Oscar Pistorius - Discussion Thread #63 ~ the appeal~

[Mr Fossil]

Here's a link to the State's Heads of Argument

http://pod702.co.za/Eyewitnessnews/docs/150818OscarAppeal.pdf

 

[GR_Turner]

Am I mistaken or did you say you watched the entire trial?

If you did, how can you have forgotten that Nel got OP to admit his version couldn't be true if the photo was an accurate depiction of the scene (fan, duvet, jeans). Or do you think OP lied when he agreed his version couldn't possibly be true under those circumstances?

OP said this because he didn't think the photos were correct though. So the 'if' clause in the sentence is key.

I don't see how any court could agree that photo 55 can be taken as true though. To be accepted as accurate, crime scene photos must reflect how things were found by the first on the scene surely. Van Rensberg was the third on the scene and the state didn't call the other policemen who gave affidavits that they arrived first. If this key premise fails then the state can't argue that their photos reflect the scene accurately.

 

[Colin de France]

......number 50............"if i think back today m'lady"...... he is saying that at the time he didn't think that someone would get shot by a bouncing bullet ...........it's retrospective thinking....the court should have asked the question directly "did you know at the time that you fired that someone could possibly be shot by a richochet bullet" ? ........

 

[lithgow1]

OP said this because he didn't think the photos were correct though. So the 'if' clause in the sentence is key.

I don't see how any court could agree that photo 55 can be taken as true though. To be accepted as accurate, crime scene photos must reflect how things were found by the first on the scene surely. Van Rensberg was the third on the scene and the state didn't call the other policemen who gave affidavits that they arrived first. If this key premise fails then the state can't argue that their photos reflect the scene accurately.

How often are police photographers the first on the scene? Often they arrive later, as they are not the first to respond. By your reasoning no crime scene photos would ever be acceptable to a court.

 

[GR_Turner]

How often are police photographers the first on the scene? Often they arrive later, as they are not the first to respond. By your reasoning no crime scene photos would ever be acceptable to a court.

Van Renberg was the policeman who was first on the scene, according to the state. He wasn't the photographer. He testified that photo 55 was correct. However, 2 other policemen were there before him, it would seem from their affidavits.

 

[GR_Turner]

Here's a link to the State's Heads of Argument

http://pod702.co.za/Eyewitnessnews/docs/150818OscarAppeal.pdf

Having just glanced through this, there is no mention of PPD. How interesting.

 

[aftermath]

Having just glanced through this, there is no mention of PPD. How interesting.

I was going to say something similar...

 

[cottonweaver]

Of course he could have. The point is that he didn`t say he did. Just the opposite in fact. He even admitted under cross that if those photos of the positioning of items were an accurate reflection of the room as the police found it, then his version couldn`t be true. Guess he said that because he was upset and who knows what lies we all might tell when we are upset at being exposed as liars.

For me, that was such an amusing expression of circular reasoning that I spat out my tea as I read it!

 

[mrjitty]

The State pointed to the fact that it was the duty of the court to carefully weigh the cumulative effect of all the pieces of circumstantial evidence together, “and it is only after it has done so that the accused is entitled to the benefit of any reasonable doubt which it may have as to whether the inference of guilt is the only inference that can reasonably be drawn”.

<snipped>

Yes.

As i have said before, this is why Nel conducted the case the way he did. Indeed any seasoned counsel would be expected to use this approach.

The accused admitted to shooting the victim, so the only question at trial was what was the accused intention in the short moments before the shooting.

The accused's pleaded defence was that he made a mistake.

So the Court (and Nel) must directly confront this evidence - it's the heart of the case.

Nel correctly asks the Court to consider if there is any reliable evidence of a mistake?

The only evidence of the mistake is the testimony of the accused.

But the trouble is that this evidence is wholly unreliable. See for example the unchallenged evidence of the crime scene photos.

In addition Nel presents concentric rings. Numerous other evidential points showing the accused must be lying. Stomach contents, ear witnesses etc.

At such point you would expect a judge in the ordinary course to simply reject the accused evidence as unreliable. Even Masipa seemed to accept he was lying.

Here is where logical inference takes over.

As Nel has now asserted on Appeal, it cannot be that the prosecution is required to disprove other contradictory versions or defences.

They disproved the version the accused advanced - and that means he no longer has a case of mistake.

What Nel complains about is that the judge instead begs the most important question by failing to record any factual findings or inferences on these points.

Instead she effectively adopts a wholly circular logic.

The witnesses cannot have heard Reeva screaming because OP shot her dead before she screamed. Therefore if they did no hear her screaming, then OP must have shot her by mistake.

This assumes the answer to the very question the court was supposed to examine.

As Nel then goes on to note - it is not proper for the Court to henpeck individual points of circumstantial evidence whilst ignoring others

This is invalid as a logical inquiry

Rather the Court must first review all the circumstantial points that have been established - and only then reach inferences based on all of them.

This logical fallacy is what I call "turnip juicing" from the Amanda Knox case.

i.e. if bloody footprints are found on the floor via luminol - the Court is not allowed to speculate that they are not blood prints but prints in turnip juice.

So for example if a witness hears a women arguing at 2am - the Court is not allowed to speculate that a TV was heard.

Rather the court must accept the unchallenged evidence that a witness claimed to hear a woman arguing at 2am, and so therefore, it must be inferred that a woman was in fact heard.

 

[mrjitty]

Having just glanced through this, there is no mention of PPD. How interesting.

Why would there be?

