Oscar Pistorius - Discussion Thread #63 ~ the appeal~

[JudgeJudi]

Re house arrest terms and the links

What struck me as odd/distorted is the Mirror one is titled " Oscar cannot leave house except for church." ( sic) ?? No work? No comm. service?
And that "he becomes "a prisoner in his own home".
And " The source added: “The appeal court can’t send him back to prison, they can only order a retrial. "

Can any of those three points be true? Surely not

http://www.mirror.co.uk/news/world-news/oscar-pistorius-freed-next-week-6260458"

I was amazed myself. Perhaps they think he may become a target and it's for own protection. mrjitty, can you help us out here?

 

[GR_Turner]

I found these old classics which pretty much capture my opinion of the case:

These are just tweets quoting nel. I can see why you like them.

 

[GR_Turner]

I was amazed myself. Perhaps they think he may become a target and it's for own protection. mrjitty, can you help us out here?

Good question- if the state win,.must there be a retrial? I hadn't heard that before.

 

[Interested Bystander]

Would that not be double jeopardy? I am unsure of SA Law with respect to that.

 

[Interested Bystander]

https://en.wikipedia.org/wiki/Double_jeopardy

South Africa
The Bill of Rights in the Constitution of South Africa forbids a retrial when there has already been an acquittal or a conviction

It doesn't look possible from this.

 

[Interested Bystander]

Oops, just in case anyone read my last post, I misread the link and have therefore deleted the post. Too much haste - back to dinner prep.

 

[JudgeJudi]

This has been bothering me too, but then I found this:

Supreme Court of Appeal
Director of Public Prosecutions v Mtshweni
Case No. 52/06

… If the error is one on which the acquittal of an accused turns then there is a grave irregularity in the proceedings and the court of appeal is bound to order a retrial on the same or amended charges. Question of law reserved answered in favour of the State, and institution of retrial ordered.

[32] It is clear, therefore, that there is no argument before this court that where a trial court has erred on a question of law, the institution of a new trial will infringe s 35(3)(m). The possibility of double jeopardy does not arise. And, as the State argues, there will be a serious miscarriage of justice should a proper trial not ensue. It is not only an accused whose interests must be protected by the criminal justice system. There must be fairness to the public, represented by the State, as well. There must be fairness to the victims of the crime and their families. In S v Jaipal17 the Constitutional Court said:

‘The right of an accused to a fair trial requires fairness to the accused as well as fairness to the public as represented by the State. It has to instil confidence in the criminal justice system with the public, including those close to the accused, as well as those distressed by the audacity and horror of crime.’

Paras. 28-34 are all well worth reading.

http://www.saflii.org/za/cases/ZASCA/2006/165.html

mrjitty, could you please have a look at this decision and advise.

 

[Interested Bystander]

This has been bothering me too, but then I found this:

Supreme Court of Appeal
Director of Public Prosecutions v Mtshweni
Case No. 52/06

… If the error is one on which the acquittal of an accused turns then there is a grave irregularity in the proceedings and the court of appeal is bound to order a retrial on the same or amended charges. Question of law reserved answered in favour of the State, and institution of retrial ordered.

[32] It is clear, therefore, that there is no argument before this court that where a trial court has erred on a question of law, the institution of a new trial will infringe s 35(3)(m). The possibility of double jeopardy does not arise. And, as the State argues, there will be a serious miscarriage of justice should a proper trial not ensue. It is not only an accused whose interests must be protected by the criminal justice system. There must be fairness to the public, represented by the State, as well. There must be fairness to the victims of the crime and their families. In S v Jaipal17 the Constitutional Court said:

‘The right of an accused to a fair trial requires fairness to the accused as well as fairness to the public as represented by the State. It has to instil confidence in the criminal justice system with the public, including those close to the accused, as well as those distressed by the audacity and horror of crime.’

Paras. 28-34 are all well worth reading.

http://www.saflii.org/za/cases/ZASCA/2006/165.html

mrjitty, could you please have a look at this decision and advise.

That looks very good. Always on the ball:loveyou:
.

 

[mrjitty]

I was amazed myself. Perhaps they think he may become a target and it's for own protection. mrjitty, can you help us out here?

I don't believe there would be a retrial as a question of practicality.

Rather than the Supreme Court is being asked to adjust the verdict from CH to DE

This could lead to a substituted sentence

A retrial is more usually ordered when the verdict is found to be unsafe - from the accused point of view.

However one of the problems raised by the State's pleadings was Masipa's handling of circumstantial evidence. Namely her failure to even make findings on numerous key points.

I don't know if the SC can fix those mistakes.

Personally I think the SC will take the shortest route.

