Discussion Thread #61 ~ the appeal~

[soozieqtips]

You're wrong.

Yes, the burden of proof rests with the prosecution. But when there's a self-defence claim, the onus to prove that shifts to the defence.

BIB - that's exactly how I understand it too.

 

[Trotterly]

That's not what I've heard. The onus always rests with the prosecution I believe.

Unless the guy's obviously guilty of course.

 

[mrjitty]

You're wrong.

Yes, the burden of proof rests with the prosecution. But when there's a self-defence claim, the onus to prove that shifts to the defence.

Unfortunately this is an area where lay people have no idea that self defence is covered by a strict set of tests that the defence needs to meet.

Re Burden:

You can spend weeks on this stuff and there has been huge judicial and academic debate down the years on precisely how this works or how it dovetails with the presumption of innocence.

But in summary the overall burden of proof in the case always stays with the prosecution.

However in self defence (private defence) cases, as well as other active defences, there is an initial onus on the defence to establish the evidential foundation upon which the defence is based.

So in this case, the defence needed to show that OP mistakenly perceived some kind of imminent threat and that his reaction was reasonable.

Note the Court found OP actually was mistaken.

In practical terms this was a fact which the defence needed to prove.

The reason why Nel conducted the case as he did, is that the only significant evidence of mistake was OP's testimony.

So the finding on this point was always going to turn on whether the Court believed the accused on this aspect.

This is why Nel, as an experienced prosecutor, focussed on discrediting and revealing him to be unreliable.

Where a witness is found to be unreliable, a Court will often dismiss their evidence in toto

So this is why the Statement of Appeal is framed the way it is. If the witness is held to be unreliable, then the Court should not rely upon the witnesses evidence.

 

[mrjitty]

BIB - that's exactly how I understand it too.

I think what most people don't understand is the difference between evidential burden, and the overall burden of the case.

The Burden of proof is always with prosecution.

But in practical terms of case management, there is nearly always evidential burden on the accused.

So for example, Roux can simply make the contention that OP screams like a woman - and that was who the witness heard. The accused does not have to give evidence, and the defence can simply sit back and let the prosecution do all the work.

However that amounts to little more than wild speculation - and does not introduce any facts upon which the Court could make such a finding.

Roux skillfully navigated the dangerous waters in this area.

For whatever reason - he never introduced any direct evidence that OP screams like a woman - even though the defence had the opportunity to create such evidence.

Rather he introduced expert evidence that it might be possible to confuse the two. This is basically the 'muddy the waters" approach.

However it still isn't really evidence OP screamed like a woman - just raising the idea that it can be possible (critical step!)

The key evidence that it was OP screaming and not Reeva is OPs evidence.

In the end it was always going to be critical that the Judge believed OP and not Stipps.

Now this is where some reading between the lines can be done. And I think it explains some of the undisguised fury in the State's Appeal.

Many times a judge sets sail for the outcome they believe is the right outcome.

Personally I don't think Masipa really believed OP either. She even says he was lying (but not guilty of murder). She found his version was a real possibility that the state had not excluded. But she did not go so far as to say she believed what he told the court.

I think she really believes that something went down in the "accident" category, were manslaughter was the right verdict.

But having read her judgement many times - she does seem to say that she doesn't believe what he said about how this all might have come to pass. All the fans etc. She didn't buy it.

But to her it doesn't matter.

It reminds me of the "little old lady" cases where the judge "pulls the verdict out of their arse"

 

[mrjitty]

That's an easy one - by following the correct procedures, and not stealing from the crime scene. That kind of thing.

Of course it was actually the defence who tampered with the crime scene.

Could easily also be the same person who removed the watch.

You'll note the defence never provided specifics on how the crime scene was manipulated, or how the police would know how to manipulate fans & curtains & duvets without knowing OPs version.

Of course had they actually wanted to frame him - it would have been much easier to do that "strange duvet placement"

 

[Trotterly]

Well someone hasn't fully grasped the evidential standards that is for sure.

You know as well as I do that with the mixed bag of ear witnesses that a timeline based on the phone times trumps all.

 

[LemonMousse]

That's not what I've heard. The onus always rests with the prosecution I believe.

The prosecution always, always have a burden of proof.

But with things like self-defence or insanity there is an onus for the defendant to bring evidence supporting their claim.

If not, you'd have the situation where a murderer stands up and says, "I didn't know what I was doing because I was insane at the time....prove me wrong". They could, in theory, do that but their defence would fail. In actuality, they would need to bring doctors reports and so on.

i know that this is a shocking thought, but killing people is generally considered a very bad thing to do. There was a prima facie case against Pistorius - a dead woman that he acknowledged killing. It was up to him to demonstrate, with evidence (even if that's just his own testimony) that his actions were not unlawful.

So, sorry, in this particular case, Pistorius did have to evidence his defence. That's what all the social workers and psychologists were there for.

