Discussion Thread #60 - 14.9.12 ~ the appeal~

[mrjitty]

Interestingly, Roux said yesterday that whilst there was provision to claim costs for the sentence application failing there is no provision for costs if the application for the reservation of a question of law failed. So they don't get costs on the ammo if I understand this correctly. Not sure I understand why they would be treated differently.

Yes - you could well be right about that.

It will all be in the rule book - we had that other poster who was very good on this stuff!

 

[mrjitty]

So let's say the appeal is heard in the first available SCA term (Feb), any idea how long that process will be?! I'm getting impatient already!

IMO the actual proceedings would not take long.

There are no witnesses.

Each side makes detailed submissions in writing.

Then you get to present your case and often (at least in my country) there will be questions and discussion with the judges.

How long the judges might reserve their decision for on average I don't know.

Bigger cases in other jurisdictions can take some time to see a decision.

 

[WilliamMunter]

Did anyone manage to pick up what Andrea Johnson said just before the end of today's session?

 

[Deleted member 102539]

http://www.iol.co.za/news/crime-courts/oscar-s-family-to-abide-by-ruling-1.1793508#.VIg9sXsZli1


Oscar’s family to ‘abide by ruling’

"We note the finding of the court and abide by the ruling,” his uncle Arnold Pistorius said in a one-line statement.

Earlier, Judge Thokozile Masipa granted the State's application to appeal Pistorius's culpable homicide conviction, but dismissed the application to appeal his five-year jail sentence.

“The application for leave to appeal against sentence is dismissed,” she said.

However, on the application against his conviction, she said: “I am satisfied that the points raised by the applicant (the State)are indeed a question of law.”

Dave Rutherford ‏@Dave_Rutherford 52 Min.Vor 52 Minuten

#Pistorius family agree to 'abide by the ruling' of the High Court. http://tinyurl.com/lwhqfxn Real arrogance that - they don't get a choice


Comments:
She should had handover this case to another judge from the beginning. Or the court should have chosen someone with more working experience than 14 years. They knew the trial will be worldwide live on TV and radio. Why did they choose this judge Masipa? Because of her skin color or sex?
FAIL!

• 2 hours ago

What she did was probably one of the most cunning moves ever. It was very clever of her and she deserves praise for her initial verdict.
He would have appealed and been out of jail for another 6 months if she had convicted him of murder. This way he's in jail and has no option to apply for bail while the appeal is being heard.
He will be convicted of murder by the SCA without doubt.

 

[Deleted member 102539]

TeeJay ‏@Triashle1 1 Std.Vor 1 Stunde

#FIDENTIA,#JARTHURBROWN, #Pistorius,#ShrienDewani -the jail time you get in SA:
- FRAUD - 15yrs
- CULPABLE HOMICIDE - 5yrs
- MURDER -FREEDOM!!

 

[mrjitty]

I don't buy into the "cunning plan"

If she wanted to find him guilty of murder - she would have done so and it would have extremely difficult for him to win on appeal once she made factual findings - e.g. that the witnesses heard screaming.

The best way to make a judgement appeal proof is to make it rigourous, exact and logical.

 

[Susza]

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.

Thanks, soozie. That's an interesting comparison...
As a language teacher, when my students (16-20 years old) have oral exams, I ask them at the end of the exam to do their own evaluation and self critic. Believe me, I'm always overwhelmed by their sense of judgement; what they critisize and the mark they would give to themselves almost always corresponds to my evaluation.
They have this fabulous capacity, why does JM not have it?

 

[soozieqtips]

What does it mean for the family to "abide" by the High Court's decision to allow the State to appeal OP's conviction? Do they have a choice? Can they say we won't abide by it and do something to prevent it? As I recall, the OP clan are not legal eagles, so how can they make out they're "abiding" by something if they have no choice? Is this their way of saying "look at us and see how compliant we are 'abiding' by the decision"?

 

[Susza]

Who will have to pay for Roux' representation of OP at the SCA?

Well, I'm a total layman but I thought this is what Masipa meant when she said that the State has to pay for the defence costs "provocated" by the State's leave to appeal.
Does this make sense?

 

[Deleted member 102539]

www.sabreakingnews.co.za/2014/12/10/huge-ammo-...

Huge Ammo Stash Found In Mitchell’s Plain Home

Doesn't matter, belongs to a father or friend ...

 

[JudgeJudi]

I agree.

That decision was clearly incorrect.

In such cases, intention relates only to positive knowledge of possession. As a question of fact - he was clearly in control, knowingly, of the ammo.

Masipa wrongly looked at cases where the accused takes no action to posses (e.g. someone puts a gun down next to you) or the accused does not intend to possess. e.g. you find a bag of cocaine at your front door and telephone the police to come get it.

Otherwise as you say, you could hold drugs or guns for someone else - but have no intention to possess?

Absurd.

IIRC Judge Greenland said he'd never heard animus applied the way Roux did, or similar.

 

[eimajjjj]

So are we right in thinking that as there is now a possibility his conviction may be changed to murder, and thus a stiffer sentence, he would become a flight risk if granted early release while/if appeal continues so will have to remain locked up until heard? If that's the case, I doubt SPA care how long this takes!

