Pistorius: If guilty, can he appeal? Would he win it?

“If we could sniff or swallow something that would, for five or six hours each day, abolish our solitude as individuals, atone us with our fellows in a glowing exaltation of affection and make life in all its aspects seem not only worth living, but divinely beautiful and significant, and if this heavenly, world-transfiguring drug were of such a kind that we could wake up next morning with a clear head and an undamaged constitution—then, it seems to me, all our problems (and not merely the one small problem of discovering a novel pleasure) would be wholly solved and earth would become paradise.” – Aldous Huxley

What is an appeal?  It’s a demand a petition a request. An application – in law – for a case to be reheard.

1. Is Oscar likely to appeal and if so on what basis?  And on what basis is he most likely to be granted an appeal? 

Ulrich Roux**: An application for leave to appeal can be made on any grounds where the defence alleges that the Judge made an error in law when applying the law to the facts of a specific case after evidence has been placed before the court by both the State and the defence.

In the event that Oscar Pistorius is convicted I am certain that he will appeal. Many talks have been doing the rounds that the fact that the trial has been televised has rendered it to be an unfair trial. This is of course debatable but certainly a grounds for appeal.

In practice a grounds of appeal would be that the Judge erred in applying the law for instance that she applied the test for dolus eventualis incorrectly in that Oscar could not have foreseen that Reeva would be killed when he fired four shots into the bathroom door. This is of course only an example. In my opinion there are no concrete grounds for appeal at this stage but one will of course only be able to accurately comment on this once the Judge has made her ruling.

David Dadic***: I agree entirely with Ulrich. I believe he will most certainly bring an application for leave to appeal which I believe he will be granted. Usually an appellant will rely on numerous grounds of such application an appellant does not usually go with a single issue but will rather allege numerous issues or misgivings in the trial and the judgment to support its application in the hope that at least one (or more) will strike a positive chord with a the appeal judges.

1. How likely is an appeal?  Masipa and Nel seem to be closing off all possible doors in order to hold off an appeal.  Under what circumstances are appeals generally denied?  And in an instance where one has unlimited funds and expert advice what angle/or grounds are most likely to succeed? 

Ulrich Roux: An application for leave to appeal will not succeed if the Judge finds that no other court will come to a different ruling when applying the law to the evidence presented before court. Should Oscar Pistorius be convicted I would expect Judge Masipa to grant leave to appeal as she will cover herself. This is a common occurrence in practice.

Judges and Magistrates allow the accused to bring an appeal when they are confident about their ruling as a higher court will of course confirm their finding should they have acquitted themselves well of their task in applying the law to the evidence placed before court.

The Judge has been good thus far. There will be no grounds to take her on review as she has not interfered in the proceedings at all thus far. Nel did well in having Oscar assessed as this would definitely have been a ground for appeal should the application not have been made.

As stated above an application for leave to appeal will only succeed should the judge find that a higher court will come to a different conclusion in applying the law to the facts and evidence placed before court.

The written application for leave to appeal should of course set out where the defence believes the Judge erred in her findings. Upon the Judge applying these allegations to the facts and the law and finds that a different outcome can be reached by a different court she has no option but to grant the leave to appeal.

David Dadic: Again there isn’t a single angle as it were. The defence team will allege numerous reasons for their application relating to both fact and law. It’s very unlikely that the application will be refused because inasmuch as Masipa will feel confident in her handling of the matter and her judgment she will also know that the appeal process is a natural step in trial process and a full bench of 3/5 judges could find differently to her.

Appeals and reversal of trial courts judgments happen all the time. In fact the irony exists that the more confident a trial judge is with their decision the more confident they are in referring a matter to appeal. It’s usually the weak judges who in an attempt to avoid some kind of embarrassment will refuse it. Not the case here Masipa has been brilliant.

Moreover as far having unlimited resources is concerned that obviously helps because the appeal process can be very expensive (to the common man) but I would suggest nothing out of synch with what has already been spent by Oscar on this trail to date.

With respect to Renier’s sentiment I am not sure about it being the most expensive trial ever as far as Oscar’s legal fees are concerned as there have been many longer high court trials than this one (particularly in the Civil trial world which don’t make the papers) but I would assume the costs of the channel and media exposure together with the fees is an entirely different number.

1. Take us through the appeals process.  It will take place in Bloem.  How long is likely to last? Who will be present?  What is likely to happen?  Can his sentence theoretically be made worse? 

Ulrich Roux: Upon the accused being convicted the defence first have to apply for leave to appeal. Should the court refuse leave to appeal they will have to launch a petition to the Supreme Court of Appeal in Bloemfontein after which if granted they will have to have the entire record typed up (remember how much evidence has been placed on record thus far in this matter. One will expect the typed up record to be anything between 50 000 and 60 000 pages.) And provide same to the SCA after which they will have to wait for a date on which the appeal can be heard. This is of course dependent upon the availability of the court.

Once a date has been allocated a date will be given to the parties on which they have to submit their heads of argument which is a summary of the grounds of appeal and where the court a quoerred as well as a complete list of the case law relied upon in arguing that the SCA should come to a different finding. The bench can comprise either three or five judges.   The Court decides cases upon the record of the proceedings before the lower court and after considering the written and oral arguments presented.  Witnesses do not appear before the court and the parties need not be present during the hearing of an appeal.

[Note by the author: This means in the likelihood of an appeal we won’t see Oscar.  He won’t presumably even be called to testify.  So an appeal is a totally different scenario to what we’re seeing now in the North Gauteng High Court].

Ulrich Roux: A written judgment is usually handed down shortly after the argument. The SCA hears appeals on fact and since there are no jury trials it has a relatively wide discretion to make its own factual findings.  Because of this jurisdiction judges have to read the record of the full proceedings in the lower courts.

Should he appeal against sentence only his sentence can be made worse yes. Should he only appeal against the conviction the judges cannot make a different finding on sentence in the event that the appeal against conviction is set aside.

Difficult to say how long it will take. A date for appeal to the SCA should be provided within 18 months after conviction. The physical arguing of the appeal before the SCA seldom takes longer than a day or two. The accused will have a representative arguing before the court whilst the State will also have a representative. In a case such as this it will in all likelihood be the same counsel Nel v Roux.

David Dadic: I can’t add much more to this it’s very well put and complete answer.

1. If Oscar was your client what would you advise him? 

Ulrich Roux: Difficult to say at this stage as there is no conviction as yet. Should there be a prison sentence imposed as is likely in the event of a guilty verdict I will advise him to take his chances on appeal.

David Dadic: I agree  I believe an appeal must be applied for as it is common that trial judgments and sentences are overturned/ reduced at the appeals courts. Moreover his bail will be extended to the hearing of the appeal so assuming he is sentenced to prison he will at least buy himself a bit more time at home pending the outcome of the appeal.