 

[LemonMousse]

So you really are saying that we should not evaluate each piece of evidence and test whether it can be right or not before we put it together?? This is just madness. I don't dismiss evidence as impossible just because I'm not sure what it means - I note that and consider it with other evidence. Neither do I accept evidence as being true when there is reason to think that it is tainted.

As Trotterly said, all the police needed to do was not screw up the crime scene - this is incredibly basic stuff. What normally happens at some time after someone is arrested at the scene of a crime? A trial. Why do the police have procedures to make sure that they can demonstrate to the court that the scene they present is as they first found it or can demonstrate in which way things were changed? Because the court won't accept evidence that is tainted. It is clear that the police didn't follow any such procedures, at least one thing was stolen, a policeman either lied about being the first on the scene or the ex-policeman on the stand wasn't being straight. They hid Botha in effect. It's a mess but you keep saying otherwise. You don't address Van Rensberg's evidence. It seems as though you just want to believe the photos are correct, to be honest.

It is clear from. Van Rensberg's evidence that the scene the police found was identical to that in the pictures.

A missing watch and police fingerprints on the gun did not change that one tiny iota. This is desperate quibbling.

You refuse to acknowledge that, in the cold light of day, if the photographs are a true reflection (and there is NO reason to suppose that they aren't) of the scene then Pistorius is a lying murderer because none of the things he said happened could have done.

Explain the duvet, please. Clearly, it was on the floor when he carried Reeva out - and if it was, then the large fan could not possibly have been at the end of the bed, which it had to be if he was telling the truth.

i know you don't want to admit you're wrong, but seriously, start looking at the actual evidence instead of scrabbling about trying to find the vaguest, weeniest bit of inconsistency in the state's case. This would be fine if you weren't systematically closing your eyes to the whopping great chasms in [modsnip] work of fiction.

 

[GR_Turner]

The prosecution always, always have a burden of proof.

But with things like self-defence or insanity there is an onus for the defendant to bring evidence supporting their claim.

If not, you'd have the situation where a murderer stands up and says, "I didn't know what I was doing because I was insane at the time....prove me wrong". They could, in theory, do that but their defence would fail. In actuality, they would need to bring doctors reports and so on.

i know that this is a shocking thought, but killing people is generally considered a very bad thing to do. There was a prima facie case against Pistorius - a dead woman that he acknowledged killing. It was up to him to demonstrate, with evidence (even if that's just his own testimony) that his actions were not unlawful.

So, sorry, in this particular case, Pistorius did have to evidence his defence. That's what all the social workers and psychologists were there for.

No, Mr Jitty explains above that there must be a basis for the defense, but you can't just then say that the burden of proof shifts. Mr Jitty's argument is that the court should have rejected OP's evidence in it's entirety as unreliable which would mean that there is no reliable evidence before the court other than that he shot and killed Reeva.

 

[GR_Turner]

Of course it was actually the defence who tampered with the crime scene.

Could easily also be the same person who removed the watch.

You'll note the defence never provided specifics on how the crime scene was manipulated, or how the police would know how to manipulate fans & curtains & duvets without knowing OPs version.

Of course had they actually wanted to frame him - it would have been much easier to do that "strange duvet placement"

Well, we don't know who took the watch and neither do the police so they weren't in control of the scene at that point. If someone can gain access and take something then the scene has not been secured.

 

[Trotterly]

Well, we don't know who took the watch and neither do the police so they weren't in control of the scene at that point. If someone can gain access and take something then the scene has not been secured.

We don't know but I think it's somewhat obvious from VR's uneasy testimony. I'm sure it was this and the fiasco with the door that lead to his new career as a sports coach.

 

[mrjitty]

You know as well as I do that with the mixed bag of ear witnesses that a timeline based on the phone times trumps all.

So having posted something completely incorrect - now you want to shift the goal posts.

Is your goal to learn about how criminal evidence works?

Or simply to maintain innocence no matter what?

In Roux's camp - they will be extremely concerned about the appeal precisely because it has multiple strong grounds and the judgement was technically poor.

Roux will be privately furious Masipa opened the door this by writing such a piss poor analysis. She could have closed the door.

Real legal analysis - which is what Roux will be doing - involves assessment of the strengths and weaknesses of the legal position.

All experienced analysts have noted the Appeal has a decent chance of success and strong avenues of attack.

Yet there is a group of people determined to believe the Appeal is weak - no matter what.

I am fine with rational argumentation as to why Roux will succeed on appeal - he may well do.

But simple blind assertions about the weak state case should not be taken seriously I am afraid.

 

[Trotterly]

So having posted something completely incorrect - now you want to shift the goal posts.

Is your goal to learn about how criminal evidence works?

Or simply to maintain innocence no matter what?

In Roux's camp - they will be extremely concerned about the appeal precisely because it has multiple strong grounds and the judgement was technically poor.