 

[sleuth-d-]

Well, I'm a total layman but I thought this is what Masipa meant when she said that the State has to pay for the defence costs "provocated" by the State's leave to appeal.
Does this make sense?

i understood masipa to mean that costs will be borne by the prosecution for the part of the appeal that failed... i.e. the appeal against sentence.

no mention of costs in the failed appeal against count four. i may have missed that [or maybe, as part of the verdict appeal succeeded at this stage, no costs are liable]

i assume that if the appeal on conviction fails at the supreme court then the prosecution will be liable for costs at that stage. i.e. costs are awarded at the point an appeal fails.

moo

 

[JudgeJudi]

I wonder whether by dismissing the appeal of sentence and the ammo charge Masipa:

1. Was trying to save face.
2. Was being obstinate.
3. Was, as someone above suggested, still "confused" about a few things (...everything).
4. Other?

More likely hoping that Nel won't appeal the sentence in the SCA and is unsuccessful in having the conviction set aside, thereby allowing OP to walk out of prison after 10 months if the Commissioner agrees.

Nel must appeal the sentence, that way even if he loses with the conviction, he gets a second bite at the cherry by arguing for a lengthier sentence for CH.

 

[AJ_DS]

Another prime example of a nonsensical ruling, IMO

On the sentence :

- Masipa stated that public interest should have no bering on the sentence… really ?!? Why do we have trials if not for public interest ? The foundation of Justice IS public interest.

- Masipa stated that Reeva's parents were satisfied with the sentence… aren't the parents part of the public ?... Isn't their view on the sentence an expression of their interest ??

- Masipa stated that she had discretionary powers when handing down a sentence… correct… but her view of what she finds an appropriate sentence may not be shared by other Courts, the ruling body or society… therefore her standard for what may be shockingly inappropriate is biased… since the State has expressed the sentence is shockingly inappropriate, Masipa should have deferred to a higher court to decide whether the State's case has merit.

- Judges who are confident about their ruling have no objections for a higher court to scrutinize them… the fact that Masipa refuses to have her judicial discretion scrutinized is very telling.

On count 4 :

- If ever their was a case for clarifying the law it was this one… what is the legal definition of possession ?

I own a house… I reside alone in that house… I own a safe… the safe is in my house, in my bedroom… I store many of my personal belongings in that safe… I know their is ammunition in my safe… and I know that it is illegal for me to possess this ammunition…

Police legally discover the ammunition… State charges and prosecutes… Accused alleges without any corroborating evidence whatsoever "It's not mine… my estranged father asked me if he could store it in my safe… and I said yes"… Father refuses to make any statement, provide affidavit or testify.

Judge acquits the accused because the State failed to provide sufficient evidence that the accused intended to possess and/or use the illegal ammunition !!!… what does Masipa require a receipt for the ammunition purchased with OP's credit card AND a recording of OP purchasing the ammunition WITH a confession that he wanted to use it ?!?… FFS OP had placed an order for a .38 handgun… order which he cancelled after his arrest.

… now replace "ammunition" with "firearm" or "explosives" or "drugs" or "WMD"… anyone being found with anything illegal can simply do as OP did and avoid a guilty verdict.

- Masipa has demonstrated that she presides over a Mickey Mouse Court !

 

[JudgeJudi]

Agreed

It's clearly up to the SC to decide what is the correct test - not the High Court.

So she should of allowed it even if she is still being so bone headed.

The irony exists that the more confident a trial judge is with their decision the more confident they are in referring a matter to appeal. It’s usually the weak judges who in an attempt to avoid some kind of embarrassment will refuse it.

 

[mrjitty]

The irony exists that the more confident a trial judge is with their decision the more confident they are in referring a matter to appeal. It’s usually the weak judges who in an attempt to avoid some kind of embarrassment will refuse it.

I shouldn't hope, but reading some of her decision today, I wonder if there is a unfavourable judicial wind blowing?

I would have expected her simply to deal with Nel's application and announce it properly raised a legal issue capable of appeal.

It seemed strange for her to flag up that her decision might be reversed

 

[AJ_DS]

The irony exists that the more confident a trial judge is with their decision the more confident they are in referring a matter to appeal. It’s usually the weak judges who in an attempt to avoid some kind of embarrassment will refuse it.

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.

 

[JudgeJudi]

<Respectfully snipped>

You heard it here first………. He will not be released from Prison until his appeal has been heard…….

He cannot be freed on licence like he was freed on bail, with what is ostensibly, a Murder Charge hanging over him. They work differently. Bail assumes guilty of nothing until proven. Licence means you have been convicted of something. As someone convicted of Homicide, he will be ineligible for early release until the matter is concluded.

:jail::happydance::jail:

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?

L2L, that's correct. Dr Llewellyn Curlewis (Acting High Court Judge) said as much in an interview he gave after today's proceedings. However he pointed out that it would be better for OP to serve out his time.

“Well obviously they can approach the court at any stage for bail pending appeal. However since he’s already in prison serving his sentence, I do not see any benefit for the defence and for OP himself to apply at this stage for bail pending appeal. There’s just no merit or benefit for him in it. The sooner he starts his sentence and disposes of that, the better for himself”.

https://www.youtube.com/watch?v=SU4DSSfjD6M#t=750 at 8:20 mins

He also says he doesn’t believe this matter will be finished before the middle of next year.

 

[JudgeJudi]

Will it be Roux involved in the appeal process? My impression is that it's a very dry, academic aspect of the law - not necessarily one in which his theatrics and verbal trickery will thrive.

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.