Oscar Pistorius - Discussion Thread #63 ~ the appeal~

[Marfa Lights]

.....and i'm being serious when i say there's no proof.......i think it's pretty obvious.........there's no point in refusing to see the truth, that is, there is just nothing to prove that he murdered her........if there was anything then i would be one of the first to concede but being pumped from the state that inference is proof is beyond me.........proof is proof and inference is inference for the moment there's nothing but inference and no proof whatsoever of intention to do whatsoever...............and that is a fact .......lastly before closing all the doors to any other possible eventuality we must realise that we only have two versions, one made by Pistorius and it's counter theory from the state and if you're referring to me in your post i personally refuse to be drawn into a debate where the sides are decided from the outset i prefer to keep an open mind and develop other possible ideas regardless of whether or not the mainstream agree........................nothing outlandish in that....!

Professor Grant again:
http://criminallawza.net/tag/evidence/

The Perplexing Problem of Proof*
Posted: April 8, 2014

(BIB by me)

"Beyond that, as is the case in respect of many attempted distinctions in law, the distinction between circumstantial and direct evidence is not sacrosanct and breaks down on analysis. It breaks down at least in the sense that it is incorrect to imagine that direct evidence or indeed any evidence is free from requiring the court to draw inferences (Zeffertt and Paizes, The South African Law of Evidence, p 99). This is best illustrated by the following example (drawn from Wigmore on Evidence): The accused (X) is charged with the murder of the victim (Y) by shooting. X denies that s/he shot Y. The prosecution calls a witness, who testifies that s/he saw X arguing with Y, that s/he saw X produce a firearm, and point it at Y, heard a loud bang, and saw Y fall to the ground. The defence explains that it has only one question for the witness: whether the witness saw the bullet strike Y.
The point of the illustration is only to draw one’s attention to the fact that even given what appears to be a straightforward case of direct evidence, one must nevertheless draw inferences. The point ultimately is that all evidence requires a court in considering its verdict to draw inferences from the evidence. Zeffertt and Paizes explain that: “All evidence requires the trier of fact to engage in inferential reasoning.” (The South African Law of Evidence, p 99). Some evidence requires fewer inferences, this would be traditionally so-called direct evidence whereas other evidence, traditionally circumstantial evidence, will require more inferences. Nevertheless the point must be observed that the court is never free of drawing inferences and therefore the rules that govern the drawing of inferences govern the court in its ultimate evaluation of all evidence."

 

[Colin de France]

Professor Grant again:
http://criminallawza.net/tag/evidence/

The Perplexing Problem of Proof*
Posted: April 8, 2014

(BIB by me)

"Beyond that, as is the case in respect of many attempted distinctions in law, the distinction between circumstantial and direct evidence is not sacrosanct and breaks down on analysis. It breaks down at least in the sense that it is incorrect to imagine that direct evidence or indeed any evidence is free from requiring the court to draw inferences (Zeffertt and Paizes, The South African Law of Evidence, p 99). This is best illustrated by the following example (drawn from Wigmore on Evidence): The accused (X) is charged with the murder of the victim (Y) by shooting. X denies that s/he shot Y. The prosecution calls a witness, who testifies that s/he saw X arguing with Y, that s/he saw X produce a firearm, and point it at Y, heard a loud bang, and saw Y fall to the ground. The defence explains that it has only one question for the witness: whether the witness saw the bullet strike Y.
The point of the illustration is only to draw one’s attention to the fact that even given what appears to be a straightforward case of direct evidence, one must nevertheless draw inferences. The point ultimately is that all evidence requires a court in considering its verdict to draw inferences from the evidence. Zeffertt and Paizes explain that: “All evidence requires the trier of fact to engage in inferential reasoning.” (The South African Law of Evidence, p 99). Some evidence requires fewer inferences, this would be traditionally so-called direct evidence whereas other evidence, traditionally circumstantial evidence, will require more inferences. Nevertheless the point must be observed that the court is never free of drawing inferences and therefore the rules that govern the drawing of inferences govern the court in its ultimate evaluation of all evidence."