Masipa did not find that it applied.

The question is the application of the legal tests for DE, given the facts found by the judge / established at trial.

 

[cottonweaver]

How often are police photographers the first on the scene? Often they arrive later, as they are not the first to respond. By your reasoning no crime scene photos would ever be acceptable to a court.

For very good reason, I have never ever heard of a crime scene photographer being first on scene. Can't imagine anyone else has.
(Only in the world of non-forensic, TV news papparazzi would this happen first eg. that American film "Nightcrawler".)

 

[lithgow1]

For me, that was such an amusing expression of circular reasoning that I spat out my tea as I read it!

Thank you though I got myself a little tangled. It should have been `who knows what truths we all might tell when ...`.

 

[mrjitty]

How often are police photographers the first on the scene? Often they arrive later, as they are not the first to respond. By your reasoning no crime scene photos would ever be acceptable to a court.

Exactly.

Its a non-issue as the defence did not mount any serious opposition to the photos - therefore they have to be taken as accepted as proved as to their contents.

This is where Masipa's laziness has opened a door to the State

Given she doesn't actual bother to deal with the crime scene photos - I believe the State will simply say that the SC must accept them as proven as to content.

Roux can't simply contend that they are unreliable.

He needs actual evidence of his own to cast doubt on them.

OP didn't actually provide that evidence - he merely made the same assertion without explaining what the "real scene" should have looked like.

So I think the SC has no choice but to accept these exhibits.

 

[mrjitty]

For very good reason, I have never ever heard of a crime scene photographer being first on scene. Can't imagine anyone else has.
(Only in the world of non-forensic, TV news papparazzi would this happen first eg. that American film "Nightcrawler".)

It's a nonsense which has currency only amongst internet posters - certainly not in Court

What is important is the chain of possession.

So for example - the police get possession of the crime scene - but photos happen in due course. Forensics won't be done until later. etc

This is why the removal of the phone was such a bad thing.

But notice how the innocence campaigners don't get upset with the defence tampering with the crime scene.

 

[cottonweaver]

Yes.

As i have said before, this is why Nel conducted the case the way he did. Indeed any seasoned counsel would be expected to use this approach.

Big snip

And incidentally Judge Greenland as an experienced High Court judge has always chimed with this view... the Defence's TimeLine didn't win the case but Roux succeeded in confusing an easily confused court , Nel largely ran this case as he should have etc etc.

( I'm sure everyone has read them by now, but here are the transcripts to the interviews with juror 13 again where he shares concluding thoughts on this trial.
https://juror13lw.wordpress.com/2014/09/27/judge-and-juror-vs-a-miscarriage-of-justice/

 

[Mr Fossil]

Final para of State's Heads of Argument (my emphasis):

65. We argue that section 322(1)(b) is applicable and therefore the court may give the judgment that ought to have been given at the trial which is a conviction on the main count of murder.

The court may act in terms of the provisions of Section 322(4), which in our respectful submission empowers the court to order that new proceedings be instituted on the original charge as if the accused/respondent had not previously been arraigned

So an alternative judgment or another trial is a possible outcome?

 

[cottonweaver]

It's a nonsense which has currency only amongst internet posters - certainly not in Court

What is important is the chain of possession.

An old friend of mine is a SOCO ( Scene of crime officer) - it took her a long while to get into that career because there are so few posts. About 3K vs. about 100K Full Time police officers in UK. By this logic (BIB) we need to reverse these ratios!

 

[mrjitty]

Final para of State's Heads of Argument (my emphasis):


So an alternative judgment or another trial is a possible outcome?

Interesting.

Personally I suspect there will be no political will for that.

Ideally the Supreme Court will simply fix the judgement by applying the correct legal test for DE to the facts as the trial Court found them.

I worry what will happen is that SC might duck for cover by criticising the quality of the Judgement, but throwing its hand in the air.

This would provide a moral victory to State, but close down the circus

 

[Marfa Lights]

Quote Originally Posted by GR_Turner View Post
Having just glanced through this, there is no mention of PPD. How interesting.

Why would there be?

Masipa did not find that it applied.

The question is the application of the legal tests for DE, given the facts found by the judge / established at trial.

But I thought she did accept his PPD claim...

From pp 3326-3327 of Masipa's Judgment:
In the present case, on his own version the accused suspected that an intruder had entered his house through the bathroom window. His version was that he genuinely, though erroneously, believed that his life and that of the deceased was in danger. There is nothing in the evidence to suggest that this belief was not honestly entertained.

(Of course she goes on to justify this by saying he said he heard the window open and it was in fact found to be open, etc.)

And she concludes on p 3329:
It follows that the accused&#8217;s erroneous belief that his life was in danger excludes dolus. The accused therefore cannot be found guilty of murder dolus eventualis.

 

[cottonweaver]

Interesting.

Personally I suspect there will be no political will for that.

Ideally the Supreme Court will simply fix the judgement by applying the correct legal test for DE to the facts as the trial Court found them.

I worry what will happen is that SC might duck for cover by criticising the quality of the Judgement, but throwing its hand in the air.

This would provide a moral victory to State, but close down the circus

Despite the simple clarity of most of the State's Appeal arguments ( that we have seen so far) , I don't hold great optimism due to the current political climate in SA ( one of many examples is it is still reeling after Marikana legal wranglings) and this is why I am most interested in seeing which judges are selected for the Appeal and some detail about their careers.

Maybe this will offer more than a few crumbs of solace to some of our posters.