I agree. It’s pretty shocking that their court can just substitute a new sentence. No new trial or anything. That seems wrong and unjust. imho
But I don’t live there and view it from the perspective of the American legal system. New trials are used here when a higher court overturns a lower court’s trial decision.
I kind of feel sorry for Oscar Pistorius. His famous name and the notoriety of his crime certainly played a role in the prosecutor’s decision to appeal. imho
Is there a consensus attitude in South Africa re his guilt or innocence?
You feel sorry for a man who shot a woman in cold blood?
No I feel bad for a man that served the sentence given and is now told “hey, we were just kidding” you actually have to serve 20 years. It’s stinks even worse because quite obviously the notoriety and politics around this cause played a part in the appeal.
They don’t even have the decency to hold a new trial.
I don’t have a problem with him serving long prison time for murder. But he wasn’t convicted of that crime. He was convicted on a lesser charge and got a 5 year sentence. He at least deserves a new trial before throwing him into prison for a long, long sentence.
Justice needs to be fair and equitable. Otherwise why even bother with trials? Why waste money on lawyers? “You shot the woman” now we can just drag the accused off and hang him from the nearest tree.
FWIW I totally agree a new trial would find Pistorius guilty and he would be given the long sentence he deserves. He’s admitted the shooting and his only defense is a concern over intruders in the house.
But it’s that process of a new trial and a new defense that is important. It has to be followed otherwise we’re right back to the mobs that just met out punishments however they choose. It doesn’t matter how obvious it is that someone is guilty. We have to follow the process and give them their day in court.
He has had his day(s) in court. He had a lengthy trial and then an appeal to the Supreme Court.
The fact that in the South African system it is open to the court to set aside a conviction for one offence and impose a conviction for another does not mean it is an arbitrary process. It is different from the system that Americans are familiar with, but that does not mean it is a mob decision. :rolleyes:
It is fairly common in countries that use the civil law system. The term they use is “process” not “trial”, which is not just a difference in terminology: it’s a concept that the entire process, from the initial charge to final decision by the highest appellate court, is a single process. It’s therefore open for a second court later in the process to make a change to the result of this nature.
It also happens in some common law countries as well, such as Canada. Where an accused has been convicted at trial, it is open to the Crown to appeal and ask the appellate court to impose a conviction for a more serious offence. It is very rare for that to happen, though, because the test is that the appellate court must:
(a) accept the facts as found by the trial court at trial;
(b) find that the trial judge erred at law in its statement of the offences available; and
(c) conclude that the error of law was so serious that on the facts as found by the trial judge, there had been no other option to the trial judge but to convict on the more serious offence.
If that very strict test is not made out, then on finding an error of law the appellate court sets aside the conviction and refers the matter back to the trial court for a new appeal.
I understand it’s another country’s legal system and they consider it just. But it sure seems deeply unfair from my perspective.
Doesn’t matter what anyone thinks. Pistorius will rot away for most of the remainder of his life in prison. Probably in isolation just like he served his two previous years. They say its not safe to release him into the general population.
We’ll never know for sure if he cold-bloodedly targeted Reeva or really thought an intruder was in the house. It’s still murder and deserves long prison time.
How does something like this work in the American system?
If a defendant is not convicted of the most serious charge (like, e.g., Murder-1) but is convicted of a lesser included charge (like, e.g., negligent homicide), then by our Double Jeopardy protection, is he forever acquitted of the more serious charge? Or does the lesser conviction leave the defendant open to having the conviction upgraded to the more serious charge upon appeal and re-trial?
In America, I’m pretty sure they get one bite at the apple, you can’t convict someone of assault, then manslaughter then murder for the same act. The only way around it is if you are convicted of assault, then the person dies of the injuries they can then charge you with murder.
I suppose in other countries the state gets one apple, and they can nibble at it for a while if they choose.
Aw, cheer up. Who knows, maybe he’ll stick it to The Man and pull off one of those admirable prison breaks.
The whole appeal hinged on the interpretation of the law of dolus eventualis, not any question about the facts of what happened. That’s why the prosecution was even able to appeal; while the defense has a broad right of appeal, the prosecution can only appeal on questions of law that were specifically reserved at trial.
South Africa doesn’t have a jury system, so it’s not as if the appellate judges are overriding the decision of a jury. What makes the decisions of a panel of judges on the appellate court any less just than the decisions of a single judge at trial? Everyone agrees that if the trial court makes an error that hurts the defendant, it should be corrected on appeal - but why should it be inherently unfair to correct errors that favour the defendant?
