Lying in the Sun

No Surprise - 2

No Surprise - 2


Thomson Sky News



No huge surprise that she finally has come to the decision on culpable homicide that she left us hanging on the edge waiting for last night and her reasoning pretty clear.


Curlewis:

Sure.  Well we kind of expected it last night all indications were there that she should in all probability convict him of culpable homicide.  Once the finding of unlawfulness and negligence were made there was no other option to find him guilty on culpable homicide.  Obviously seeing that she found him guilty on the second alternative to the third count, also the negligent discharging of a firearm, well I think things went rather the best way for Oscar Pistorius under the circumstances, he did not walk out scotch (sic) free that is clear.  However, in the light of the circumstances and the initial indictment against him I think he did good.


Thomson: 


When we stood here on March 3rd this year Llewelyn which is hard to believe isn't it that the case started it was going to last three weeks and we're here again in mid-September, you said then this is really no more or no less than a case of culpable homicide. You've been found to be absolutely spot on with that.  What made you think that in the first place and why did it kind of get to be a much bigger thing with murder being brought into the frame?

Curlewis:

From the outset I was of the opinion that the Defence should have pleaded guilty to culpable homicide.  It was out and out a clear indication from the outset on the basic facts at hand that he at least acted negligently under the circumstances. He did not take the proper care that is expected of a reasonable person in the possession of a firearm.  He had alternatives at his disposal which he could use and so on.   So from the outset that wasn't really...doesn't take rocket science to understand that he should be found guilty on that one.   That being said the moment the Defence pleaded not guilty and placed everything in dispute and they placed as a defence up there of Putative Self Defence, they basically forced the hand of the State to go all out.   So that is typical of the State Prosecutor's approach as well, a shot gun approach and then hope something stick ultimately.  Which is exactly what happened here.  They literally threw the book at Oscar Pistorius.    

And then suddenly what happened was as a result of the number of witnesses called by the State there was a prima facie case against Oscar Pistorius and now suddenly he didn't have a choice other than to come and testify in his own defence to come and tell his version.  I said it from the outset we know how it happened, we know what the result was, we know who did it.  We knew everything, except WHY he did it.   So his state of mind was the only question before (?)   

And when he come and testify he suddenly altered his version and then he came up with all these lies and all these ridiculous answers to the questions under cross examination. He was a poor witness, the Court even found that.

Thomson:

Evasive.

Curlewis:

And then suddenly it was basically a question of he was responsible for his own doing resulting in suddenly murder being on the table a possibility and a real risk of having a conviction on murder.  Pre-meditated murder was never on the table as far as I'm concerned but at least as a result of his own doing and the unreliability of his own evidence, suddenly he stood a real chance of being convicted of murder.   That's the reason we are standing here even today almost 6 months down the line.

Thomson:

So in some ways the approach taken by the Defence led to the trial we have just seen?

Curlewis:

Exactly!  Well obviously the State also have some blame to take for this because they could have accepted a possible plea and sentencing agreement IF the Defence tendered that from the outset.  However, we don't know what happened behind closed doors during those initial negotiation issues.

But even still there was nothing prohibiting Barry Roux from standing up in Court and advising the Court that his client is prepared to plead guilty on culpable homicide.  Even if the State did not accept it.   If the State under those circumstances still proceeded with the trial then everybody would have blamed the State for being persecutors instead of wanting to see see justice done.

Thomson:

Just hearing Kurbus Van Royeen there and he said the judges reasoning,as you were saying, was perfectly straightforward on the money, BUT there is that open-ness to interpretation within the law as you were showing me in your law book earlier.   It could be open and that could come up if there is to be re-trial certainly if there was to be an appeal.

Curlewis:

Remember most parties has the prerogative to take the matter to what we call the Supreme Court of Appeal which is our highest Court in the country except the Constitutional Court, but that won't apply because there is no constitutional principles, so obviously the moment any of the parties take the matter on appeal then I can safely assume that the other party will at least cross appeal and also ask those judges in the SCA to reconsider all the issues.

