15 July 2009

Supreme Court of Justice - 'Joana case' ruling - Part IV

"Apart from the reconstitution files and the witness and forensics evidence that is related to them and which corroborates them, it should be further stressed that several of the questioned witnesses mention the arguida’s [Leonor Cipriano] lack of concern over the minor’s “disappearance”, accepting it without despair or anguish. It should be noted that the arguida only goes to “search” the minor at the café between 10.30 and 11 p.m. (according to witness NN), more than two hours after CC [Joana] was there; she contacts nobody else to ask about CC’s whereabouts and it is not through her initiative that the GNR is contacted. It is further underlined that the arguida bought petrol and a steel scrub-cloth (page 876), with which she washed the house on the 18th of September, and witnesses CC3 and CC4 mentioned that the cleanliness of the house’s floor and walls contrasted with the state of dirtiness of the rest of the house, namely as far as the dishes and clothes were concerned – this kind of cleanliness, under these circumstances, is only compatible with the desire to eliminate traces of blood that could have remained in the house.

We can conclude that the representation that was made by arguido AA [João Cipriano] in the reconstitution files from page 273 onwards, concerning the outcome of the aggressions, results from the manner how those were produced, with them successively applying violence that revealed itself apt to produce hits of the victim’s head against the wall, therefore in all lights they could not have avoided knowing the outcome. The manner in which the quartering of the cadaver is performed, patent in the reconstitution file from page 2100 onwards, leaves no doubt concerning the direct intent of the action and also about its motive.

This is enough to fundament the Court’s conviction concerning the correspondent facts.

It is further added, and concerning the same factuality, that witness DD1 (II’s stepfather) stated that arguido AA confided to him that “they had killed the girl”. Witness II [Leandro Silva] also mentioned that BB [Leonor Cipriano] told him that “she had slapped CC and AA finished killing her” (later on, arguida BB tried to justify the statement by telling II that she had only said that because the PJ had hit her, but on the day that she mentioned the aggression against CC, BB and II were alone and he did not see any marks on BB that she had been beaten, and there was no motive for her to make such a statement to her partner if it wasn’t true). Of course these witnesses’ statements cannot be seen as a confession from the arguidos – who did not confess, but rather opted for silence during the court session – but that doesn’t mean that they cannot simply not be valued by the court.

Article 129 of the Penal Process Code establishes the prohibition, in principle, of testimony that doesn’t verse on concrete facts and direct knowledge, particularly on “hearsay testimony”, hence the determination of the need to confirm the indirect deposition, with the consequent hearing of the persons “who one heard saying”. Only after such confirmation may such an indirect deposition become effective as a means of evidence, but in this case the confirmation would have to be made by the arguidos and they chose not to make any statements nor can they be forced to make them. According to number 7 of article 356 of the Penal Process Code, which number 2 of article 357 points to, it is not allowed to reproduce the contents of statements whose reading is not authorised, with a recourse to the person who collected them, which is well understood, but the witness statement of a person who is not a criminal police member and who didn't collect statements, but merely asked and heard the reply, is a different thing

Alas, our superior courts have already decided that: “the hearsay evidence, when reported to statements that were produced by the arguido outside of the process, is subject to free appreciation by the court (Ac. da RC de 6.10.1988, BMJ 380, p. 552); “if the witness reports having heard the confession from the arguido himself, such does not configure indirect deposition under terms and for the effect of article 129 of the Penal Process Code (Ac. STJ de 15.11.2000, proc. 2551/2000-3ª); “the hearsay evidence, when reported to statements that were produced by the arguido outside of the process, can be subject to free appreciation by the court when the arguido is present during court session, therefore, with the full possibility of contradicting it, which is to say, to defend himself” – in this case, the arguido had chosen to remain silent during court session (Ac. RC de 18.6.2003, CJ 2003, tomo III, p. 51).

The Constitutional court has also decided already that “article 129 1 (in conjugation with article 128 1) of the Penal Process Code, interpreted in the sense that the court may freely value the indirect depositions of witnesses that report conversations held with a co-arguido who, when called to depose, refuses to do so in the exercise of his right to silence, does not impact the arguido’s defence right in an intolerable, disproportionate or manifestly oppressive manner. Therefore, as there is no inadmissible shortening of the arguido’s defence right, that form is not unconstitutional” (Ac. Trib. Constitucional nº 440/99 de 8.7, proc. 268/99, DR II Série de 9.11.1999).

With the complete set of indicative evidence conjoined, the Court has created the conviction that CC is dead (the appearance of the body is unnecessary given the Court’s conviction that the arguidos have made it disappear in the manner that has been described) and that it was the arguidos who practised the facts. All the established elements, appreciated in conjunction, have set aside any reasonable doubt and have created the full conviction that both arguidos have committed the facts in the manner that is described in this ruling."



in Supreme Court of Justice - ruling SJ200604200003635, 20.04.2006



previous:
Supreme Court of Justice - 'Joana case' ruling - Part I - Fundamentation
Supreme Court of Justice - 'Joana case' ruling - Part II
Supreme Court of Justice - 'Joana case' ruling - Part III



24 comments:

  1. Repeating that trial will be the BIG JOKE in portuguese justice. We know that bodys can be easily hide and disapear forever leaving weak or no traces, even wen we know exactly what happened. Simao Sabrosa nephew was taked by a wave into the ocean. Up to now the sea did not bring him back or any trace of him, leaving the family with an anguish which we can only imagine.
    The, all claims made by Aragao are jokes on top of jokes, specially because the "arguidos" have done the reconstitution explaning all the steps they do to poor Joana. Something that the Mccann's refused making them more suspects.
    Kate is in a deep depression an Gerry suffering from insomnia, not because of the accusations of Amaral, but because they are hunted by Maddie ghost every day of their lifes, for what they have done... or not to her. They let her down in a deep irresponsability.

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  2. ..."witnesses CC3 and CC4 mentioned that the cleanliness of the house’s floor and walls contrasted with the state of dirtiness of the rest of the house, namely as far as the dishes and clothes were concerned – this kind of cleanliness, under these circumstances, is only compatible with the desire to eliminate traces of blood that could have remained in the house."


    Two comments:

    First, dirty clothes and dishes were all over the place, because poor Joana was no longer there no longer alive! From what I understood, according to neighbors statements, it was her who usually took care of those chores. If Leonor bothered to get her butt out of the sofa to clean anything in the house it's because she absolutely had to, lots of blood around the floor and walls had to vanish before anyone could see them.

    Second, it reminds me of the pristine state of cleanliness in which the police found the McCann's holiday apartment, considering that the maid had been turned away the previous day. It seems it was spotless, to the point that not a shred of Madeline's DNA could be found there.

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  3. This is unrelated to the article above but I would like to leave it here as a parallel Judicial case - perhaps Joana would like to elaborate, summary and link follows:

    Nicolas Bento has been released after spending two years incarcerated in England (was sentenced to life), accused of murdering his girlfriend.
    Turns out, the "evidence" used against him was much flimsy than what has been gathered in the McCann case.

    In Nicolas Bento case, experts recently concluded that there was no real evidence; it all had been a huge mistake, not to say blunder, based upon vague surveillance footage (and a lot of wishful thinking) that would had been inadmissible in a third world country – but was used here to sentence an immigrant to life in prison.
    He didn't even get an apology.

    http://www.tvi24.iol.pt/internacional/mp-acusacao-julgamento-inglaterra-liberdade-tvi24/1074607-4073.html

    Apparently both cases also share the same Forensic Labs:

    http://duartelevypt.wordpress.com/2009/03/27/supremo-ingles-libertou-portugues-da-prisao-perpetua/

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  4. anonym at 15/07/09 15:41 - Crown Prosecution Service drops indictment against Portuguese Immigrant- http://joana-morais.blogspot.com/2009/07/crown-prosecution-service-drops.html

    «The Portuguese Amilton Bento [Nico Bento], 29, of Rutland Road, Bedford, was jailed for life in July 2007 after a jury at Luton Crown Court convicted him of murdering his girlfriend, 26-year-old Kamila Garsztka. But Bento continued to protest his innocence even after the verdict was delivered and launched an appeal bid to clear his name.»

    And regarding your second linked article no, it had nothing to do with the FSS, it was an invention created by the author to connect maddie's case and the nico bento case via the FSS.

    thank you

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  5. This is a horror story,petrol and a steel brush to clean the house it must have smelt for days. It would be a CRIME for this case to have a re trial.



    IRONSIDE

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  6. Anon said: "Second, it reminds me of the pristine state of cleanliness in which the police found the McCann's holiday apartment, considering that the maid had been turned away the previous day. It seems it was spotless, to the point that not a shred of Madeline's DNA could be found there."

    I just add to that comment, that the Mccann's on that day did not meet their friends on any afternoon program. Where they have been? Peraphs cleaning the flat... this leave us another question.... Maddie maybe died before the time they reported her disapearence to the police. The Pj believes on that theory more then on the timeline gived by Mccann's and their friends.

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  7. Amaral mentioned in one of his interviews that he knows three things...These will only be told in a court of law with the mccanns present. Is he bluffing or is it true? If true the mccanns know what he knows one thing they are not is stupid...I would imagine they are not happy with the way things are going. The guilt must be very heavy to bear.


    IRONSIDE

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  8. Absolutely nothing to do with this post but as it is the most recent I shall use it to urge all visitors to this site to share this latest revelation.

    Without delay, check out The Madeleine Foundation website and there read Anthony Bennetts letter to the British Prime Minister dated l3th July!

    I think this is the most positive action that has been taken in the case for a very long time.

    Obviously Clan Mccann will have seen this already so it will be interesting to see their public reaction - if any!

    Whatever, there must be a lot of very worried people working overtime in an attempt to cover their tracks over the last two years. At least I don't think the P.M. can ignore this one!

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  9. Thank you dear Joana & Astro for reproducing this process - difficult and distressing as it has been to read in full - but, what a pity circumstances have warranted it being published at all at this time.

    How despicable that this case has come to the fore again now, not in respect or remembrance of Joana (an eight year old child, whose life was unspeakably cruelly stolen from her) but, as I perceive it, for the sake of foul opportunists who are using it to attack and attempt to discredit Dr Gonçalo Amaral in a completely separate case.

    From the final paragraph of the Cipriano ruling:-


    "All the established elements, appreciated in conjunction, have set aside any reasonable doubt and have created the full conviction that both arguidos have committed the facts in the manner that is described in this ruling."


    As I understand it, this conclusion/ruling stood the test of the lengthy appeal process and the only thing that changed was a reduction in sentence to 16 years in prison for both Leonor & João Cipriano for the murder and concealment of Joana.

    Sadly, one thing the two cases do have in common is that both children are still missing; betrayed by those they should have been able to trust the most.

    In remembrance of Joana & Madeleine, wherever they are x x

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  10. Its starting to look like the Maccannns lies are at last catching up with them, with the letter to the GMC and the social services and now Gordon Brown, but the uk govennment are full of sleaze and corruption. Sueing Mr Amerel could be the rock the Maccanns perish on.

    I ask everyone to please pray for Mr Amerel everyday he and his family are in my prayers as are all who fight for justice and truth.

    Somewhere in Portugal a little girl lies disgarded waiting for justice.

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  11. Here's some more on Casey Cottle, it seems he works for a forensic lab called TARGET ( Amilton Bento's case is mentioned )

    http://privateofficerbreakingnews.blogspot.com/2007/11/target-has-their-own-crime-lab.html

    By the way, I've heard about the FSS involvment with this case, that the "expert" was recommended by them, NOT from Levy, but from Hernâni Carvalho, in TVI.
    I wonder why him, Amaral and Sargento are still working along with material provided by Levy?
    Have they not been reading Joana's blog lately?...

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  12. Guilt is like a cancer eating away at the soul. It diminishes feelings of self-love, self-esteem, self-worth, and deservability. When directed towards others, it eats away at trust and love. Guilt is a punishment you have inflicted on yourself and on others. Punishment only serves to create deception and attempts at outsmarting the 'punisher.' Think of how children (and sometimes adults) react to punishment. They either hide and repeat the same behavior hoping they won't get caught, or they figure out a way to "fool you" into thinking they are "behaving".

    Get these filthy people in court then we will see if Mr Amaral has any trump cards up his sleeve.

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  13. I read Tony Bennett's letter to Gordon Brown.

    I wonder if he will get a reply.

    Perhaps it would be a good idea to send a coppy to Prince Charles.
    Or to send another letter to prince Charles or even the Queen.
    When princess Beatrix became the Queen of Holland, in `82, there was a lot of propaganda in the Dutch primary schools.
    A 9 years boy wrote her a letter, telling her about incest bij his both parents, starting with himself till his youngst brother of 2.There were about 5 children at that home.
    The queen took immediately mesures and the palace called the police.
    Maybe one of the Windsors could let checken on the twins.
    A monarch is symbol of protection of his people.

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  14. I read the letter sended by Tonny Bennet on behalf of Madeleine Foundation to G. Brown. The letter express the feelings and the believes of thousands of people not only in the UK and Portugal, but I think of Thousands of europeans. Because Madeleine case and all the exceptional treatment gived to her parents became a global issue and a global ashame, I THINK IT IS A GOOD IDEA TO SEND THE SAME LETTER OR ANNOTHER WITH THE SAME SUBJECT, NOT ONLY TO THE QUEEN AND PRINCE CHARLES, BUT ALSO TO THE PORTUGUESE PRESIDENT PROF CAVACO SILVA, TO THE PORTUGUESE PRIME MINISTER, TO THE PORTUGUESE ATTORNEY GENERAL AND TO THE PRESIDENT OF EUROPEAN COMMUNNITY DR DURAO BARROSO. BECAUSE THE CORRUPTION ON THAT CASE SEEMS TOUCHED THE TOP OF BOTH GOVERNMENTS( PORTUGAL AND UK). and because the benefits gived to the Mccann's by both countrys and the blindness regarding the madeleine FUND ACTIVITIES AND THE PRIVATE INVESTIGATION IS NOT ACCEPTABLE AND A WRONG EXCEPTION IN AN EUROPE WHICH WE WANT MORE SAFE AND TRANSPARENT.
    Spreading the Letter across big Institutions and across the Media out of UK will make it knowed and heard by Millions of people forcing G. Brown and peraphs Socrates to reply to it with actions and not with stupidity that we didn't accept anymore. Two years on and all the publicity and the news in the Foruns give to the Public a full picture on that saga and a correct perception that shelving the case was the huge mistake done by Portuguese Justice and there is lots of questions to answer in a Court by mccann's and their friends. They hold the keys to solve the case and give peace and justice to Madeleine. Not only to Madeleine but also to the people leaving in Praia da Luz and to all children which for one night got a nightmare of abductors flying into rooms....
    I wonder how helpful for the victims will be if, from now to the futur... ALL THE SUSPECTS HAVE THE RIGHT TO SET THEIR OWN PRIVATE INVESTIGATION MOKING THE OFFICIAL POLICES AND PLAYING WITH MEDIA AS A STRATEGY TO GET RIDE OF A PROPERLY INVESTIGATION. THEN WE DON'T NEED MORE OFFICIAL POLICES ON OUR COUNTRYS AND EVERYONE CAN MAKE THEIR OWN RULES AND THEIR OWN JUSTICE. This is how justice worked in the fifteen Century.... ASHAME Mr. Socrates and Mr. Brown that your governments will be forever connected with the biggest joke in justice on modern and democratic Europe- MADELEINE INJUSTICE!!!

    Just an apart which can mean a big sign and a challenge on Madeleine case and the Freeport, members of AFE an assistent association in Freeport case, want Candida Almeida ( The main Prossecutor in The Freeport case) out of all the proccess because of her private and friend connections to the Ministers and Socrates government. This is a huge step to find the truth about maybe, madeleine case aswell.

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  15. Have the little men in white coats come for you lot yet? Joana and Astro, you are certainly doing a lot of damage to yourselves with this bunch. They certainly don't speak for me (thank goodness)!

    What happened to your hero Amaral? Where's the interview?

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  16. Joana and Astro, I think you should translate the letter sended By Tonny Bennet to G. Brown into portuguese to allow people which dont domine the inglish to read and know it.

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  17. Não haverá repetição, seria demasiado escandaloso e colocaria o tribunal e quem condenou este crime numa posição de desprestígio e incompetência.
    Se eu estiver errada, é a altura de nós todos, enquanto comunidade nos erguermos e nos colocarmos à porta do tribunal e sermos claros: queremos justiça, não compactuamos com criminosos. Temos esse poder, e devemos obrigar as instituições pagas com os nossos impostos a cumprir o seu dever. A seguir a este escândalo, devemos organizar uma manifestação em frente à Procuradoria e gritar pela reabertura do processo Maddie. É que a justiça é um assunto demasiado sério para ser só entregue aos polícias, advogados e juizes.
    Alexandra

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  18. Watching This Morning Interviews (SIC on McCannfiles),made short before Madeleine's
    6th birthday, I observed a few things.
    Talking about the twins, Gerry says "they believe she(M.) is taken away", instead of "they know she is..." or "we explained them what happened to her".
    This "believe", was it a mistake?
    Commenting about the photo at age of 6 Kate says:
    It made her remember "what Madeleine missed and we missed".
    If they are so convinced that she is still alive, what did she miss?
    She is growing up somewhere, according to them. She did not miss life itself, or did she? Her parents missed seeing Maddie growing up but she,Maddie, did not miss anything.
    And also "it made me remember".
    Kate realised(again, because she remembered) no tomorrow and no future for Madeleine, since 2007.
    Did any of you notice this?
    And the expression on Gerry's eyes and touching his face during the interview, you can see he is lying and not feeling comfortable about what he is saying.

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  19. Thank you Joana and Astro for your translations!

    To Anonymous who posted this:

    "Second, it reminds me of the pristine state of cleanliness in which the police found the McCann's holiday apartment, considering that the maid had been turned away the previous day. It seems it was spotless, to the point that not a shred of Madeline's DNA could be found there."

    Would you care to share your source of information on these points?

    I suppose we all have different concepts of what "pristine" means, but you might want to check the photos of the apartment taken by the police on that night:
    http://www.gerrymccannsblogs.co.uk/APARTMENT.htm

    You might also wish to check the statement made by the 5A cleaning lady (where I can find no indication that she had been turned away):
    http://www.gerrymccannsblogs.co.uk/PJ/5A_CLEANER.htm

    And by the resort's housekeeper:
    http://the3arguidos.net/forum/viewtopic.php?f=39&t=26617&start=15

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  20. Joana never wrote about an eventual new interview with Amaral.
    It was me who suggested it and asked her.
    Don't be impatient, anonymous.
    If Joana gets the chance, I'm sure she will approach him.

    Joana and Astro doing a lot of damage to themselves?
    Not at all.
    They are doing a perfect job.
    Anonymous, you don't like the idea we are now aware of the existence of Tony Bennett's letters.
    Too well written, to the point and it irritates you.
    Very soon we will hear from our adorable Amaral.
    Margarida

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  21. Anon. 16.7.09. 22.36

    If you are going to post comments could you please be more explicit as I do not understand your point.

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  22. Anon , the little men in white coats can't deal with us right now.Too busy for that.Too much work to do in Rothley...

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  23. Oh What A Tangled Web We Weave
    When First We Practice To Deceive.

    Sir Walter Scott
    1771-1832

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  24. Nope, Tony Benett doesn't infuriate me - I think he is a fruit cake and I'm sure anyone who has a bit of intelligence and looks at his failed pass attempts will agree with me. LOSER comes to mind for Tony Benett.

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