Discussion Thread #60 - 14.9.12 ~ the appeal~

[mrjitty]

In my view Roux has engaged in a hugely theatrical bout of begging the question

His submission that the state cannot appeal questions of fact is trite law.

Obviously his best argument is that Masipa has found, as a question of fact, that OP did not foresee killing the person behind the door

But he should obviously be able to push on from here and demonstrate how the factual findings stacked up, and how the judge them correctly applied the law to the facts.

However - like us - he can't easily point to the parts of the judgement where the judge does this.

Instead he just says "you got it right" and as his submission simply cuts and pastes large parts of the judgement to "prove" that the judge considered the right facts.

To that end - I agree with Roux entirely.

But the actual question is a different one and Roux highlights it.

OP did not need to "intend to kill anyone".

He only needed to foresee it.

So given the judge says he intended to shoot the person behind the door, on what basis was it that he did not foresee death?

So we arrive at the same impasse.

Instead of articulating the conduct and facts which persuaded her that he did not foresee it, Masipa instead completely dodges the question and resorts to weirdness.

So we are left with the risk that she found he did not foresee it because she misdirected herself about the law.

Exactly as the prosecution contends.

I don't think Roux did much at all to address the actual prosecution arguments.

 

[mrjitty]

Reading the judgement again after many weeks, my personal opinion is that Masipa did in fact make an error of law.

If she wanted to fit OP up for CH as the "right verdict" it was simple enough to do.

Find he acted erroneously in Putative Private Defence, but find that the erroneous belief was objectively unreasonable. Water tight. Job done.

However she found that the force was unreasonable and not OPs only option - so PDD did not apply. She clearly found this legitimately and reasonably. She doesn't think it was PDD.

However she does seem to believe that nevertheless the erroneous belief is significant.

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

She doesn't say “It follows that the accused’s acting in erroneous private defence excludes dolus.”

She seems to think that the belief itself excludes Dolus. It's there in black and white.

How can this be?

In my view, the fact that she does not articulate how you can deliberately shoot someone multiple time with zombie killers without foreseeing death is significant. If she thought OP intentionally shot someone multiple times with Zombie killers without ever realising the potential lethal results - she would have simply stated that. Because she does not, IMO she does not think that. We can't imply that when the judge does not state it.

Rather she states "the accused’s erroneous belief that his life was in danger" of itself excludes Dolus.

So we must accept that this is her reason for finding a lack of legal foresight.

Masipa seems to believe that in these mistaken shooting cases it can't be murder if you subjectively hold a belief your life is in danger.

Now actually that is not true because there are more limbs to the PDD test - like was the force reasonable.

But it also demonstrates how the judgement is internally inconsistent - because why would you resort to lethal force if not to potentially kill the danger you were facing?

And furthermore - had it actually been an intruder - it would have been murder as the test for Private Defence was not met. That's straightforward. If you gun someone down deliberately, you need to show self defence. Merely believing your life is in danger is not enough if you had other non-lethal options. Like running.

And again I reiterate. Masipa could have found PDD applied but nowhere does she state it. To the contrary - she finds OP had other options he should have taken.

I hope the SC takes a helicopter view of this and super imposes the only obvious inference.

I worry that they say yes its all a mess, but find that the judge nevertheless found there was no foresight - therefore no dolus.

Of course if I were a SC judge, I would find it hard to uphold such a finding, when it is manifestly absurd.

If they want to - it would be quite easy for the SC to say - "well we can't be sure what she meant because her written reasoning is poor quality - so we are going to have to fix this up"

Otherwise, if RSA wants to have culpable homicide verdicts in these shootings - they are going to have to change the law.

 

[mrjitty]

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

If she does - it would be a pretty embarrassing move.

If she was going to lash the state for their handling of the case - it should have been done in the judgement

So I guess it will probably happen because that is the kind of carry on we've come to expect!

