Oscar Pistorius - Discussion Thread #65~ the appeal~

[lithgow1]

According to this Citizen article, and in contrast with other things I have read, the SCA cannot sentence OP. If they change the verdict, it will have to go back to the High Court for sentencing. It also says that Masipa would have to impose the new sentence. Oh well, if so she can give him the minimum 15 years which AFAIK is the upper limit for CH.

The other link is to a (quite good) in The Week and as an added bonus it has more of Kelly Phelps' thoughts!

That Karyn Maugham article you mentioned cottonweaver is online but you need to be a subscriber.


http://citizen.co.za/854507/sca-cant-give-new-oscar-sentence/

http://www.theweek.co.uk/oscar-pist...rius-cannot-escape-murder-verdict-appeal-live

 

[alioop]

Just catching up on the appeal as to be honest I missed the date. Great coverage everyone. I think it's looking bad for OP.

 

[soozieqtips]

According to this Citizen article, and in contrast with other things I have read, the SCA cannot sentence OP. If they change the verdict, it will have to go back to the High Court for sentencing. It also says that Masipa would have to impose the new sentence. Oh well, if so she can give him the minimum 15 years which AFAIK is the upper limit for CH.

The other link is to a (quite good) in The Week and as an added bonus it has more of Kelly Phelps' thoughts!

That Karyn Maugham article you mentioned cottonweaver is online but you need to be a subscriber.


http://citizen.co.za/854507/sca-cant-give-new-oscar-sentence/

http://www.theweek.co.uk/oscar-pist...rius-cannot-escape-murder-verdict-appeal-live

So is the verdict becomes murder, Masipa is compelled to give OP at least the minimum sentence of 15 years? I can't see her giving anything more than the absolute minimum. Do we know if it will be televised?

 

[Giles]

So is the verdict becomes murder, Masipa is compelled to give OP at least the minimum sentence of 15 years? I can't see her giving anything more than the absolute minimum. Do we know if it will be televised?

William Booth says that he could get less than 15 years, he even goes as far as to say that the sentence could remain the same. This seems unlikely to me.

[video=youtube;VQ0BSry2-dk]https://www.youtube.com/watch?v=VQ0BSry2-dk[/video]

 

[soozieqtips]

William Booth says that he could get less than 15 years, he even goes as far as to say that the sentence could remain the same. This seems unlikely to me.

[video=youtube;VQ0BSry2-dk]https://www.youtube.com/watch?v=VQ0BSry2-dk[/video]

If Masipa were to keep the sentence the same, even if the verdict is changed to murder - she would really be showing bias in OP's favour. If her decision gets overturned, she should accept that as proof she got it wrong, and stop protecting OP from being punished as other murderers are punished. I would be very surprised if she has the gall to keep his sentence the same.

 

[Jake18]

If OP's charged with murder by the SCA on what grounds can he then appeal to the Constitutional Court? Presumably it can't just be because he doesn't particularly like the outcome.

 

[lithgow1]

So is the verdict becomes murder, Masipa is compelled to give OP at least the minimum sentence of 15 years? I can't see her giving anything more than the absolute minimum. Do we know if it will be televised?

As per the video Giles posted, it is not really clear. On the one hand you have a minimum sentence but then it also seems that that is not compulsory. Perhaps extenuating circumstances might come into play? I agree with you that she would give him the minimum, but perhaps if the verdict is upped the new sentence will not include this (essentially) serve one year of a five year sentence. I am also not 100% sure that she is the one who will necessarily do the sentencing. TBH, my preferred option would be for the SCA to be able to impose sentence, as per William Booth's comments. Going by their questions, they do not seem as sympathetic to him as she did. However it turns out, it is at least comforting to know that he is not likely to be enjoying his 'house arrest' as much as he was this time last week.

 

[lithgow1]

If OP's charged with murder by the SCA on what grounds can he then appeal to the Constitutional Court? Presumably it can't just be because he doesn't particularly like the outcome.

