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Oscar Pistorius is going back to jail for murder. Here's how justice was finally done

The 29-year-old athlete was found guilty of murder at an appeals court in South Africa today.

THIS CASE INVOLVES a human tragedy of Shakespearean proportions: a young man overcomes huge physical disabilities to reach Olympian heights as an athlete; in doing so he becomes an international celebrity; he meets a young woman of great natural beauty and a successful model; romance blossoms; and then, ironically on Valentine’s Day, all is destroyed when he takes her life.
The issue before this court is whether in doing so he committed the crime of murder, the intentional killing of a human being, or the lesser offence of culpable homicide, the negligent killing of another.

Before he set aside Oscar Pistorius’s culpable homicide conviction, replacing it with one of murder, the judge in South Africa’s Supreme Court of Appeals said he did not follow the trial last year but was obviously fully aware of the tragic nature of the case before him.

The killing of model and legal student Reeva Steenkamp and the subsequent trial of Oscar Pistorius destroyed lives, careers and families. It kept the undivided attention of the global media for months and gripped South Africa continuously through a 24-hour, specially commissioned TV channel.

After spending 10 months in prison for killing his girlfriend Reeva Steenkamp, Pistorius – probably the most famous man in South Africa, bar Nelson Mandela – was released under house arrest on 19 October.

That partial freedom will be short-lived. Now a convicted murderer, the Paralympic champion will return to prison after a fresh sentence hearing early next year.

Here’s how those circumstances came about…

The background

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Law graduate and model Reeva Steenkamp was 29 years old when she began a relationship with Pistorius. The pair became close and on 13 February 2013, she was in his home at a gated community in Pretoria.

During the night, she was shot four times while in the toilet and died from horrendous injuries. Pistorius admitting to shooting her but claimed he did so because he thought she was an intruder.

He was arrested, charged and put on trial. Last year, a court found him guilty of culpable homicide and sentenced him to five years in prison. He was released on 19 October this year after just 10 months and was due to see out the rest of his term on house arrest in his uncle’s city mansion.

What happened next?

South Africa Pistorius Trial Source: AP/Press Association Images

By this time, the Director of Public Prosecutions (DPP) had already submitted an appeal. The office claimed that the trial court, led by Judge Thokozile Masipa, erred on certain legal principles and called the sentence “shockingly light”. It argued that the appropriate conviction in this case would have been murder – not culpable homicide.

The appeal hearing was held on 3 November and the five-judge panel took a month to deliberate.

What grounds was the appeal brought on?

The DPP argued three legal points.

  • Firstly, they questioned whether the principles of dolus eventualis were applied correctly to the accepted facts and the conduct of the accused. Dolus eventualis is a legal term to indicate an awareness of the likely outcome of an action.
  • Secondly, prosecutors asked whether the court treated circumstantial evidence correctly during the trial. 
  • And, finally, they appealed on the grounds of the court’s “construction and reliance” on an alternative version of events put forward by Pistorius, and whether this version was “reasonably possibly true”. 

The court had to stick rigidly to these questions. It cannot interfere with factual decisions made by the trial court. For example, it could not revisit the court’s rejection of the State’s claims that there had been a disagreement between Reeva and Pistorius on the night of her death and that she had hid in the toilet to escape her boyfriend.

Even if the judges wanted to, the appeal had to be made without reconsidering this version. The State also had to accept that it did not show that Pistorius had acted with the direct intention to kill Reeva.

South Africa Pistorius Source: AP/Press Association Images

For these reasons, the third question above was dismissed. Speaking about the claim, the judge said:

This is a factual decision. As already set out, and on the strength of the authorities to which I have referred, a finding of fact falls beyond the scope of what this court may decide…

“The State’s case before this court therefore revolved primarily on whether the trial court had erred in regard to the issue of dolus eventualis,” Justice Leach explained in his ruling.

What is dolus eventualis?

This was the central question in the whole trial and appeal.

