against double jeopardy only holds if one was in jeopardy 1/

James Grant @CriminalLawZA
@MizQue @sudz_dbn @barrybateman I can see an argument being made that OP wasn't in jeopardy on murder because of JM's possible errors. 2/2

I thought a person was considered in jeopardy simply by being tried for murder.

Not quite Mr Fossil - the trial needs to go to completion, and fairly and squarely.

If a judgment is set aside on the grounds of a material error in law, then double jeopardy does not apply and cannot prevent a retrial. You don't need to make much of an argument for this, it is laid down in statutory law in SA and it is trite that it is not in conflict with the constitutional right relating to double jeopardy. Nearly every case I've researched where the state has sought a retrial due to a question of law, the defence has objected on the grounds of double jeopardy and without fail the objection has been dismissed.

For example http://www.saflii.org/za/cases/ZASCA/2006/165.html:

[31] In the supplementary heads of argument filed for Mtshweni, counsel submits that an accused’s right to a fair trial ‘which is guaranteed by the provisions of Section 35 of the Constitution in relation to the issue of double jeopardy is not affected by section 324 [of the Act].' Neither in English law, nor in Canadian or American law has the protection against double jeopardy been extended to cases where an acquittal had resulted due to technical mistakes, lack of jurisdiction or a reason other than a wrong finding on the merits of the case.

[32] It is clear, therefore, that there is no argument before this court that where a trial court has erred on a question of law, the institution of a new trial will infringe s 35(3)(m). The possibility of double jeopardy does not arise. And, as the State argues, there will be a serious miscarriage of justice should a proper trial not ensue. It is not only an accused whose interests must be protected by the criminal justice system. There must be fairness to the public, represented by the State, as well. There must be fairness to the victims of the crime and their families.

I should point out however, that the statutory law explicitly allowing a retrial is currently held to apply only where there has been a full acquittal and no competent verdict. My own view is that the state should not pursue a retrial.

 

[jay-jay]

I still believe he had his arm outstretched as that's the way he would have been taught. People with training in the use of firearms are not trained to use a bent arm.

Yes, I agree .. but then that puts him back on his stumps again, and I personally don't believe he was (unless what he did was kneel down to make it appear that he was on his stumps).

 

[Mr Fossil]

My Theory link is reinstated below with, what I hope is a suitable Notice added at the beginning of the document. Still a couple of bits to be added to the core timeframe but comments, alternatives, enhancements etc. welcome.

Phone usage charts
Theory
Timeline (13 Feb)
Witness locations (aerial)
Witness locations (graphic)
Witness testimony analysis

 

[mrjitty]

I still believe he had his arm outstretched as that's the way he would have been taught. People with training in the use of firearms are not trained to use a bent arm.

Yes.

I don't see how its possible to get the grouping without adopting a braced firing position

Firing one handed from the hip would be all over the place

 

[Mr Fossil]

Yes.

I don't see how its possible to get the grouping without adopting a braced firing position

Firing one handed from the hip would be all over the place

Really? At such a short distance when leaning against the bathroom wall and with three of the shots fired rapidly by someone who knows how to control a gun?

 

[mrjitty]

Not quite Mr Fossil - the trial needs to go to completion, and fairly and squarely.

If a judgment is set aside on the grounds of a material error in law, then double jeopardy does not apply and cannot prevent a retrial. You don't need to make much of an argument for this, it is laid down in statutory law in SA and it is trite that it is not in conflict with the constitutional right relating to double jeopardy. Nearly every case I've researched where the state has sought a retrial due to a question of law, the defence has objected on the grounds of double jeopardy and without fail the objection has been dismissed.

For example http://www.saflii.org/za/cases/ZASCA/2006/165.html:

[31] In the supplementary heads of argument filed for Mtshweni, counsel submits that an accused’s right to a fair trial ‘which is guaranteed by the provisions of Section 35 of the Constitution in relation to the issue of double jeopardy is not affected by section 324 [of the Act].' Neither in English law, nor in Canadian or American law has the protection against double jeopardy been extended to cases where an acquittal had resulted due to technical mistakes, lack of jurisdiction or a reason other than a wrong finding on the merits of the case.

