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.
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.”
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.
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