New sentence may be end of the road for Oscar

Cul-de-sac: Oscar Pistorius was granted bail of R10?000 at the high court in Pretoria this week, but it is unlikely that he will be able to avoid a jail sentence after being convicted of murder. (Siphiwe Sibeko/Reuters)

Cul-de-sac: Oscar Pistorius was granted bail of R10?000 at the high court in Pretoria this week, but it is unlikely that he will be able to avoid a jail sentence after being convicted of murder. (Siphiwe Sibeko/Reuters)

The case of State vs Pistorius was, at its root, a simple one involving the application of a concept of criminal law that has been employed without much fuss for decades. Perhaps it was the celebrity nature of this trial, or the desire of self-appointed experts giving their views in the media, that the case was presented as a landmark legal problem. Whatever the reason, many of these “experts” ensured that a simple case transmogrified in the public mind into a dispute of grave legal complexity.

  Judge Eric Leach, on behalf of a unanimous Bench of the Supreme Court of Appeal, confirmed that the applicable legal concept of dolus eventualis was clear and relatively simple: “In contrast to dolus directus, in a case of murder where the object and purpose of the perpetrator is specifically to cause death, a person’s intention in the form of dolus eventualis arises if the perpetrator foresees the risk of death occurring, but nevertheless continues to act appreciating that death might well occur, therefore ‘gambling’, as it were, with the life of the person against whom the act is directed.

“It therefore consists of two parts: foresight of the possibility of death occurring and reconciliation with that foreseen possibility … It is necessary to stress that the wrongdoer does not have to foresee death as a probable consequence of his or her actions. It is sufficient that the possibility of death is foreseen, which, coupled with a disregard of that consequence, is sufficient to constitute the necessary criminal intent.”

This is not new law. It cast upon the trial court the duty to answer one core question: “Did the accused foresee the possibility of the resultant death, yet persisted in his deed reckless to whether death ensued or not?”

  Unfortunately, the trial court arrived at the wrong answer because it asked the incorrect question. According to Leach, “the finding that the accused had not subjectively foreseen that he would kill whoever was behind the door and that if he had intended to do so he would have aimed higher than he did, conflates the test of what is required to establish dolus directus with the assessment of dolus eventualis”.

The overwhelming issue before the trial court was not whether the accused had foreseen that Reeva Steenkamp might have been in the toilet when Pistorius fired the fatal shots, but whether there was a person behind the door who might possibly be killed by his action. Expressed differently, that Pistorius might have had an incorrect appreciation of who was in the toilet does not determine whether he had the requisite criminal intent.

  Thus the trial court erred in law when, as Leach said, it confined “its assessment of dolus eventualis to whether the accused had foreseen that it was Reeva behind the door … In 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.”

Our law is not so naive that it simply accepts that when a person (even a paraplegic, who is more vulnerable) arms himself with a heavy weapon and bullets designed to cause maximum injury and fires a series of shots, narrowly grouped, through a door and into a confined space, knowing full well that there is a human being there, he does not have the requisite intent to be found guilty of murder.

Pistorius raised the question of putative private defence – he thought he was acting in self-defence against an intruder. Reflecting accepted legal doctrine, Leach said that “the defence of putative private defence implies rational but mistaken thought. Even if the accused believed that there was someone else in the toilet, his expressed fear that such a person was a danger to his life was not the product of any rational thought.”

We must await Judge Thokozile Masipa’s decision because she must now sentence Pistorius afresh. What is surely certain is that he will receive a lengthy custodial sentence. Less certain is whether Pistorius, should he seek leave to do so, will succeed in appealing to the Constitutional Court. His conviction is not based on a controversial principle. All the appeal court did was to apply the correct legal principles to the facts of the case. And that means the legal road may well end after sentencing.

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