Discussion Thread #60 - 14.9.12 ~ the appeal~

[AJ_DS]

The SCA is going to consider whether they can hear the appeal anyway no matter what - they won't take Judge Masipa's word for it. This is about asking Judge Masipa to overturn her permission to appeal judgement. I really can't see what else it can be and besides, that's what the statement by the Pistorius family spokesperson said it was.

Yes, regardless of Masipa's decision to grant leave to appeal the verdict, the SCA has full autonomy and sovereignty to decide whether they will hear an appeal or not.

As I understand the procedure, Masipa cannot overturn her own decision to grant leave to appeal the verdict… once a decision (ruling) is given by a Judge it cannot be changed by the same Judge… i.e. there are no take-backs or do-overs in a Courtroom… decisions are always final whether they are correct or incorrect… the only way to overturn a decision is with an Appeal in a higher Court.

Hence the reason for Roux's application… Roux wants the SCA to examine Masipa's decision to grant leave to appeal the verdict because he believes she made a mistake in doing so… Masipa granted the leave based on an error in Law which Roux believes was not based in Law but on facts.

Procedure dictates Roux cannot go straight to the SCA but he must first address Masipa on the matter with an application for leave to appeal her decision.

It doesn't matter whether Masipa grants or denies Roux's application, Roux will present it to the SCA in any case…

… it was the same for Nel with the appeal on the verdict.

The SCA will examine the merits of Roux application for an Appeal on Masipa's decision.

If the SCA finds merit in Roux's application they will grant a hearing on the matter.

If the SCA finds fault in Masipa's decision to grant leave to appeal the verdict, that means there are no legal basis for appealing the verdict… in which case the SCA will not pursue the State's appeal on the verdict.

It's simply a way to prevent a SCA hearing on OP's case by challenging the reasons which allow such a hearing to be held in the first place.

 

[GR_Turner]

The concrete evidence is that Pistorious blew his girlfriend's head apart with a pistol.

The evidential burden was upon him to show how such action was legally justified.

A burden that was clearly not discharged given his highly implausible and dishonest account.

As such - it is hard to see where there is support for a "version" that does not amount to murder.

As someone who has read several thousand judgement in my time - i can't think of too cases that were more obviously proved

I tend to think people have a strange idea of what proof beyond reasonable doubt requires in a case where the accused has admitted to deliberately applying lethal force.

Sometimes an accused simply gets lucky

No, he had only to produce an account to show why he thought he was acting in self-defense that was reasonably possibly true, not one that he could prove beyond reasonable doubt and not one that was likely even. Once he has done that then he has done enough not to be convicted of deliberately murdering Reeva. And as long as the defense is accepted as PPD, which it was, then on the face of it, he can't be guilty of murder of the intruder either. Are the judgements you have read from SA courts?

 

[GR_Turner]

Yes, regardless of Masipa's decision to grant leave to appeal the verdict, the SCA has full autonomy and sovereignty to decide whether they will hear an appeal or not.

As I understand the procedure, Masipa cannot overturn her own decision to grant leave to appeal the verdict… once a decision (ruling) is given by a Judge it cannot be changed by the same Judge… i.e. there are no take-backs or do-overs in a Courtroom… decisions are always final whether they are correct or incorrect… the only way to overturn a decision is with an Appeal in a higher Court.

Hence the reason for Roux's application… Roux wants the SCA to examine Masipa's decision to grant leave to appeal the verdict because he believes she made a mistake in doing so… Masipa granted the leave based on an error in Law which Roux believes was not based in Law but on facts.

Procedure dictates Roux cannot go straight to the SCA but he must first address Masipa on the matter with an application for leave to appeal her decision.

It doesn't matter whether Masipa grants or denies Roux's application, Roux will present it to the SCA in any case…

… it was the same for Nel with the appeal on the verdict.

The SCA will examine the merits of Roux application for an Appeal on Masipa's decision.

If the SCA finds merit in Roux's application they will grant a hearing on the matter.

If the SCA finds fault in Masipa's decision to grant leave to appeal the verdict, that means there are no legal basis for appealing the verdict… in which case the SCA will not pursue the State's appeal on the verdict.

It's simply a way to prevent a SCA hearing on OP's case by challenging the reasons which allow such a hearing to be held in the first place.

I guess we'll see in March

 

[mrjitty]

No, he had only to produce an account to show why he thought he was acting in self-defense that was reasonably possibly true, not one that he could prove beyond reasonable doubt and not one that was likely even. Once he has done that then he has done enough not to be convicted of deliberately murdering Reeva. And as long as the defense is accepted as PPD, which it was, then on the face of it, he can't be guilty of murder of the intruder either. Are the judgements you have read from SA courts?

Except that PPD isn't shown in the judgement because Masipa can't write a competent analysis.

Laughably poor quality work which opened the door for Nel.

 

[mrjitty]

I guess we'll see in March

Masipa cannot overturn her own ruling.

That is a fundamental to appeals procedure.

 

[AJ_DS]

I guess we'll see in March

Yes.