Here is the judge’s simple explanation of the legal term:

In order to prove the guilt of an accused on a charge of murder, the State must establish that the perpetrator committed the act that led to the death of the deceased with the necessary intention to kill, known as dolus.
Negligence, or culpa, on the part of the perpetrator is insufficient.

There are two types of dolus, however.

A person acts with dolus directus if he commits the offence with the object and purpose of killing a specific victim. 

Dolus eventualis arises if the perpetrator foresees the risk of death occurring but continues to act, therefore gambling with the life of the person.

So, does it matter whether Pistorius knew who was in the bathroom? 

The judge spoke at length to explain why this was a pertinent factor in the appeal.

Simply put, the original finding was that as the accused did not realise it was Reeva in the toilet, he did not foresee his shooting could cause her death and he could not be held guilty of her murder.

However, Justice Leach saw problems with this interpretation of events and the law.

He said that for dolus eventualis to come into play, the perpetrator’s intention to kill must relate to the person killed. However, this does not mean that he must know the identity of the victim at the time.

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Justice Leach reached for an example to illustrate his ruling:

A person who causes a bomb to explode in a crowded place will probably be ignorant of the identity of his or her victims, but will nevertheless have the intention to kill those who might die in the resultant explosion.

So, it does not matter if Pistorius knew if it was Reeva or not behind the door of the bathroom.

What was in issue, therefore, was not whether the accused had foreseen that Reeva might be in the cubicle when he fired the fatal shots at the toilet door but whether there was a person behind the door who might possibly be killed by his actions,” the judge explained.
What was required in considering the presence or otherwise of dolus eventualis was whether he had foreseen the possible death of the person behind the door and reconciled himself with that event.

Justice Leach said that this was a point in which the original judge erred. She had confined her assessment of dolus eventualis to whether Pistorius knew it was Reeva he was shooting at, and therefore she judged it did not apply.

In this, “the trial court misdirected itself as to the appropriate legal issue,” according to the appeals court.

The conclusion of the trial court that the accused had not foreseen the possibility of death occurring as he had not had the direct intent to kill, shows that an incorrect test was applied.

Thus, on this first point, the State prosecutors won their appeal.

Were there other grounds?

A second ground of appeal by the DPP was also looked on favourably by Justice Leach who said today that the original judgement by Mapisa was ‘flawed’.

The appeals court found the failure to take into account evidence from a police forensic expert “of particular importance”.

Capt Mangena’s reconstruction of the crime scene was found to be “particularly useful” to the court.

Justice Leach said his evidence – albeit circumstantial – was crucial to the decision on whether Pistorius did or should have foreseen the fatal consequences of firing four bullets into a small space.

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He referred to Mangena’s testimony about the position of the bullet holes in the door, the marks they left in the toilet cubicle and the position of the injuries on Reeva’s body.

Reading into the evidence – which included laser technology and photographs with laser beams and steel rods showing the path each bullet had travelled – Justice Leach determined that “all the shots fired through the door would almost inevitably have struck a person behind it”.

There had effectively been nowhere for the deceased to hide.

“And yet this evidence was seemingly ignored by the trial court in its assessment of the
presence of dolus eventualis,” he said.

Had it been taken into account, the decision in regard to the absence of dolus eventualis may well have been different. In the light of the authorities I have mentioned, to seemingly disregard it must be regarded as an error in law.

What did he have to say about Pistorius?

South Africa Pistorius Oscar Pistorius reports for community service at the Garsfontein police station last month. Source: AP/Press Association Images

Justice Leach went over the versions of 14 February as they were heard in the trial. He noted that the original trial court was justified in calling Pistorius a “very poor witness”.

He said that his recollections of that night “varied substantially”.

At the outset he stated that he had fired the four shots ‘before I knew it’ and at a time when he was not sure if there was somebody in the toilet. This soon changed to a version that he had fired as he believed that whoever was in the toilet was going to come out to
attack him.

