Discussion Thread #60 - 14.9.12 ~ the appeal~

[mrjitty]

There was a move a few years ago to enshrine the right for Prosecutors to appeal factual findings in SA law but somehow it has got lost along the way and has never been incorporated in their CPA. Maybe this will give the powers-that-be the impetus to get this aspect moving again.

http://www.iol.co.za/pretoria-news/opinion/oscar-should-thank-his-lucky-stars-1.1755639

It's quite a difficult issue as you can also just end up rerunning the case which is pointless.

In the jury systems - you can basically only appeal if the factual finding was manifestly unreasonable, or if there are new facts.

So in this case I would argue that the finding that OP did not foresee the possibility of death is manifestly incorrect - but I am not sure you can go there in SA law.

Sometimes bad factual errors can be manufactured into legal errors which i think is what Masipa opened the door for when she found strange things without explaining the basis, and then linked findings to legal principals that make no sense.

So for example Masipa seems to say OP did not foresee death [FACT] because he thought reeva was in the bedroom, or because he thought his life was in danger would appear to be two instances where the judge misdirected herself based on the wrong considerations.

Misdirection is a legal error.

I don't think Roux has done a very good job of addressing the State's submissions myself - but of course this time it is him who doesn't want to play in the weeds

 

[alioop]

I think she will grant leave to appeal as she has no real choice. Nels arguments, particularly the written ones will demonstrate that another court could come to a different conclusion on verdict and sentence. If she refuses it, she just will look worse if her decision to refuse the appeal is overturned.

I think she she looked very sour at Nel because she knows his arguments are very strong and that she is going to have to grant leave to appeal. And I think she will have to grant leave on all points of the appeal.

 

[mrjitty]

Also this doesn't happen in a vaccuum

I wonder what the mood is in judicial circles?

It may be that the SC wants a look at this case - if only to put it to bed.

 

[JudgeJudi]

Do you really think a better closing delivery would have changed the result?

The Judge will have reached her conclusion on the key facts long before closing.

Absolutely not. She'd obviously made up her mind long before then. However that didn't preclude him from being more specific and detailed in his argument.

 

[mrjitty]

Absolutely not. She'd obviously made up her mind long before then. However that didn't preclude him from being more specific and detailed in his argument.

True

Although if he were an absolute superstar at that stuff he probably wouldn't be a state prosecutor ;-)

 

[JudgeJudi]

David Dadic @DavidDadic · 7h 7 hours ago
Can't see Masipa denying leave,too many questions remain of her decision,both in the public and legal mind.Validation or correction

David Dadic @DavidDadic · 7h 7 hours ago
To be fair I was wrong about the 174 yesterday, so could be today as well. But at least in this case State have recourse directly to the SCA

David Dadic @DavidDadic · 5h 5 hours ago
I am convinced this is a question of law by application of fact . Question of fact would be "how did it happen?" Of law "what is the effect

David Dadic @DavidDadic · 3h 3 hours ago
If ever the NPA needed some good news, tomorrow would be it.

 

[JudgeJudi]

Carl Pistorius @carlpistorius · 23h 23 hours ago

Every man dies, some men die without having ever lived.
#digdeeper


And to that I say ... Every man dies, most men die without having ever killed ... unlike you and your brother.

 

[mrjitty]

David Dadic @DavidDadic · 5h 5 hours ago
I am convinced this is a question of law by application of fact . Question of fact would be "how did it happen?" Of law "what is the effect

I agree 100% with Dadic

For example

“It follows that the accused’s erroneous belief that his life was in danger excludes dolus.”

The finding of the belief is a fact. But the application to Dolus is clearly incorrect. Putative Private Defence would make the killing foreseen, but lawful. So at the very least there is a real risk the judge misdirected herself, based on the written record even if there is a real chance she in fact did not misdirect herself but just wrote a confusing judgement.

The problem about the belief that his life was in danger, is she also found that the shooting was unreasonable - which rules out Putative Private Defence from applying at all.

Indeed the belief that his life was in danger only applies to PPD - it has nothing to do with Dolus.

As she does not explain why he did not foresee death - it raises the very real risk that she believes the erroneous belief excludes Dolus of itself.

As you can't exclude my construction on the record of the judgement - that means an error is a possibility if not a probability.

Think about it this way.

Masipa says he didn't foresee death BECAUSE erroneous belief.

She gives no other explanation.

So the SC can't invent one for her if she didn't state it.

