Oscar Pistorius - Discussion Thread #65~ the appeal~

[Val1]

Both the Stipps said they did.

I would suggest that they would also be the only ones able to have heard both sets, given their close location and the bathroom window having been opened most likely by RS either looking for a way out or even just to get some air, since OP claims he woke up because it was so hot and humid but then for some reason just had to close the patio doors(cutting off the sound carrying out that side of the house) and bring in the fans... just before the first set of "shots" were heard which I believe was OP trying to bash the toilet door open while RS screamed for her life...

This is a pretty good pic of the estate:

 

[cottonweaver]

Mr Jitty, if you're still here can you give a view on this:

I have read a few comments, various sources looking to undermine the SCA's validity as biased already, just because 1) Leach was "dominant" ( LOL) and 2) he used the words "poor Reeva" in ref to victim and nowhere to hid in bathroom.

To me, with no legal knowledge, it seems to me that the process would prob be that they case conference before they begin the hearing, thus Mpati chairs but mainly listens, Leach states in conf. that he is most interested in testing Defence on PPD aspect, Majedt feels strongly about Seekoie etc and with an AJA like Baartman, less experienced she would state in the conf that she will not be leading. What's your view Mr Jitty, appreciating you may never have seen an Appeal court hearing, I appreciate ....

Secondly "poor Reeva" comment . I do not see how that makes Leach necessarily impartial, if he had said" poor intruder" ( as he implied with 12 year old child point), or he has said "poor victim", IMO it would have made no difference and he is surely entitled to say "poor Reeva" in the context of his comments on the issue of nowhere to hide in that tiny toilet etc.

AFAIK anything they do say in the Hearing is not always reflective on their professional or personal thoughts/beliefs nor the decisions they will eventually make, that's why it's hard to call the final outcome just based on Majedt and Leach's outspokenness

 

[janicelongbright]

Apologies to AW2B , for contradicting 2 sets of shots heard.

 

[janicelongbright]

I would not go that far, re reversal of burden, but I do believe there is still room for particular reforms and Judges also need to perform.

The key point is that the facts as proven by the prosecution give rise to natural and obvious inferences.

The victim has been found dead from multiple gunshot wounds. The weapon is recovered. The shooting is effectively intentional, even if mistaken.

The first thing which needs to be carefully policed is the evidential burden on the accused to prove at least some facts to form the basis of self defence. It has never been the case that this defence can simply be alleged. Although burden of proof is always on the prosecution - the accused must create an evidential foundation.

IMO Masipa failed this aspect by claiming merely that OP's version was not disproved. Firstly this was in many respects incorrect (e.g photos). But secondly the burden was on OP to prove such facts. And what facts did he actually prove in this regard?

Second - I think the kind of reforms seen in England should be applied.

If you wish to rely on key matters at trial in the nature of self defence, alibi etc - these should be reasonably disclosed at police interview.

IMO it is not valid that OP should be relying on key factual assertions (screaming like a woman/bats etc etc) without a pretrial statement.

The detail of his version should have been provided at police interview.

That prevents this kind of nonsense!

In the reference posted several pages back , with a copy document of the actual law ,it clearly says that ," where there there is factual killing , the onus is on the defendant to prove any mitigation."

 

[mrjitty]

In the reference posted several pages back , with a copy document of the actual law ,it clearly says that ," where there there is factual killing , the onus is on the defendant to prove any mitigation."

I appreciate this can get confusing!

Burden of proof at the trial always rests with the prosecution.

The standard is proof beyond reasonable doubt.

Evidential burden is a different question.

Evidential burdens will normally lie with he who asserts. In civil trials evidence is proved on the balance of probabilities. I think in criminal, the Court (or Jury) asks simply what evidence does it accept. Each evidential point does not have to be proven beyond reasonable doubt

And particularly in the case of the active defences like self defence - an evidential burden lies with the defence to prove an evidential foundation that brings the defence into play. This is really for policy reasons - otherwise self defense would be too easy to assert. Once some evidence is established, the burden lies with the prosecution (as usual) to disprove self defence.

