Trial Discussion Thread #59 - 14.21.10, Day 48 ~ sentencing~

[luvhockey]

The thing that bothers me the most is that apparently at least one of the assessors also agreed with her. Am I correct that the two of them had authority also in this judgement and if they wanted to over rule?

 

[Estelle]

James Grant ‏@CriminalLawZA

The 1982 Seekoei case held: no state legal appeal if conviction on competent verdict. But state can appeal this too, at SCA & the Con Court.

Could someone explain this please?

 

[RosieC]

Could someone explain this please? - James Grant ‏@CriminalLawZA - The 1982 Seekoei case held: no state legal appeal if conviction on competent verdict. But state can appeal this too, at SCA & the Con Court.

I will try. Obviously a defendant can appeal a verdict if wrongly convicted. It is more difficult for the state to appeal a verdict. There is obviously an issue of double jeopardy. However if a judge makes an error on a matter of law, the state can appeal.

But as the 1982 Seekoei case held, if there is a competent verdict, the state cannot appeal. This means that if the charge was murder and the verdict was a lesser charge of culpable homicide, that is a competent verdict and the state cannot appeal the acquittal of the charge of murder.

Had Pistorius been acquitted altogether, the state could have appealed if there were an error of law. What James Grant is saying is that the state can petition the constitutional court to appeal against Seekeoi and then appeal the Pistorius verdict at the Supreme Court of Appeal.

Does this make sense? It all reminds me of the very old tv comedy series called "Soap". Confused?

 

[RosieC]

You are getting a bit mixed up with the terminology I think.

Private defence only exists when there was a real attack.

Putative private defence means you mistakenly believed you were acting in private defence.

So, the putative element of putative private defence starts from the beginning in a case like this. If one acted fully in putative private defence, then one did not commit murder and negligence is considered.

oh my god, we are going full circle on this. Putative private defence should become as popular a defence to murder as a hanky is to a sneeze.

(reinstated comment which I earlier deleted, since my comment had been wittily replied to by pandax 81)

 

[james83]

I'd compare it to the assassination of John F. Kennedy (US President) in 1963 by alleged "lone gunman," Lee Harvey Oswald. Very few people believed that then and, even after all these decades, fewer still buy that cr@p.

I'd also, of course, compare it to OJ Simpson. Almost no one ever believed that he didn't do it, even most African Americans.

As people, we can be often be :thud:dumb :thud:but we're not always stupid. :scale:

O/T Does this website have a conspiracy theory section?, if not it really should, would love to hear people's opinion on the moon landing in particular.

 

[soozieqtips]

In fairness, Masipa did say a bit more than what I read posted here:

.....Masipa described her as “young, vivacious and full of life … a promising young woman who cared deeply for family, who was full of hope for the future, and lived life to the full......”

http://www.theguardian.com/world/20...rt-sentence-oscar-pistorius-jailed-five-years

BIB - that's just describing Reeva in general, like saying OP enjoyed running and was close to his family, for example. The point was that Masipa didn't once talk about what society had potentially lost due to Reeva's death. She could have eventually been a human rights lawyer for all we know. We know she was interested in talking out about abuse against women (ironic, given what happened), so she may have gone on to helping other victims of DV escape abusive partners. Reeva's killing meant she was forever unable to do anything for her family or for society. And her general description of Reeva 'living life to the full' and being 'good in front of a camera' still came across as patronising and shallow, when taken as a whole, especially considering how much time she gave to OP's 'contribution' to society and the effect the killing had on him!

 

[mister happy]

I will try. Obviously a defendant can appeal a verdict if wrongly convicted. It is more difficult for the state to appeal a verdict. There is obviously an issue of double jeopardy. However if a judge makes an error on a matter of law, the state can appeal.

But as the 1982 Seekoei case held, if there is a competent verdict, the state cannot appeal. This means that if the charge was murder and the verdict was a lesser charge of culpable homicide, that is a competent verdict and the state cannot appeal the acquittal of the charge of murder.

Had Pistorius been acquitted altogether, the state could have appealed if there were an error of law. What James Grant is saying is that the state can petition the constitutional court to appeal against Seekeoi and then appeal the Pistorius verdict at the Supreme Court of Appeal.

Does this make sense? It all reminds me of the very old tv comedy series called "Soap". Confused?

Is this sort of like a "catch 22" ?

 

[soozieqtips]

I just remembered the occasion when Nel was trying to get OP to explain why he was getting all emotional (after being asked a difficult question) and OP wouldn't answer. When Nel pressed him for a response, Masipa jumped in and said it wasn't 'fair' to ask him that, as he'd been emotional throughout, so Nel had to let it go. Masipa couldn't stand to see OP showing any discomfort.

 

[james83]

I just remembered the occasion when Nel was trying to get OP to explain why he was getting all emotional (after being asked a difficult question) and OP wouldn't answer. When Nel pressed him for a response, Masipa jumped in and said it wasn't 'fair' to ask him that, as he'd been emotional throughout, so Nel had to let it go. Masipa couldn't stand to see OP showing any discomfort.

There we all where "She's making everything appeal proof", damn it the signs were there a long time ago.

 

[RosieC]

Is this sort of like a "catch 22" ?

It means that if Masipa were very clever, rather than its opposite, and she wanted the best outcome for Oscar, with the most difficulty in it being disturbed by an appeal from the state, this would be her chosen verdict. IN MY OPINION. Also imo it would have been a non-custodial sentence until Nel came in hard during sentencing. Pistorius got the perfect result. Hardly surprising that Uncle accepts it, but somehow he didn't look surprised.

 

[lithgow1]

http://www.theguardian.com/world/2014/oct/22/oscar-pistorius-disabled-inmates-prison-poor-treatment

http://www.belfasttelegraph.co.uk/o...n-and-he-must-never-forget-that-30682832.html

http://www.thestar.com/news/world/2...s_privilege_was_his_biggest_edge_dimanno.html

 

[Mamadoos]

I thought it funny at the end of sentencing when Nel asked about op's right to own firearms. He had to name the firearms act 60/2000 three times before jm got it. Then she said "yes,I thought so"! Think Nel had a little smile on his face then!
I also had a little chuckle when the reporter called Henke Mr Steenkamp, then said to herself, "oh f@#k, Mr Pistorius"!

 

[mirage1]

Pistorius was not actually under attack, and therefore he could not rely on the defence of private defence. He could however, and did, rely on a defence of putative private defence. This defence was the original defence raised by Pistorius and persisted in by his defence team in the alternative. This defence required that Masipa asked whether the accused foresaw the possibility that his conduct could unlawfully kill.

The problem is that, after specifically stating that she was turning her attention to this defence (of putative private defence), Masipa erroneously states that the question is whether the accused foresaw that his conduct could kill [full stop]. As discussed, this is not the right question.

If I understand correctly, This seems to explain how, or why Masipa almost comically concluded that Oscar had no intention to kill when he fired the shots. She misunderstood the law, so had to tailor her judgement to suit?? If she thought the test was merely intent to kill, then she was forced to conclude Oscar had no such intent to make it fit.

 

[Paul_1900]

A bit more about what he can expect in prison.

http://www.news.com.au/world/africa...ampuru-ii-prison/story-fnh81gzi-1227097916867

thanks for posting, very informative

"There are also job opportunities, like working in the textile or furniture workshops or gardening."

I suggest they make him work there, then put a specially designed tag on the products . . it would sell like crazy I'm afraid. So there is ONE of MANY great ways he can " pay back to society" :crazy:

 

[Susza]

A bit more about what he can expect in prison.

http://www.news.com.au/world/africa...ampuru-ii-prison/story-fnh81gzi-1227097916867

So the signs outside of the prison state clearly: no cell phones (Aimee!)

 

[Estelle]

I will try. Obviously a defendant can appeal a verdict if wrongly convicted. It is more difficult for the state to appeal a verdict. There is obviously an issue of double jeopardy. However if a judge makes an error on a matter of law, the state can appeal.

But as the 1982 Seekoei case held, if there is a competent verdict, the state cannot appeal. This means that if the charge was murder and the verdict was a lesser charge of culpable homicide, that is a competent verdict and the state cannot appeal the acquittal of the charge of murder.

Had Pistorius been acquitted altogether, the state could have appealed if there were an error of law. What James Grant is saying is that the state can petition the constitutional court to appeal against Seekeoi and then appeal the Pistorius verdict at the Supreme Court of Appeal.

Does this make sense? It all reminds me of the very old tv comedy series called "Soap". Confused?

So would they have to petition the Constitutional Court within the 14 days so they can enter an Appeal within that time?

Knowing this now, what is the likelihood of an Appeal on verdict? Pity they cannot appeal the sentence as well.

 

[Estelle]

So the signs outside of the prison state clearly: no cell phones (Aimee!)

So what's the betting that OP still has it with him?

 

[Lux et Veritas]

Ty for reposting that.

Imho, Oscar used to have the greatest of smiles... those kind that reach the eyes and light up the whole face. I used to try to pinpoint when it was that Oscar stopped really smiling. I couldn't pin it down exactly, but strongly suspect the way he caused himself to lose ST might have been a big part of it. I'm of the opinion that he actually loved (in his own way) her and vice versa. And, I think they both still hurt from it.

You’re so right about the smile, Fox. It used to be genuine, from the heart, it was so easy to see he was happy. But somewhere, somehow, it mostly disappeared. Did the relentless rigors of sudden fame and fortune - especially for one so young (17) - steal something in return? Did it eventually turn a carefree, happy boy into a guarded, wary cynic? Did the endless pressures to perform, to excel, to always be “on” make him a prisoner of his own success?

 

[Lux et Veritas]

The dust is settled. It’s finally over (at least for the time being).

How do I feel?

Honestly, little more than incredibly, profoundly SAD.

Yes, tearfully sad.

While I, along with millions of others, am merely a long-distance observer, I still feel a powerful sense of loss.

No rational, well-adjusted person can take pleasure in the dire misfortunes and destruction of human life, lost human potential, dashed dreams, crushed futures - no matter the cause or circumstances. The human heart naturally gravitates toward hope, love, the individual and common good. It’s the only way we survive and thrive. I may be passionate, often opinionated, sometimes very angry when discussing this case, but I take no delight in human misery. The destruction of one of us makes us all LESS.

I grieve the loss, the potential, the glittering future of the warm, generous, intelligent, loving Reeva Steenkamp, her family’s shattered lives and lost happiness. A million stories are her story. It breaks my heart on a personal level, as I could have easily been one of those stories.

But if I’m honest, I also grieve the loss of what was once the best of Oscar Pistorius, what he once was, his lost innocence, the best of what he represented, the lives he touched, the hope he did indeed inspire, the great causes he might have championed after his athletic career. No one can ever take away his dedication, his hard work, his successes, his medals, his good deeds. Now just memories.

A rising star, snuffed out.
A blazing star, burnt out.
Two lost lives.
What could have been.

Yes, Oscar will pay dearly for his crime.
But I sincerely take no joy.

 

[mrjitty]

If I understand correctly, This seems to explain how, or why Masipa almost comically concluded that Oscar had no intention to kill when he fired the shots. She misunderstood the law, so had to tailor her judgement to suit?? If she thought the test was merely intent to kill, then she was forced to conclude Oscar had no such intent to make it fit.

Yes. It seems so.

She clearly missed out a whole part of the putative private defence inquiry, and substituted a completely different test.