Oscar Pistorius - Discussion Thread #65~ the appeal~

[soozieqtips]

The only thing I learned from the hearing is that the SCA judges are just as stupid as Masipa, particularly the ones who talked the most. Maybe 2 wrongs will make a right!

Why do you think they were stupid?

 

[Giles]

The only thing I learned from the hearing is that the SCA judges are just as stupid as Masipa, particularly the ones who talked the most. Maybe 2 wrongs will make a right!

Colour me curious. Please elaborate pandax81!

 

[Trotterly]

Why do you think they were stupid?

They didn't know the respondent's version for a start!

 

[jilly]

There's been some discussion here re 'premeditation'.

I found this article:

http://www.iol.co.za/dailynews/opinion/expert-clarifies-premeditated-murder-1.1573253#.VjvG6NKrT_w

......Mdunge gave the example of a person who had stabbed someone more than 20 times.

“If it wasn’t premeditated, the person would have stopped after stabbing the person the first time,” he said......

We had evidence that Oscar fired one shot, paused and then fired 3 more. Seems to me, in that instant after the first shot, he formed premeditation.

 

[mrjitty]

Masipa: ... in other words he raised the defence of PPD

Leach: Well no he didn't. That doesn't follow. That's a misdirection right there. Or are you saying it does follow?

Roux: No it doesn't

In other words, the trial Court misdirected itself as to PPD

 

[cottonweaver]

Leach @1:54:00

"If you're going to come with the defence of putative self defence, and I think you'll be hardpressed to bring this case within putative self defence" !!!!

"if you do - it won't matter if its DD or Dolus indirectus"

"read what the judgement says"

LOL!

So basically Leach seems to say the DE thing won't fly and nor will PPD.

I so hope he writes the judgement!

ETA

Brownie points to Roux for perhaps the most inventive way yet of trying to explain what Masipa was on about!

Retire judge Greenland on Roux's bravado :

Checkmated; Roux SC displayed the most incredible intestinal & testicular fortitude I have ever seen on the part of Counsel

https://twitter.com/Chrisng53

 

[mrjitty]

Did you follow it?

Yes - but of course the Justices weren't having it.

But what else could he do?

As 3 Justices point out - Masipa stated the law wrong in multiple places

 

[mrjitty]

Retire judge Greenland on Roux's bravado :



https://twitter.com/Chrisng53

Roux does a fine job of explaining how the Judge should have done her job properly!

It must be galling for him that having won the trial of the ages - Masipa didn't manage to write up the victory letter properly

All she had to do was cut and paste the law correctly!

He is certainly a fine lawyer - and this really illustrates the problem of having such low end talent on the HC Bench against elite advocates

 

[cottonweaver]

Masipa: ... in other words he raised the defence of PPD

Leach: Well no he didn't. That doesn't follow. That's a misdirection right there. Or are you saying it does follow?

Roux: No it doesn't

In other words, the trial Court misdirected itself as to PPD

It's part of a brilliant quick fire exchange isn't it.
I tried to type it as I watched it live but ended up with gobbley-gook
I can't see them releasing the transcript unfortunately..... here's a sample of ..never edited it though.

Roux: mentions SCA case precedent, Singh(?) cases ( aka Canadian case) Arguments about what is a Q of Law and thus today the SCA cannot view elements as Q of law. A guilty intention ...question of fact …..not of law.
Leech: That's trite. Inferences about subjective intention, factual inference
Roux: Important bit I couldn't catch about how inferences are drawn on facts. Yes tehre was a vacillation in OP's intent,
Leech : I'm not finished with R vs B, you may be! Mixed law and facts. Soundness of conclusions are Q of Law, eg in misdirections. A Q of Law ...when a trial judge misdirects himself on evidence.... failure to properly direct himself to all evidence on relevant issues.... so if not a proper legal appln its' a Q of law. This case further elaborates about culpability, absence of appreciation of relevant evidence, it is a Q of law if there is an absence. It becomes a reviewable Q of law as it stops Masipa being able to correctly apply the law.
Roux : No that does not present me with difficulty

