The
question of whether or not Oscar Pistorius had been rightfully acquitted of
murder and charged with culpable homicide instead, came under scrutiny on
Tuesday as submissions were made by the State and the paralympian’s legal teams
in the Supreme Court of Appeal in Bloemfontein.
The
state is asking that the culpable homicide conviction be overturned and that a
charge of murder be instituted against Pistorius.
The
Gauteng High Court had found Pistorius guilty of culpable homicide on September
12 last year and sentenced him to five years in prison for shooting his
girlfriend, model and law graduate Reeva Steenkamp through a locked toilet door
in his Pretoria home on Valentine’s Day 2013, apparently mistaking her for an
intruder.
Pistorius
has since been released from the Kgosi Mampuru II prison and placed under
correctional supervision, after completing roughly one sixth of his sentence.
No
new factual evidence can be presented before the Supreme Court of Appeal, and
only the following questions of law had been reserved for its
consideration:
1.
Whether the principles of dolus eventualis were correctly applied to the
accepted facts.
2.
Whether the court correctly conceived and applied the legal principles
pertaining to circumstantial evidence and/or pertaining to multiple defences by
an accused.
3.
Whether the court was correct in its construction and reliance on an
alternative version of the accused and that this alternative version was
reasonably possibly true.
Acted with
intent
In its heads of argument the State quotes the definition of dolus eventualis, found in CR Snyman’s Criminal Law as follows: “A person acts with intention in the form of dolus eventualis if the commission of the unlawful act or the causing of the unlawful result is not his main aim, but he subjectively foresees the possibility that, in striving towards his main aim, the unlawful act may be committed or the unlawful result may be caused and he reconciles himself to this possibility.”
In its heads of argument the State quotes the definition of dolus eventualis, found in CR Snyman’s Criminal Law as follows: “A person acts with intention in the form of dolus eventualis if the commission of the unlawful act or the causing of the unlawful result is not his main aim, but he subjectively foresees the possibility that, in striving towards his main aim, the unlawful act may be committed or the unlawful result may be caused and he reconciles himself to this possibility.”
The
State then submits that Judge Thokozile Masipa erred in not finding that
Pistorius acted with intent in the form of dolus eventualis.
“We
argue that the only conceivable finding based on the above mentioned facts
could at a minimum be that, in arming himself, walking to the bathroom with the
intention to shoot, whilst knowing that there is a person behind a closed door
of a small cubicle and intentionally firing four shots, should be that he
intended to kill the person in the cubicle. The application of the principles
of dolus eventualis to this summary of the accepted facts can only result in a
finding that he acted with, at the very least, dolus eventualis,” they state in
their heads of argument.
One
of the first things State prosecutor Gerrie Nel dealt with on Tuesday, was the
State’s submission that the trial court judge did not look at all the
circumstantial evidence holistically and ignored certain vital pieces of
evidence in order to come to the conclusion that Pistorius’s version of events
could be reasonably, possibly true.
Nel
cited the evidence of screams that preceded the shots being fired, which
according to him were not reconcilable with Pistorius’s evidence that he shot
without thinking.
He
also referred to the evidence of Schoeman’s gastric content, which seems to prove
that she ate something shortly before the incident, saying this was not
reconcilable with Pistorius’s version that they had both been asleep.
Nel
criticised the fact that Pistorius offered different explanations for firing
into the toilet door. He had told the trial court that he responded to a noise
on the other side of the door, but also that he fired without thinking about
it.
“You
can’t have multiple defenses where the one [defense] requires intent and others
don’t. These defenses then exclude one another. The Court should have rejected
his evidence as impossible”, Nel told the full court of appeal judges.
Nel
told the court that the State no longer argued that Pistorius had the direct
intent to shoot and kill Steenkamp, but that he should have foreseen the
possibility and still made the decision to shoot, amounting to intent in the
form of dolus eventualis.
