Discussion Thread #60 - 14.9.12 ~ the appeal~

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Pistorius admits being 'haunted' by 'dark side' in e-mail never shown during murder trial

In the email, Oscar Pistorius confesses to bombarding an ex-girlfriend with 30 emails and phone calls a day, cheating on her and keeping lies from her
He also admitted he was 'haunted' by his 'dark side'
But the email was not revealed to the judge during his murder trial
It is printed in the book written by ex-girlfriend's mother


Read more: http://www.dailymail.co.uk/news/art...l-never-shown-murder-trial.html#ixzz3PRHFNJgl
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The 2012 email was subpoenaed by State prosecutors but never offered as evidence. Now experts say prosecutor Gerrie Nel should produce it when the case re-opens on October 13 for sentencing.

The email is printed in full in the new book, An Accident Waiting To Happen, written by Sammy’s mother Trish.

In the message, he says: ‘I’m not used to having to think and consider others’ feelings,’ and he confesses to an affair with Russian model Anastassia Khozissova.

‘I should never have done that,’ he wrote, ‘and I know it would have broken me if the roles were reversed. I don’t want to have any secrets or lies with you, even if it’s too late.’

Sammy yesterday told of how she feared the ‘angry and possessive’ Pistorius would kill her and revealed she once hid his gun after he flew into a rage.
 
In the UK, the right to silence is not absolute because an adverse inference may be drawn if an accused later relies on something that it would have been reasonable for him to volunteer pre-trial. Looking at the caselaw, it looks as though the position may be different in S Africa, due to a history of police corruption resulting in false confessions.
 
Sherbert said:
In the UK, the right to silence is not absolute because an adverse inference may be drawn if an accused later relies on something that it would have been reasonable for him to volunteer pre-trial. Looking at the caselaw, it looks as though the position may be different in S Africa, due to a history of police corruption resulting in false confessions.
Click to expand...

Thanks… that's very interesting.

Do you know of a particular case in the UK which highlights this ?

Never mind... found a great link
 
http://www.cps.gov.uk/legal/a_to_c/adverse_inferences/

What prevents Section 34 applying?

1- No adverse inferences can be drawn if the police have made up their mind to charge. Under the provisions of Code C paragraph 11.6, questioning must cease once the investigating officer/custody sergeant is of the view that there is a realistic prospect of conviction, and any interview after that point should not take place - Pointer [1997] Crim.L.R. 676. (But note that if the officer still has an open mind to the involvement or otherwise of the suspect, an interview can proceed even if there is clear evidence of guilt - Gayle [1999] Crim.L.R. 502, CA).

2- No adverse inference can be drawn if the case is so complex or related to matters so long ago, that silence would be justified as no sensible immediate response was appropriate.

3- No adverse inferences can be drawn if the facts in question were not known to the defendant at the time when he failed to disclose them. Nickolson [1999] Crim. L.R. 61. Refer to Pre-interview Disclosure below in this chapter.

4- No adverse inferences can be drawn unless legal advice is offered or made available from the initial stages of interrogation. This principle applies to terrorism cases. Murray (John) v UK (1996) 22 E.H.R.R. 29; Averill v UK [2001] 31 E.H.R.R. 3 and section 58 Youth Justice and Criminal Evidence Act 1999.

5- The language of section 34, (and subsections 36 and 37) indicate that adverse inferences cannot be drawn if the defendant faces trial on a different offence from that with which he was charged or given warning of prosecution (section 34) or which was originally specified when he was cautioned (section 36) or arrested (section 37). In the light of the charging program, such a situation should now be a rare occurrence.

6- A bare admission of facts in the prosecution case, or a mere suggestion or hypothesis are not facts relied on by the defence for the purposes of section 34. Betts and Hall [2001] 2 Cr.App.R. 16. Mere suggestion or hypothesis cannot be a foundation for adverse inferences. Nickolson [1999] Crim. L.R. 61.


When can Section 34 apply?

7- Adverse inferences can be drawn from failure to mention facts even though the police did not ask questions about all the charges eventually laid especially where the suspect could have made a note for his legal advisers. Napper [1996] Crim. L.R. 591, CA.

8- Adverse inferences can be drawn if there is a failure to mention a fact could relate to something said at a second or subsequent interview and which was not mentioned at the first interview. McLernon [1992] N.I. 168.

9- Adverse inferences can be drawn from failure to mention a fact later relied on even though it causes no surprise to the prosecution (Fox and Sullivan, unreported, 2.07.9). The defence can rebut allegations of recent fabrication by calling a third party to give evidence that the fact was disclosed at the time (usually the solicitor who attended at the police station).