There has been much discussion down the years as to whether this shifting burden breaches the Constitutional rule of presumption of innocence.

See discussion

US - Prof Volokh

UK - Evidential burden

The reason for imposing an evidential burden is to ensure the prosecution does not have to disprove all imaginable defences, only those properly supported by sufficient evidence.

This is a point Nel covers in his statement of appeal

It cannot be that the prosecution has to disprove defences not even claimed, or that are inconsistent with the accused own version

 

[Interested Bystander]

Mr Jitty, if you're still here can you give a view on this:

I have read a few comments, various sources looking to undermine the SCA's validity as biased already, just because 1) Leach was "dominant" ( LOL) and 2) he used the words "poor Reeva" in ref to victim and nowhere to hid in bathroom.

To me, with no legal knowledge, it seems to me that the process would prob be that they case conference before they begin the hearing, thus Mpati chairs but mainly listens, Leach states in conf. that he is most interested in testing Defence on PPD aspect, Majedt feels strongly about Seekoie etc and with an AJA like Baartman, less experienced she would state in the conf that she will not be leading. What's your view Mr Jitty, appreciating you may never have seen an Appeal court hearing, I appreciate ....

Secondly "poor Reeva" comment . I do not see how that makes Leach necessarily impartial, if he had said" poor intruder" ( as he implied with 12 year old child point), or he has said "poor victim", IMO it would have made no difference and he is surely entitled to say "poor Reeva" in the context of his comments on the issue of nowhere to hide in that tiny toilet etc.

AFAIK anything they do say in the Hearing is not always reflective on their professional or personal thoughts/beliefs nor the decisions they will eventually make, that's why it's hard to call the final outcome just based on Majedt and Leach's outspokenness

I am unsure why anyone would feel that somebody commenting that Judge Leach appeared dominant would undermine the SCA. He is obviously a forceful character who had a lot more to say than the other judges. Whether or not he carries any weight behind the scenes is an unknown but I suspect not. He might just be a loquacious personality. I think Mpati , who studiously listened to all the cross examination, will direct the discussions and keep everyone in order (though I doubt whether there will be any real disagreements) but I confess I would love to be a fly-on-the-wall and to hear exactly what was discussed.

I haven't seen any comment re Leach calling Reeva by her first name. Maybe I have missed a few posts; easily done when there are so many. I cannot think why whoever posted this would think it might undermine the SCA. It would take a whole lot more than these minor points to affect the SCA in any way.

In the trial I would have been delighted if Masipa had taken a great deal more interest and intervened on many occasions but she sat there, almost mute. What was/wasn't going through her head?

 

[mrjitty]

Mr Jitty, if you're still here can you give a view on this:

I have read a few comments, various sources looking to undermine the SCA's validity as biased already, just because 1) Leach was "dominant" ( LOL) and 2) he used the words "poor Reeva" in ref to victim and nowhere to hid in bathroom.

To me, with no legal knowledge, it seems to me that the process would prob be that they case conference before they begin the hearing, thus Mpati chairs but mainly listens, Leach states in conf. that he is most interested in testing Defence on PPD aspect, Majedt feels strongly about Seekoie etc and with an AJA like Baartman, less experienced she would state in the conf that she will not be leading. What's your view Mr Jitty, appreciating you may never have seen an Appeal court hearing, I appreciate ....

Secondly "poor Reeva" comment . I do not see how that makes Leach necessarily impartial, if he had said" poor intruder" ( as he implied with 12 year old child point), or he has said "poor victim", IMO it would have made no difference and he is surely entitled to say "poor Reeva" in the context of his comments on the issue of nowhere to hide in that tiny toilet etc.

AFAIK anything they do say in the Hearing is not always reflective on their professional or personal thoughts/beliefs nor the decisions they will eventually make, that's why it's hard to call the final outcome just based on Majedt and Leach's outspokenness

I would not take those comments seriously.

Back in the olden days I noted up lots of Court of Appeal judgements for the law reports. It was a way to earn extra money when us first years were paid so badly!

Often one justice writes the lead judgement. That's all you get in that case!