.......how many other examples are you going to drag out that have no similarity and no bearing ......?......inference is not proof....

 

[JudgeJudi]

And here's one from Oz:

The Honourable Ken Handley AO OStJ QC (retired in 2012)

Ken Handley retired as a Judge of the New South Wales Court of Appeal in January 2012 after 22 years on that Court. This included the maximum possible time as an Acting Judge between 2007 and 2012.

Career highlights

• 1959: call to the NSW Bar
• 1973: Silk
• 1986: call Lincoln's Inn
• 1992 - 2012: Judge of the New South Wales Court of Appeal
• 1996 - 2003: Part-time Judge of the Fiji Court of Appeal
• 2004: Honorary Bencher Lincoln's Inn
• 2003 - 2009: Part-time Judge of the Fiji Supreme Court until dismissed by the Military Government
• 2012: Court of Appeal of Tonga
• 2013: Court of Appeal of Kiribati
________________________________________

Education

• BA, LLB (First Class Honours), University of Sydney, 1957
• Visiting Fellow, Wolfson College, University of Cambridge, 1995
• Visiting Fellow, Wolfson College, University of Cambridge, 1998
• Inns of Court Visiting Fellow, 2001
• Hon LLD, University of Sydney, 2007

Professional Memberships

• London Court of International Arbitration
• Arbitration Foundation of Southern Africa

http://www.handleykenqc.com/

 

[Colin de France]

.....i could go even further by saying that the states version wasn't thought out and almost a knee-jerk reaction to Pistorius's version............it's a counter theory and nothing more......

 

[Marfa Lights]

.......how many other examples are you going to drag out that have no similarity and no bearing ......?......inference is not proof....

And when are you going to admit that in a court of law proof is based on inference??

What constitutes proof in your world? Heck, even confessions are sometimes false!

 

[cottonweaver]

@Colin

: but being pumped from the state that inference is proof is beyond me.

I do appreciate what you are saying, on a kind of semantic or philosophical level, but that's just the way the law HAS to work I'm afraid and I think it's entirely reasonable.

I do appreciate that you sincerely believe he may have shot the door for the motivation you have explained.

But from the train of the posts I just read pages 59-62, cumulatively, we may as well conclude that there is no point in trying anyone in court because we will never be able to find them innocent or guilty, as we can't make reasonable inferences as we don't have

a video of the crime on CCTV nor is neuroscience advanced enough for us to "replay" the thoughts of the Defendent back in court. ( My scenarios are outlandish because even if we could replay his thoughts, this argument would not be good enough. )
Way back , about 50 pages ago I ventured to you that IMO it's rather like me saying I plunged a 10" knife 4 times into a victim whilst trying to avoid the main artery.

But I don't really have any more to add on this point - about 5 threads ago I linked to a UK judgement of a similar knife attack but it would take too long to find it again.

 

[cottonweaver]

And here's one from Oz:

The Honourable Ken Handley AO OStJ QC (retired in 2012)

Ken Handley retired as a Judge of the New South Wales Court of Appeal in January 2012 after 22 years on that Court. This included the maximum possible time as an Acting Judge between 2007 and 2012.

RSBM

Wow JJ - that's 53 years from becoming a barrister to sitting on Appeal bench ? Looks very similar to the UK equivalents.
Again, I wholly appreciate post-apartheid SA had unique challenges in appointing a new judiciary but the lack of experience is why we got ourselves into this mess eh?

 

[Colin de France]

And when are you going to admit that in a court of law proof is based on inference??

...............that's news to me........proof is based on substance/evidence/fact.........inference is based on deduction/assimilation/probability........

 

[Marfa Lights]

...............that's news to me........proof is based on substance/evidence/fact.........inference is based on deduction/assimilation/probability........

Perhaps if you actually read some of the legal standards instead of approaching this from a layman's interpretation.