10- Adverse inferences can be drawn even though the details of the fact relied on and not mentioned to the police, had been communicated to a third party. Taylor [1999] Crim.L.R. 77 CA.

11- The fact relied on need not be in the defendant's own evidence. Reliance can be through the evidence of other witnesses or even through cross-examination of prosecution witnesses or the defendant or his witnesses. Bowers [1998] Crim L.R. 817, CA and Webber [2004] UKHL1 is the most recent case to reiterate this point.

12- Adverse inferences can be drawn even when the truth or otherwise of the defendant's explanation for failure to mention the fact is the very question the jury has to decide in determining guilt. Hearne and Coleman [2000] 6 Archbold News 2, May 4. and Gowland-Wynn [2001] EWCA Crim 2715.

… IMO, a lot of wiggle room or gray areas remain for both Defence and Prosecution.
 
Sherbert said:
Regarding S Africa, here is a link to a news report relating to the late disclosure of an alibi.

http://www.news24.com/SouthAfrica/News/Ruling-on-right-to-remain-silent-20030828

I'm not sure how far, if at all, the law has developed since that case.
Click to expand...

Thanks…

Not sure how this would be applied in OP's case…

- He did not talk to Police investigators
- Defence produced a succinct affidavit for bail purposes only which was not only incomplete but also contradicted at Trial
- Defence produced an incomplete plea explanation which was also partly contradicted at Trial or at the very least open to various interpretations

… yet no adverse inferences were drawn by Masipa !?!

In the case you referenced, the accused offered 2 alibis at Trial which was 2 years after the crime…

I wonder if the Defence had gotten 2 affidavits from the 2 alibis, 2-years prior to the Trial, would it had made a difference ?
 
Perhaps that's the way to go…

- When asked questions by Police detectives, say you wish to remain silent and consult with an attorney

- Consult with your attorney ASAP

- Have your attorney prepare an affidavit on your behalf

- Make sure affidavit is only broad stokes of what happened, it is non-commiting and as vague or ambiguous as possible

- Have your attorney deliver said affidavit to Police detectives

- Further inquiries from Police detectives should be addressed to your attorney

… this way :

- You won't incur negative inferences from non-cooperation

- You can always say that your attorney wrote the affidavit and decided which detail to put in and which to leave out

- You can always say your attorney misunderstood your meaning

- You can always add small details or slightly change details at Trial
 
AJ_DS said:
Thanks…

Not sure how this would be applied in OP's case…

- He did not talk to Police investigators
- Defence produced a succinct affidavit for bail purposes only which was not only incomplete but also contradicted at Trial
- Defence produced an incomplete plea explanation which was also partly contradicted at Trial or at the very least open to various interpretations

… yet no adverse inferences were drawn by Masipa !?!

In the case you referenced, the accused offered 2 alibis at Trial which was 2 years after the crime…

I wonder if the Defence had gotten 2 affidavits from the 2 alibis, 2-years prior to the Trial, would it had made a difference ?
Click to expand...

Theoretically-speaking, it wouldn't have made a difference to the outcome - it was found by those judges who held that the adverse inference was unconstitutional that, ultimately, it had no impact on the outcome because the prosecution witness placing the accused at the scene was entirely credible:

We conclude, however, that the right to silence was breached in this case, because an adverse inference was drawn from the failure of the first appellant to disclose an alibi after being informed of his right to remain silent. Nevertheless we are persuaded that the appeal of the first appellant should be dismissed for the record establishes his guilt beyond a reasonable doubt without reliance upon any adverse inference from his silence. The High Court found Kiel's evidence cogent and persuasive, while rejecting that of the two alibi witnesses as false. There is no basis for rejecting these findings. Moreover, the first appellant, when initially questioned by the police, said that his family had been at Hanover Park at the time of the offence, which is inconsistent with the alibi he subsequently raised. At best for the accused, his statement that 'the family was at Hanover Park' is ambiguous and evasive. It is not consistent with the alibi tendered later to the effect that he was with his second wife at Parkwood Estate, which is nowhere near Hanover Park. In the light of the rejection of the evidence of the two defence witnesses and the prior inconsistent statement made by the first appellant, the alibi evidence does not in the context of all the evidence in the case (particularly the strong evidence of Kiel) raise a reasonable doubt as to the innocence of the first appellant:

http://www.chr.up.ac.za/index.php/browse-by-subject/447-south-africa-thebus-and-another

Masipa, on the other hand, was perfectly entitled to draw adverse inferences from the inconsistencies in OP's evidence, but chose not to.
 
Sherbert said:
Theoretically-speaking, it wouldn't have made a difference to the outcome - it was found by those judges who held that the adverse inference was unconstitutional that, ultimately, it had no impact on the outcome because the prosecution witness placing the accused at the scene was entirely credible:

We conclude, however, that the right to silence was breached in this case, because an adverse inference was drawn from the failure of the first appellant to disclose an alibi after being informed of his right to remain silent. Nevertheless we are persuaded that the appeal of the first appellant should be dismissed for the record establishes his guilt beyond a reasonable doubt without reliance upon any adverse inference from his silence. The High Court found Kiel's evidence cogent and persuasive, while rejecting that of the two alibi witnesses as false. There is no basis for rejecting these findings. Moreover, the first appellant, when initially questioned by the police, said that his family had been at Hanover Park at the time of the offence, which is inconsistent with the alibi he subsequently raised. At best for the accused, his statement that 'the family was at Hanover Park' is ambiguous and evasive. It is not consistent with the alibi tendered later to the effect that he was with his second wife at Parkwood Estate, which is nowhere near Hanover Park. In the light of the rejection of the evidence of the two defence witnesses and the prior inconsistent statement made by the first appellant, the alibi evidence does not in the context of all the evidence in the case (particularly the strong evidence of Kiel) raise a reasonable doubt as to the innocence of the first appellant:

http://www.chr.up.ac.za/index.php/browse-by-subject/447-south-africa-thebus-and-another"]http://www.chr.up.ac.za/index.php/browse-by-subject/447-south-africa-thebus-and-another[/URL]

Masipa, on the other hand, was perfectly entitled to draw adverse inferences from the inconsistencies in OP's evidence, but chose not to.
Click to expand...

Yes… but the 2 alibis were deemed not credible because they came forward 2 years after the events with very similar stories… had the Defence provided affidavits from those 2 alibis dated days/weeks after the incident, the Judge would not have been able to deem their testimonies false/fabricated and reject them so easily , no ?

BiB… Indeed
 
AJ_DS said:
Yes… but the 2 alibis were deemed not credible because they came forward 2 years after the events with very similar stories… had the Defence provided affidavits from those 2 alibis dated days/weeks after the incident, the Judge would not have been able to deem their testimonies false/fabricated and reject them so easily , no ?

BiB… Indeed
Click to expand...

In practice, the delay will have impacted on the accused's credibility, but we cannot know whose evidence the trial judge would have preferred, had the accused provided these suspiciously similar alibis from the outset.
 
Sherbert said:
In practice, the delay will have impacted on the accused's credibility, but we cannot know whose evidence the trial judge would have preferred, had the accused provided these suspiciously similar alibis from the outset.
Click to expand...


I agree… an analysis would be interesting

The scenario (simplified) :

- The accused, Bob, does not make any statement until he testifies at his Trial 2 years after the events

- Bob says 'it wasn't me" because I was somewhere else with John and Tom

- John and Tom testify as Defence alibi witnesses and corroborate Bob's version

- The Judge does not believe John and Tom because they give suspiciously similar and highly detailed accounts 2 years after the events

- The Judge concludes that John and Tom's alibi testimonies are not credible and fabricated

- Since John and Tom's versions are not credible it automatically means Bob's version also becomes not credible

- The Judge is left with Mary, the prosecution witness, who says she saw Bob at the crime scene

- Furthermore, a negative inference is drawn by the Judge because Bob never mentioned his 2 alibis to anyone until the Trial

- Guilty verdict

Brief Analysis :

- A highly detailed accounts 2 years after the facts is suspicious

- Very similar accounts 2 years after the facts is also suspicious

- Hence the Judge's conclusion the alibi testimonies were fabricated

Alternate scenario :

- Bob's attorney gets John and Tom to write an affidavit a week or so after the events

- A detailed account a few days after the events would not be suspicious

- Also similar accounts a few days after the events would not be suspicious

- No negative inferences could be drawn from Bob's silence because his alibi version was already established days after the events, he just did not want to talk to Police detectives

- At Trial, the Judge is left with Bob's version corroborated by John and Tom with a contradicting eye-witness Mary

Question :

Would the alternate scenario be enough to raise reasonable doubt and secure Bob's acquittal ?

Since corroborating alibi witnesses which are deemed not-credible impact negatively the credibility of the accused, does corroborating alibi witnesses which CANNOT be deemed not-credible impact POSITIVELY the credibility of the accused ?
 