Sometimes one or two of the others either write their own supporting judgement. However they may not cover all the ground. Indeed they might only cover one legal aspect where they wish to make their own points, or arrive at the decision in a different way. However this would usually only happen to do with an important legal principle.

A dissenting Justice will write their own judgement against, for the record. This might be useful to the losing party on appeal, or in future cases.

Though this case is of great political interest - it doesn't really contain much in the way of big legal issues.

So I am not expecting a huge judgement.

As far as the Appeal proceedings go - the whole point is that it is the chance for the Court to challenge counsel.

So its not unusual to see some rough handling.

Indeed I have seen counsel positively savaged.

It is completely proper for Justice Leach to indicate where he is leaning - to give Roux the direct opportunity to argue his point.

That's hardly bias. Justice Leach is free to find against Roux. That's the whole point!

 

[janicelongbright]

These are really great questions.

IMO the path way for state is that followed by Justice Leach - which is why I hope he writes the lead judgement.

At the moment there are 2 findings of the trial Court that the state needs reversed

Finding 1. The accused lacked the requisite Dolus/Intention for murder (DE)

Submission. The Judge asked the wrong question/misdirected herself.

IMO the State has a good chance here. The misdirection is on the face of the judgement. The Court can then strike out Masipa's application of the legal test and effectively say that is not the right question to ask here. Its obvious there must be foresight (even to a child!) any on top of that PPD is pleaded which implies foresight.


Finding 2. The accused acted in PPD

Submissions. The Judge found a genuine belief of an intruder. But there was no evidence/finding of an immediate threat or life in danger. The Judge did not correctly apply the test.

IMO this leg could have been difficult if Masipa had bothered to write a coherent judgement.

But again she actually failed to

a) State the PPD test correctly in relation to the facts
b) Outline all the facts relevant to the test

So while I agree the state has work to do, on the face of it - this is a very strong appeal - and the Justice's clearly recognise that

If it were weak sauce, you would have seen them challenging Nel on that - but instead they were challenging Roux on it.

So in summary - I do actually think that the excessive and unreasonable force proven at trial, is actually sufficient for the state to rely on.

I always return to a simple legal substitution argument.

If we open the door and there is an intruder in the toilet - could self defence succeed?

Legally not IMO.

(of course practically speaking , if you open the toilet and there is a man with a gun in there, this case never goes to trial!)

In any case, according to the LAW itself , it was up to the DEFENCE to PROVE that there was 'no subjective intent'. The law quotes the English law in this respect, which this is the same and which S.A. law is based upon ie ."mens rea " . In fact mens rea can ONLY arise" in accordancewith the FACTS of the killing itself". It goes on to elaborate, saying , that subjective intent,must a. factually proveable, b. must not rely on factors outside of the time and place of the killing itself .
QED. The entire' intention' , mens rea, was allowed by Masipa in defiance of S.A. law .Her finding that THE P.T failed to prove intention , is opposite of law . Her psychological assessment procedure was illegal ,except on a defence plea in mitigation of SENTENCE ie only insanity is left , as mens rea , can't be applied on the facts.

 

[mrjitty]

I am unsure why anyone would feel that somebody commenting that Judge Leach appeared dominant would undermine the SCA. He is obviously a forceful character who had a lot more to say than the other judges. Whether or not he carries any weight behind the scenes is an unknown but I suspect not. He might just be a loquacious personality. I think Mpati , who studiously listened to all the cross examination, will direct the discussions and keep everyone in order (though I doubt whether there will be any real disagreements) but I confess I would love to be a fly-on-the-wall and to hear exactly what was discussed.

I haven't seen any comment re Leach calling Reeva by her first name. Maybe I have missed a few posts; easily done when there are so many. I cannot think why whoever posted this would think it might undermine the SCA. It would take a whole lot more than these minor points to affect the SCA in any way.

In the trial I would have been delighted if Masipa had taken a great deal more interest and intervened on many occasions but she sat there, almost mute. What was/wasn't going through her head?

I think you can infer a couple of things from Leach's interrogation.

First, seeing as no one jumped in to help Roux out with an alternate view - probably no such alternate view is held by the Court

Second, while Nel was closely questioned, he wasn't called upon to justify his submissions in the same way Roux was.