Either they will throw the appeal out, or they will find, based on the judges own evidential findings - that DE applies.

personally I believe DE applies on Masipa's evidential findings because she found that OP intentionally shot at the person in the toilet, yet she did not find that self defence applied.

So what other verdict is logically possible?

 

[mrjitty]

mrjitty

As this appeal is by the State, can the defence introduce new facts? I know the State can't.

In the event of a retrial, which most SA lawyers seem to think unlikely, do you believe that the State may consider they now have enough evidence for DD or try for DE?

Further, how would the defence team tackle a retrial? One imagines they can't change their version very much.

I did not train under RSA law

Under my own system - new facts are normally only allowed on appeal if there are exceptional circumstances.

Generally speaking - if the matters were known at trial - they cannot be introduced later.

 

[GR_Turner]

This has been bothering me too, but then I found this:

Supreme Court of Appeal
Director of Public Prosecutions v Mtshweni
Case No. 52/06

… If the error is one on which the acquittal of an accused turns then there is a grave irregularity in the proceedings and the court of appeal is bound to order a retrial on the same or amended charges. Question of law reserved answered in favour of the State, and institution of retrial ordered.

[32] It is clear, therefore, that there is no argument before this court that where a trial court has erred on a question of law, the institution of a new trial will infringe s 35(3)(m). The possibility of double jeopardy does not arise. And, as the State argues, there will be a serious miscarriage of justice should a proper trial not ensue. It is not only an accused whose interests must be protected by the criminal justice system. There must be fairness to the public, represented by the State, as well. There must be fairness to the victims of the crime and their families. In S v Jaipal17 the Constitutional Court said:

‘The right of an accused to a fair trial requires fairness to the accused as well as fairness to the public as represented by the State. It has to instil confidence in the criminal justice system with the public, including those close to the accused, as well as those distressed by the audacity and horror of crime.’

Paras. 28-34 are all well worth reading.

http://www.saflii.org/za/cases/ZASCA/2006/165.html

mrjitty, could you please have a look at this decision and advise.

If I've read it right, the below seems to explain what should happen when an appeal against a decision based on a point of law succeeds when the original court was a superior court (the section 324 referred to is the section about retrials):

It seems to suggest that the court can correct the original court's decision in any way it sees fit in 322(1) but then later on refers to the situation where the state successfully appeal an acquittal (which didn't happen here) on a point of law 322(4) which "may" lead to a retrial. I'm not clear but in this context, 'may' doesn't appear to mean 'might' but rather sets out the options available.

This leaves me none the wiser but I thought I'd share it anyway(!) On the face of it, Mr Jitty seems to be right that the SCA should just be able to just substitute the verdict if they see fit.

http://www.saflii.org/za/legis/consol_act/cpa1977188.pdf

"322. Powers of court of appeal
(1) In the case of an appeal against a conviction or of any question of law reserved, the court of appeal
may -
(a) allow the appeal if it thinks that the judgment of the trial court should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a failure of justice; or
(b) give such judgment as ought to have been given at the trial or impose such punishment as ought to have been imposed at the trial; or
(c) make such other order as justice may require:
Provided that, notwithstanding that the court of appeal is of opinion that any point raised might be decided in favour of the accused, no conviction or sentence shall be set aside or altered by reason of any irregularity or defect in the record or proceedings, unless it appears to the court of appeal that a failure of justice has in fact resulted from such irregularity or defect.
...
(4) Where a question of law has been reserved on the application of a prosecutor in the case of an acquittal, and the court of appeal has given a decision in favour of the prosecutor, the court of appeal may order that such of the steps referred to in section 324 be taken as the court may direct."

 

[Marfa Lights]

<RSBM> Personally I believe DE applies on Masipa's evidential findings because she found that OP intentionally shot at the person in the toilet, yet she did not find that self defence applied.

So what other verdict is logically possible?

Re: BIB-- What about her acceptance of his PPD claim?

 

[mrjitty]

Re: BIB-- What about her acceptance of his PPD claim?

That's the whole point of the appeal on points of law

Ref Prof Grant - the tests re DE/PDD were not correctly applied.

Especially PDD was not made out because Masipa found the use of force was not reasonable in the circumstances.

PDD is a complete defence that renders a killing legally justified.

Pistorius was not actually under attack, and therefore he could not rely on the defence of private defence. He could however, and did, rely on a defence of putative private defence. This defence was the original defence raised by Pistorius and persisted in by his defence team in the alternative. This defence required that Masipa asked whether the accused foresaw the possibility that his conduct could unlawfully kill.

