Appeal court finds that trial court applied dolus eventualis principle incorrectly in favour of state. Still in progress.
Oscar Pistorius Trial
- Thread starter Rednotdead
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In the latest episode of the United Hour Podcast, Nik @Rood and Imran @Annihilate Now! start with the good news by celebrating Manchester United Women's emphatic FA Cup win over Spurs at Wembley and the future of manager Marc Skinner.
Then it's the bad news and the ever worsening form of our Men with losses to Arsenal and Palace.
Finally the main debate - ETH Out now or keep him until the end of the season - if not longer. Are you Team Nik or Team Imran?
Oscar found guilty of murder
Sentence will be done by trial court
Hopefully some proper justice can be done now.
Thank goodness for no double jeopardy
Justice has being served to that murdering scumbag.
I just read a tweet that apparently quotes the judge as saying 'common sense says...' I mean, I know everybody wants blood here but surely justice cannot be determined on 'common sense'?
Unfortunately we'll never know why...unless he does an O.J and writes a book(Not that I want such a book, a simple confession would suffice)
He said
I think it's more a case of serious errors in the application of the law leading to this (new) verdict.
I'm not fully understanding the context, but I don't think in a legal case a judge or attorney should ever allude to 'common sense'. It's something massively open to interpretation.
Can you quote the tweet?
I think the courts used dolis eventualis, which @Stretch can explain better. Thats Roman Dutch law, and its much more than common sense and would look at how a rational person would have acted , and how what his expectations would have been at the time of the shooting.
He probably meant common sense application of the law in this case.
I have to say, I followed the initial case very closely and everything pointed to him being guilty. If you don't give that as guilty most domestic murders can be covered up.
It was the tweet that Cassius quoted. Dolis Eventualis sounds awful. How a rational person would have acted is massively open to interpretation and as such imo has no place in law. Whether he's guilty or not, a verdict should be based fundamentally in fact and not interpretation or opinion. I probably don't understand the finer details of why it's used, but your description makes it sound like it should have no place in a court room.
Not really a fan of such decisions on appeals, I think it puts the whole first trial into question really.
Have a read of this.....
http://www.enca.com/opinion/oscar-pistorius-what-essential-missing-link’-dolus-eventualis
http://www.enca.com/opinion/oscar-pistorius-what-essential-missing-link’-dolus-eventualis
The issue seems that you don't understand the concept of dolus eventualis. It relates to situations where you forsee the possibility of the death of a person but you reconcile yourself and proceed in any event. Therefor this requires a test to be done to check if he would have forseen the death of a person yet nevertheless continued with his actions. If he did, then he's guilty of murder as it amounts to gambling with someone's life (whomever that person might be). In Oscar's case, the justice referred to it being common sense that death might occur in light of the facts he already listed. Any reasonable person, well trained in firearms like Oscar should and would forsee potential death of the person behind the toilet door considering the force (gun), ammunition used and the space in that cubicle. Earlier in this thread I posted full explanations of what dolus eventualis means and how it is applied. There was nothing wrong with what the judge said.
You need appeals as else you will a miscarriage of justice constantly. Also, appeal courts also help define case law and how laws should correctly be interpreted. Today in SA was not just about Oscar's case, it was about final clarification on how to apply the dolus eventualis concept in our criminal law too.
No need to get arsy, I clearly explained that I didn't understand the concept of it but thanks for pointing it out regardless as though it was somehow in doubt. The issue I had was with the use of the words common sense, which has no place in law as common sense is an opinion. It isn't factual.
Double jeopardy never came into the equation here as they were not retrying Oscar they simply had to see if the law was correctly applied or not based on the established facts (from the trial). They found it was not and thus imposed the proper verdict.
I actually wasn't being arsy, sorry if it read that way. The problem though is that in law you need to draw inferences from fact which is open to interpretation in any event. So you should be asking the correct questions and then apply the facts to those questions. In this case it was found the trial judge didn't ask the correct questions nor did she apply the facts correctly to the set of questions asked.
Fair enough, usually 'the issue is you don't seem to' is usually an attack/mocking of someone so apologies for taking it wrong.
Am I right in thinking there will be no resubmitting of evidence? This is essentially one part of SA law saying 'we don't agree, so we're changing it' based on no new evidence? Is there anything to stop that happening again further down the line and it being overturned yet again? I would have thought if you overturned the previous conviction which was given (rightly or wrongly) after consideration of evidence and deliberation that you should out of 'common sense'
go through that process again.There is only 1 more step of appeal open to Oscar which is our Constitutional Court. I very much doubt it would go that way not in the least because Oscar doesn't have the money to do so. There was no resubmitting of evidence at all during this appeal process. It only looks at matter of law. And with law comes applying of the established facts. The trial court for example said Capt Mangena is an excellent witness and then never ever took anything of what he had to say in consideration of judgement. That's an error in law. To give context, the 'common sense' comment (which comes from one of our longest sitting justices) came after he's laid the foundations of the argument and hence arriving at a very 'common sense' place. It is indeed 'common sense' that someone might die if you fire 4 ranger bullets from a gun into what you know is a small cubicle. He explained these fully during his judgment. The reasonable person would forsee possible death.Fair enough, usually 'the issue is you don't seem to' is usually an attack/mocking of someone so apologies for taking it wrong.
Am I right in thinking there will be no resubmitting of evidence? This is essentially one part of SA law saying 'we don't agree, so we're changing it' based on no new evidence? Is there anything to stop that happening again further down the line and it being overturned yet again? I would have thought if you overturned the previous conviction which was given (rightly or wrongly) after consideration of evidence and deliberation that you should out of 'common sense'
Keep in mind this judgment was read by 1 justice but was arrived at by a bench of 5 very experienced Justices. It wasn't arrived at lightly.