[32] It is clear, therefore, that there is no argument before this court that where a trial court has erred on a question of law, the institution of a new trial will infringe s 35(3)(m). The possibility of double jeopardy does not arise. And, as the State argues, there will be a serious miscarriage of justice should a proper trial not ensue. It is not only an accused whose interests must be protected by the criminal justice system. There must be fairness to the public, represented by the State, as well. There must be fairness to the victims of the crime and their families.

I should point out however, that the statutory law explicitly allowing a retrial is currently held to apply only where there has been a full acquittal and no competent verdict. My own view is that the state should not pursue a retrial.

I think this is an interesting topic.

In New Zealand, I think it is almost certain there would be a retrial.

The Judge clearly misdirected herself on the law relating to murder.

But it is not easy to say that an Appeal Court can simply fix, this, as it is not clear what is the relevant factual finding.

So I think the matter would have to be reheard on that specific point

 

[mrjitty]

Really? At such a short distance when leaning against the bathroom wall and with three of the shots fired rapidly by someone who knows how to control a gun?

Especially if fired rapidly.

Otherwise how is the recoil being controlled?

I can believe its one handed - but if you are not sighting and have a cocked elbow, its going to be all over the place.

I believe he shot once, readjusted aim, and then delivered a tight grouping directly at the sound he heard.

There is aiming going on.

Or maybe he is one of these guys!

[video=youtube;3a5Qth5BPRk]https://www.youtube.com/watch?v=3a5Qth5BPRk[/video]

 

[pandax81]

I don't post often but have followed this trial closely, and this forum. I think personally that it is likely that they did have the argument and the red mist came down etc. However, I can actually see why the judge has come to the decision she did (or the court did).

Firstly though, I think there have been a couple of cases that might have skewed people's interpretation of the law. In the Rudi Visage case, he wasn't prosecuted simply because he would have had to have been found guilty of eventualis. He fired, with intent, directly at the car driving away to stop the so called burglar, and he admitted that. It was felt that the loss of his daughter was suffering enough but he had the requisite intent for eventualis, with its mandatory sentencing. The 'Jub Jub case was another case that influenced people re OP's trial. This case was wrongly decided, and that has now been put right. Yes he was reckless but he did not have the requisite intent for eventualis. He can still get a stiff sentence for CH comensurate with the recklessness he demonstrated. Plenty of people kill people driving their cars, sometimes recklessly, but few if any get in their cars to intentionally harm others, so cannot be convicted of murder.

Therefore, it is clear from these cases, that what distinguishes eventualis from CH is intent and this is a subjective test, not what any of us might think, the intent of the defendent. Masipa wasn't satisfied that it had been proven BRD that OP had the requisite intent towards anyone, not necessarily of killing but there has to be some intent of causing harm, and therefore eventualis was not available to her. Now, many may not agree of course but that is the court's decision - it was just badly worded in the judgement and didn't include the so called intruder properly. I am not sure an appeal would suceed, as the appeal court wouldn't be able to re examine facts, just the application of the law - i.e. it wouldn't be able to look at the intent of OP again and disagree with the lower court finding on that. It would just look at the test that the court applied, and I am not sure it was an incorrect one, it was just that she didn't clarify it properly and made things probably worse the second day.

You make a lot of assertions here:

-You say it is trite law that murder dolus eventualis requires direct intention to harm.
-You say the court in OP’s case made a finding of fact that he did not intend to harm anybody.*
-You say it was on this ground that the court said in OP’s case it could not find him guilty of murder dolus eventualis.
-You say the court correctly applied the principles of law in determining and explaining the subjective intention of OP and therefore its findings cannot be overturned.
-You say Jub Jub's murder conviction was overturned on the ground that he did not have direct intention to harm anybody.
-You say Rudi Visagie’s admission of the facts as you state them is sufficient to safely convict on murder.

In my view, respectfully, every single one of those assertions is false.

(*If you think about it, you must be claiming the court found OP was just firing warning shots, and screamed like a banshee breaking down the door because he thought he must have given Reeva a bit of a fright. The court made some daft findings, but this was not one of them.)