This would all indicate to me that the matter is at least in the balance.

You'd probably be happier as Nel that Roux

 

[mrjitty]

In any case, according to the LAW itself , it was up to the DEFENCE to PROVE that there was 'no subjective intent'. The law quotes the English law in this respect, which this is the same and which S.A. law is based upon ie ."mens rea " . In fact mens rea can ONLY arise" in accordancewith the FACTS of the killing itself". It goes on to elaborate, saying , that subjective intent,must a. factually proveable, b. must not rely on factors outside of the time and place of the killing itself .
QED. The entire' intention' , mens rea, was allowed by Masipa in defiance of S.A. law .Her finding that THE P.T failed to prove intention , is opposite of law . Her psychological assessment procedure was illegal ,except on a defence plea in mitigation of SENTENCE ie only insanity is left , as mens rea , can't be applied on the facts.

I don't follow how you are framing this.

Mens Rea must always be proved by the prosecution.

But to cut to the chase Nel has submitted that the judge misdirected herself as to intent, and that properly directed, a Court must naturally find that the requisite Dolus existed.

The true question was justification, not intention.

 

[Interested Bystander]

I think you can infer a couple of things from Leach's interrogation.

First, seeing as no one jumped in to help Roux out with an alternate view - probably no such alternate view is held by the Court

Second, while Nel was closely questioned, he wasn't called upon to justify his submissions in the same way Roux was.

This would all indicate to me that the matter is at least in the balance.

You'd probably be happier as Nel that Roux

BIB

You are very right there .

 

[mrjitty]

Let's recap the state's heads of appeal

At the end of the day - it is these questions which were reserved, and which SC must address

On application by the Appellant (State) the Court a quo reserved the following questions
of law for the consideration of the Supreme Court of Appeal:

“4.1 Whether the principles of dolus eventualis were correctly applied to the accepted
facts and the conduct of the accused, including error in objecto.

4.2 Whether the Court correctly conceived and applied the legal principles pertaining
to circumstantial evidence and/or pertaining to multiple defences by an accused.

4.3 Whether the Court was correct in its construction and reliance on an alternative
version of the accused and that this alternative version was reasonably possibly
true …”

And of interest - PPD was not one of the questions directly raised on appeal by the state. This was an argument of the defence.

As I recall arguing about with Pandax - there is the question whether the Court found PPD

IMO it is unclear, and Leach seemed to believe there was no finding of PPD

 

[mrjitty]

It is respectfully submitted that in S v Beukes en ‘n Ander, this Honourable Court
pertinently held that since:
90
“The chances of an accused admitting, or of it appearing from other evidence,
that he had indeed foreseen a remote consequence are very thin”, a Court “draws
an inference concerning an accused’s state of mind from the facts which point to it
being reasonably possible, objectively seen, that the consequence would
eventuate.”
The Court held further that:
91
“f such a possibility does not exist, it is simply accepted that the actor did not
become conscious of the consequence. If it does exist, it is usually inferred from
the mere fact of his taking action that he took the consequence into account.”

So in other words, death being a natural and obvious consequence, the mere action of shooting indicates a decision to take the risk.

Other wise any shooter can simply deny thinking about the consequences.

 

[janicelongbright]

I appreciate this can get confusing!

Burden of proof at the trial always rests with the prosecution.

The standard is proof beyond reasonable doubt.

Evidential burden is a different question.

Evidential burdens will normally lie with he who asserts. In civil trials evidence is proved on the balance of probabilities. I think in criminal, the Court (or Jury) asks simply what evidence does it accept. Each evidential point does not have to be proven beyond reasonable doubt

And particularly in the case of the active defences like self defence - an evidential burden lies with the defence to prove an evidential foundation that brings the defence into play. This is really for policy reasons - otherwise self defense would be too easy to assert. Once some evidence is established, the burden lies with the prosecution (as usual) to disprove self defence.

There has been much discussion down the years as to whether this shifting burden breaches the Constitutional rule of presumption of innocence.

