Post sentencing discussion

[JudgeJudi]

Whenever the Minister for Justice and Constitutional Development has any doubt as to the correctness of a decision by a high court in a criminal case on a question of law, or whenever a decision in a criminal case on a question of law is given in a high court which is in conflict with a decision given by another high court, the Minister may submit the decision or the conflicting decisions to the Supreme Court of Appeal and cause the matter to be argued before that court in order that it may determine the question of law for the future guidance of all courts.

http://www.justice.gov.za/sca/aboutsca.htm

 

[JudgeJudi]

Who is the woman hugging OP?

http://www.timeslive.co.za/local/2014/10/14/pistorius-went-the-extra-mile-for-children-manager

Just another Pistorian.

 

[K.T]

A good article on how five years for sentencing is entirely wrong.
It's written by Toronto-based lawyer*

"In Canada, Mr. Pistorius would likely be a labelled a murder and face life in prison. Why? Because here you are guilty of murder if you cause injury that is likely to be fatal, and are reckless as to whether death follows or not. Shooting at someone multiple times through a locked bathroom door in your own home is likely to be fatal. It is also extremely reckless. So it is murder and would be punished as such here.

The task of fitting the punishment to the crime also requires us to pull back from the immediate act of the killing itself and assess the bigger picture. Here again, the bigger picture makes Mr. Pistorius’ crime worth more than five years. Because the bigger picture is one of rage, empathy deficits, and abuse of power, all made far more dangerous by an ominous attraction to firearms."
​

http://www.theglobeandmail.com/glob...for-oscar-pistorius-is-wrong/article21190269/

*Posting this article because I think Lois Pistorius had previously tweeted out a Canadian blog post (as if it was relevant which it was not) criticizing Gerrie Nel's cross examination. That blogpost was incredibly problematic, for just so many reasons, and I always wanted to write a rejoinder here with links to other articles but...sorry... I was too lazy/busy.

Good to point out another Canadian criminal lawyer writing in the 'Globe and Mail' who had larger problems with Judge Masipa's findings and sentence.

 

[alioop]

I don't think there is any real likelihood for a retrial and I so hope not. I think a review of the verdict judgement alone is enough for finding that he should have been convicted of murder because of his grossly negligent action in shooting 4 lethal bullets into a small room regardless of who he thought was in there. It was not self defence as he was under no attack or threat.

I also predict a new defence team for the appeal, particularly one without Roux.

 

[jay-jay]

I don't think there is any real likelihood for a retrial and I so hope not. I think a review of the verdict judgement alone is enough for finding that he should have been convicted of murder because of his grossly negligent action in shooting 4 lethal bullets into a small room regardless of who he thought was in there. It was not self defence as he was under no attack or threat.

I also predict a new defence team for the appeal, particularly one without Roux.

I'm personally not very happy with that because it would still allow Pistorius to get away with saying he made a mistake and that he didn't know it was Reeva in the toilet .. it's the domestic violence aspect of this case which really needs to be kept to the fore, imo, for that is what it was (based on all the evidence) and it is important that that is recognised and remembered, and not Pistorius's made up version. I know that most people are not going to forget that, but I won't ever be happy that this case will always be on record as accepting Pistorious's version, even if he is eventually convicted of murder. To me, this isn't all just about getting a longer sentence, it's about getting at the truth, and it's about highlighting .. and educating people about .. domestic violence.

 

[Mr Fossil]

NPA gives clarity on Pistorius appeal

The National Prosecuting Authority (NPA) spokesperson Nathi Mncube says there was an error in the paralympian Oscar Pistorius's conviction and sentence.

The State will appeal both the conviction and sentence in the Pistorius trial. Judge Thokozile Masipa sentenced Pistorius to five years in prison last week, for culpable homicide.

Worth listening to the interview: he says the application to appeal will go to Masipa and, if successful, it will be heard by the SCA

http://www.sabc.co.za/news/a/605e24...PA-gives-clarity-on-Pistorius-appeal-20142810

 

[alioop]

I'm personally not very happy with that because it would still allow Pistorius to get away with saying he made a mistake and that he didn't know it was Reeva in the toilet .. it's the domestic violence aspect of this case which really needs to be kept to the fore, imo, for that is what it was (based on all the evidence) and it is important that that is recognised and remembered, and not Pistorius's made up version. I know that most people are not going to forget that, but I won't ever be happy that this case will always be on record as accepting Pistorious's version, even if he is eventually convicted of murder. To me, this isn't all just about getting a longer sentence, it's about getting at the truth, and it's about highlighting .. and educating people about .. domestic violence.

