Discussion Thread #60 - 14.9.12 ~ the appeal~

[44ALLAN]

Hi Allan!
Not kidding!! People don't believe me when I tell them about her ridiculous and bizarre reasoning in her judgement. So I'll read some of the excerpts and riveting conversations and/or hilarity may ensue. Especially that she simply dismissed all of the ear witnesses, and, more importantly, her reasoning that:
"Clearly he did not subjectively foresee
this as a possibility that he would kill the person behind the door, let
alone the deceased, as he thought she was in the bedroom at the time. "

Page 50, Paragraph 20 on this link: https://s3-eu-west-1.amazonaws.com/pmb-portals/behind-the-door/downloads/transcripts/judgment.pdf

Oh, and also this little gem:
"If the accused for example had awoken in the
middle of the night and in darkness saw a silhouette hovering next to his
bed and had in a panic grabbed his firearm and shot at that figure, only
to find that it was the deceased, his conduct would have been
understandable and perhaps excusable." - Page 55 on the same link above

Hi Apples.

I want to read it to my friends at an upcoming dinner party for *advertiser censored* and giggles.

BiB is the bit I was laughing at lol.
What the heck is '*advertiser censored* and giggles' ?
Never heard that one before hahaha.

 

[ApplesInMyBra]

Hi Apples.

I want to read it to my friends at an upcoming dinner party for *advertiser censored* and giggles.

BiB is the bit I was laughing at lol.
What the heck is '*advertiser censored* and giggles' ?
Never heard that one before hahaha.

Hi Allan,
I guess it is a South African saying meaning doing something for fun or amusement. Here is another example:
"Let's go put a flaming bag of poo on Mr.Henderson's doorstep, ya know, just for *advertiser censored* and giggles!"

 

[44ALLAN]

Hi Allan,
I guess it is a South African saying meaning doing something for fun or amusement. Here is another example:
"Let's go put a flaming bag of poo on Mr.Henderson's doorstep, ya know, just for *advertiser censored* and giggles!"

Ahh ok .............get you now lol.
When I was young we used to................nahh better not go there :facepalm:

 

[jay-jay]

On the subject of domestic abuse, I just read an interesting article. While I’m not suggesting OP battered anyone, OP’s profile is perfect:

“Several factors have been identified to predict when batterers may use lethal violence. These include excessive jealousy or depression on the part of the batterer, stalking of the victim, threats of homicide or suicide in the past, drug or alcohol abuse. A risk of lethal violence has also been associated with the batterer’s possession of or access to weapons, the use of weapons or threats of such use in prior incidents, and escalation of the violence in frequency or severity. Research indicates that the most dangerous time for a battered woman is after she ends the relationship. In the United States, research indicates that women who leave their batterers are at a 75% greater risk of being killed by their batterers than those who stay”.

http://www1.umn.edu/humanrts/svaw/domestic/explore/6support.htm

• We know he was extremely jealous.
• Reeva told Gina, not necessarily joking, that OP was stalking her.
• A history of alcohol abuse.
• Possessed firearms, loved using them, and always carried one.
• An extremely dramatic escalation of violence in both frequency and severity in the preceding 12months.

.. add to that a final bullet point that all the pointers were that Reeva was just about to leave the relationship (following an argument that night, which sounded like the straw that broke the camel's back for Reeva .. I reckon she'd had enough of him by 3am on Valentine's Day) and that decision put her at huge risk of being killed as opposed to staying, and which was bourne out that morning.

 

[jilly]

As far as I'm aware she'll only supply the Court of Appeal with a report. Counsel will present heads of argument.

“When the Appellate Division is approached in a criminal matter, the trial judge who convicted the accused must prepare a report giving his or her opinion upon the case in order to assist the Appellate Division to reach a just decision.

http://www.legalcity.net/Index.cfm?fuseaction=RIGHTS.article&ArticleID=6400430

I wonder who's going to help her with this report.:waitasec:

 

[44ALLAN]

Just a small example to illustrate my point…

Interview of Carl conducted by 2 Detectives :

(for sake of argument let us assume Carl is being honest and truthful)

Q : How fast were you driving ?

A : I don't remember exactly but I usually drive around the speed limit… so about 100-110 kph

Q : Do you know we have a video recording of your car taken by a traffic camera ?

A : No I didn't.

Q : The video shows you were driving between 160 and 170 kph… a video does not lie… do you wish to change your previous answer ?

A : …huh...