See discussion

US - Prof Volokh

UK - Evidential burden



This is a point Nel covers in his statement of appeal

It cannot be that the prosecution has to disprove defences not even claimed, or that are inconsistent with the accused own version

Well I can only say that is that not what I read , and it was a copy of theS.A, law itself . It is the case, that it is often said 'the burden of proof is is always on the prosecution ' , but only applies OVIOUSLY were the there is a LEGAL CASE for FACTUAL DOUBT .

The S.A. docunent of law actually says the above perfectly clearly , it goes on to say that this principle of onus on the defendant, by by FACT is identical with and based upon English law ie "mens rea".( which I have explained elsewhere )

In English law the are many other instances of court procedure where the burden of proof rests on the defence . Mens rea is just one of them .

I don't know if you have read all of the relevant parts of S.A. law provided by the poster, but it really is unequivocably said there .It most certainly is the law in England , and is only common sense . The reason that people find it ridiculous that the P.T. according to Masipa, has to prove what was in the defendant's mind ,is because they are right , and no law has ever claimed otherwise.

 

[mrjitty]

So we have both HoA filed now.

The defence runs with a factual finding of putative self defence and the interpretation that where Masipa said 'did not intend to kill' this means 'did not intend to unlawfully kill'. This is backed up by citation to Snyman, the author of the criminal law 'bible' in SA, and he did indeed last year pen an article with this explanation of terminology of 'kill'. Curious though is we still don't have any reference to Masipa's opinion which would seem to be key here, one wonders if this has been filed as procedure mandates...

Defence HoA is more focussed and repeats their argument clearly and many times to a simple conclusion whereas the state's is a bit of a rambling mess imo. Weak points in defence are rather too simple dismissal of circumstantial evidence Q and an apparent misconception that every Q must relate to dolus eventualis only and not dolus directus.

The state now need to play the obvious cards - big avenue of response possible where the judgment said why OP fired 4 shots not 1 shot does not make sense, if it doesn't make sense how can it be held that the court factually found those shots were fired in putative self defence? From past performance, we are likely to see head buried in sand approach and nothing new from state however.

Now that arguments have been given, what do you make of the PDD issue?

My opinion remains that Masipa didn't lay out this section of the judgement well and all, and it is unclear what she held. This in itself is likely a legal error as it is unclear if the judge did indeed frame the test correctly and ask the right questions?

Justice Leach seemed to think PPD was not held based on the face of the judgement.

 

[mrjitty]

Well I can only say that is that not what I read , and it was a copy of theS.A, law itself . It is the case, that it is often said 'the burden of proof is is always on the prosecution ' , but only applies OVIOUSLY were the there is a LEGAL CASE for FACTUAL DOUBT .

The S.A. docunent of law actually says the above perfectly clearly , it goes on to say that this principle of onus on the defendant, by by FACT is identical with and based upon English law ie "mens rea".( which I have explained elsewhere )

In English law the are many other instances of court procedure where the burden of proof rests on the defence . Mens rea is just one of them .

I don't know if you have read all of the relevant parts of S.A. law provided by the poster, but it really is unequivocably said there .It most certainly is the law in England , and is only common sense . The reason that people find it ridiculous that the P.T. according to Masipa, has to prove what was in the defendant's mind ,is because they are right , and no law has ever claimed otherwise.

Can you please provide the link for this?

It's 100% wrong.

Prosecution must prove Actus Reus and Mens Rea

Defence may try to establish legal justification or other defence which negates Mens Rea

The evidential burden in relation to a particular fact relies on the party trying to establish it.

So for example, it would be up to Pistorius to prove as a fact he screams like a women.

Strictly speaking this cannot be merely asserted.

 

[lithgow1]

Photos of Pistorious both after his recent release and at a friend's wedding a month before he was sentenced. What a broken man he was. Before anyone piles on, I am not saying he should never smile or laugh again, but if you are thinking that's the implication then how about considering the implications of his demeanour here compared to the tears, sobs and protestations of love lost forever he displayed at his trial only weeks before.