Unless I'm mistaken, following Masipa's leave, Nel has petitioned the SCA for a hearing on OP's verdict and the SCA has already agreed to it.

IF, as you claim, Masipa can simply overturn her own ruling, what would be the point in that ?… since she cannot dictate what the SCA does or doesn't do.

The only way to stop the appeals process on the verdict is to petition the SCA to do so.

 

[GR_Turner]

Are you a lawyer?

Because I wonder at how you frame the burden of proof in the case.

It was not denied that OP shot Reeva

Therefore there was an evidential burden on the accused to make out a lawful justification.

Such justification was not made out on the face of Masipa's judgement. Hence the appeal.

The case is not about "reasonable doubt".

No, I'm not a lawyer. Do you think that the State proved their case beyond reasonable doubt on the primary charge? If so, what is your logic? That was what I was referring to, as I think you know. You then move the discussion on to DE but that's a whole other ballgame and no one seems clear on the basis on which that will be decided.

 

[mrjitty]

No, I'm not a lawyer. Do you think that the State proved their case beyond reasonable doubt on the primary charge? If so, what is your logic? That was what I was referring to, as I think you know. You then move the discussion on to DE but that's a whole other ballgame and no one seems clear on the basis on which that will be decided.

Personally I think the state's case was overwhelming - many accused have gone down to far weaker cases.

But first instance judges do often screw up as well - which is why we have appeal courts.

Masipa's judgement is one of the poorest I have ever read in terms of technical quality.

Embarrassing is how I would describe it.

 

[GR_Turner]

Masipa cannot overturn her own ruling.

That is a fundamental to appeals procedure.

Yes, I see what you mean. But what is the point of it in that case?

 

[GR_Turner]

Personally I think the state's case was overwhelming - many accused have gone down to far weaker cases.

But first instance judges do often screw up as well - which is why we have appeal courts.

Masipa's judgement is one of the poorest I have ever read in terms of technical quality.

Embarrassing is how I would describe it.

Thanks, but what's your logic on the DD of Reeva charge? How did you think the State proved it beyond reasonable doubt given the defense timeline?

 

[AJ_DS]

Masipa cannot overturn her own ruling.

That is a fundamental to appeals procedure.

I believe what has some confused is the fact attorneys must first address the 1st instance Judge with an application to petition the Appellate Court for an appeal on a ruling or a verdict made by said 1st instance Judge.

In most countries, attorneys petition the Appellate Court directly.

 

[mrjitty]

I think this showed Masipa's relative inexperience or else emphasised her bias.

There's a difference between deeming him not guilty of killing Reeva because of a degree of doubt and skewing large pieces of evidence in his favour to support this not guilty assertion. The latter is what junior doctors do when they desperately want a particular diagnosis to fit the symptoms but they do so at their peril, to an extent. Had she acknowledged the contradictory evidence but carefully explained her weighting of said evidence then I'd have had a lot more respect for her and the verdict.

Yes this was a bad technical mistake.

Typically a judgement should canvas the relevant evidence in detail and make clear the Court's findings on each point.

This allows the appeal court to understand the detail of what the Court found, and thus the facts that the legal tests were applied to.

A big issue with Masipa's judgement is she simply ignores large parts of the factual matrix and also failed to articulate findings required for the various active defences.

How was it that OP intended to shoot someone (4 times) but didn't foresee he might kill someone? Not explained.

How was it that OP used unreasonable force but still acted in PDD? Not explained.

I could go on but we already had these discussions last year

 

[AJ_DS]

Yes this was a bad technical mistake.

Typically a judgement should canvas the relevant evidence in detail and make clear the Court's findings on each point.

This allows the appeal court to understand the detail of what the Court found, and thus the facts that the legal tests were applied to.

A big issue with Masipa's judgement is she simply ignores large parts of the factual matrix and also failed to articulate findings required for the various active defences.

How was it that OP intended to shoot someone (4 times) but didn't foresee he might kill someone? Not explained.

How was it that OP used unreasonable force but still acted in PDD? Not explained.

I could go on but we already had these discussions last year

BiB…

Considering misinterpreted facts cannot be appealed according to SA law, do you believe Masipa's methodology or lack there of, is an indication of some sort of fowl play ?

 

[mrjitty]

Thanks, but what's your logic on the DD of Reeva charge? How did you think the State proved it beyond reasonable doubt given the defense timeline?

To be honest I have given up having this discussion with people who haven't studied a lot of cases because it requires an understanding of how Courts tend to handle evidence, rather than simply going round in circles about this particular case.

So the short answer is many judges would have found OP to be an unreliable witness and thus would reject his evidence in toto.

At that point, there is no reliable evidence that OP acted in PDD.

The way Nel conducted the case makes sense based on long trial experience. Staying at the heart of the case. "Timeline" is essentially a huge white elephant. It proves nothing. At best it can provide some circumstantial corroboration to OPs version. But if OP's evidence is not reliable and thus rejected by the Court, then in simple terms there is no reliable evidence of any mistake.

But sometimes the "look over here" strategy works.

Especially with a rubbish judge who is professionally inferior to both counsel.