“He later changed this to say that he had never intended to shoot at all; that he had not fired at the door on purpose and that he had not wanted to shoot at any intruder coming out of the toilet. In the light of these contradictions, one really does not know what his explanation is for having fired the fatal shots…”

The judge’s version of events

South Africa Pistorius The public and press listens as appeals court judge Eric Leach delivers his verdict Source: AP/Press Association Images

Although he could not change the trial’s finding of facts, Justice Leach did have to delve into some specifics to explain why he was ruling that Pistorius had an awareness of the likely outcome his actions on 14 February 2013.

He easily dismissed the defence counsel’s argument that Pistorius’s vulnerabilities – anxiety and disability – led him to fire a gun without thinking about the consequences of his actions.

“In my view this cannot be accepted,” he said. “On his own version, when he thought there was an intruder in the toilet, the accused armed himself with a heavy calibre firearm loaded with ammunition specifically designed for self-defence, screamed at the intruder to get out of his house, and proceeded forward to the bathroom in order to confront whoever might be there.

He is a person well-trained in the use of firearms and was holding his weapon at the ready in order to shoot. He paused at the entrance to the bathroom and when he became aware that there was a person in the toilet cubicle, he fired four shots through the door.

“And he never offered an acceptable explanation for having done so. As a matter of common sense, at the time the fatal shots were fired, the possibility of the death of the person behind the door was clearly an obvious result. And in firing not one, but four shots, such a result became even more likely. But that is exactly what the accused did.”

South Africa Oscar Pistorius Photo Gallery Source: AP/Press Association Images

“A court, blessed with the wisdom of hindsight, should always be cautious of determining that because an accused ought to have foreseen a consequence, he or she must have done so. But in the present case that inference is irresistible. A person is far more likely to foresee the possibility of death occurring where the weapon used is a lethal firearm (as in the present case) than, say, a pellet gun unlikely to do serious harm.

In these circumstances I have no doubt that in firing the fatal shots the accused must have foreseen, and therefore did foresee, that whoever was behind the toilet door might die, but reconciled himself to that event occurring and gambled with that person’s life. This constituted dolus eventualis on his part, and the identity of his victim is irrelevant to his guilt.

Did the court buy his self-defence claim?

No. Justice Leach granted that the double amputee may have been anxious but he was strong in his ruling that self defence did not apply here. 

There were a couple of complicated reasons for this, mostly coming from the fact that Pistorius’s evidence was confused.

When he testified, he said that he did not intend to shoot the ‘intruder’.

“This immediately placed himself beyond the ambit of the defence, although as I have said, his evidence is so contradictory that one does just not know his true explanation for firing the weapon,” Leach continued.

The judge noted that not only did Pistorius not know who was behind the door but also was unaware whether that person “in fact constituted any threat to him”.

In these circumstances, although he may have been anxious, it is inconceivable that a rational person could have believed he was entitled to fire at this person with a heavy calibre firearm, without taking even that most elementary precaution of firing a warning shot (which the accused said he elected not to fire as he thought the ricochet might harm him).

This is proof, according to Leach, that Pistorius “did not entertain an honest and genuine belief that he was acting lawfully”.

He also described his evidence in regard to his state of mind when he fired his weapon as “vacillating and untruthful”.

The defence of putative private or self-defence cannot be sustained and is no bar to a finding that he acted with dolus eventualis in causing the death of the deceased.

South Africa Oscar Pistorius Photo Gallery Source: AP/Press Association Images

What options did the court have?

Once the judge set aside the ruling of culpable homicide it could have done one of three things.

  • Order a retrial

Justice Leach decided against this option because it would be “wholly impracticable” given the “protracted nature of trial that has already taken place”. He noted the issues involved, the time elapsed and how unfair it would be on witnesses. He said it would not be in the public interest, adding that neither side wanted this outcome.

