Discussion Thread #60 - 14.9.12 ~ the appeal~

[zwiebel]

Oh really? Is that why he cried and whined and puked like a baby in front of his surrogate mother for months? The only strong one in that court house was June, imo.

Well, I was tempted to say that seemed to directly contradict everything Oscar's defence said about what jail would do to him....

 

[ColonelMustard]

I forgot too and just saw a headline! Link to where you watched it please?

http://www.enca.com/oscartrial

Court starts at the 9:20 minute mark. Before that, just the shield.

 

[mrjitty]

If, as mrjitty says, "the SC can itself look at the sentence", would the same apply to the ammunition denial?

Yes - but state must apply for leave before the Supreme Court

Currently it is off the table.

 

[ColonelMustard]

There are SO many great comments, above, but my "thanks" button doesn't show up and was also wonky yesterday.

Eerrrrr...

 

[Val1]

I agree.

That decision was clearly incorrect.

In such cases, intention relates only to positive knowledge of possession. As a question of fact - he was clearly in control, knowingly, of the ammo.

Masipa wrongly looked at cases where the accused takes no action to posses (e.g. someone puts a gun down next to you) or the accused does not intend to possess. e.g. you find a bag of cocaine at your front door and telephone the police to come get it.

Otherwise as you say, you could hold drugs or guns for someone else - but have no intention to possess?

Absurd.

She still believes every word OP uttered, against all logic and/or evidence.

 

[ColonelMustard]

I wonder whether by dismissing the appeal of sentence and the ammo charge Masipa:

1. Was trying to save face.
2. Was being obstinate.
3. Was, as someone above suggested, still "confused" about a few things (...everything).
4. Other?

 

[Mr Fossil]

Judge Masipa announced the ruling in a Pretoria court on Wednesday.

"I cannot say... that the prospect of success at the Supreme Court of Appeal is remote," she said.

http://www.bbc.co.uk/news/world-africa-30408424

 

[ColonelMustard]

I may be incorrect but I think Roux didn't show up because he knew where this was going and didn't want to be there. If people here and all over the world knew there were problems with Masipa's judgement based on law, SURELY Roux knew the same thing.

I'm just glad it wasn't Oldwage, there. You just know he would have stopped her midway and expounded for 30 minutes on "proper procedure."

 

[JudgeJudi]

Mandy Wiener @MandyWiener · 36m 36 minutes ago
#OscarPistorius NPA says it must still think about whether or not it will petition SCA on sentence

Mandy Wiener @MandyWiener · 14m 14 minutes ago
State will ask for 15 years “@brian_66798: If the SCA finds OP guilty of Eventualis,what will they do with his sentence? @MandyWiener”

Mandy Wiener @MandyWiener · 56s 57 seconds ago
For those asking - if State successfully appeals conviction on murder, sentence will automatically change. State wants 15 years.

 

[ColonelMustard]

My sense is that if the SC find him guilty of "murder" and, for whatever reason his sentence stays the same, when he gets out people will be "gunning" for him.

If he does wind up getting 15 years, which I feel is still too short, I think if he serves it, when he's released people may leave him alone more, feeling that he has, to at least some extent, "paid" for his crimes.

 

[K.T]

15 year sentence is not automatic, the Mandatory Sentencing Act has a proviso (like most law!) that minimum sentences are still discretionary under certain special or mitigating circumstances. I've quoted it it somewhere on WS but am sure someone has the Act.

If Pistorius gets murder, dolus eventualis etc., his new sentence will be set by the appeals court. Or where ever this appeal lands! The judge/judges will provide the reasoning for the judgement and whatever applicable sentence. In some of the appeals I have read, at times they appear to ignore large parts of a prosecution/defense appeal and come out with their finding. More random SA rollercoasters...

Ohhhh, how telling, Masipa did not want to go for an appeal of her cuplable homicide sentence and her ammunition judgement. Seems ridiculous and ripe for bias asking the same judge if the prosecution has permission to let someone else higher on the food chain find the judge completely wrong. No wonder so many complain SA justice system is desperate to be untangled.

My opinion of this judge...low. If one were truly confident would a judge not want the ammunition decision be appealed and found correct.

And we ask ourselves constantly, how can a higher court judge spend the longest time in court listening to an infamous case and not be relatively coherent in the written judgement about culpable homicide. Masipa and the assessors had MONTHS to prepare - she didthrow out the prosecution evidence. As others pointed out, she only needed to write...because putative [subjective] self defense, end.

 

[Mr Fossil]

Karyn Maughan ‏@karynmaughan 49s49 seconds ago
Henke Pistorius: we have faith in the justice system @eNCAnews #OscarPistorius

Karyn Maughan ‏@karynmaughan 2m2 minutes ago
Henke Pistorius tells @annikalarsen1 that #OscarPistorius was "taught that life can sometimes be unfair” @eNCAnews

 

[mrjitty]

So the great news is Prof Grant gets to make his big play before the Supreme Court (of course Nel will do it for him)

Although the pleading was broken up into numerous parts - as I understand Grant's argument - this is really quite simple.