AJ_DS said:
I agree… an analysis would be interesting

The scenario (simplified) :

- The accused, Bob, does not make any statement until he testifies at his Trial 2 years after the events

- Bob says 'it wasn't me" because I was somewhere else with John and Tom

- John and Tom testify as Defence alibi witnesses and corroborate Bob's version

- The Judge does not believe John and Tom because they give suspiciously similar and highly detailed accounts 2 years after the events

- The Judge concludes that John and Tom's alibi testimonies are not credible and fabricated

- Since John and Tom's versions are not credible it automatically means Bob's version also becomes not credible

- The Judge is left with Mary, the prosecution witness, who says she saw Bob at the crime scene

- Furthermore, a negative inference is drawn by the Judge because Bob never mentioned his 2 alibis to anyone until the Trial

- Guilty verdict

Brief Analysis :

- A highly detailed accounts 2 years after the facts is suspicious

- Very similar accounts 2 years after the facts is also suspicious

- Hence the Judge's conclusion the alibi testimonies were fabricated

Alternate scenario :

- Bob's attorney gets John and Tom to write an affidavit a week or so after the events

- A detailed account a few days after the events would not be suspicious

- Also similar accounts a few days after the events would not be suspicious

- No negative inferences could be drawn from Bob's silence because his alibi version was already established days after the events, he just did not want to talk to Police detectives

- At Trial, the Judge is left with Bob's version corroborated by John and Tom with a contradicting eye-witness Mary

Question :

Would the alternate scenario be enough to raise reasonable doubt and secure Bob's acquittal ?

Since corroborating alibi witnesses which are deemed not-credible impact negatively the credibility of the accused, does corroborating alibi witnesses which CANNOT be deemed not-credible impact POSITIVELY the credibility of the accused ?
Click to expand...

Masipa found OP's mistaken identity scenario credible because he had stated to witnesses from the outset that he thought Reeva was an intruder.

However, in a country where it is considered unconstitutional to water down the right to silence by drawing an adverse inference from failure to provide a consistent account from the outset, (quite apart from the issue that OP's story may have been self-serving), how can it be acceptable to draw a favourable inference from the existence of pre-trial consistent statements? Isn't this the equivalent of drawing an adverse inference from silence?
 
Sherbert said:
Masipa found OP's mistaken identity scenario credible because he had stated to witnesses from the outset that he thought Reeva was an intruder.

However, in a country where it is considered unconstitutional to water down the right to silence by drawing an adverse inference from failure to provide a consistent account from the outset, (quite apart from the issue that OP's story may have been self-serving), how can it be acceptable to draw a favourable inference from the existence of pre-trial consistent statements? Isn't this the equivalent of drawing an adverse inference from silence?
Click to expand...

Good question !

Perhaps the answer is there is no such thing as a "favorable inference"… witnesses under oath are, from the outset, deemed 100% credible and their credibility can only diminish as they testify ??… a little like everyone is deemed innocent until proven guilty.

However in my example, the favorable inference came from 2 corroborating testimonies of alibi witnesses, i.e. from "outside" of the accused himself… I believe that is the underlying principal of corroborating witnesses : they reinforce credibility/reliability

Just as in OP's case… 1 witness can get it wrong… 2, perhaps… 3, not very likely… 4, improbable
 
www.steroid.com/blog/Police-Find-a-...Near-Oscar-Pistorius-Former-Pretoria-Home-php

The security guard noticed a very strong and offensive odor emanating from a three-bedroom townhouse in the Anni-Pad complex (located next to the Silver Woods Country Estate where Pistorius lived). The guard contacted an officer with the Boschkop Police Station.

Mr. Fossil,
what did you say, where the phone was some time before brought back to OP's home (14.2. in the morning)?
 
FromGermany said:
www.steroid.com/blog/Police-Find-a-...Near-Oscar-Pistorius-Former-Pretoria-Home-php

The security guard noticed a very strong and offensive odor emanating from a three-bedroom townhouse in the Anni-Pad complex (located next to the Silver Woods Country Estate where Pistorius lived). The guard contacted an officer with the Boschkop Police Station.

Mr. Fossil,
what did you say, where the phone was some time before brought back to OP's home (14.2. in the morning)?
Click to expand...

Hmmm, that link goes to a page that advertises Anabolic Steroids.
:thinking:
 
FromGermany said:
www.steroid.com/blog/Police-Find-a-5-Million-Anabolic-Steroid-Laboratory-Near-Oscar-Pistorius-Former-Pretoria-Home-php

The security guard noticed a very strong and offensive odor emanating from a three-bedroom townhouse in the Anni-Pad complex (located next to the Silver Woods Country Estate where Pistorius lived). The guard contacted an officer with the Boschkop Police Station.

Mr. Fossil,
what did you say, where the phone was some time before brought back to OP's home (14.2. in the morning)?
Click to expand...
It connects to the Shere cell tower briefly. Whether this is because of congestion on the Silverlakes tower or because someone (Carl?) took the phone briefly to the vicinity of Hazeldean Square isn't clear (see iPhone and iPad usage charts).
 
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