  • Make no further order

Pistorius’s lawyers argued that because the athlete had already served a custodial sentence, the court could use its discretion and impose no further order. Justice Leach described this as “undesirable”.

“The interests of justice require that persons should be convicted of the actual crimes they have committed, and not of lesser offences,” he said.

That is particularly so in crimes of violence. It would be wrong to effectively think away the fact that an accused person is guilty of murder if he ought to have been convicted of that offence.
  • Convict Pistorius of murder and send back for sentencing

This is the option that Justice Leach felt most served the interests of justice. He ruled:

In the result, on count 1 in the indictment the accused ought to have been found guilty of murder on the basis that he had fired the fatal shots with criminal intent in the form of dolus eventualis.

“As a result of the errors of law referred to, and on a proper appraisal of the facts, he ought to have been convicted not of culpable homicide on that count but of murder. In the interests of justice the conviction and the sentence imposed in respect thereof must be set aside and the conviction substituted with a conviction of the correct offence.”

He will be sent back to trial court in the New Year for sentencing.

Will he actually spend 15 years in jail?

PastedImage-10150 Pistorius's cell in his Pretoria prison Source: AP

Murder convictions come with a minimum 15-term in prison but it is still unclear whether Pistorius will remain in jail until 2030 (he has already been jailed for one year, which will be counted). A judge can give a lesser sentence if there are ‘extenuating circumstances’, and parole can be granted after half the sentence is served if there has been continuous good behaviour.

He will remain under house arrest until the sentencing in 2016.

The appeals system seems odd…

The Supreme Court of Appeals is the second highest court in the land. Just like the initial trial, it does not have a jury. There is a five-judge panel which today made a unanimous decision.

Both plaintiffs and prosecutors can appeal verdicts to higher courts in South Africa but there is no automatic right to appeal. Leave to appeal must be granted by the court.

So, did the original judge mess up?

Before concluding, Justice Leach spoke to his colleague, Justice Mapisa, in the lower court in order to make clear his judgement was not a slight on her.

“The trial was conducted in the glare of international attention and the focus of television cameras which must have added to the inherently heavy rigours that are brought to bear upon trial courts in conducting lengthy and complicated trials,” he said.

The trial judge conducted the hearing with a degree of dignity and patience that is a credit to the judiciary. The fact that this court has determined that certain mistakes were made should not be seen as an adverse comment upon her competence and ability.

“The fact is that different judges reach different conclusions and, in the light of an appeal structure, those of the appellate court prevail. But the fact that the appeal has succeeded is not to be regarded as a slight upon the trial judge who is to be congratulated for the manner in which she conducted the proceedings.”

What do the families say now?

South Africa Pistorius Source: AP/Press Association Images

Reeva’s mother, June Steenkamp, was in court today and let out a sigh when the judge concluded his verdict. She was flanked by two women who embraced and comforted her. Speaking to Sky News later, she said she doesn’t care what sentence Pistorius receives but glad justice is done in the way of a murder conviction.

Back at their Port Elizabeth business, her husband Barry told reporters that his family would try to get on with their lives now. In a statement, he added:

I am sure that Reeva is up there watching it and now she’s saying ‘justice was done’. I am sure she’ll be able to rest well now.

South Africa Pistorius Arnold Pistorius, drives out of his house where his nephew Oscar Pistorius is staying in Pretoria Source: AP/Press Association Images

Nobody from the Pistorius family was in court today and in a short statement they said they were examining their options and possible next steps.

We have taken note of the judgement that has just been handed down by the Supreme Court of Appeal. The legal team will study the finding and we will be guided by them in terms of options going forward. We will not be commenting any further at this stage.

Can there be an appeal or is it over?

Pistorius has 10 days to lodge an appeal to the highest court in the land. He can only do so on grounds that his constitutional rights were violated by this judgement. A source told the Telegraph that they believe the judgement to be “harsh”.

More: Oscar Pistorius found guilty of the murder of Reeva Steenkamp

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