The legal question Masipa needed to ask was not whether the killing was foreseen but whether the killing was lawful.

This is logical. If you intentionally blow someones head apart - you better be sure it was (erroneous) self defence.

Roux absolutely cannot play in this sandbox because Masipa already found OP should have taken other non-lethal options.

So Putative Private Defence can't fly and Roux didn't include any contentions on this point yesterday.

Roux will simply try and head all this off at the pass and tell the SC that they can't go there.

Masipa found no foresight of death, therefore Grant's submission is not even in play and the SC can't consider it.

I think Roux's argument has some strength to it.

However I do feel that Grant is actually correct and that Masipa mixed DE & Putative Private Defence together and ended up applying the wrong legal test.

The biggest clue is that Masipa stated that belief his life was in danger was relevant to DE when they have nothing to do with each other.

I also think it is interesting that today Masipa could just have said "look - when he fired 4 Zombie stoppers - he didn't foresee death because XYZ - i held that so there is nothing to appeal here"

But she didn't.

So I think we have to conclude she never held that.

She thinks there is no legal foresight because he believed his life was in danger

Or at least there is a real risk she though that

Interesting arguments await!

 

[ColonelMustard]

So the great news is Prof Grant gets to make his big play before the Supreme Court (of course Nel will do it for him)

Although the pleading was broken up into numerous parts - as I understand Grant's argument - this is really quite simple.

The legal question Masipa needed to ask was not whether the killing was foreseen but whether the killing was lawful.

This is logical. If you intentionally blow someones head apart - you better be sure it was (erroneous) self defence.

Roux absolutely cannot play in this sandbox because Masipa already found OP should have taken other non-lethal options.

So Putative Private Defence can't fly and Roux didn't include any contentions on this point yesterday.

Roux will simply try and head all this off at the pass and tell the SC that they can't go there.

Masipa found no foresight of death, therefore Grant's submission is not even in play and the SC can't consider it.

I think Roux's argument has some strength to it.

However I do feel that Grant is actually correct and that Masipa mixed DE & Putative Private Defence together and ended up applying the wrong legal test.

The biggest clue is that Masipa stated that belief his life was in danger was relevant to DE when they have nothing to do with each other.

I also think it is interesting that today Masipa could just have said "look - when he fired 4 Zombie stoppers - he didn't foresee death because XYZ - i held that so there is nothing to appeal here"

But she didn't.

So I think we have to conclude she never held that.

She thinks there is no legal foresight because he believed his life was in danger

Or at least there is a real risk she though that

Interesting arguments await!

Yes, but will we get to watch it????

 

[Giles]

Video of NPA spokesman Nathi Mncube media scrum at 2 mins, and legal expert Llewellyn Curlewis at 8:20 mins:

https://www.youtube.com/watch?v=SU4DSSfjD6M#t=750

 

[Mr Fossil]

Mandy Wiener ‏@MandyWiener 40 seconds ago
Pistorius family on Masipa judgment: “We note the finding of the Court and abide by the ruling."

 

[ColonelMustard]

...

Karyn Maughan ‏@karynmaughan 2m2 minutes ago
Henke Pistorius tells @annikalarsen1 that #OscarPistorius was "taught that life can sometimes be unfair” @eNCAnews

(Me shaking my head.)

Henke, Henke, Henke... really?

 

[soozieqtips]

How an appeal might work

The court decides cases upon the record of the proceedings before the lower court and after considering the written and oral arguments presented. Witnesses do not appear before the court, and the parties need not be present during the hearing of an appeal. A written judgment is usually handed down shortly after the argument.

The court hears appeals on fact and since there are no jury trials, it has a relatively wide discretion to make its own factual findings. Because of this jurisdiction, judges have to read the record of the full proceedings in the lower courts …

The court sits in panels of five or three judges, depending on the nature of the appeal. The composition of the panels differs for each case. The senior judge on each panel presides in that case. There may be more than one judgment in a case if there is a difference of opinion. The decision of the majority is the decision of the court.

The dates on which the SCA sits are also fairly limited – the next session does not start until 15 February 2015.

http://www.theguardian.com/world/live/2014/dec/10/oscar-pistorius-judge-appeal-murder-acquittal-live

 

[mrjitty]

She still believes every word OP uttered, against all logic and/or evidence.

Agreed.

Anyway - denying leave was incorrect.

The state contends the wrong test was applied - not what animus OP had.

This is a question of law which can be appealed.

 

[mrjitty]

Interesting Roux didn't turn up

I guess he had an inkling which way the Supreme winds are blowing