 

[mrjitty]

My Theory link is reinstated below with, what I hope is a suitable Notice added at the beginning of the document. Still a couple of bits to be added to the core timeframe but comments, alternatives, enhancements etc. welcome.

Phone usage charts
Theory
Timeline (13 Feb)
Witness locations (aerial)
Witness locations (graphic)
Witness testimony analysis

MR F

Just so I can understand better - what is your source for say cell F62 on Sheet 020?

 

[pandax81]

I think this is an interesting topic.

In New Zealand, I think it is almost certain there would be a retrial.

The Judge clearly misdirected herself on the law relating to murder.

But it is not easy to say that an Appeal Court can simply fix, this, as it is not clear what is the relevant factual finding.

So I think the matter would have to be reheard on that specific point

The error in law did not affect the hearing of evidence, and appeal courts re-determine and newly determine findings of fact all the time without recourse to a retrial.

 

[Mr Fossil]

MR F

Just so I can understand better - what is your source for say cell F62 on Sheet 020?

I assume you're referring to the 1:24:48 No network signal at 01:53:57? It is derived and calculated from Moller's I2 Analyst Notebook chart presented in court. Figures shown in bold both before and after this line are a fact because either Moller stated them to the court or I could read them clearly from the chart. At 01:48:48 there is a GPRS connection lasting 309 seconds (Moller explicitly states this). At 03:18:45 the GPRS connection starts 18 seconds before the call to Stander at 03:19:03. I could see this. The chart shows no GPRS between these times and I show no Earliest start and end time in columns A and B so the times are accurate (not estimates).

 

[soozieqtips]

Really? At such a short distance when leaning against the bathroom wall and with three of the shots fired rapidly by someone who knows how to control a gun?

Martin Hood said on the Sky News round up that the grouping showed OP held the gun with both hands, and that if he'd been shooting one handed, in the frenzied state of mind he said he was, the shots would have been all over the place. He also said the grouping showed OP was much more in control than he said he was, and knew exactly what he was doing.

 

[mrjitty]

The error in law did not affect the hearing of evidence, and appeal courts re-determine and newly determine findings of fact all the time without recourse to a retrial.

I was speaking of the consequences in NZ.

It is clear that the Judge clearly misdirected herself on the law.

But furthermore it is not clear what is her finding as to whether OP subjectively foresaw that firing 4 shots at the "intruder" would possibly result in death

I agree the inference is common sense, but at least under the law I am familiar with - the Appeal Court cannot make its own finding on that matter.

 

[JudgeJudi]

Yes.

I don't see how its possible to get the grouping without adopting a braced firing position

Firing one handed from the hip would be all over the place

I agree. The kickback would prevent the grouping.

 

[Mr Fossil]

Even if the firing arm is braced against the bathroom wall (e.g. he's leaning against it as he enters from the bathroom corridor)?

 

[mrjitty]

I assume you're referring to the 1:24:48 No network signal at 01:53:57? It is derived and calculated from Moller's I2 Analyst Notebook chart presented in court. Figures shown in bold both before and after this line are a fact because either Moller stated them to the court or I could read them clearly from the chart. At 01:48:48 there is a GPRS connection lasting 309 seconds (Moller explicitly states this). At 03:18:45 the GPRS connection starts 18 seconds before the call to Stander at 03:19:03. I could see this. The chart shows no GPRS between these times and I show no Earliest start and end time in columns A and B so the times are accurate (not estimates).

Yes

So to clarify - I am trying to understand the following narrow point.

When you say in cell F51 for example "No Network Signal" for 1:35:14, then it is the uncontested evidence of the state that the phone was not connected to the network for that time period?

Because as far as I can see - that establishes as a fact that the connection in cell F52 for example is almost certainly human initiated.

This is significant because it is a circumstantial fact which goes to prove that OP was awake and lying in his version.

Such facts do not need to be proved beyond reasonable doubt, and absent any other salient explanation (and there was none given by the defence) the only sensible factual determination by the Court is that OP initiated these 3 critical antenna activations.

 

[mrjitty]

Even if the firing arm is braced against the bathroom wall (e.g. he's leaning against it as he enters from the bathroom corridor)?