Q : Let me be perfectly honest with you… We have the traffic video, we have crash forensics, we have several witnesses… we can prove that you were going at least at 160 kph… we just want to help you but if you keep lying to us we just won't be able to help you… if you tell us the truth we can sway to State's attorney to take it easy on you… but if you insist on lying, the Judge will throw the book at you and you'll end up having to serve some prison time… and I don't see you fairing to well in prison amongst hardened criminals… you're not a criminal, are you ?

A : No.

Q : Exactly… you don't deserve to be incarcerated for a simple mistake… for being a little bit in a hurry to get back home… Am I right ?… So be honest with me, how fast were you driving ?

A : Like I said I don't remember but it's possible that when overtaking a truck I may have gone up to 130, 140 or maybe even 150 kph, I'm not sure… but it would have been just for a few seconds.

Interview notes written by the Detective :

Q : How fast were you driving ?

A : 100 kph.

Q : Do you know there are traffic cameras on the highway that record everything and can determine the speed of cars ?

A : No I didn't.

Q : Do you wish to change your previous answer ? How fast were you driving ?

A : 150 kph.

Interview notes signed by both Detectives

… Sometime after, Carl is charged with reckless driving

… in the evidence discovery, there are no traffic videos… crash forensics report indicates Carl's vehicle speed as "inconclusive"… only 1 witness statement indicates that Carl was "going faster than 100 kph when Carl passed him on the left"

… Carl reads the interview notes and tells his attorney : "This is not what I said… this is an incomplete transcript of what they asked and what I answered"

Suddenly Carl is in a very weak position… The 2 detectives will testify and back each other up with the interview notes as corroborating evidence :

1. That Carl can and does lie to authority figures… so Carl's credibility is pretty much shot

2. That Carl made a full admission that he was driving at 150 kph

Carl's attorney recommends a plea bargain because case is not winnable

Carl pleads guilty… sentence : 40 hours community service and 1 year suspension of drivers license… not so bad, right ?

… But it goes much further than that :

- The other driver in the accident launches a civil suit against Carl… he suffers back trauma, can't work and support his family… there is "proof" Carl was driving at 150 kph and he plead guilty to reckless driving

- Carl's car insurance premiums go through the roof

- Carl has a criminal record which will follow him the rest of his life

Now replace Carl with your son or your daughter… would you still advise them to volunteer a full and honest statement to police investigators ?

Yup definitely would....................I was brought up that way and so are my kids.
Question is...............would you

 

[AJ_DS]

Yup definitely would....................I was brought up that way and so are my kids.
Question is...............would you

I believe my post implicitly yet unmistakably implied that I would most certainly NOT volunteer a statement to police investigators.

You would prefer to see your kids railroaded by Police, charged by State and sentenced by Judge rather than see them exercise their fundamental and hard fought rights to silence, to due process and to a fair Trial.

To each his own I suppose… but I would respectfully suggest that you objectively explain to your kids BOTH options and their respective possible benefits/consequences as it is their future they will be unnecessarily jeopardizing on the basis of your values and the upbringing your are providing them.

I believe most (if not all) attorneys would disagree with you… even Police officers are obligated by Law to remind you of your right to silence BUT they'll always test you in the hopes you'll waive it and blab to them.

… but you probably know best… cheers !

 

[JudgeJudi]

I wonder who's going to help her with this report.:waitasec:

Well, no doubt the person who used different language and phrases in the judgment to those normally used by Masipa.

 

[JudgeJudi]

AJ, you’ve posted a number of lengthy posts regarding statements to the police and a person’s rights. The following information relates to the law in South Africa regarding car crashes and is taken from a SA website, some of which I’ve paraphrased:

If you’ve been involved in an accident, you’re under no obligation to make a statement to the police or to anybody else involved or present at the scene. This also applies afterwards at the police station.

If you agree to make a statement to the police, you can write it yourself in your own words to give an accurate account of what happened. “The police might give the impression that the correct procedure is for the police officer to write down a statement at a motorist's dictation. This is not necessarily true, and a statement may sometimes become a summary of how the police, not the motorist, believe the accident occurred”.

When your statement has been completed, the police officer will read it aloud, or ask you to read it out yourself. Once you’re satisfied that it’s accurate, you’ll be requested to sign it”.

http://www.legalcity.net/Index.cfm?fuseaction=RIGHTS.article&ArticleID=5400679

At the end of a statement the following should appear:

“This statement made by me accurately sets out the evidence that I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I know to be false or do not believe to be true.

Statements to the Police

“If you feel that an officer's questions are directed at you in order to bring a charge, it may be wiser to say nothing or ask to see an attorney.

Many people who are questioned by the police may answer the questions because they believe they have no choice. In fact, they are often at liberty to refuse to answer questions. Although there is no general duty to answer a police officer's questions, there are some circumstances when it is an offence not to do so”. You should seek legal advice if you’re unsure about what questions you are obliged to answer.

“If you have been arrested, you should be cautioned in the following way: 'I am a police officer and am making inquiries into [so and so] and I want to know anything you can tell me about it. It is a serious matter and I must warn you to be careful of what you say.

If you are formally charged with an offence, you should be asked whether you have anything to say, and be told that you are not obliged to say anything, but that whatever you do say will be taken down in writing and may be used in evidence against you. If you're an accused or suspectin a case, the police may ask you any questions. However, you have the right to refuse to answer any question that may incriminate you - that is, to refuse to give answers that could be interpreted as admitting guilt”.

http://www.legalcity.net/Index.cfm?fuseaction=RIGHTS.article&ArticleID=2972680


What you’ve been referring to in your posts has been the “Miranda caution”. This is a totally different thing. In the United States (and other countries have similar versions) if you are taken into custody AND you are being questioned then the Police give what is called a Miranda warning. If you are NOT going to be questioned the Miranda Warning is not required.

Once a police officer deprives a suspect of freedom of action in any way, the suspect is in police custody and Miranda is activated.

Accordingly, police officers usually begin their questioning of a person in custody by first making the following statements:

• You have the right to remain silent.
• If you do say anything, what you say can be used against you in a court of law.
• You have the right to consult with a lawyer and have that lawyer present during any questioning.
• If you cannot afford a lawyer, one will be appointed for you if you so desire.
• If you choose to talk to the police officer, you have the right to stop the interview at any time.

http://www.nolo.com/legal-encyclopedia/questioning-suspects-custody-miranda-rule-html

The Miranda warning is a right to silence warning given by police in the United States to criminal suspects in police custody (or in a custodial interrogation) before they are interrogated to preserve the admissibility of their statements against them in criminal proceedings.

http://en.wikipedia.org/wiki/Miranda_warning

Carl was not arrested, was not detained, was not being interrogated and had not been charged with a criminal offence. He was merely asked to provide a statement. On the advice of, no doubt Oldwage, he declined, and this is why he was charged.

Having said all that, we’re dealing with a member of the family who has a happy knack of getting into serious trouble when he’s behind the wheel of a car as well as a person who thinks it’s fine and dandy to delete data from a phone stolen from a murder scene. He or Oldwage was quite at liberty to ask the police for a copy of the incident report and also to ask witnesses for either details or a copy of their statement, not that they were obliged to give it to him. Hakuna matata (Swahili for no worries). There’s always Kenny Oldwage to help him out. It’s quite possible neither the police nor witnesses wanted to assist him and so Kenny advised him to keep his mouth shut until legal proceedings have been commenced and he acquires them via discovery. By then he’ll most definitely have a copy of everything he needs and it’s a simple matter of tailoring his story to minimize what, if anything, he did wrong. Of course he could always play the “I don’t know, can’t remember” card and blame shock from the accident which caused his amnesia. I can’t wait to hear the outcome of it all.

Maybe those rhino horns couldn’t assist because in addition to the other poor driver, there were too many witnesses.

P.S. The traffic was very slow moving.

 

[AJ_DS]

AJ, you’ve posted a number of lengthy posts regarding statements to the police and a person’s rights. The following information relates to the law in South Africa regarding car crashes and is taken from a SA website, some of which I’ve paraphrased:

If you’ve been involved in an accident, you’re under no obligation to make a statement to the police or to anybody else involved or present at the scene. This also applies afterwards at the police station.

If you agree to make a statement to the police, you can write it yourself in your own words to give an accurate account of what happened. “The police might give the impression that the correct procedure is for the police officer to write down a statement at a motorist's dictation. This is not necessarily true, and a statement may sometimes become a summary of how the police, not the motorist, believe the accident occurred”.

When your statement has been completed, the police officer will read it aloud, or ask you to read it out yourself. Once you’re satisfied that it’s accurate, you’ll be requested to sign it”.

http://www.legalcity.net/Index.cfm?fuseaction=RIGHTS.article&ArticleID=5400679

At the end of a statement the following should appear:

“This statement made by me accurately sets out the evidence that I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I know to be false or do not believe to be true.

Statements to the Police

“If you feel that an officer's questions are directed at you in order to bring a charge, it may be wiser to say nothing or ask to see an attorney.

Many people who are questioned by the police may answer the questions because they believe they have no choice. In fact, they are often at liberty to refuse to answer questions. Although there is no general duty to answer a police officer's questions, there are some circumstances when it is an offence not to do so”. You should seek legal advice if you’re unsure about what questions you are obliged to answer.

“If you have been arrested, you should be cautioned in the following way: 'I am a police officer and am making inquiries into [so and so] and I want to know anything you can tell me about it. It is a serious matter and I must warn you to be careful of what you say.

If you are formally charged with an offence, you should be asked whether you have anything to say, and be told that you are not obliged to say anything, but that whatever you do say will be taken down in writing and may be used in evidence against you. If you're an accused or suspectin a case, the police may ask you any questions. However, you have the right to refuse to answer any question that may incriminate you - that is, to refuse to give answers that could be interpreted as admitting guilt”.

http://www.legalcity.net/Index.cfm?fuseaction=RIGHTS.article&ArticleID=2972680


What you’ve been referring to in your posts has been the “Miranda caution”. This is a totally different thing. In the United States (and other countries have similar versions) if you are taken into custody AND you are being questioned then the Police give what is called a Miranda warning. If you are NOT going to be questioned the Miranda Warning is not required.

Once a police officer deprives a suspect of freedom of action in any way, the suspect is in police custody and Miranda is activated.

Accordingly, police officers usually begin their questioning of a person in custody by first making the following statements:

• You have the right to remain silent.
• If you do say anything, what you say can be used against you in a court of law.
• You have the right to consult with a lawyer and have that lawyer present during any questioning.
• If you cannot afford a lawyer, one will be appointed for you if you so desire.
• If you choose to talk to the police officer, you have the right to stop the interview at any time.

http://www.nolo.com/legal-encyclopedia/questioning-suspects-custody-miranda-rule-html

The Miranda warning is a right to silence warning given by police in the United States to criminal suspects in police custody (or in a custodial interrogation) before they are interrogated to preserve the admissibility of their statements against them in criminal proceedings.

http://en.wikipedia.org/wiki/Miranda_warning

Thanks for the great post and references !

I believe my opinions on remaining silent and consulting with an attorney before saying anything is well illustrated in the references you provided.

From http://www.legalcity.net/Index.cfm?fuseaction=RIGHTS.article&ArticleID=5400679

"Generally, the less said at the scene of an accident, the better. A seemingly innocent remark can subsequently be given a sinister twist during cross-examination in court and might even be interpreted later as an admission of liability. Furthermore, the standard motor-insurance policies usually prohibits any 'admission, offer, promise, payment or indemnity' being made by, or on behalf of, the insured motorist. A breach of this term may invalidate the policy."

"If you have been involved in an accident you are under no obligation to make a statement to the police or to anybody else involved or present at the scene. This rule applies equally at the scene of the accident and afterwards at the police station. You would be entirely within your rights to refuse to discuss an accident with a police officer."

1. The worst thing to do is to make any sort sort of statement… even an innocent remark (from an innocent person) may be twisted and interpreted as an admission of liability… in which case you may be found guilty (or have to plead guilty), be sentenced and possibly loose insurance coverage.

"The worst time to try to evaluate the situation is probably just after the accident has occurred. Those involved are likely to be in an emotional or shocked state and unsure of the extent of damage or injury.Anyone who admits liability, or even appears to do so, could be taking on an obligation without realising its consequences".

2. The worse time to make a statement is at the scene of the accident (or at the hospital)… but this when police officers will attempt to convince you of making such a statement… you do not have all the facts… you may genuinely believe you are or are not responsible BUT you may be incorrect or ultimately incapable of proving it in a Courtroom… the other driver may succumb to his injuries and die moments after you make your statement… suddenly, you're not looking at a possible reckless driving charge but at vehicular manslaughter !… the accident may not be the direct cause of death (89-year old man with preexisting medical conditions) but good luck in proving that at Trial : the accused blaming the deceased for his own demise… that's always very popular with Judges.

3. And what about the other driver and bystander witnesses ?… are you confident their statements will be genuinely honest, accurate and uninfluenced by shock or emotions ?

"If you agree to make a statement to the police, you may write it down yourself, using your own words to give an accurate account of what happened. Avoid vague or ambiguous phrases which can later be misinterpreted or misconstrued. The police might give the impression that the correct procedure is for the police officer to write down a statement at a motorist's dictation. This is not necessarily true, and a statement may sometimes become a summary of how the police, not the motorist, believe the accident occurred."

4. Police will want to write the statement themselves as they will claim it is the correct procedure BUT it's not necessarily true !!… What does that mean ? Sometimes it is true but sometimes it is not ? How does one determine which is which ? Does it mean the Police officer may lie to you about their own procedures ? Can you really debate Police procedures with a Police officer ? The officer has probably written hundreds if not thousands of these statements, he is experienced in these matters and could very well surreptitiously incriminate you… as for you, perhaps it is your first statement and you could unwittingly incriminate yourself.

From http://www.legalcity.net/Index.cfm?fuseaction=RIGHTS.article&ArticleID=2972680

"The police have wide powers under the law… The police have extensive legislative powers… The police may act only within the authority specifically granted by law."

5. Who will stop a Police officer from acting outside his authority ?… Another Police officer : a colleague of the brotherhood ?… I think not !… they are much more likely to back each other up in everything.

"The police may question anyone they do not suspect of being concerned in a crime without any caution being given."

6. That's a wonderful gray area for a Police officer… Suspicion is a wide-ranging concept and Police officers are not obligated to inform you that you are a possible suspect or could eventually become a suspect depending on the outcome of the ongoing investigation… they would only have to testify that they did not suspect you until AFTER you gave an incriminating statement… hence, they are NOT obligated to caution you of your rights before they interrogate you.

"If the police have decided to arrest someone, or a person is under suspicion, they must ask questions that might help to establish his or her innocence. The police are not allowed to ask questions in order to gather incriminating evidence against the man."

7. Another wonderfully gray area for a Police officer… "decided to arrest" and "is under suspicion", 2 very ambiguous statements with lots of room to maneuver for an experienced Police investigator… If they have decided to arrest you, then it means they believe you are guilty… they choose which questions to ask, which not to ask and they are authorized to lie and deceived you… Basically, they will say that they asked questions in the hope of establishing your innocence BUT you gave them incriminating answers... it's not their fault !… all of which will be "diligently recorded" in writing by one of the investigators to reflect their goodwill and your guilt.

8. How does one differentiate a question to establish innocence from a question to establish guilt ?… you can't because they are exactly the same… what matters is the answers given to those questions… e.g. Q:"Are you responsible for the accident ?", A:"No" (establishes innocence), A:"Yes" (establishes guilt)... but even a seemingly non-inciminating answer can ultimately be useful to prove your guilt at Trial…BUT you will be enable to determine this until you and your attorney see the evidence against you.

9. How about Q:"How did the accident happen ?"… is this a question to establish innocence or does it establish guilt ?… neither, it is a neutral open-ended question which Police officers are likely to ask you… and your answer to that question will most certainly contain much useful information that may be used against you.

10. Furthermore, how naive does one have to be to believe that once under arrest or under suspicion, Police investigators are desperately trying to prove your innocence !?!… Their job description is to gather evidence that will enable the State to lay charges and win convictions… that's how they get promoted and rise through police ranks… no Police officer was ever promoted on the basis of the number of established innocents !!

"You should be asked whether you have anything to say, and be told that you are not obliged to say anything, but that whatever you do say will be taken down in writing and may be used in evidence against you."

11. Taken down in writing by WHOM ?… certainly not you… The Police detective will be writing it down and you will have absolutely no control as to what he's writing… and the content of that document will be used against you at Trial… and both Detectives will swear under oath to it's content… as the accused, good luck in convincing a Judge that said document is incorrect, that the Detective maliciously or otherwise made a false account of your statement and that both Detectives are now perjuring themselves when corroborating each others testimony.

 

[AJ_DS]

Carl was not arrested, was not detained, was not being interrogated and had not been charged with a criminal offence. He was merely asked to provide a statement. On the advice of, no doubt Oldwage, he declined, and this is why he was charged.

Having said all that, we’re dealing with a member of the family who has a happy knack of getting into serious trouble when he’s behind the wheel of a car as well as a person who thinks it’s fine and dandy to delete data from a phone stolen from a murder scene. He or Oldwage was quite at liberty to ask the police for a copy of the incident report and also to ask witnesses for either details or a copy of their statement, not that they were obliged to give it to him. Hakuna matata (Swahili for no worries). There’s always Kenny Oldwage to help him out. It’s quite possible neither the police nor witnesses wanted to assist him and so Kenny advised him to keep his mouth shut until legal proceedings have been commenced and he acquires them via discovery. By then he’ll most definitely have a copy of everything he needs and it’s a simple matter of tailoring his story to minimize what, if anything, he did wrong. Of course he could always play the “I don’t know, can’t remember” card and blame shock from the accident which caused his amnesia. I can’t wait to hear the outcome of it all.