 

[Colin de France]

@Colin

I do appreciate what you are saying, on a kind of semantic or philosophical level, but that's just the way the law HAS to work I'm afraid and I think it's entirely reasonable.

I do appreciate that you sincerely believe he may have shot the door for the motivation you have explained.

But from the train of the posts I just read pages 59-62, cumulatively, we may as well conclude that there is no point in trying anyone in court because we will never be able to find them innocent or guilty, as we can't make reasonable inferences as we don't have

a video of the crime on CCTV nor is neuroscience advanced enough for us to "replay" the thoughts of the Defendent back in court. ( My scenarios are outlandish because even if we could replay his thoughts, this argument would not be good enough. )
Way back , about 50 pages ago I ventured to you that IMO it's rather like me saying I plunged a 10" knife 4 times into a victim whilst trying to avoid the main artery.

But I don't really have any more to add on this point - about 5 threads ago I linked to a UK judgement of a similar knife attack but it would take too long to find it again.

....ok..that's a fair reply and it's on that level that i think we all try to remain regardless of our opinions.........i know very well that my version is or can be seen to be far fetched at the moment....but after a murder verdict Pistorius may well crack and if he goes anywhere it may well be in the direction i'm proposing...........

 

[GR_Turner]

It strongly suggests he intended to use it otherwise why head towards a threat with it? To throw it at them? Besides, he did use it, four times, so I don`t know what proof you need to convince you that he intended to shoot at the 'intruder`.

BTW, do you believe he heard a noise that made him think someone was emerging from the toilet in the immediate moments before he fired?

There's surely a distinction between his intention to use his gun in a general sense and his intention to use it in the way in which he actually did. In other words, you can't put his intention to shoot 4 times through the door back to when he picked up the gun. Heading towards a threat with a gun isn't illegal in SA and had there been a threat and he'd shot to defend himself it would have legal. So it makes no sense to me to try to suggest that the unlawful act of shooting through the door was his intention when he picked up the gun.

 

[Colin de France]

Perhaps if you actually read some of the legal standards instead of approaching this from a layman's interpretation.

..........that's a rather elitist reply to say the least............words are words, i can't do much to change that, inference will never be proof and vice versa..............i'm terribly sorry that i'm not at your level of sophistication in law....but i am trying my best.................................and what's more, i'm right ....!

 

[cottonweaver]

....ok..that's a fair reply and it's on that level that i think we all try to remain regardless of our opinions.........i know very well that my version is or can be seen to be far fetched at the moment....but after a murder verdict Pistorius may well crack and if he goes anywhere it may well be in the direction i'm proposing...........

BIB - I think a "crack" or nervous breakdown is highly likely. It's a given that 95% of WS posters do see him as a human being ( nod to GRTurner's previous comment there) with attendant human frailties- after all that's how he got himself into this situation in the first place.

Now, if the "crack" was accompanied by a full and frank confession, I would be de-registering from WS and redemption/forgiveness for OP might well follow even from the Justice4Reeva community.

Anyway Colin, if he does start quoting your posts we will know he also succumbed to WS! LOL

 

[Colin de France]

............an inference based on fresh air is still fresh air.....................being extremely philosophical there !

 

[Marfa Lights]

..........that's a rather elitist reply to say the least............words are words i can't do much to change that inference will never be proof and vice versa..............i'm terribly sorry that i'm not at your level of sophistication in law....but i am trying my best.....

My apologies if that sounded elitist. It is frustrating, however, that you appear to ignore the content of my posts or reject them off-hand when they are offered to illustrate certain legal realities for this trial.

This is written for the U.S. courts but I think is illuminating about the burden of proof.

http://www.nolo.com/legal-encyclopedia/legal-standards-proof.html

“Beyond a reasonable doubt” doesn’t mean, however, that the prosecution must eliminate all unreasonable doubts a jury could possibly have. Nor must the prosecution prove the case beyond a shadow of a doubt or to an absolute certainty. These would be impossible burdens because only witnesses to an alleged crime can be certain—and even then, not all witnesses can be certain. Rather, this highest of standards requires—after consideration of all facts—only one logical conclusion: that the defendant is indeed guilty."