leech – lets look at masipa's take on DD & importantly DE, quoted. Incorrect application of law re DE. It's very important to me
Roux: No, she spilled over.... ( missing sentence)
Leech: Masipa is not interpreting dolus e, and this is where error in objecto comes in, it's a misdirection Roux to herself, “believed.... the deceased was in the bedroom” but OP can be convicted of DE at the shooting on whoever was in toilet- I need some explanation from you, its not correct
Roux: No, Masipa rejected DD first, 2 crucial fact findings – he genuinely believed he was in danger
Leech : I'm not sure if that is so
Roux; He genuinely believed he was in danger , 2nd crucial fact finding “reeva was in the
bedroom.” In context of this when she considered DE it can't be isolated in the state of mind of OP.....if I shoot someone thinking A is going to attack me........ it doesn't matter, I understand error in objecto
Leech- so its worse, her 2 pages , whole case turns on them, she never deals with anything effectively because he did not know it was she behind the door.
Roux: No , let me find it ( looks through her judgement )
Leech- her analysis of DE is wrong. It's that he knew someone was behind the door
Roux: Its not the issue
Leech :that is the issue
Roux let me go back
Leech – no, forget PPD, its to do with intent and foreseeability( Crucial bit here I lost )
R – he was genuinely in danger
L – let's not get sidetracked, he genuinely believed there was so behind the door
R – “I believe I was in danger” ( reading from OP version but get's cut off by Leech )
L – yes, but that's about culpability, we are dealing with what is foreseen , did he foresee it was reeva.
R – (flustered ) Substantial ingredient – he believed he was acting lawfully, and that was judges approach and her judgement must be read with that in mind as it's a factual finding. So when she turns to DE based on absence to act unlawfully.... so it does not really matter who was behind the door, he quotes Masipa part “ foresee and reconcile” that it might not be an intruder, it might be the deceased. Masipa already found absence one part of dolus, even accepting he lacked intent for murder did he not foresee it was Reeva in toilet and reconcile this. ( Worst part, hard to catch)
L – interrupts. If u wanna go PPD, it's a q of culp and it would n't matter if it was DD or DE. So what u say Roux doesn't matter, just read the judgement and what it says
R – I cant isolate that, look at whole judgement. Did he not perhaps entertain it could have been Reeva” and thats what Masipa is doing there, so I cannot find it was DE in the sense because my fact finding is that when he fired shots he genuinely bona fide believed the deceased was in the bedroom

 

[soozieqtips]

They didn't know the respondent's version for a start!

Oh. Well I missed the first hour or so. I caught up roundabouts when Leach was going after Barry "I'll come back to that" Roux on firing into a restrictive space.

 

[mrjitty]

Fine exchange between Nel & the Justice on the far left of screen re De Oliveira

27:00

Justice:
If the accused fires without thinking - this is incompatible with PPD (presumably because the shooting is not motivated by imminent threat)


Female Justice on the left

Once he says he did not intend to shoot - he cannot rely on this defence

This is really a bad aspect of the decision - because if the accused himself does not plead the right intention for PPD - how does the Court find it?

 

[mrjitty]

It's part of a brilliant quick fire exchange isn't it.
I tried to type it as I watched it live but ended up with gobbley-gook
I can't see them releasing the transcript unfortunately..... here's a sample of ..never edited it though.

Roux: mentions SCA case precedent, Singh(?) cases ( aka Canadian case) Arguments about what is a Q of Law and thus today the SCA cannot view elements as Q of law. A guilty intention ...question of fact …..not of law.
Leech: That's trite. Inferences about subjective intention, factual inference
Roux: Important bit I couldn't catch about how inferences are drawn on facts. Yes tehre was a vacillation in OP's intent,
Leech : I'm not finished with R vs B, you may be! Mixed law and facts. Soundness of conclusions are Q of Law, eg in misdirections. A Q of Law ...when a trial judge misdirects himself on evidence.... failure to properly direct himself to all evidence on relevant issues.... so if not a proper legal appln its' a Q of law. This case further elaborates about culpability, absence of appreciation of relevant evidence, it is a Q of law if there is an absence. It becomes a reviewable Q of law as it stops Masipa being able to correctly apply the law.
Roux : No that does not present me with difficulty

leech – lets look at masipa's take on DD & importantly DE, quoted. Incorrect application of law re DE. It's very important to me
Roux: No, she spilled over.... ( missing sentence)
Leech: Masipa is not interpreting dolus e, and this is where error in objecto comes in, it's a misdirection Roux to herself, “believed.... the deceased was in the bedroom” but OP can be convicted of DE at the shooting on whoever was in toilet- I need some explanation from you, its not correct
Roux: No, Masipa rejected DD first, 2 crucial fact findings – he genuinely believed he was in danger
Leech : I'm not sure if that is so
Roux; He genuinely believed he was in danger , 2nd crucial fact finding “reeva was in the
bedroom.” In context of this when she considered DE it can't be isolated in the state of mind of OP.....if I shoot someone thinking A is going to attack me........ it doesn't matter, I understand error in objecto
Leech- so its worse, her 2 pages , whole case turns on them, she never deals with anything effectively because he did not know it was she behind the door.
Roux: No , let me find it ( looks through her judgement )
Leech- her analysis of DE is wrong. It's that he knew someone was behind the door
Roux: Its not the issue
Leech :that is the issue
Roux let me go back
Leech – no, forget PPD, its to do with intent and foreseeability( Crucial bit here I lost )
R – he was genuinely in danger
L – let's not get sidetracked, he genuinely believed there was so behind the door
R – “I believe I was in danger” ( reading from OP version but get's cut off by Leech )
L – yes, but that's about culpability, we are dealing with what is foreseen , did he foresee it was reeva.
R – (flustered ) Substantial ingredient – he believed he was acting lawfully, and that was judges approach and her judgement must be read with that in mind as it's a factual finding. So when she turns to DE based on absence to act unlawfully.... so it does not really matter who was behind the door, he quotes Masipa part “ foresee and reconcile” that it might not be an intruder, it might be the deceased. Masipa already found absence one part of dolus, even accepting he lacked intent for murder did he not foresee it was Reeva in toilet and reconcile this. ( Worst part, hard to catch)
L – interrupts. If u wanna go PPD, it's a q of culp and it would n't matter if it was DD or DE. So what u say Roux doesn't matter, just read the judgement and what it says
R – I cant isolate that, look at whole judgement. Did he not perhaps entertain it could have been Reeva” and thats what Masipa is doing there, so I cannot find it was DE in the sense because my fact finding is that when he fired shots he genuinely bona fide believed the deceased was in the bedroom