Roux will be privately furious Masipa opened the door this by writing such a piss poor analysis. She could have closed the door.

Real legal analysis - which is what Roux will be doing - involves assessment of the strengths and weaknesses of the legal position.

All experienced analysts have noted the Appeal has a decent chance of success and strong avenues of attack.

Yet there is a group of people determined to believe the Appeal is weak - no matter what.

I am fine with rational argumentation as to why Roux will succeed on appeal - he may well do.

But simple blind assertions about the weak state case should not be taken seriously I am afraid.

I hear you covering yourself.

 

[mrjitty]

I hear you covering yourself.

Why do I need to?

It's always been a big mountain to climb for the prosecution on an appeal limited to points of law.

I believe they have a strong case - but would not rate their chances better than 50/50

Even if the SC hands down criticism of Masipa, i suspect they will be slow to change the verdict.

 

[LemonMousse]

You know as well as I do that with the mixed bag of ear witnesses that a timeline based on the phone times trumps all.

Not when one of the times in the timeline is not taken from a phone record but from the unsubstantiated notes of a witness. A witness, lest we forget, who himself queried the time on the stand.

Pistorians are unaccountably completely ignoring this...and it's crucial.

 

[Interested Bystander]

Why do I need to?

It's always been a big mountain to climb for the prosecution on an appeal limited to points of law.

I believe they have a strong case - but would not rate their chances better than 50/50

Even if the SC hands down criticism of Masipa, i suspect they will be slow to change the verdict.

BIB

My thoughts too. I have read so often that the Supreme Court is always reluctant to override a judge's decision.

I have never understood how Masipa could have thought OP did not realise he would kill somebody when shooting into the toilet cubicle. He stated in his testimony that he did not fire a warning shot in the bathroom because of the danger of the ricochet hitting him. I cannot remember the exact wording. How could Masipa think that OP genuinely believed that 4 shots into a very confined space would not have killed the occupant. IMO he knew exactly what he was doing. He cannot have it both ways.

This is what Masipa said "He is also not guilty of murder without premeditation because it was not proven by the prosecution that he had foreseen that his action could result in the death of the person behind the door".

He stated that he foresaw he could have been bit by a bullet if he fired a shot in the bathroom. How come, if he foresaw that, he did not foresee that shooting four bullets into a very small space would very likely have killed the occupant? How could Masipa have ignored this? Her verdict is beyond belief.

 

[Trotterly]

Not when one of the times in the timeline is not taken from a phone record but from the unsubstantiated notes of a witness. A witness, lest we forget, who himself queried the time on the stand.

Pistorians are unaccountably completely ignoring this...and it's crucial.

The 10111 call at 3.17 is crucial.

Why is Johnson's timing "crucial"?

 

[LemonMousse]

The 10111 call at 3.17 is crucial.

Why is Johnson's timing "crucial"?

There is no evidence whatsoever that the 10111 call was at 3.17. None.

The only phone record produced was the security landline, and there is quite obviously no mention on that of a call to a completely different number.

This is Roux's invention, and you've fallen for it.

The only facts are that Stipp made two calls to security - one at 3.15 (when he spoke to someone) and another at 3.27 (which had 0 duration). Then Mr Mike made one at 3.16.

No actual records were produced showing the missed attempts at calling other numbers made by Dr Stipp. If you think there are, I think you need to go back and look at the evidence.

We KNOW that Stipp spoke to security at 3.15 and we know that during that call he reported just having heard gunshots. There could not have been any further bangs after that since he then moved to stand on his balcony and wait for security...at which point he heard the male "helps". If the banging had started up again (as it would HAVE to have done if Roux is correct), the Stipps would have run back into their bedroom as they did before.

It is totally inconceivable that there were any more bangs after 3.15. If there were, absolutely no one heard them.

And, to repeat, no verified record was produced showing the time Johnson made his call. This was taken from his own notes made afterwards.

Pistorius shot Reeva at just before 3.15. Immediately afterwards he ran to the bedroom balcony and shouted "help".

Nothing else makes sense, no matter how hard you try to make the puzzle pieces fit.

Roux played fast and loose with the call timings, but it's not actually that hard if you're willing to really think, to see his sleight of hand.

 

[Colin de France]

Pistorius shot Reeva at just before 3.15. Immediately afterwards he ran to the bedroom balcony and shouted "help".

...he shouted help...as in i've just killed my girlfriend or as in i've just killed an intruder.....

 

[LemonMousse]

...he shouted help...as in i've just killed my girlfriend or as in i've just killed an intruder.....

Personally (and speculatively), I think he shouted "help" like that because he knew that both he and Reeva had been shouting it a few minutes before and the neighbours had probably heard.

Who, really, with access to two telephones would yell "help" from a balcony like that? Who was he hoping would hear and what did he want them to do?