Worse - presumably the reason she does not explain how you can intentionally pump 4 bullets into someone without seeing you might kill them is because it is an absurd argument so of course she never made it.

So far so good.

But what would the SC then do?

 

[JudgeJudi]

“This must be at the top end of negligence. What will happened to less negligent cases?” Nel said. “The precedent set by this court is shockingly low, that someone who acted with that degree of culpability should be sentenced to five years.”

http://www.latimes.com/world/africa/la-fg-pistorius-appeal-20141209-story.html

 

[JudgeJudi]

Nel said the court showed too much mercy to Pistorius, who could have foreseen that he could kill whoever was behind the door unlawfully.

Roux said it should be common cause that the State could not appeal facts.

The argument that someone intended to shoot, but could not foresee it would kill a person, was a factual finding.

As Roux spoke, Nel and Wits law lecturer Professor James Grant, who helped the State with the case, sat taking notes while perusing a law book.

http://www.news24.com/SouthAfrica/Oscar_Pistorius/Law-correctly-applied-in-Oscar-case-Roux-20141209

 

[JudgeJudi]

Experts said they expect Masipa to give the state a "lashing" about their handling of the case, before sending the matter to the Supreme Court of Appeal in Bloemfontein, the country's judicial capital.

"I honestly don't think that Masipa would refuse leave to appeal, there's just too much controversy about the judgement," said Martin Hood, a criminal lawyer based in Johannesburg.

"It doesn't matter what the outcome of the appeal is, if the appeal is allowed then other judges will be able to comment on the decision, and that's critical," said Hood.

http://www.ndtv.com/article/world/oscar-pistorius-appeal-ruling-delayed-632196?curl=1418133773

 

[JudgeJudi]

Defence lawyer Barry Roux argued there was no legal basis for an appeal on a point of law.

Roux told Judge Masipa: "Their problem is they don't like your factual finding. They don't appreciate that. You absolutely, correctly applied the law."

http://www.ibtimes.co.uk/oscar-pist...ie-nel-says-not-enough-emphasis-reeva-1478770

 

[JudgeJudi]

Barry Roux has argued that Gerrie Nel has no right to question the factual findings made by Judge Masipa in his client’s murder trial and that no higher court would find different anyway.

“What happens to the man who acted with that degree of negligence and actually had an intruder in his house and he shot him under the circumstance of the reasonable man – that clearly must be less than this,” said Nel.

But Roux said the state was arguing a factual finding which it had no right to.

http://www.citypress.co.za/news/nel-right-question-masipas-findings-roux/

 

[jay-jay]

Carl Pistorius @carlpistorius · 23h 23 hours ago

Every man dies, some men die without having ever lived.
#digdeeper


And to that I say ... Every man dies, most men die without having ever killed ... unlike you and your brother.

What the hell is the matter with that bloke??!

 

[eimajjjj]

After Masipa (hopefully) grants appeal, any idea on timeline from there?

 

[Mr Fossil]

After Masipa (hopefully) grants appeal, any idea on timeline from there?

Supreme Court of Appeal Terms
The court terms are prescribed in the court rules and are as follows:
15 February - 31 March
1 May - 31 May
15 August - 30 September
1 November - 30 November

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

 

[mrjitty]

Personally I doubt Roux is best pleased with Masipa in private

He "won" a great courtroom victory - only for the Judge to draft an incoherent document handing the prosecution a lifeline.

 

[Estelle]

Poll

Do you think the State has a case against Oscar?

Yes 80%

No 20%

Enough about Oscar now 0%

http://citizen.co.za/289611/oscar-pistorius-appeal-not-easy-nel/

Not many votes yet so go and have yours!

 

[Estelle]

Oscar Pistorius appeal not easy – Nel

http://citizen.co.za/289611/oscar-pistorius-appeal-not-easy-nel/

 

[Estelle]

Too much mercy shown to Oscar - Nel

The High Court in Pretoria showed "too much mercy" to Oscar Pistorius in sentencing him to five years for shooting dead Reeva Steenkamp, the State argued on Tuesday.

"I say with utmost respect, too much mercy is shown," prosecutor Gerrie Nel argued in the State's application for leave to appeal Pistorius's sentence and conviction.

"Perhaps the element of mercy was over-exaggerated."

He said a long custodial sentence in his opinion would have been 10 years.

http://m.news24.com/news24/SouthAfrica/Oscar_Pistorius/Too-much-mercy-shown-to-Oscar-Nel-20141209