The problem is that, after specifically stating that she was turning her attention to this defence (of putative private defence), Masipa erroneously states that the question is whether the accused foresaw that his conduct could kill [full stop]. As discussed, this is not the right question.

It does not make her decision right to say, as many commentators have,[12] that if Masipa had asked the right question, she would have (possibly) arrived at the same or right conclusion. We cannot know what conclusion she would have come to if she had asked a different question.

It also does not follow that &#8211; as Snyman is reported to argue[13] &#8211; a defence of putative private defence somehow excludes a scenario from also being an error in objecto. Putative private defence describes the accused mental state &#8211; that s/he was mistaken in believing that whoever X (a human body) happens to be, X is about to attack. An error in objecto is an error as to who X actually is &#8211; B or C. These mistakes may obviously be related: an accused may have mistakenly believed s/he was under attack because s/he believed that X was B (who posed a threat), whereas it transpires, X was actually C (who posed no threat). This is indeed what Pistorius is claiming &#8211; and it invokes the principles relating to putative private defence and error in objecto.

http://criminallawza.net/2014/09/28...ustify-judge-masipas-errors-revised-expanded/

 

[Marfa Lights]

That's the whole point of the appeal on points of law

Ref Prof Grant - the tests re DE/PDD were not correctly applied.

Especially PDD was not made out because Masipa found the use of force was not reasonable in the circumstances.

PDD is a complete defence that renders a killing legally justified.



http://criminallawza.net/2014/09/28...ustify-judge-masipas-errors-revised-expanded/

NOTE: I am assuming you mean PPD Putative Private Defense instead of PDD (unless you meant Private Defense PD(D?) as when a genuine attack occurs?)


Okay, but as I understand it, the unreasonable use of force in this situation was a factor only in the CH determination-- the unreasonable use of force was one of several "errors and omissions" that made him culpable. Is that right?

Is there anything he did that makes his response to the perceived threat UNLAWFUL if the judge has already accepted his claim of PPD? Is his intent to kill the presumed intruder UNLAWFUL because he violated S.A. gun laws by not identifying his target?

How does a judge determine the LAWFULNESS of someone's response when they claim to have mistakenly believed an attack was imminent and they feared for their life? I thought PPD automatically excluded any unlawful intent since it is accepted that someone presumably thought they were acting in lawful self-defense.

I don't know how I manage to still confuse myself over this... but I guess I have a lot of company.

11 SepJames Grant @JamesGrantZA
Now (Masipa): did he intend to KILL. Not the right question, Question is: did he intend to kill UNLAWFULLY.

Help me here... what, in this situation, makes Oscar's intent to kill whoever was behind the door UNLAWFUL once the judge has accepted his PPD claim?

Can't help but think of the famous U.S. Civil War battle cry "Don't shoot until you see the whites of their eyes!"

 

[aftermath]

NOTE: I am assuming you mean PPD Putative Private Defense instead of PDD (unless you meant Private Defense PD(D?) as when a genuine attack occurs?)


Okay, but as I understand it, the unreasonable use of force in this situation was a factor only in the CH determination-- the unreasonable use of force was one of several "errors and omissions" that made him culpable. Is that right?

Is there anything he did that makes his response to the perceived threat UNLAWFUL if the judge has already accepted his claim of PPD? Is his intent to kill the presumed intruder UNLAWFUL because he violated S.A. gun laws by not identifying his target?

How does a judge determine the LAWFULNESS of someone's response when they claim to have mistakenly believed an attack was imminent and they feared for their life? I thought PPD automatically excluded any unlawful intent since it is accepted that someone presumably thought they were acting in lawful self-defense.

I don't know how I manage to still confuse myself over this... but I guess I have a lot of company.

11 SepJames Grant @JamesGrantZA
Now (Masipa): did he intend to KILL. Not the right question, Question is: did he intend to kill UNLAWFULLY.

Help me here... what, in this situation, makes Oscar's intent to kill whoever was behind the door UNLAWFUL once the judge has accepted his PPD claim?

Can't help but think of the famous U.S. Civil War battle cry "Don't shoot until you see the whites of their eyes!"

I think you are right in what you are saying...

The way I see it is that in accepting the PPD claim insofar as accepting that he genuinely believed his life to be in danger, Masipa also accepts that there is no dolus to act unlawfully or to bring about unlawful consequences. He therefore didn't have the criminal intent for DE. However, since in the end his actions were unlawful, even though that hadn't been his intention, he is culpable and on that particular level the PPD claim fails.

(I think what I am trying to say is clear- apologies if it is a bit jumbled)

 

[JudgeJudi]

I don't believe there would be a retrial as a question of practicality.