 

[saraomar]

Did I misread somewhere that the assessors were in court? I didn't see them?
I agree Nel was not as articulate as 'put it 2 U' but lets not forget English is not his first language, and also, it is very difficult to stand in front of a judge and tell her her judgement/sentence beggars belief! It was an excellent move to involve Prof Grant, as the quality of argument, supported by relevant case law was simply brilliant!
Roux only stated that M was right and just wanted to piss her off against the prosecution by using taunting and condescending tones! He has not done enough to ward off a leave to appeal.
But again.... You never know....tomorrow will tell!

 

[mrjitty]

Did I misread somewhere that the assessors were in court? I didn't see them?
I agree Nel was not as articulate as 'put it 2 U' but lets not forget English is not his first language, and also, it is very difficult to stand in front of a judge and tell her her judgement/sentence beggars belief! It was an excellent move to involve Prof Grant, as the quality of argument, supported by relevant case law was simply brilliant!
Roux only stated that M was right and just wanted to piss her off against the prosecution by using taunting and condescending tones! He has not done enough to ward off a leave to appeal.
But again.... You never know....tomorrow will tell!

The bolded - exactly right!

The Crown/State has some advantages in cases - namely its ability to pay its employees to prosecute the case over time.

However, generally the State does not have the same quality of legal argumentation as the big ugly private clients - and can also be out resourced. (See the recent News Ltd prosecution in England)

So its nice to see budget invested in high quality legal argumentation from Grant.

It may be surprising but often prosecutors like Nel are more savvy case managers and advocates than they are legal scholars.

My professors also assisted in cases, as they tend to be the guys with the most time invested in the latest developments of specific areas of the law.

Ironically the other people with high legal knowledge are the top grads straight out of Uni - as their learning is most current from said profs.

 

[saraomar]

The bolded - exactly right!

The Crown/State has some advantages in cases - namely its ability to pay its employees to prosecute the case over time.


However, generally the State does not have the same quality of legal argumentation as the big ugly private clients - and can also be out resourced. (See the recent News Ltd prosecution in England)

So its nice to see budget invested in high quality legal argumentation from Grant.

It may be surprising but often prosecutors like Nel are more savvy case managers and advocates than they are legal scholars.

My professors also assisted in cases, as they tend to be the guys with the most time invested in the latest developments of specific areas of the law.

Ironically the other people with high legal knowledge are the top grads straight out of Uni - as their learning is most current from said profs.

Excellently articulated! Thanks! I totally agree!

 

[Fuskier]

Thank you for providing legal context MrJitty. Appreciated.

 

[Interested Bystander]

Just in case anyone missed today's proceedings in court, here is a link for the whole appeal.

https://www.youtube.com/watch?v=LimyJDAeDcE&list=PLyxkBFYMs1vz9__Y-rCwab-htixelEcqS

 

[44ALLAN]

In my view Roux has engaged in a hugely theatrical bout of begging the question

His submission that the state cannot appeal questions of fact is trite law.

Obviously his best argument is that Masipa has found, as a question of fact, that OP did not foresee killing the person behind the door

But he should obviously be able to push on from here and demonstrate how the factual findings stacked up, and how the judge them correctly applied the law to the facts.

However - like us - he can't easily point to the parts of the judgement where the judge does this.

Instead he just says "you got it right" and as his submission simply cuts and pastes large parts of the judgement to "prove" that the judge considered the right facts.

To that end - I agree with Roux entirely.

But the actual question is a different one and Roux highlights it.

OP did not need to "intend to kill anyone".

He only needed to foresee it.

So given the judge says he intended to shoot the person behind the door, on what basis was it that he did not foresee death?

So we arrive at the same impasse.

Instead of articulating the conduct and facts which persuaded her that he did not foresee it, Masipa instead completely dodges the question and resorts to weirdness.

So we are left with the risk that she found he did not foresee it because she misdirected herself about the law.

Exactly as the prosecution contends.

I don't think Roux did much at all to address the actual prosecution arguments.

And at the end of it all the court totally ignored the crime scene photographs and the poor witnesses who heard Reeva pleading/screaming for her life as she was being executed....................this whole thing has turned into an academic farce.
They should all hang their heads in shame.............it's as if they've done this on purpose to debate and get the laws altered or changed.