So I understand how you want to analyse the case. And that is how Roux wants you to see it.

But it is not how many judges would have analysed the evidence.

 

[mrjitty]

BiB…

Considering misinterpreted facts cannot be appealed according to SA law, do you believe Masipa's methodology or lack there of, is an indication of some sort of fowl play ?

I think she is just a poor quality judge

She would be lucky to be on the district court in NZ - let alone handling the murder trial of the decade.

 

[AJ_DS]

I think she is just a poor quality judge

She would be lucky to be on the district court in NZ - let alone handling the murder trial of the decade.

Thanks… as anybody looked into previous cases presided by Masipa and how she addressed the evidence in those cases ?

 

[GR_Turner]

To be honest I have given up having this discussion with people who haven't studied a lot of cases because it requires an understanding of how Courts tend to handle evidence, rather than simply going round in circles about this particular case.

So the short answer is many judges would have found OP to be an unreliable witness and thus would reject his evidence in toto.

At that point, there is no reliable evidence that OP acted in PDD.

The way Nel conducted the case makes sense based on long trial experience. Staying at the heart of the case. "Timeline" is essentially a huge white elephant. It proves nothing.

There is no reliable evidence of any mistake.

But sometimes the "look over here" strategy works.

Especially with a rubbish judge who is professionally inferior to both counsel.

Yes, I see that's what the State's case was in essence. But I still don't see why the timeline is a huge white elephant. Surely one of the strands of deciding whether to believe a witness' version involves looking at what else corroborates it and what contradicts it. All the things that Nel said were a problem seemed to me to be things that could be explained or could be mistakes. And Roux's timeline is hard to dispute and indeed Nel didn't even try. Do you say then that an experienced court will look at the timeline and say, oh well, that doesn't matter because of his poor testimony? I'd expect them to see that the evidence from the neighbours agrees with his version and conclude that it represented very strong evidence in his favour, at least as regards the primary case. DE is another matter but I was talking about the DD case.

If you don't want to discuss further as all this is just repetition to you now, I understand.

 

[AJ_DS]

GR_Turner

Don't mean to butt in your conversation… just reiterating something I mentioned last week

You split evidence into binary categories : corroborating and contradicting

I believe this approach is flawed since non-corroborating evidence is not the same as contradicting evidence.

Case and point : the fact the security landline record does not show Stipp called security twice does not automatically mean Stipp must be mistaken… as at least 2 run of the mill reasons can easily explain the discrepancy.

Just my 2 cents

 

[mrjitty]

I haven't posted for some months but in the interim i did discuss the case with a couple of experienced litigators who crystalized it better than me.

The point is that the timeline at best can only corroborate some aspects of Pistorius version.

However it was certainly open to the Court to find that OP was in the most part dishonest, deceitful and unreliable. Indeed quite a lot of circumstantial evidence proved he was lying about the key minutes - e.g. the duvet & blood stains.

Therefore a typical approach would be to reject all of OPs evidence except where it is independently corroborated - because an accused pleading self defence ought to be expected to be able to offer an honest account of the critical circumstances. If he cannot - then the Court simply ignores his unreliable testimony.

On this analysis - there is no reliable evidence Reeva went into the toilet without OP knowing.

Now also - and this is critical.

Defences to murder must be based on an evidential foundation. So the defence must establish some facts which allow the Court to find the mistake (plus PDD).

What facts were established which would allow the court to find that OP was mistaken as to who was in the toilet?

IMO this is where the Court went badly wrong because the manner of mistake as narrated by OP was highly unlikely and he was also a highly unreliable witness.

His version is not reasonably possibly true at all - in fact we know he is lying. Nel proved that.

It gets philosophical / jurisprudential at this point - but reasonable doubt does not mean the prosecution needs to disprove each of the facts of OPs version beyond reasonable doubt.

The Court instead should ask what facts have been established.

In order for the defence to succeed - the mistake actually needed to be proven as a fact.

Yet what actually happened was that his account of the mistake was highly implausible and demonstrably dishonest.

Now given that the defence never offered any evidence at all that OP screams like a woman - then you are left with the logical & natural conclusion that the witnesses heard Reeva screaming and there was no mistake.

Otherwise it starts to get impossible for the prosecution to win cases because the defense can simply invent a highly implausible story the facts of which the prosecution cannot 100% rule out

However that is not how the evidential burdern at trial works.

 

[mrjitty]

GR_Turner

Don't mean to butt in your conversation… just reiterating something I mentioned last week

You split evidence into binary categories : corroborating and contradicting

I believe this approach is flawed since non-corroborating evidence is not the same as contradicting evidence.

Case and point : the fact the security landline record does not show Stipp called security twice does not automatically mean Stipp must be mistaken… as at least 2 run of the mill reasons can easily explain the discrepancy.

Just my 2 cents

And in any event - the call times do not actually prove anything about whether it was Reeva screaming.

So the natural finding remains the obvious one - that they heard her at least for a short time. Corroborated by the first shot being not fatal.

Personally I don't think it would have mattered how Nel conducted his argumentation - Masipa was determined to reach a certain result including by illogical legal reasoning.