Yes - that sequence was very damaging.

 

[cottonweaver]

Roux does a fine job of explaining how the Judge should have done her job properly!

It must be galling for him that having won the trial of the ages - Masipa didn't manage to write up the victory letter properly

All she had to do was cut and paste the law correctly!

He is certainly a fine lawyer - and this really illustrates the problem of having such low end talent on the HC Bench against elite advocates

Yes I did some delving into this in July eg.

http://www.theconmag.co.za/2014/06/09/a-week-in-the-life-of-the-jsc/

richard calland writes best articles

http://www.theconmag.co.za/2013/09/...ite-appointed-by-a-president-who-doesnt-read/

http://mg.co.za/article/2013-04-12-00-jscs-attitude-opens-door-to-conservatism

 

[mrjitty]

They didn't know the respondent's version for a start!

The respondents version is not under appeal.

Appeals re errors of law are very much concerned with the face of the judgement and that is the part they were driving busses through

 

[mrjitty]

Yes I did some delving into this in July eg.

http://www.theconmag.co.za/2014/06/09/a-week-in-the-life-of-the-jsc/

richard calland writes best articles

http://www.theconmag.co.za/2013/09/...ite-appointed-by-a-president-who-doesnt-read/

http://mg.co.za/article/2013-04-12-00-jscs-attitude-opens-door-to-conservatism

It's quite alarming the lack of track record, but is no doubt a product of the former Apartheid system??

If you think of all the talented lawyers who have just started out in the last decade - in ten years time there will be lots of competition amongst them.

Ten years ago, the talent pool of black lawyers with 20 years elite experience I guess was zero.

 

[cottonweaver]

It's quite alarming the lack of track record, but is no doubt a product of the former Apartheid system??

If you think of all the talented lawyers who have just started out in the last decade - in ten years time there will be lots of competition amongst them.

Ten years ago, the talent pool of black lawyers with 20 years elite experience I guess was zero.

Quite, it has to be seen in the South African context, judiciary has to be representative of the nation, but it explains a lot, why the best talent currently don't even apply for positions at highest levels,and compliance is often sought for due to "separation of powers", why JSC is seen as compromised .

 

[Trotterly]

The respondents version is not under appeal.

Appeals re errors of law are very much concerned with the face of the judgement and that is the part they were driving busses through

No but the assessment of the ce is under review. Did you follow Roux's argument on this?

 

[mrjitty]

33:00

"By viewing everything in isolation the Court erred"


Nel points out that not only did the Court refuse to link circumstantial evidence - it speculated ways to explain the evidence.

Another clear error.

Justices...
Re circumstantial evidence - what is its role then? If not DD?

Nel: The Court should have rejected the accuseds version outright

Justices ....So then there is no credible evidence from the defence

Nel: Just the objective fact of a person behind the door, shot 4 times

Praise the lord!

Sometimes maybe things are just too obvious?

 

[soozieqtips]

Thanks for that, cotton. I watched most of it on my laptop, which has one broken speaker, so missed some of the back and forth. Thought this exchange left Roux very flustered and nothing like the smooth talker he was in front of Masipa.


Leech- so its worse, her 2 pages , whole case turns on them, she never deals with anything effectively because he did not know it was she behind the door.

Roux: No , let me find it ( looks through her judgement )

Leech- her analysis of DE is wrong. It's that he knew someone was behind the door

Roux: Its not the issue

Leech :that is the issue

Roux: let me go back


Poor old Roux. Let me go back. In time??

 

[cottonweaver]

All Posters will await with baited breath....
Karyn Maughan's article on the Appeal in tomorrows Mail & Guardian ,you can see it's causing great anticipation

"It looks at how the state abandoned case that Pistorius meant to kill Reeva - now arguing he intended to kill person behind door"
Hopefully it will be more impartial now the SCA have been so caustic.

[video=twitter;662334009553387521]https://twitter.com/karynmaughan/status/662334009553387521[/video]