If the accused intended to kill A rather than B but did kill B, murder could be a competent verdict.
President Jacob Zuma may have his wish fulfilled: instead of Nkandla, the Oscar Pistorius trial will provide the headlines for a while. The common theme is that both events cost plenty. In Nkandla, the taxpayer has had to foot a bill of close to R250-million, whereas Pistorius, if reports of his legal costs are accurate, is also performing miracles of redistribution to members of the legal profession.
Whether this expenditure truly protects his security will depend on the manner in which the court assesses the evidence and consequent argument. Unlike the facile metaphor of this trial being a forensic cricket match, the implications require careful legal examination.
This case is probably less complex with regard to the determination of the relevant facts than the media would have us believe. For starters, it is common cause how Pistorius’s girlfriend Reeva Steenkamp died, what caused her death and when it occurred. Further, Pistorius is bound, in significant part, to the version he proffered to the court when he successfully applied for bail.
In consequence, the case turns on an application of legal principle to known facts, though the weight given to the evidence of the neighbours, the pathologist and the ballistics experts will play a significant role in this process of reasoning. What then are the core legal principles that will inform the ultimate verdict?
It is trite to say that the prosecution must prove intention beyond a reasonable doubt. That does not mean that, in the absence of premeditation, the accused walks free. Our law embraces a concept of what is called dolus eventualis or legal intention. Last year, in the State v Humphreys, a case dealing with a minibus taxi driver who drove through a boom-controlled level crossing and collided with a train, which resulted in the deaths of 10 children, Judge Fritz Brand, on behalf of the Supreme Court of Appeal, revisited this concept in a magisterial exposition of the relevant law.
To prove this form of intention, the judge held that the accused must be shown to have subjectively foreseen the possibility of death if he or she committed an act that led to someone’s death. In Pistorius’s case, he fired four shots through a bathroom door. Did he subjectively foresee the possibility of death when he pulled the trigger? In the Humphreys case, Brand said that this form of intention is not tested on the standard of a reasonable person but, rather, on whether a person of normal intelligence would not have so concluded and, further, whether there are any facts to show a reason for his not sharing this foresight.
If, in the Pistorius trial, the court concludes in favour of the state, it turns to whether Pistorius took this foresight into consideration or whether it was immaterial to him whether death followed his actions. A positive finding then compels Oscar’s defence team to show that he acted in private defence. Conversely, the court may find that, even though the state has failed to prove intention to murder, the accused acted negligently: that is, that he failed to act as a reasonable person would in his position. In this case, a finding of culpable homicide would be justified; that, in turn, could result in a term of direct imprisonment.
If, on the other hand, the finding is in favour of intention to murder, what must Pistorius show to be acquitted? In brief, a person acts lawfully in private defence if he uses force to repel an attack that has commenced or is imminent and is directed upon his or another life, bodily integrity or property. The law does not expect a person to flee his or her own home, but there must be a reasonable relationship between the attack or threatened attack and the act of defence. A court will not insist that there be proportionality between the defensive act and the attack. In an enquiry about the justification for the act of private defence, the court, faced with the factual circumstances that have been proved, must ask whether a reasonable person would have acted in this way. In Pistorius’s case, his disability will be an important factor to be taken into account.
Although the details of Pistorius’s defence will be teased out in the evidence led by his legal team, the line of justification appears to be based on a mistake: that is, he thought there was an intruder and hence a threatened attack; that, as a disabled person, he would and did feel even more vulnerable, and hence the tragic mistake that caused the death of Steenkamp.
Again, the test is a subjective one: his level of intelligence, background and psychological disposition will all be considered in determining whether he had the intention to murder or whether, notwithstanding the initial finding of dolus eventualis, in the final analysis his intention must be excluded from consideration because of the proven mistake. Yet, even here, it is possible that the court may find that, if the accused intended to kill A rather than B but did kill B, murder could be a competent verdict.
Even this exposition of Criminal Law 101 reveals that the complexity in this case turns mainly on Pistorius’s testimony and the prosecution’s evidence, which seeks to show that the argument regarding a mistake has no legal basis. Once Pistorius has been subjected to cross-examination, the appropriate application of the key legal principles will be possible. Until then, it would be wise for the media to observe more and subject the public to less ill-informed commentary.