However, everything will depend on the ultimate sentence because I do think that Barry Roux was lucky.  There is no reason for him to seriously consider an appeal under the circumstances.


Obviously Gerrie Nel might be feeling that he got the better end of it but once again will there be any benefit for the State to take it on appeal?   I don't think so unless there is a too lenient sentence forthcoming at the end of the day then maybe they've got nothing to lose and they won't hesitate to take it on appeal.

Thomson:

So its really... still its going to be down to the judge how she handles the penalty at the end of it?

Curlewis:

Because at the end of the day that will be also an indication what the odds are for both sides to take the matter to a higher level and on appeal.   Nothing is finished until the judge pronounces sentencing that in itself is still a scene that we must cover.   Obviously mitigating factors must will come into play, and ultimately the judge will then determine what his fate will be.

My gut feeling if I can make such call at this early stage of pre-sentencing, is that we might see a non-custodial sentence in the light of the circumstances.

(Curlewis speaks of the conviction on the discharging of the gun in the restaurant he said that a financial penalty for this would be around R15,000 which obviously Pistorius has the money to pay for so he considers it shouldn't be a problem)

Taking comparison case law into consideration where culpable homicide was determined in the (aca?) In serious circumstances and facts, there was typically up to 8 years imprisonment but in most instances even a non-custodial sentence.

Thomson:

I'm interested now in whether the Judge will take the firearms offence sort of alongside the culpable homicide in both being forms of negligence and do they multiply themselves in her mind if she see he's been negligent on two separate charges therefore he has a problem in this area?

Curlewis.

I do foresee that she will make a finding with regard to his competency to still possess firearms I do think she is going to will revoke that prerogative of his.  I don't have a problem with that in any way whatsoever.

But I do think she is going to order that these two...if she decides to hand down a custodial sentence that it should run concurrently in other words simultaneously.  

However since there is provision in the Act for a penalty fine instead of direct imprisonment, obviously she must give him that benefit, advantage as well and obviously he has the financial ability to pay for it so I don't think he's going to spend time in jail.

Thomson:

Interesting at the end of this, and no doubt that will cause controversy because it's has been a highly emotional and contentious issue, and away from the nitty gritty of the law the bare bones of the law, a lot of people have had very emotional responses to it, I'm hearing inside the Court the families in tears today especially Reeva Steemkamp's family and their friends, so they may feel it's not gone the way that they'd hoped.  But that's the law.  The Law has prevailed. Justice has been seen to have been done here and seen to be done in the eyes of the world on live television as well.

Curlewis:

The fact of the matter is, at the end of the day the Steenkamp family also have the possibility to entertain a civil law suit which has a very much lenient onus of proof in comparison to criminal cases.

Thomson:

What charges could they lay, how could they set about it?

Curlewis:

It's not criminal charges but they can ask for compensation because one of their bread winners, because apparently she supported the family they might be inclined to entertain such a ....claim for damages under the circumstances, and its a separate court with separate onus of proof and they might be successful with that one.

Let's compare it to the OJ Simpson trial in the USA.

Basically the same principles will be applicable but for now I do think we've seen justice done.  There's no such thing as a perfect total perfect judgement in any system in any where in the world.  Every interpretation is always open for another interpretation that's why we have lawyers.  If we have only one law we could spoon feed it into a computer and get a result there and then.  But we don't have that, we have people, people have their own personal views, they've got background all these kinds of personal issues in some instances.  So let's not go there. Let's accept it for now justice has been done, if not, the Supreme Court of Appeal will later pronounce on it.

(As Judge Masipa is late in returning after her break Thomson and Curlewis chat in general about timescales, for the sentencing, times which suit both counsel and judge)


END

l-azzeri-lies-in-the-sun.com
12th September 2014




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