Just going by what I read somewhere the other day, if it gets to the CC it needs to be an appeal based around his constitutional rights having been denied. He certainly can't claim ineffective counsel but maybe the media attention given to the case could be grounds? Sorry, but I can't recall where I read that the higher court only looks at a person's constitutional rights.

 

[sleuth-d-]

If it were un-thinking, indiscriminate fire, to take your point, he would have sprayed the bathroom with fire, without the ricochet thought! He cannot state 'unthinking' and then land 4 bullets in such close grouping, into a target....I.e the door. Clearly there was thinking there!

agree with this. also, the gun held at least ten more bullets... there must have been some thinking around stopping firing? why was op not questioned on why he stopped firing at four shots?

 

[jilly]

As per the video Giles posted, it is not really clear. On the one hand you have a minimum sentence but then it also seems that that is not compulsory. Perhaps extenuating circumstances might come into play? I agree with you that she would give him the minimum, but perhaps if the verdict is upped the new sentence will not include this (essentially) serve one year of a five year sentence. I am also not 100% sure that she is the one who will necessarily do the sentencing. TBH, my preferred option would be for the SCA to be able to impose sentence, as per William Booth's comments. Going by their questions, they do not seem as sympathetic to him as she did. However it turns out, it is at least comforting to know that he is not likely to be enjoying his 'house arrest' as much as he was this time last week.

As I understand it, the arguments would be based on aggravating (Pros) and mitigating factors (Def). I believe I heard Leach mention this.

Oscar should really be getting life imo.........so, I would hope at least he gets 15 yrs. The aggravating factors certainly outweigh the mitigating, imo.

 

[mrjitty]

If OP's charged with murder by the SCA on what grounds can he then appeal to the Constitutional Court? Presumably it can't just be because he doesn't particularly like the outcome.

Points of law

It would likely be a narrowed down appeal on some critical legal points.

 

[Interested Bystander]

I have just watched the Appeal again and whilst many of us enjoyed seeing Roux being "whipped" by the Appeal judges, I have come to the conclusion that there may be no change to OP's verdict, much to my dismay. I hope I am wrong.

What I find very difficult to accept (although I understand why Nel took the route he did - his only option IMO) is that the Appeal really has nothing to do with OP knowingly shooting Reeva. I think most of us feel that is the real story and which has been supported many times by legal eagles but now her murder could be belittled by the Appeal into accepting whether or not OP shot because he was terrified. Until Factual argument is allowed in a SC Appeal there are going to be a large number of killers (by their use of OP's Defence) who may get a slap on the wrist for what really should have been a murder sentence.

 

[mrjitty]

Just going by what I read somewhere the other day, if it gets to the CC it needs to be an appeal based around his constitutional rights having been denied. He certainly can't claim ineffective counsel but maybe the media attention given to the case could be grounds? Sorry, but I can't recall where I read that the higher court only looks at a person's constitutional rights.

Many legal systems have a double appellate layer

In practice is it much different to say england?

 

[mrjitty]

I have just watched the Appeal again and whilst many of us enjoyed seeing Roux being "whipped" by the Appeal judges, I have come to the conclusion that there may be no change to OP's verdict, much to my dismay. I hope I am wrong.

What I find very difficult to accept (although I understand why Nel took the route he did - his only option IMO) is that the Appeal really has nothing to do with OP knowingly shooting Reeva. I think most of us feel that is the real story and which has been supported many times by legal eagles but now her murder could be belittled by the Appeal into accepting whether or not OP shot because he was terrified. Until Factual argument is allowed in a SC Appeal there are going to be a large number of killers (by their use of OP's Defence) who may get a slap on the wrist for what really should have been a murder sentence.

He may not have abandoned it entirely.

On appeal - he cannot dispute Masipa's factual finding re the "intruder"

However if a new trial were ordered - then conceivably, all cards are back on the table.