Rather than the Supreme Court is being asked to adjust the verdict from CH to DE

This could lead to a substituted sentence

A retrial is more usually ordered when the verdict is found to be unsafe - from the accused point of view.
However one of the problems raised by the State's pleadings was Masipa's handling of circumstantial evidence. Namely her failure to even make findings on numerous key points.

I don't know if the SC can fix those mistakes.

Personally I think the SC will take the shortest route.

Either they will throw the appeal out, or they will find, based on the judges own evidential findings - that DE applies.

personally I believe DE applies on Masipa's evidential findings because she found that OP intentionally shot at the person in the toilet, yet she did not find that self defence applied.

So what other verdict is logically possible?

Thank you so much for your reply and for all the others as well. I didn't know that it was from the accused's point of view.

Your input to this forum is very much appreciated.

 

[JudgeJudi]

An NPA spokesperson said the State is filing its heads of argument today and the defence will file theirs on 17 September.

http://www.sabc.co.za/news/a/4c8f7c8049819e1bbb2abb09a9e64dcf/-

 

[GR_Turner]

NOTE: I am assuming you mean PPD Putative Private Defense instead of PDD (unless you meant Private Defense PD(D?) as when a genuine attack occurs?)


Okay, but as I understand it, the unreasonable use of force in this situation was a factor only in the CH determination-- the unreasonable use of force was one of several "errors and omissions" that made him culpable. Is that right?

Is there anything he did that makes his response to the perceived threat UNLAWFUL if the judge has already accepted his claim of PPD? Is his intent to kill the presumed intruder UNLAWFUL because he violated S.A. gun laws by not identifying his target?

How does a judge determine the LAWFULNESS of someone's response when they claim to have mistakenly believed an attack was imminent and they feared for their life? I thought PPD automatically excluded any unlawful intent since it is accepted that someone presumably thought they were acting in lawful self-defense.

I don't know how I manage to still confuse myself over this... but I guess I have a lot of company.

11 SepJames Grant @JamesGrantZA
Now (Masipa): did he intend to KILL. Not the right question, Question is: did he intend to kill UNLAWFULLY.

Help me here... what, in this situation, makes Oscar's intent to kill whoever was behind the door UNLAWFUL once the judge has accepted his PPD claim?

Can't help but think of the famous U.S. Civil War battle cry "Don't shoot until you see the whites of their eyes!"

From what I've read, acceptance of PPD may remove intention "dolus" (in all its forms including DE), so the case is not treated as murder. The shooting remains illegal and acceptance of PPD doesn't change that. So then the issue is fault "skuld". If the person's belief that their life was in danger was reasonable then it is a complete defense (as I understand it) but if their belief was not reasonable, then they are guilty of CH, as happened here.

 

[mrjitty]

Sorry too much wine yesterday!

PPD (not PDD) is a complete defence to murder.

If PPD is made out, then the killing is lawful and OP does not go to jail.

PPD was not made out, as the judge made clear the use of lethal force was not reasonable in the circumstances. i.e. OP did not act in self defence.

The legal errors with the judgement are at least the following - but please see Prof Grant who explained all this in huge detail

1. PPD has a very strict test which has to be made out. Masipa stated the test incorrectly

2. The pleading of intentional use of lethal force in self defence cannot be reconciled with a finding that OP did not foresee killing anyone, or indeed the judges own findings that OP deliberately fired at the sounds in the toilet

3. The defence should not be allowed to plead mutually exclusive defences. In other words if the defence pleads that the accused shot the "intruder" in self defence the defence cannot also claim that the intruder was shot "by accident". (The accident is only as to identity)

Per Prof Grant the proper route to a finding of CH was that OP acted against an immediate threat, but that the mistake (i.e that there was an intruder) was not objectively reasonable.

 

[mrjitty]

From what I've read, acceptance of PPD may remove intention "dolus" (in all its forms including DE), so the case is not treated as murder. The shooting remains illegal and acceptance of PPD doesn't change that. So then the issue is fault "skuld". If the person's belief that their life was in danger was reasonable then it is a complete defense (as I understand it) but if their belief was not reasonable, then they are guilty of CH, as happened here.

Not correct

A finding of PPD means the shooting was lawful.

In self defences cases you intentionally employ lethal force. So you either intend to kill (Dolus Directus) or you foresee the possibility of death (Dolus Eventualis).

This is logical because when you shoot someone in self defence, any sentient adult realises the victim might be killed.

What is correct is that if you shoot someone in self defence, but based on an objectively unreasonable mistake - you are guilty of CH

However Masipa did not find that Private Defence was made out.

Specifically she noted that the accused had other options (e.g. go out of the bedroom) - therefore the use of lethal force was not justified.