Maybe those rhino horns couldn’t assist because in addition to the other poor driver, there were too many witnesses.

P.S. The traffic was very slow moving.

Do you really believe the State decided to lay charges against Carl because he declined to make a statement to Police ?

Do you not believe Police investigators had enough evidence (forensics & witnesses) so as to convince the State that criminal charges should be laid and the case could be won ?

I suppose we will eventually find out what type of evidence they had against Carl… but I suspect the refusal to give a statement will not be brought up at Trial since it would be illegal to bring charges against anyone on that basis.

Traffic was very slow moving ??… do we have confirmation of this ?

When there is slow moving traffic it is impossible to go fast (unless driving on the road's shoulder or into the lane of oncoming traffic)… I'm no crash forensic expert, but the photos of the car crash show 2 very mangled cars which can only be caused by a relatively high speed collision.

 

[44ALLAN]

I believe my post implicitly yet unmistakably implied that I would most certainly NOT volunteer a statement to police investigators.

You would prefer to see your kids railroaded by Police, charged by State and sentenced by Judge rather than see them exercise their fundamental and hard fought rights to silence, to due process and to a fair Trial.

To each his own I suppose… but I would respectfully suggest that you objectively explain to your kids BOTH options and their respective possible benefits/consequences as it is their future they will be unnecessarily jeopardizing on the basis of your values and the upbringing your are providing them.

I believe most (if not all) attorneys would disagree with you… even Police officers are obligated by Law to remind you of your right to silence BUT they'll always test you in the hopes you'll waive it and blab to them.

… but you probably know best… cheers !

Nothing wrong with being brought up to tell the truth IMO.
I was and so were my kids thanks very much.

BiB comes across as pretty patronising seeing as you don't know me and not appreciated at all !

 

[AJ_DS]

Nothing wrong with being brought up to tell the truth IMO.
I was and so were my kids thanks very much.

BiB comes across as pretty patronising seeing as you don't know me and not appreciated at all !

BiB… apologies… was not my intention but I get that it may have come across that way.

I NEVER suggested that one should not tell the truth to police investigators… only that one should remain silent and consult with an attorney as the truth may get you in as much trouble as a lie in the legal arena… not to mention that your truth may be misquoted or misinterpreted, hence the need to protect oneself when making a truthful statement.

Furthermore, truth is a subjective concept… you may be genuinely truthful but objectively incorrect in your beliefs.

 

[JudgeJudi]

I almost kinda sorta feel sorry for Masipa. She’s gonna have her work cut out for her. Trying to explain the hot mess that was her verdict should be very enlightening. LOL

Remember the adage "If you can't stand the heat, get out of the kitchen", or in Masipa's case, out of the courtroom.
She made her bed, quite deliberately, and she can lie in it as far as I'm concerned. No sympathy at all from me.

Speaking of out of the courtroom, has anyone heard about her hearing any further trials. There was talk of her retirement a few months ago. Maybe that was just wishful thinking on the part of someone, or many.

 

[JudgeJudi]

This is hilarious. I was looking for something in the SA courts and came across this:

"17. The other duty judge, presiding in what is known as the 'Fast Lane' Court, will deal with the following matters:

http://www.saflii.org/za/other/ZARC/2009/1.html

Well now, IMO Carl's matter should be heard here because that's where he likes to be. :floorlaugh:
I can just see the newspaper headlines. The press would have a field day.

 

[JudgeJudi]

AJ, rather than address the individual comments in your posts, I just want to point something out.

Firstly, motor vehicle accidents that go to trial are usually heard in civil courts and relate to damages. The greatest part of damages is what's called "general damages" and this relates to loss of income. A seriously wounded person may never work again and they'll claim $X per week for the balance of their working life. Then there are "special damages" which covers all the medical bills, physio, medical care at home etc, past, present and future caused as a direct result of the accident. Negligent or reckless driving causing injury is the most common reason for legal proceedings.

I think you may be confusing the above form of negligence with "criminal negligence".