“So
he had the necessary criminal intent to kill whoever was behind the door?”
asked Judge Eric Leach. “Yes,” Nel replied.
The
State also claims that the trial court placed undue reliance on the
respondent’s perceived reaction of intense regret after he had shot the
deceased, as according to local and international case law, it is irrelevant
whether a person would have continued with his action if he knew that a
particular result would occur. “The fact that the defendant regrets his
mistake, should only be incorporated in sentencing,” they quote German legal
writings in their heads of argument.
At
the end of his submissions, Nel tried to convince the court that it lay within
its power to substitute the culpable homicide conviction with that of murder,
and that it was not necessarily necessary for a re-trial. He admitted that
neither they nor the appellant’s legal team was keen on a re-trial, but that
this was what they were asking for, if it was the only way of correcting an
error made by the trial court.
Pistorius’s
legal team submitted that the questions raised by the appellants were questions
of fact and not of law, and were therefore not appealable before the Supreme
Court of Appeal.
‘Right to
defend against perceived danger’
Advocate Barry Roux then dealt with different pieces of circumstantial evidence which the State claimed were ignored by the trial court judge Masipa, saying the judge had given a very detailed judgement addressing the relevance of each one.
Advocate Barry Roux then dealt with different pieces of circumstantial evidence which the State claimed were ignored by the trial court judge Masipa, saying the judge had given a very detailed judgement addressing the relevance of each one.
Judge
Eric Leach referred Roux to the judge’s finding that dolus eventualis was not
present, as Pistorius did not know that the deceased was behind the door.
“The
court’s analysis of dolus eventualis seems to be wrong,” he said, pointing out
that it should have referred to any person behind the door and not the deceased
in particular.
Roux
went on to say that it did not matter who was behind the door, as the element
of unlawfulness was missing in his client’s actions.
“We
submit that a person who defends himself against a perceived danger
subjectively, albeit incorrectly, believes he has the right to defend himself
against the perceived danger, which belief excludes the requisite intention to
act unlawfully,” the respondents had stated in their heads of argument.
“Did
he honestly believe he was entitled to shoot the person after hearing a noise
[behind the door]? Apart from the noise was there anything else that indicated
that his life was in danger?” Judge Leach asked.
Roux
then pointed out that one had to consider the state of mind of the respondent.
In
this regard the state had referred in their heads of argument to the expert
evidence given by Professors Derman, Vorster and Scholtz to the effect that
Pistorius’s disability, coupled with his general anxiety disorder, placed him
in a “heightened state of fear”, exacerbated by a feeling of vulnerability,
which according to them corroborate the correctness of the trial court’s
finding that the respondent had honestly believed that there was an imminent
danger.
“But
in the same breath you can’t give any person with a general anxiety disorder a
licence to shoot,” remarked Judge Elizabeth Baartmans.
Roux
submitted that one had to look at the whole “package” that his client represented
at that stage.
“He
was scared, he saw an open [bathroom] window, he felt he had to protect the
deceased, plus his fight impulse overrode his flee impulse, because he was on
his stumps. There is really no other explanation than to accept that he thought
he acted lawfully,” Roux said.
Roux
then dealt with their submission that the trial court correctly found that not
too much weight should be attached to their clients untruthfulness, and that
“the conclusion that because an accused is untruthful, he is therefore probably
guilty, must be guarded against”.
“Even
though she [the trial court judge] thought he was a poor witness, she gave him
the benefit of the doubt, and made a factual determination that his version of
events fitted in with the evidence,” he told the court.
The
respondents further submitted that according to their understanding of the law,
the Appeal Court could not simply substitute a culpable homicide conviction
with a murder conviction. And that ordering a re-trial would not be fair towards
their client.
They
mention in their heads of argument that the fact that the case was in the
public domain would confuse the objectivity of witnesses, that their client
would be subjected to the same allegations and the same offence, for which he
had already fulfilled the custodial part of his sentence, and that their client
could not financially afford another trial. The court reserved judgement. – ANA
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