EDIT: Also this is not correct: "This is essentially one part of SA law saying 'we don't agree, so we're changing it' based on no new evidence?" It's about saying "we don't agree with your application of the law and will thus apply it properly and see what verdict that brings forth." That's what transpired here but it can only happen if an appeal is granted by the trial court itself, and if the State appeals successfully with their arguments based on law.
I understand the idea behind appeals but I feel that unless there was some new evidence put forward it is wrong to overturn the decision. The judicial system is basically saying that for the same amount of evidence available our judges are interpreting the laws differently.
I can understand finding faults with how the trial was conducted and absolutely so, this should be the case but to me that says that you simply quash the original result and thus need to begin again. Taking Pistorious out of it because obviously it's an emotive case for a lot of people who want to see him convicted regardless of his guilt - a system where by an individual is punished with a sentence he wasn't found guilty of because of mistakes made by the courts not applying the law correctly (something which isn't his fault) to me seems silly. If Pistorious is to be found guilty of murder he should be retried with the appropriate evidence and found guilty. Not retrospectively told he's guilty because the courts did it wrong to begin with. In my opinion anyway.
No they're saying the law was not applied correctly the first time around. It's not interpretation. It's not applying the law. There are fundamental questions the trial court had to ask and it didn't. The trial court also failed to take all the evidence into account and thus didn't apply all the evidence to its verdict. That is incorrect application of the law. There's very clear case law on this not just in SA but all around the world.
In that case one should do away with appeal courts in its entirety as we would consider the original courts decision final and binding. However, as legal minds would say that's 'not in the interest of justice'. Also, I don't think he has to be 'retried'. The appeal court did indicate that it is their first preference to do so but that neither side (State and Defence) didn't feel it would be in the interest of justice. For one, Oscar doesn't have the funds to have a retrial. Two, witnesses now have to testify again after having had this trial so public. They might just bend their stories. They might also have forgotten parts of their witness they gave for example. Both sides felt a retrial would be unnecessary and not in the interest of justice. Thus, the appeals court made a ruling based on the evidence established in the original trial. The evidence or facts established in the original trial was not under question at all. It is the application of the law to those set of facts that was the issue. The law was not applied correctly to the established facts which means the incorrect conclusion was arrived at when looking at the facts objectively and thus an incorrect verdict transpired. The appeals court set aside the verdict, relooked at the facts established, applied the law correctly, and turned the conviction into murder. This is nothing new in law.
I can understand it, I just don't agree with it. If there has been issues with the trial then absolutely they should be highlighted. My only disagreement with it is that you can just change the sentence to a different one. If faults are found in the original trial then it should be quashed and the trial carried out again IMO. Justice should be fair for all, it should be devoid of emotion and cater to all parties involved. Again taking Pistorious out of it due to how emotive it is, saying 'sorry, the judge fecked up so now you're life is changing again' is not justice in my opinion - it's vengeance as it only serves one side, which is the prosecution. With regards to cost, if the state didn't carry out their jobs correctly the first time round then the state should cover the costs and boohoo if it's expensive. It just doesn't seem to be fair, which is one of the cornerstones of the concept of justice.
You're ignoring the part where his own defense team said it wouldn't be feasible for them to have a retrial. It was agreed by both parties. As I said, the appeal court did mention that this would typically have gone for retrial. It's not the state that is the judge though. The state's argument is exactly that they did indeed carry out their work properly but that the judge erred.
I watched quite a bit of the trial and couldn't believe he didn't get done for Murder. I think they've made the right call.
You can and should use terms like common sense or intimate conviction because often you will have cases without eye witnesses. You have objective elements that you have to subjectively use. in the case of Pistorius he objectively killed his girlfriend but the justice tried to understand if the context forced him to do it, that process is subjective, it will rely on common sense and (in France) intimate conviction of the judge or juries.
Huh? I dunno how you've arrived at the conclusion. Sounds like the very definition of justice to me if the law was applied incorrectly in the first instance.
I explained immediately afterwards how I arrived at that conclusion, as the result only benefits the prosecution. The definition of justice to me would be that there would be a retrial. It should be fair to all at all times. If it was wrong the first time it should be scrapped completely and done again. How feasible and costly it is shouldn't be a factor, if mistakes were made then mistakes were made.
The bolded part throws out that argument though. It was agreed during submissions that a retrial is not an option. And no, the state has no obligation to carry the cost. Case Law indicates that the appeals court can if need be and if in the interest of justice, overturn a verdict with a new one. The appeals court exercised that right after agreement from Oscars defence team that having a retrial is not an option.
I'm not saying the state has an obligation to carry the cost, I just think that the state should have an obligation to carry the cost if they wish to change someones life based on a mistake/mistakes that their representatives made. It's hypothetical. I understand it isn't the case right now, but in my opinion it should be. It's only fair, which is the whole point of justice.
I hear you. Though I was arguing the merits of your comments in this particular case. Interesting though is that Judges are state officials and paid by the state but in a court case they don't represent the state, the prosecution does. So do we then still say the state 'should' carry the cost of a retrial? That's an interesting point to look at.
Thank goodness justice as been done. To think that he may have continued in his career with companies falling over themselves to sponsor him.
Thank god, maybe reeva's family can move on now.
The initial sentence was nothing more than a complete joke, I'm so glad justice has come through and I hope the scumbag suffers
The initial sentence was nothing more than a complete joke, I'm so glad justice has come through and I hope the scumbag suffers
See ya Pustorius you piece of shit. No one believes your preposterous story.
Did Pustorius appeal the original conviction?
Did Pustorius appeal the original conviction?
Same here, the Pitbull was on fire in the original trial.
Agree with your posts in this thread. Understand that SA uses a different law system but the burden of a retrial should fall on the shoulders of the prosecution, not the defense.