Sometimes there has already been a criminal conviction based on the same conduct related to the crash, and a civil court will accept a certified conviction as sufficient proof that the defendant is responsible for the damages. The standard of proof in a civil case for car crash injuries/wrongful death is lower than in a criminal case, so a conviction in criminal court is more than enough evidence”.

http://blogs.findlaw.com/injured/2013/10/can-criminal-charges-affect-car-crash-lawsuits.html

If someone is charged and convicted of a criminal offense that relates to fault in a car accident -- either by recklessness, negligence, or bad intent -- then there is sufficient proof that the convicted driver was responsible for the injuries.

Convictions for DUI can also prove useful in civil court, as violating laws which are meant to protect driver safety can be considered negligence per se.

I'll give you an example to try and explain the difference. Car A is driving along the highway at the prescribed speed limit. Car B which is travelling behind him is also driving within the limit. Car C is travelling along the highway 70 ks over the limit when it swerves into B. Car B is then forced into the car in front of him (Car A) causing damage. The police are called to the scene. They charge the driver of Car B with negligent driving because they say he was driving too close to the car in front of him (Car A). The driver of Car C is charged with criminal negligence because when the police investigate and see the skid marks, speed cameras etc. not only do they establish negligence but they also discover he was speeding away from a store he'd just robbed.

Driver A sues drivers B and C. The court establishes that while driver B was driving too close to A, they only apportion, say, 20% of the negligence to him, i.e. 20% of the damages. Driver C however will face paying 80% of the damages because he committed a robbery and was speeding away from the scene of the crime when he had the crash.

Driver B, on the advice of his lawyer declines to make a statement. Driver C also declines.

The ballgame changes from negligence (even if someone dies) to criminal negligence when there is a criminal element. This is when the police will caution him (read the Miranda rights or equivalent) and interrogate him. This is in no way unfair because he still has the right to arrange for a lawyer before he answers any questions, and the lawyer may well tell the police that his client chooses not to answer. Without the requisite proof, a person cannot be found guilty by virtue of the fact that he chose to remain silent and/or not to provide a statement. The prosecution still needs to prove its case.

 

[Sherbert]

BiB… apologies… was not my intention but I get that it may have come across that way.

I NEVER suggested that one should not tell the truth to police investigators… only that one should remain silent and consult with an attorney as the truth may get you in as much trouble as a lie in the legal arena… not to mention that your truth may be misquoted or misinterpreted, hence the need to protect oneself when making a truthful statement.

Furthermore, truth is a subjective concept… you may be genuinely truthful but objectively incorrect in your beliefs.

Yes, if a party to a RTA believes that the police investigating the accident are corrupt, then, obviously, this would be a valid reason for keeping stumm.

Also, if a party to a RTA knows he is at fault, it might be advisable, from a legal perspective, to say nothing and sit back and wait for the State to prove its case. I guess that 44ALLAN is saying that, in the second scenario, he would provide a statement, accepting blame.

 

[JudgeJudi]

Do you really believe the State decided to lay charges against Carl because he declined to make a statement to Police ?

Do you not believe Police investigators had enough evidence (forensics & witnesses) so as to convince the State that criminal charges should be laid and the case could be won ?

I suppose we will eventually find out what type of evidence they had against Carl… but I suspect the refusal to give a statement will not be brought up at Trial since it would be illegal to bring charges against anyone on that basis.

Traffic was very slow moving ??… do we have confirmation of this ?

When there is slow moving traffic it is impossible to go fast (unless driving on the road's shoulder or into the lane of oncoming traffic)… I'm no crash forensic expert, but the photos of the car crash show 2 very mangled cars which can only be caused by a relatively high speed collision.

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No
No

"On the opposite side of the highway to which Carl and his colleague were travelling, traffic was in fact backed up and moving very slowly".

Oh no!!!!! Uncle Arnold said this.

http://www.telegraph.co.uk/news/wor...rother-in-intensive-care-after-car-crash.html

Oh no!!!!! Again!!!

"The brothers' uncle, Arthur Pistorius, released a statement which said his nephew was in a critical condition, but was "out of danger". A colleague was following in a different vehicle and witnessed the collision. He was able to tell us what happened.

The collision took place along a stretch of the N1 where for some reason, traffic had slowed down considerably.

On the opposite side of the highway to which Carl and his colleague were travelling, traffic was in fact backed up and moving very slowly".

http://news.sky.com/story/1311896/pistorius-brother-critical-after-head-on-crash

The only good bit of news here is:

"Emergency workers say Pistorius was conscious throughout and sang happy birthday to one of the medics who treated him".