I am also very unhappy that he wasn't found guilty of murder knowing it was Reeva as I am certain he did kill her in anger after an argument. I think she stood up to him in some way and told him his behaviour was unacceptable. He couldn't handle it and flew into a rage which ended in her death. So my comments are just what I think the appeal court will do with what they will have before them. They will be looking for errors of law not fact so this limits what they can do.

 

[jay-jay]

I am also very unhappy that he wasn't found guilty of murder knowing it was Reeva as I am certain he did kill her in anger after an argument. I think she stood up to him in some way and told him his behaviour was unacceptable. He couldn't handle it and flew into a rage which ended in her death. So my comments are just what I think the appeal court will do with what they will have before them. They will be looking for errors of law not fact so this limits what they can do.

Oh yes, absolutely .. I was just tagging onto your previous post really, to make the point.

 

[Cherwell]

Nel had brilliant heads of argument, and everyone said so.

I'm afraid I can't agree with that. I was very disappointed with his final arguments. I expected him to make a compelling narrative of the prosecution's version, but he did not. He didn't present a clear order of events, and allowed Masipa to take Roux's deceptive timeline as common cause. This should have been spelled out much more clearly. His "Baker's Dozen" failed to impress me at the start - I felt that there were better points to be highlighted.

 

[mister happy]

NPA gives clarity on Pistorius appeal

The National Prosecuting Authority (NPA) spokesperson Nathi Mncube says there was an error in the paralympian Oscar Pistorius's conviction and sentence.

The State will appeal both the conviction and sentence in the Pistorius trial. Judge Thokozile Masipa sentenced Pistorius to five years in prison last week, for culpable homicide.

Worth listening to the interview: he says the application to appeal will go to Masipa and, if successful, it will be heard by the SCA

http://www.sabc.co.za/news/a/605e248...ppeal-20142810

What? I was hearing that the appeal would filed directly at the Supreme Court, taking Masipa out of the loop. As I mentioned before, it's ridiculous for Masipa to rule on her own verdict and sentence. Talk about a conflict of interest!

The link doesn't work, by the way.

 

[Mr Fossil]

What? I was hearing that the appeal would filed directly at the Supreme Court, taking Masipa out of the loop. As I mentioned before, it's ridiculous for Masipa to rule on her own verdict and sentence. Talk about a conflict of interest!

The link doesn't work, by the way.

Oops! Sorry. I've corrected the link

 

[mister happy]

Hmm.. linky still no goody, Mr Fossil.

Or maybe it's just me..

 

[Cherwell]

NPA gives clarity on Pistorius appeal

The National Prosecuting Authority (NPA) spokesperson Nathi Mncube says there was an error in the paralympian Oscar Pistorius's conviction and sentence.

The State will appeal both the conviction and sentence in the Pistorius trial. Judge Thokozile Masipa sentenced Pistorius to five years in prison last week, for culpable homicide.

Worth listening to the interview: he says the application to appeal will go to Masipa and, if successful, it will be heard by the SCA

http://www.sabc.co.za/news/a/605e248045fe8c1f9a0cfb6c1fa77d05/NPA-gives-clarity-on-Pistorius-appeal-20142810

Thanks - link didn't work but I found the interview here

http://www.sabc.co.za/news/a/605e24...PA-gives-clarity-on-Pistorius-appeal-20142810

So they do have to run it past Masipa first. That's a pity. I was surprised that he said that the NPA had "charged OP with premeditated murder"! That's not strictly correct, is it, and it's worrying that their spokesman gets it wrong, or should I say inaccurate .

 

[Mr Fossil]

Hmm.. linky still no goody, Mr Fossil.

Or maybe it's just me..

Sorted, try again. Don't know what happened there

 

[JudgeJudi]

Remember back right after the verdict, but before the sentencing someone here at WS wrote a post about how the verdict was possibly a clever ploy by Masipa herself - she wanted to ensure that the PT appeals the CH verdict so that it could be overturned to murder. Had JM given a harsher sentence, the DT would possibly have appealed, and subsequently get a lesser sentence. The speculation was that Masipa wanted to guarantee a murder sentence, but could only get it if she gave a lesser verdict, with high hopes that the PT appeals.