 

[Colin de France]

My apologies if that sounded elitist. It is frustrating, however, that you appear to ignore the content of my posts or reject them off-hand when they are offered to illustrate certain legal realities for this trial.

This is written for the U.S. courts but I think is illuminating about the burden of proof.

http://www.nolo.com/legal-encyclopedia/legal-standards-proof.html

“Beyond a reasonable doubt” doesn’t mean, however, that the prosecution must eliminate all unreasonable doubts a jury could possibly have. Nor must the prosecution prove the case beyond a shadow of a doubt or to an absolute certainty. These would be impossible burdens because only witnesses to an alleged crime can be certain—and even then, not all witnesses can be certain. Rather, this highest of standards requires—after consideration of all facts—only one logical conclusion: that the defendant is indeed guilty."

.....i know it's frustrating but i'm not going to let you get away with examples that have no bearing on this case...........i'm saying there's no proof and i know from having followed this case that i'm right, now if you're willing to accept inference as proof, that's up to you, i need more than that.........each to his/her own........lastly if inference is all that's needed i'm not surprised there's so many innocent people in prison or waiting for the death sentence..............that's why the benefit of doubt goes to the accused.........

 

[akp]

.....i know it's frustrating but i'm not going to let you get away with examples that have no bearing on this case...........i'm saying there's no proof and i know from having followed this case that i'm right, now if you're willing to accept inference as proof, that's up to you, i need more than that.........each to his/her own........lastly if inference is all that's needed i'm not surprised there's so many innocent people in prison or waiting for the death sentence..............that's why the benefit of doubt goes to the accused.........

Perhaps it would help everyone here if you first explain with an example what is your notion of a proof.

 

[GR_Turner]

.....i know it's frustrating but i'm not going to let you get away with examples that have no bearing on this case...........i'm saying there's no proof and i know from having followed this case that i'm right, now if you're willing to accept inference as proof, that's up to you, i need more than that.........each to his/her own........lastly if inference is all that's needed i'm not surprised there's so many innocent people in prison or waiting for the death sentence..............that's why the benefit of doubt goes to the accused.........

If you're right then the only way to get a conviction without any form of inference is a video of the whole incident or a confession. Do you think anyone would be convicted if this level of proof were needed? You seem to demand 100% proof.

 

[Colin de France]

If you're right then the only way to get a conviction without any form of inference is a video of the whole incident or a confession. Do you think anyone would be convicted if this level of proof were needed? You seem to demand 100% proof.

......whoops.........you've forgotten or bypassed evidence.....i think the word evidence has been largely missing in the recent discussion about inference versus proof.......i'd like to see some evidence that he murdered her and that there was no other possible alternative explanation......

 

[lithgow1]

There's surely a distinction between his intention to use his gun in a general sense and his intention to use it in the way in which he actually did. In other words, you can't put his intention to shoot 4 times through the door back to when he picked up the gun. Heading towards a threat with a gun isn't illegal in SA and had there been a threat and he'd shot to defend himself it would have legal. So it makes no sense to me to try to suggest that the unlawful act of shooting through the door was his intention when he picked up the gun.

I think if you read the line of inquiry I was replying to what I meant would be more apparent. I see your point - no of course picking up the gun didn`t mean that from the outset he intended to do what he ended up doing, but the very act of retrieving a gun and cocking it surely points to an acknowledgment that you might indeed use it, especially if you head towards a perceived threat with it. But essentially I was responding to posts that were saying there is no proof that he intended to use his gun and in frustration ended up making some sort of proof is in the actions argument. You could argue along similar lines that there is no proof that someone going in to rob a bank with a loaded pistol ever intended to use it, couldn`t you, but a court is well within its rights to reject such an argument and if you ended up shooting a teller, you would likely be charged with murder.