Not being racist but.....................just look at the dewani case and probably thousands of others.
Black guys/dodgy/someone gets killed..................banged up for 15/20/25year...............bye bye low lifes.
Edited.............(too late I might add) to say that it could be white/yellow/crimson or pink low lifes just the same.............I hope you see my point lol.

Here it's a rich white guy who can afford the best lawyers and it turns into flippin war and peace with every lawyer in the world wanting their 2'penneth.
Covered by thousands of journo's and news channel costing millions in wages and air time.
Well it stinks and I'm totally sick of this inequality..................phew that's betta

mrjitty.................I value your posts immensely and that rant was no way whatsoever directed at you
I hope you realise that..............apologies in advance

 

[Lux et Veritas]

Nel: the ct did not take into account, as it should have, ALL the CIRCUMSTANTIAL EVIDENCE... the court did not do that.

It weighed them each separately, as a feather, and dealt with them separately, and not as a whole....as it should have.

The court should not reject the defendants version, and contsruct a different version of the story for itself, to rule upon.

This gets at the heart of the matter. How can Masipa's verdict (and sentence) be correct if she didn’t consider ALL the evidence as a whole, as any thoroughly competent judge (or jury) is compelled to do? That’s the very nature of circumstantial evidence - ALL the pieces are woven together to create the most logical, most compelling whole beyond a reasonable doubt.

How would it go over if an airline crash reconstruction team - meticulously piecing together thousands of large and tiny pieces - decided to simply leave off and ignore the left tail section, an entire section of damaged wiring, perhaps the (fatally) defective landing gear? They would be severely reprimanded, fired and laughed out of the industry.

The principle of reconstruction - telling the “story” - remains the same in any arena. How long would an author stay in business if he decided to omit chapter 2, 10, half of chapter 17 and the last page of the last chapter? One simply cannot pick and choose only certain pieces and arbitrarily ignore the rest.

Masipa unceremoniously tossed the evidence of all five highly credible State ear witnesses for no good reason - or any reason. Simply declaring that they were all “mistaken” - as if it was undisputed fact - without any hard evidence to back it up shows extreme bias. But Masipa had to trash them; their dangerous testimonies damned OP as a murderer - her CH + 5 years could not stand otherwise. Yes, witnesses do sometimes err, they sometimes are grossly (if honestly) mistaken but seriously, what are the chances that all five witnesses (with no reason to lie and nothing to gain, unlike OP), each essentially corroborating the others' accounts, got it all 100% wrong?

How bitter that the most valuable member on the Defense team was Judge Masipa.

 

[soozieqtips]

Just caught up with the video. I couldn't listen to Roux (heard enough of him to last a lifetime), and although Nel seemed to lose his momentum occasionally, what kept coming through loud and clear was his repeated phrases "a trained user of firearms" - "what was his intent? It was not established".

Well, a trained user of firearms could not possibly have FAILED to realise he could kill the person behind the door.

And "with the utmost respect", I have to say I was not at all impressed with the bored and irritated looks Masipa kept giving Nel. I get that she's miffed her judgement is being called into question, but she should really try harder to conceal her annoyance. I wonder if she ever checks out the footage of herself???

 

[Lux et Veritas]

In my view Roux has engaged in a hugely theatrical bout of begging the question

His submission that the state cannot appeal questions of fact is trite law.

Obviously his best argument is that Masipa has found, as a question of fact, that OP did not foresee killing the person behind the door

But he should obviously be able to push on from here and demonstrate how the factual findings stacked up, and how the judge them correctly applied the law to the facts.

However - like us - he can't easily point to the parts of the judgement where the judge does this.

Instead he just says "you got it right" and as his submission simply cuts and pastes large parts of the judgement to "prove" that the judge considered the right facts.

To that end - I agree with Roux entirely.

But the actual question is a different one and Roux highlights it.

OP did not need to "intend to kill anyone".

He only needed to foresee it.

So given the judge says he intended to shoot the person behind the door, on what basis was it that he did not foresee death?

So we arrive at the same impasse.

Instead of articulating the conduct and facts which persuaded her that he did not foresee it, Masipa instead completely dodges the question and resorts to weirdness.

So we are left with the risk that she found he did not foresee it because she misdirected herself about the law.

Exactly as the prosecution contends.

I don't think Roux did much at all to address the actual prosecution arguments.

Bravo, Mrjitty, very well said.

Roux’s super-short-and-desperate argument was little more than “Helluva job, My Lady!”

Nel offered a very strong, detailed argument, citing not only the what and how with highly pertinent case law and Constitutional trump cards but the crucial WHY, not the least of which is the bad, unjust legal inequity that Seekoei perpetuates.

How can the State properly promote equitable justice at every level if it’s arbitrarily, severely restricted in use of the same appellate procedural tools Defense enjoys? The "law" turns on and is directly dependent on "facts". (How the two could ever neatly be divided and arbitrarily parsed out is a mystery.) Such procedural disparity is a huge, crippling disadvantage for the State.

It’s no small feat that Nel and Grant are taking on such a complex challenge - over and above appealing the OP verdict/sentence. They clearly see the bigger picture for South African law - how longstanding judicial wrongs MUST be corrected.

Legal inequities breed legal inequities (which translate into far-reaching, divisive social inequities, an endless catch-22). This is starkly illustrated by the dangerous precedent Masipa set in this murder case, the perpetuation of a two-tiered judicial system ... the rich man’s blueprint for getting away with murder.

(Wealth aside, look for copycat killings to flood the courts. You know they’re coming. Theoretically, the Oscar Defense should work the same for anyone who can read a simple blueprint, who wants to permanently get rid of their annoying significant other - or anyone, for that matter. Will these killers, too, receive lenient “mercy” in the courts - or is that reserved for the special few?)

Roux has no such higher, lofty goal. (As he put forth, he's entirely OK with a Judge's "factual findings" being grossly wrong (at least in this specific case lol). His sole agenda is to keep Ozzie from rotting in prison for the next 15 years.

I have to believe that Roux has got to be at least somewhat nervous at this point - and more likely on the verge of controlled panic. He knows that even if Masipa denies the State’s leave to appeal, Nel will promptly petition the SCA directly ... and I simply do not see those judges turning Nel away.

Whether Nel and Grant ultimately win or lose, they’ll always be heroes to me.

 

[Lux et Veritas]

In all the somber technicalities of yesterday’s proceedings, there was one bright spot - Masipa looked utterly, thoroughly 100% MISERABLE.

I won’t lie - I smiled ... no one deserves it more than she.

 

[Cherwell]

In all the somber technicalities of yesterday’s proceedings, there was one bright spot - Masipa looked utterly, thoroughly 100% MISERABLE.

I won’t lie - I smiled ... no one deserves it more than she.

Oh, I can think of someone. :whistle:

 

[DexterMorgan]

I think Nel called too many witnesses during the murder trial. This helped leave room for the circus tactics. 1) He should have seperated the charges to have seperate trials and verdicts. This way were not hearing testimonies that have nothing to do with the murder. Plus we could have seen how bias the judge would have been on the sentencing of the proved petty charges. 2) Nel didn't need to call the neighbour that lived too far away. This helped play doubt that Reeva scream could be heard that far. 3) Nel should of said this to the judge; "My lady, if your husband was to gun you down after sreaming at you, while you were hiding from him in the bathroom; I would do my best to make sure he gets more then the 2 years you gave Oscar"

 

[JudgeJudi]

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.

I agree. He won the battle but hopefully loses the war.

 

[zoran]

Are we back in court today for a ruling?

 

[JudgeJudi]

Are we back in court today for a ruling?

Yes. Yesterday it was supposed to start at 10am SA time but in fact started at 9.30.

Masipa said they'd be starting at 9.30 SA time today. I imagine it's going to be very brief.

 

[JudgeJudi]

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!

The figures have changed but very few votes.

Yes: 70%

No: 16%

Enough about Oscar: 15%

You can vote multiple times but you must exit the website and go back in again.

I've voted 7 times so far

 

[Harmony 2]

Are we back in court today for a ruling?

Yes, they will be returning.
We will remain on this thread.