Amongst some Americans there seems to be the attitude that the way America does things is naturally right and just, and any other way is obviously wrong. (In fairness, it’s probably not just Americans that think that way about their country.) You see the same thing with the exclusionary rule, where most other countries have a less strict version of the rule.
I don’t know about the other South Africans on this board, but the consensus in my IRL circles is that he was guilty of murder for sure, since he shot at an intruder he couldn’t see and that’s a big fucking no-no in our law. They’re about 70/30 on whether he knew it was her or not (me, I’m pretty sure he did know)
Seems that just about everyone agrees the original judge’s ruling was deeply flawed. How she came to the conclusion that Pistorius didn’t expect to kill anyone certainly left me scratching my head. The panel of higher court judges felt the same way.
The judge’s flawed ruling needed to be overturned. My only concern was the lack of a new trial. I agree with the outcome of long prison time.
Good thing that’s not what happened. They overturned the conviction for culpable homicide and replaced it with one of murder. It has been referred back to the high court for sentencing, which will probably be heard as a priority after the upcoming recess. (ie late January / early February).
Nor will Oscar spend the “rest of his life” in prison. The prescribed minimum sentence for murder is fifteen years, in the absence of substantial mitigating circumstances. His team will probably be able to successfully present a number of mitigating factors before the High Court. (off the top of my head - he;'s shown remorse, first offender, disabled) I’d be surprised if he received a sentence of greater than 10 years next year.
Sadly, I agree that probably played a part. It rare for the State to appeal a conviction and if he were Oscar Nobody, it probably wouldn’t have even been considered.
On the other hand, there were legal questions that needed to be settled by the Supreme Court of Appeal.
IIRC, from posts elsewhere on the board, you are a lawyer practising in Canada? Could you cite the relevant law? What you’ve stated above appears to be analogous to certain provisions in the (South African) Criminal Procedure Act cited in the judgement.
The Crown’s right of appeal from an acquittal is set out in s. 676 of the Criminal Code, RSC 1985, c C-46, which provides:
The powers of the Court of Appeal on a Crown appeal from acquittal are set out in s. 686(4) of the Criminal Code. Section 686(4)(b)(ii) deals with the power to substitute a conviction:
For a review of the Court of Appeal’s powers under this section, see R v Skalbania, [1997] 3 SCR 995. The key point is that there cannot be any dispute about the facts, whether mens rea or actus reus. The issue is whether, on those facts, it was an error of law to acquit.
The issue in Skalbania was whether, as the trial judge held, the mens rea for theft includes an “intent to steal.” The Court of Appeal, and the Supreme Court, both held that while theft is a specific intent offence, the trial judge erred in law in finding an intent to steal:
[QUOTE=McLachlin J (orally)]
I find that Mr. Skalbania was at all material times the controlling mind of Prime Realty Limited, to whom Mr. Gooch’s cheque was paid. I find that Mr. Skalbania through Prime Realty applied Gooch’s money for a purpose other than that directed by Mr. Gooch.
In short, the trial judge found: that the appellant knew that the money belonged to Mr. Gooch; that the appellant knew the purpose to which the money was supposed to be applied; and that the appellant knowingly, without mistake, applied the money to different purposes.
8 It follows that the Court of Appeal did not err in concluding that the elements required for conviction were established.
[/QUOTE]
As I mentioned earlier, it’s a pretty hard test for the Crown to meet. The Supreme Court has held that if the issue is in any way related to the sufficiency of the evidence, that is not a question of law and a Crown appeal cannot lie under this section. See: Sunbeam Corp. (Canada) Ltd. v. R., [1969] SCR 221.
The relevance of this point here is that while the Skalbania case was an appeal from acquittal, the same principles apply where the accused is acquitted of the more serious charge, but then convicted of the lesser included offence, which I gather is what happened here: Pistorius was acquitted at trial on murder, and convicted of manslaughter. The Supreme Court found that the trial judge had misdirected herself on the applicable law, and on the facts as found, Pistorius was guilty of murder. That same approach could be taken under these provisions of the Canadian Criminal Code.
The provisions of the South African Criminal Procedure Act seem to be quite similar:
(The Appellate Division is the old name for what is now the Supreme Court of Appeals.)
that’s an appeal against conviction; is there similar powers for an appeal against an acquittal, brought by the prosecutor?