Does anyone else remember this? I wouldn't know where to start searching for this post, but I thought it was interesting. But to be honest, I personally don't see the mind of masipa being this devious. JMO!

I see there have been a number of posts re your comment and I should have addressed the point you made here first before my earlier post. I was so shocked at the judgment that I believed the two assessors had overruled Masipa on the facts. That was why I thought if Masipa alone thought he was guilty of murder, she could be very clever and perhaps redress this by giving him a very light sentence that the State could easily appeal. It’s been incorrectly stated in at least one post today that if she thought he was guilty of murder, that would have been her verdict. Not so if both the assessors overruled her on the facts. In a nutshell that’s what I said.

If she was overruled, Masipa could never guarantee a murder sentence, but handing down a seriously light sentence would certainly open the door for the State to appeal. While the State can't appeal on the facts, a court of appeal can look at everything and set aside a CH verdict and replace it with murder thereby increasing the sentence, and that’s the risk the defence ran if they appealed the conviction.

It's extremely rare for the State to appeal a conviction, and it only happens in exceptional circumstances, but they can and do appeal what they consider to be extremely lenient sentences, and are more often than not, successful.

The convicted person can appeal both conviction and sentence on any ground which involves law, facts or a mixture of both.

No-one predicted such a messy judgment that confused absolutely everyone. The normal rules re appeals have gone out the window and we’re left with what we have today.

Just a final reminder to those who are still asking the same question that’s been answered so many times, Masipa was never, under any circumstances, going to hear the appeal.

 

[mister happy]

Thanks - link didn't work but I found the interview here

http://www.sabc.co.za/news/a/605e24...PA-gives-clarity-on-Pistorius-appeal-20142810

So they do have to run it past Masipa first. That's a pity. I was surprised that he said that the NPA had "charged OP with premeditated murder"! That's not strictly correct, is it, and it's worrying that their spokesman gets it wrong, or should I say inaccurate .

Yes it is worrying. I'm rapidly getting cynical again.

So, if Massipa doesn't budge, and denies the appeal, that's it?

 

[JudgeJudi]

I personally don't believe so..no judge wants their verdict to be reversed. If she wanted him convicted of murder..she would have done so.

I'm sorry to have to tell you that this is totally incorrect. If the two assessors overrule her on the facts, she cannot find him guilty of anything. It's a majority who decide the facts, i.e. judge and one assessor, or the two assessors. The judge alone decides the sentence but she can discuss this with the assessors if she chooses to do so.

Judges' decisions are overruled all the time. Why do you think there are Courts of Appeal?

Here's a link you might care to look at. Scroll down to The Assessors' Role at the foot of the page.

http://www.mediaclubsouthafrica.com/democracy/3759-assessors-can-decide-pistorius-s-fate

 

[Cherwell]

Didn't Masipa say that the verdict was unanimous? Can't see why she would say that if she had been overruled.

 

[JudgeJudi]

This is very good news! My first time watching a trial and I was hooked not only with the trial but the sheer tenacity and informative posting in this forum!
I have lingered in the background reading the post sentence thread and waiting hopefully to hear that there would be an appeal.
I may have to hang around for the next stage of this car crash trial...but I will be in excellent company if you share my view that OP deserves much more than he got...It is not vengeance but Justice that has to be served.

:welcome6: It's never too late to join in here. The more the merrier. 99% share your views as you'll soon discover.

 

[patCee]

If it's true that the court would think it is logical to give a lighter sentence in the hope it would be appealed, then the SA system is more ridiculous than I previously thought. I can understand lawyers examining different aspects of the criminal law for clients or the states advantage when presenting their case, as this is open to interpretation, but not at the verdict and sentencing stage. The verdict and sentencing decision should be true to the best of the judges knowledge and interpretation. That sort of 'game' playing, at the end of a trial, should be wrong in my opinion and brings the court into disrepute whether or not the courts interpretation is found to be faulty on appeal.

Just to add it's good news that the NPA have decided to appeal, I will never understand how the verdict was arrived at let alone the sentence.:happydance: