13 July 2009

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

(on how to evaluate evidence, and on the reconstitution)


"After “going through” the witness evidence, we verify that there is no direct evidence of the facts, namely due to anyone seeing the crime being committed.

Even more, there is even no direct evidence of the homicide, because the minor’s dead body has not appeared.

What did the Court base itself on, then, to give the facts as proved? That is what we proceed to describe.

Article 124º 1 of the Penal Process Code defines what is valid as evidence in court; it determines that “all the facts that are juridically relevant to the existence or inexistence of the crime, to the arguido’s punishability or non-punishability and to the determination of the applicable penalty or security measure, are objects of evidence”. In this article, where the issue of evidence is regulated, it is established that all the facts that are juridically relevant to the existence or inexistence of the crime, to the arguido’s punishability or non-punishability, or that are relevant for the determination of the applicable, can be evidence. The absence of any limitations to the facts that are to be proved, or the means of evidence to be used, with an exception for those that are specifically foreseen in the following articles or under other legal provisions (only evidence forbidden by law or obtained through forbidden methods – articles 125 and 126 of the same code), is an outcrop of the principle of searching for the material truth that still dominates the Portuguese penal process (Maia Gonçalves, Cód. Proc. Penal, 12ª ed., p. 331).

Evidence may be direct or indirect/indicative (Prof. Germano Marques da Silva, Curso de Proc. Penal, II vol., p. 99 ss). While the direct evidence refers directly to the theme of evidence, the indirect or indicative evidence refers to facts that are diverse from the theme of evidence, but which allow, with the assistance of rules from experience, for an illation concerning the theme of evidence.

Indirect (or indicative) evidence is not a “minus” compared to direct evidence. Quite to the contrary, as while it is certain that in indirect evidence there is an intervention of intelligence and logics from the judge who associates the indicative fact to a rule of experience that will make it possible to reach a conviction concerning the fact to be proved, in direct evidence there is intervention of an element that surpasses reason and that will be much more dangerous to determine, as is the case of the credibility of testimony. Nevertheless, indirect evidence demands particular caution in its appreciation, since the proved fact can only be extracted from the indicative fact when such is corroborated by other pieces of evidence, so that other equally possible hypotheses can be set aside.

Our penal process law does not establish special requisites concerning the appreciation of indicative evidence, thus the fundament for its credibility always depends on the conviction of the judge which, despite always personal, must always be motivated and subject to objection; there is no impediment to it being allowed to fundament the condemnation, as long as duly valued, in itself and in the conjugation of the various indications and according to the laws of experience.

In effect article 127 of the Penal Process Code prescribed that “except for when the law disposes differently, the evidence is appreciated according to the rules of experience and the free conviction of the competent entity”. This is the so-called principle of free appreciation of evidence.

According to Prof. Germano Marques da Silva (Direito Processual Penal, vol. II, p. 111), “the free valuation of evidence must not be understood as a purely subjective operation which leads to a conclusion merely through conjectures that are hard or impossible to objectivate, but rather as a rational and critical valuation, according to common rules of logics, of reason, of the maximums of experience and of scientific knowledge, which allows for an objective appreciation, a requisite that is necessary for an effective motivation of the decision”.

The Constitutional Tribunal (Ac. nº 464/97/T, D.R., II Série, nº 9/98 de 12.1) also, asked to pronounce itself on the constitutionality of the norm in article 127 of the Penal Process Code, and supported by the teachings of Professors Castanheira Neves and Figueiredo Dias, refers that “this justice, which counts with the system of free evidence (or moral evidence) does not open itself, by being that way, to subjectivity or emotionality. This justice demands an ordinate intellectual process that manifests and articulates the facts and the law, the logics and the rules of experience. The judge gives the evidence a positional value, a meaning within context, which enters the argumentative discourse with which the decision will be justified. This discourse is a discourse with fundaments that the ‘practical reason’ recognises as such (Kriele), as only in this manner can the obtaining of law in the case “be apt for consensus”. The justification of the decision is always a rational and argued justification and the valuation of evidence cannot abstract itself from said intention of rationality and of justice”.

The principle of free appreciation of evidence has two sides: on its negative side it means that in the appreciation (valuation, graduation) of evidence, the deciding entity has no duty to obey any legally pre-established canons – it has the power/duty to attain the proof of facts and to value it freely, without the existence of any pre-fixed hierarchical table from the legislator; on its positive side, it means that facts are considered as proved, or not, according to the intimate conviction that the deciding entity generates when faced with the evidential material that is valid part of the process, whether it comes from the accusation, or from the defence, or from his [the judge’s] own initiative (Ac. da Relação de Coimbra de 9.2.2000, in C.J., ano XXV, tomo 1, p. 51).

Therefore...

The matter that was considered to be proved in items aa), ab), ac), ad), ae), af), ag), ah) ai), aj) al), am), an), ap), aah), aai), aaj) and aam) was based on the deposition of witnesses AA3, CC3, CC4, DD, CC8, II, DD1 , MM and BB1, on the reconstitution files and on the search and apprehension files, as well as on the subsequent forensic exam, all interpreted under the light of the rules of experience.

Witness AA3, at around 8.30/8.40 p.m., saw CC [Joana Cipriano] walking up the stairs near the market, into the direction of her home, with a bag, a sign that she was returning from shopping (and we know that she did the shopping, from the deposition of witness NN). This witness, who was smoking at the window, stayed at the window for some time and verified that there was no movement on location, nor did she see any cars, or heard any screams. This means that, according to the rules of experience, and given the fact that the route is short, what is normal is that the minor returned home. And there is no doubt that CC arrived at home and that it was then that the arguidos hit her. Such is clear from the reconstitution file that has been appended to the process at pages 273 and following, namely from the photographs on pages 282, 284, 285, 286 , 287, 291 and 292, with the contents of said reconstitution file being confirmed by inspectors CC3 and CC4, who were present during the event and described the actions that were practised by arguido AA [João Cipriano] during said reconstitution.

In that reconstitution, the arguido exemplifies the slaps that he gave CC in the face, the spot where she hit her head, another spot where she hit her head following the aggression from the mother, he showed how the minor bled from the nose, temple and mouth, exemplified the minor’s fall, how they verified that the minor was effectively dead and how the co-arguida BB [Leonor Cipriano] proceeded to clean the blood spots, with the help of a bucket and a mop.

On the other hand, the actions that are part of the reconstitution act are compatible with the blood traces that were collected in the living room (it should be noted that the reconstitution takes place in the living room), as a result of the search and apprehension act that was carried out on the 22th of September 2004 (cfr. pages 173 and 233 and following), which mentions that traces were collected on the floor, near the entrance door, inside and outside, near the interior electrical switch on the right hand side of the entrance door, near the entrance on the left hand side of the sofa, on a pair of trainers belonging to MM [Leandro] Silva that were located between the sofas, on a mop (handle) and its bucket.

These traces, according to forensics exams, are of human blood and of human and animal blood (cfr. page 235), and although insufficient to establish whom they belong to through the DNA (pages 1780 and following), they reveal that something terrible happened in that living room, something that originated the existence of human blood on the floor and on the walls, which was cleaned with a mop and a bucket; the blood that was on the mop was located on the handle, revealing that the person who used the mop had in turn his or her hands dirty with blood. Therefore, the traces that were collected in the living room reinforce the reliability of the reconstitution.

Next, the two arguidos decided that the minor’s body couldn’t be found. Thus they chose to quarter it, as results from the reconstitution file from pages 2100 onwards. They had the opportunity to do this (while arguida BB cleaned the traces that existed in the living room, arguido AA went to the café where he met witnesses II and MM [Leandro Silva], who confirm that they were at the café with arguido AA and report that afterwards they went to search for CC – thus the two arguidos had the opportunity to stay alone at home and to proceed with the quartering). And there are no doubts that the arguidos undertook the cutting of the minor’s body.

In effect, arguido AA drew the instruments that were used for the quartering by his own hand (page 1885) – a fact that was confirmed by witness DD – and took part in the reconstitution, demonstrating how he used the saw and the knife, how the two arguidos helped each other, how they proceeded with the cuts, the time that they took, how they bagged the minor’s body parts and how they tried to place them inside the deep freezer. This reconstitution, which is legal and valid because it was done voluntarily by the arguido, was watched by witnesses DD (PJ inspector) and CC8 (pathologist), who also confirmed the manner in which the arguido proceeded with the reconstitution; witness DD further confirmed that the deep freezer that was used in the reconstitution was apprehended at the residence of arguida BB on the 15th of October 2004 (cfr. Pages 578 to 580 and photographs on page 1712 and following).

On the other hand, that the actions that are part of this reconstitution file constitute what happened, results from the fact that they are compatible with other collected pieces of evidence.

It should be noted that witness II confirmed that a saw that she kept in the house, disappeared, and that witness CC8, apart from clarifying that the cutting of a body that has been dead for two hours will leak little blood, further clarified that the instruments that the arguido chose to use in the reconstitution were those that fitted the action best, that the time that the arguido showed to have spent was adequate and did not exclude the possibility that the body of a thin girl, aged 8, could fit inside that deep freezer, although “on the limit”.

Therefore, we cannot conclude with certainty that the body, or all parts of the minor’s body were placed inside the deep freezer, but that at least they tried to place it in there, results not only from the reconstitution act, but also from the fact that on the 16th of October 2004, human blood samples were collected from the back interior of the freezer’s second drawer (cfr. Page 585), which was again confirmed by the report of the examination that was performed by the LPC [Scientific Police Lab] (pages 1780 and following, with special attention to pages 1786 (item B) and 1792). It is further recalled that witness CC3 explained that the blood traces that were collected from the inside of the drawer were located precisely on the back panel of the freezer’s second drawer. Now if one should consider the possibility that the human blood that was found could have resulted from the handling of the deep freezer by someone who had a cut to his or her hand, the fact that the human blood was found inside the back part of the drawer sets that possibility aside and points towards the conclusion that a human body part was placed there, or an attempt was made.

As was said, in this matter the Court has paid particular attention to the reconstitution files that are part of the process, with a photographic report, on pages 273 and following, and 2100 and following."


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




8 comments:

  1. Pray every day for Mr Amerel he needs our prayers, The Sunday Mirror (uk) has announced that the Maccanns have started the process, to sue Mr Amerel for 1 million euros the proceeds from the book and documentary They are the defendants also madelaine and the twins, and the case will be next summer in Portugal> Is it True.

    The Maccanns in court in Portugal whoopee.

    ReplyDelete
  2. Letter from Iberia
    Hot from UK press "Star"

    Madeleine is missing 13th July 2009By Jerry Lawton
    MADELEINE McCann’s parents are launching a £1million lawsuit against the detective who declared them suspects in her disappearance.

    And they will use any cash they win to help fund their search for her.

    Gerry and Kate McCann, both 41, have hired Portugal’s top libel lawyer to conduct their claim against Goncalo Amaral.

    The 49-year-old ex-police officer was behind the decision to name them suspects after Maddie vanished from their

    Portuguese holiday flat in May 2007, just before her fourth birthday.

    Since retiring from the force Amaral has continued to point the finger of suspicion at the McCanns in a book and TV documentary which have made him a millionaire.

    Their lawyer Isabel Duarte, 54, said: “The McCanns have been torn apart by Amaral’s claims.”

    Amaral’s publisher Mario Sena Lopes said he was “looking forward’’ to facing them in court.

    ReplyDelete
  3. Poor Joana Cipriano, she deserved a better life.
    I also read in daily star that ths Mccann are suing Amaral. With found's money? I read they could only use it for Maddies search.
    Joana, are they right to use found's money to pay their laywers?

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  4. How many children's lives will the Mccann destroy: Maddie's one because neglect and perhaps more, twins, Murat, Hewlett, and now
    amaral.
    I hope Hewlett's family and innocent young children will have money enough to sue the Mccann's, Mitchell and british tabloids for publishing their firtnames and ages!
    What a shame!
    Nobody coult stop them?

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  5. I thought Amaral was the one to sue the McCanns. Whatever happened with that lawsuit?

    Joana, will you be interviewing Mr. Amaral or has he requested money for the interview?

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  6. I've been in Amsterdam today.
    It was a beautiful, warm,
    agreable day.
    I went to the biggest Dutch departament store - De Bijenkorf- and what did I see?
    Amaral's book!!!!!!!!!!!
    It was very visible, among other books!

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  7. I I've read the Sunday Mirror on McCannfiles.
    Talking about the parents' permanent anxiety: how long did Maddie feel death anxiety in the last moments of her life?
    insomnia, she also suffered of it: unconscious reflexion of things she was victim of?
    lack of appetite: how dare they to talk about food. Maddie has not eaten for more than two years and she will never do it again.
    irritability: Amaral also guilty of the difficult marriage of neglect irresponsibles parents?
    deep and serious depression:
    of course, their little daughter is dead, they know they were the responsibles for her life, they suffer under their own lies and they suffer because they did not break David Payne's face in Mallorca.They continued being friends with him.
    You are a disgusting, irresponsible father, Gerry.You too, Kate, a disgusting, irresponsible mother.

    ...and indefinable fear.
    This is interesting: fear of what?
    Fear that Maddie is suffering in the hands of the ugly paedophile?
    When have you ever, ever feared Maddie's fate?
    Fear she could be starving? Fear she could be sick, fever?
    Thursty?
    You fear for yourselves, don't you?
    ME,ME,ME!!!
    The article on the Sunday Mirror is talking about yourselves.
    Nothing about Madeleine.
    Why?
    Because she is dead and you got to save your own skins.

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  8. Kate Maccann is in deep depression and Gerry is suffering from Insomnia due to Mr Amerel what about the twins in the care of such unstable parents by their own admission and Mr Maccann a doctor with Insomnia he should be suspended from the hospital and social services in the uk should step in with care for the twins.

    ReplyDelete