The weapon will kick up a bit, so if you don't have some kind of aiming/extended arm to return the pistol to roughly the same aim point, then the shots won't be tightly grouped.

Anyway - we know there is a clear aiming between the 1 and 2 shots.

 

[Mr Fossil]

Yes

So to clarify - I am trying to understand the following narrow point.

When you say in cell F51 for example "No Network Signal" for 1:35:14, then it is the uncontested evidence of the state that the phone was not connected to the network for that time period?

Because as far as I can see - that establishes as a fact that the connection in cell F52 for example is almost certainly human initiated.

This is significant because it is a circumstantial fact which goes to prove that OP was awake and lying in his version.

Such facts do not need to be proved beyond reasonable doubt, and absent any other salient explanation (and there was none given by the defence) the only sensible factual determination by the Court is that OP initiated these 3 critical antenna activations.

Moller's chart shows precisely when there is a cellular data connection (which he labels GPRS) in place and the duration. So, yes, it is indisputable that the phone had no cellular data connection for that period. It is theoretically possible that it had a Wi-Fi connection which dipped out occasionally or the phone lost signal due to moving around the house. Proving that OP did not have Wi-Fi is therefore critical. Moller states to both Nel and Roux that the GPRS activity implies some unknown app activity. This is simply incorrect.

 

[sleuth-d-]

Yes

So to clarify - I am trying to understand the following narrow point.

When you say in cell F51 for example "No Network Signal" for 1:35:14, then it is the uncontested evidence of the state that the phone was not connected to the network for that time period?

Because as far as I can see - that establishes as a fact that the connection in cell F52 for example is almost certainly human initiated.

This is significant because it is a circumstantial fact which goes to prove that OP was awake and lying in his version.

Such facts do not need to be proved beyond reasonable doubt, and absent any other salient explanation (and there was none given by the defence) the only sensible factual determination by the Court is that OP initiated these 3 critical antenna activations.

it is a huge problem for op if that is the case.

'No Network Signal'
the thing that i can't get past, and that muddies the waters for me is the period between 8:10pm and 8:25pm. where the 0200 phone chart also says no network signal.

why would both op and binge need to lie about whatsapp messages during this period of time? that makes little/no sense. binge was specific about 20:10... and specific about whatsapp. what is to cover up at 8:10-8:25??

questions:
were the whatsapp messages only brief, in the connection window between 20:24:49 and the call commencing at 20:25:07... i.e. only 18 seconds - this seems unlikely.
is the 20:24:49 an error in the chart? or an error in the moller chart?
could the whatsapp messages have gone to reeva's phone? or one of the ipads? .
[i am aware that whatsapp is not native on the ipad, but there is a reasonably simple hack to get it on there... and carl is IT savvy [!!] and it seems op/reeva did both use whatsapp a lot.]

 

[JudgeJudi]

You make a lot of assertions here:

-You say it is trite law that murder dolus eventualis requires direct intention to harm.
-You say the court in OP’s case made a finding of fact that he did not intend to harm anybody.*
-You say it was on this ground that the court said in OP’s case it could not find him guilty of murder dolus eventualis.
-You say the court correctly applied the principles of law in determining and explaining the subjective intention of OP and therefore its findings cannot be overturned.
-You say Jub Jub's murder conviction was overturned on the ground that he did not have direct intention to harm anybody.
-You say Rudi Visagie’s admission of the facts as you state them is sufficient to safely convict on murder.

In my view, respectfully, every single one of those assertions is false.

(*If you think about it, you must be claiming the court found OP was just firing warning shots, and screamed like a banshee breaking down the door because he thought he must have given Reeva a bit of a fright. The court made some daft findings, but this was not one of them.)

One assertion isn't false. In his judgment, Maluleke said: “While it is correct that the role of drugs was clearly established as well as the direct role this played in the conduct of the appellants, this in our view eliminates the conditions of dolus eventualis (direct intention).”

He said the pair had no foresight of the fatal accident. Maluleke, however, did not excuse their behaviour.

“Their conduct cut short the lives of four innocent schoolchildren and completely confined two others to a life of care.”

http://www.iol.co.za/news/crime-courts/state-may-appeal-jub-jub-verdict-1.1762191#.VDZ-oixxnBw