I know the Daily Mail is a rag, but smiling selfies don't lie. There is some confusion on when the post release one was taken but the wedding ones were in between the verdict and the sentencing.

http://www.dailymail.co.uk/news/art...ie-early-release-killing-Reeva-Steenkamp.html

 

[janicelongbright]

I don't follow how you are framing this.

Mens Rea must always be proved by the prosecution.

But to cut to the chase Nel has submitted that the judge misdirected herself as to intent, and that properly directed, a Court must naturally find that the requisite Dolus existed.

The true question was justification, not intention.

Can't say that Im surprized , it was a muddle in all ways .

I can only ask you to read the reference given , some pages back . And ask you why you assert the law as you say it is . And would appear to me to me to clearly state , that on a case of factual killing ( ie ,the identity of the killer is not disputed , the facts of the killing are not disputed , ) The onus of the burden of proof is on the defence to prove :
I. By the factual evidence , and 2.by mens rea , which can only be adduced from the time and place of the killing itself .

Mens rea , is the only relevant defence , because ," justification" can only be applied to a case of fact , not belief. As in fact does mens rea hence, 'intention 'must also be a fact of case and not a belief .

Subjective intention was the reason given by Masipa , not to find murder, and was unlawful ,by :

Allowing (mens rea), subjective intent , to be raised in the first place, and not in ts legal form.And as a burden of proof on the prosecution to DISPROVE.

Misapplying the burden of proof throught the trial .

Making a ruling according to HER, let alone the defendants BELIEF , contrary to" Cases of Fact" law .

 

[WilliamMunter]

The State versus Oscar Pistorius
Monty Fossil and Judge Judi take another look at the evidence

Just to say that our site is back (links above and below). Judi and I will be adding more posts soon but I have another commitment to attend to first so the roll out rate will slow (I'll try and get a couple of shorter ones out next). I'll also be updating and adding links to the various resources I've posted in the past (e.g. phone charts, timeline etc.) so that they're accessible in one place.

Reappraising the evidence

• The abrasions on Reeva’s back – impressions of the gun?
• The bathroom window - the moment that everything changed? (coming next)
• The bedroom door – when was it damaged?
• The bullet trajectories – what does the maths tell us?
• The cricket bat – which came first?
• The phone data – was someone awake?

Mr F and JJ: I am so glad these are back up as I didn't have a chance to look at them before. The depth of work is truly impressive and many thanks to you both for sharing this.

Just two points: In the phone data analysis you state:

"The only times that the phone will show a GPRS connection are:

If the phone is switched off
If the mobile data connection is deliberately turned off by the user
If the phone signal is lost e.g. in areas of poor reception or due to network congestion
If a Wi-Fi connection is in place"

Shouldn't this read "The only times that the phone will not show a GPRS connection are:"? Or maybe I am confused.

Secondly, have you been able to do analysis on the damaged bath inspection panel or isn't there enough to go on? I believe this was hardly addressed in the trial but in my mind is entirely consistent with rage and frustration resulting from an argument with Reeva behind the door. I suspect it was probably kicked in before OP went off to fetch the cricket bat.

 

[mrjitty]

Can't say that Im surprized , it was a muddle in all ways .

I can only ask you to read the reference given , some pages back . And ask you why you assert the law as you say it is . And would appear to me to me to clearly state , that on a case of factual killing ( ie ,the identity of the killer is not disputed , the facts of the killing are not disputed , ) The onus of the burden of proof is on the defence to prove :
I. By the factual evidence , and 2.by mens rea , which can only be adduced from the time and place of the killing itself .

Mens rea , is the only relevant defence , because ," justification" can only be applied to a case of fact , not belief. As in fact does mens rea hence, 'intention 'must also be a fact of case and not a belief .

Subjective intention was the reason given by Masipa , not to find murder, and was unlawful ,by :

Allowing (mens rea), subjective intent , to be raised in the first place, and not in ts legal form.And as a burden of proof on the prosecution to DISPROVE.

Misapplying the burden of proof throught the trial .

Making a ruling according to HER, let alone the defendants BELIEF , contrary to" Cases of Fact" law .

You'll have to link me to what you are talking about - as there have been many things linked in the past days