Normally, if an error of law were found - we would expect a de novo trial (this is what the accused would get if the show was on the other foot) as the original trial would be viewed as compromised by the legal errors in the verdict.

However politically - I wonder if this is off the cards.

 

[mrjitty]

William Booth says that he could get less than 15 years, he even goes as far as to say that the sentence could remain the same. This seems unlikely to me.

[video=youtube;VQ0BSry2-dk]https://www.youtube.com/watch?v=VQ0BSry2-dk[/video]

Agree

and especially he is not going to enjoy home detention on a murder rap

 

[mrjitty]

I have just watched the Appeal again and whilst many of us enjoyed seeing Roux being "whipped" by the Appeal judges, I have come to the conclusion that there may be no change to OP's verdict, much to my dismay. I hope I am wrong.

I feel like, at the very least, and so late in the piece, the Justices asked the hard questions about his conduct.

While, like you, I wonder if there will be a fudge, I think the likes of Justice Leach have already delivered a judicial recognition that this was never an accident.

As Leach himself said, you'll struggle to bring this under PPD

You can't just start blazing away unless you have solid reason to believe your life was in danger.

At the very least - some sanity.

 

[lithgow1]

Many legal systems have a double appellate layer

In practice is it much different to say england?

I can't say re England as I am Australian. Having said that, I am not too familiar with the layers in Australia either! Wikipedia however tells me that in NSW the Supreme Court hears serious cases such as murder and has it's own appeals court within its hierarchy, the Court of Criminal Appeal. Each state would have something similar.

Going by your post, was what I read the other day about your highest court only hearing matters related to infringements of constitutional rights incorrect?

The Court of Appeal and the Court of Criminal Appeal are respectively the highest civil and criminal courts in the state. To appeal to the High Court of Australia from the Court of Appeal or the Court of Criminal Appeal, special leave must be granted by the High Court.

 

[Interested Bystander]

I feel like, at the very least, and so late in the piece, the Justices asked the hard questions about his conduct.

While, like you, I wonder if there will be a fudge, I think the likes of Justice Leach have already delivered a judicial recognition that this was never an accident.

As Leach himself said, you'll struggle to bring this under PPD

You can't just start blazing away unless you have solid reason to believe your life was in danger.

At the very least - some sanity.

I feel two of the judges might opt for a change of verdict but I was not convinced that the other three would. I really hope I am wrong. It will be a travesty AFAIAC if he gets away with murder from two courts. I don't know how much argument between the judges will happen or whether they come to separate conclusions. I can see Leach is quite a dominant judge and if there is argument between the 5 judges, his opinion might sway others. I have my fingers crossed!

 

[Interested Bystander]

He may not have abandoned it entirely.

On appeal - he cannot dispute Masipa's factual finding re the "intruder"

However if a new trial were ordered - then conceivably, all cards are back on the table.

Normally, if an error of law were found - we would expect a de novo trial (this is what the accused would get if the show was on the other foot) as the original trial would be viewed as compromised by the legal errors in the verdict.

However politically - I wonder if this is off the cards.

Unless there is an about turn, I thought a new trial had been discounted during the Appeal.

 

[Interested Bystander]

I found this. Not too sure how relevant it is.

http://www.constitutionalcourt.org.za/site/thecourt/rulesofthecourt.htm#p8

31 Documents lodged to canvass factual material

1. Any party to any proceedings before the Court and an amicus curiae properly admitted by the Court in any proceedings shall be entitled, in documents lodged with the Registrar in terms of these rules, to canvass factual material that is relevant to the determination of the issues before the Court and that does not specifically appear on the record: Provided that such facts-

a. are common cause or otherwise incontrovertible; or
b. are of an official, scientific, technical or statistical nature capable of easy verification.

2. All other parties shall be entitled, within the time allowed by these rules for responding to such document, to admit, deny, controvert or elaborate upon such facts to the extent necessary and appropriate for a proper decision by the Court.