At least he remained conscious and hopefully that will mitigate a potential statement from him that he was so shocked that he can't remember what happened.

http://www.enca.com/carl-pistorius-mend-after-near-death-experience

 

[Sherbert]

AJ, rather than address the individual comments in your posts, I just want to point something out.

Firstly, motor vehicle accidents that go to trial are usually heard in civil courts and relate to damages. The greatest part of damages is what's called "general damages" and this relates to loss of income. A seriously wounded person may never work again and they'll claim $X per week for the balance of their working life. Then there are "special damages" which covers all the medical bills, physio, medical care at home etc, past, present and future caused as a direct result of the accident. Negligent or reckless driving causing injury is the most common reason for legal proceedings.

I think you may be confusing the above form of negligence with "criminal negligence".

Sometimes there has already been a criminal conviction based on the same conduct related to the crash, and a civil court will accept a certified conviction as sufficient proof that the defendant is responsible for the damages. The standard of proof in a civil case for car crash injuries/wrongful death is lower than in a criminal case, so a conviction in criminal court is more than enough evidence”.

http://blogs.findlaw.com/injured/2013/10/can-criminal-charges-affect-car-crash-lawsuits.html

If someone is charged and convicted of a criminal offense that relates to fault in a car accident -- either by recklessness, negligence, or bad intent -- then there is sufficient proof that the convicted driver was responsible for the injuries.

Convictions for DUI can also prove useful in civil court, as violating laws which are meant to protect driver safety can be considered negligence per se.

I'll give you an example to try and explain the difference. Car A is driving along the highway at the prescribed speed limit. Car B which is travelling behind him is also driving within the limit. Car C is travelling along the highway 70 ks over the limit when it swerves into B. Car B is then forced into the car in front of him (Car A) causing damage. The police are called to the scene. They charge the driver of Car B with negligent driving because they say he was driving too close to the car in front of him (Car A). The driver of Car C is charged with criminal negligence because when the police investigate and see the skid marks, speed cameras etc. not only do they establish negligence but they also discover he was speeding away from a store he'd just robbed.

Driver A sues drivers B and C. The court establishes that while driver B was driving too close to A, they only apportion, say, 20% of the negligence to him, i.e. 20% of the damages. Driver C however will face paying 80% of the damages because he committed a robbery and was speeding away from the scene of the crime when he had the crash.

Driver B, on the advice of his lawyer declines to make a statement. Driver C also declines.

The ballgame changes from negligence (even if someone dies) to criminal negligence when there is a criminal element. This is when the police will caution him (read the Miranda rights or equivalent) and interrogate him. This is in no way unfair because he still has the right to arrange for a lawyer before he answers any questions, and the lawyer may well tell the police that his client chooses not to answer. Without the requisite proof, a person cannot be found guilty by virtue of the fact that he chose to remain silent and/or not to provide a statement. The prosecution still needs to prove its case.

In a civil case, the claimant is obliged to serve on the defendant a statement relating to liability, (if it is in dispute), and quantum.

This statement will cover liability, general and special damages. General damages consist of damages for pain, suffering and loss of amenity. Special damages include lost earnings.

Obviously, a claimant will be happy to provide a statement because it is served to support the claim he is bringing. The police are not involved in this process.

 

[JudgeJudi]

In a civil case, the claimant is obliged to serve on the defendant a statement relating to liability, (if it is in dispute), and quantum.

This statement will cover liability, general and special damages. General damages consist of damages for pain, suffering and loss of amenity. Special damages include lost earnings.

Obviously, a claimant will be happy to provide a statement because it is served to support the claim he is bringing. The police are not involved in this process.

Maybe where you are, but in Australia it's the other way around:

However I shouldn't have included future wage loss in in the special damages as that's included in general damages. (Sorry, very late night last night).

Special damages: This generally refers to out-of-pocket expenses. These may include medical and like expenses such as ambulance fees, loss of earnings to the date of trial, and other incidental expenses such as home help. Because of their very nature, special damages are generally easily quantifiable.

General damages: This covers such matters as loss of earning capacity in the future, pain and suffering, loss of enjoyment of life and disfigurement. They are of their very nature incapable of precise mathematical calculation. The court looks at these individual aspects of general damages and assesses the suitable amount of money that is fair and reasonable to both parties to compensate the plaintiff.

http://www.lawhandbook.org.au/handbook/ch18s01s03.php

When I was a "girl" I did a lot of work in this environment. It might sound boring but when you're trying to stop "dodgy plaintiffs" (and it's surprising how many there are) from succeeding, it can be really interesting and very, very funny.