No Oscars for a poor showing all round

Judge Thokozile Masipa. (AFP)

Judge Thokozile Masipa. (AFP)

As the dust settles on the Oscar Pistorius trial, the broader question requiring interrogation is how our justice system fared under the sustained scrutiny that accompanied the proceedings. The first televised criminal trial in South African history was supposed to educate the public about the intricacies and the nuances of our criminal justice system. This commendable objective demanded a skilled press with journalists who understood the workings of the criminal justice system – buttressed, if necessary, by experienced criminal lawyers.

Sadly, the media only added to the confusion.
Self-proclaimed criminal experts and academics who seemed never to have been inside a courtroom failed to enlighten. Only a few media networks used experts who provided an educative role.

Neither the prosecution nor the defence showed the South African legal system in its best possible light.

Barry Roux SC, for the defence, began his cross-examination of the first witness by asking a series of questions to which he patently did not know the answers and which therefore elicited responses disadvantageous to his client. An elementary mistake.

Certain so-called experts called on behalf of the defence were rapidly exposed, raising the question as to what level of due diligence had been taken before they were allowed to present evidence. Pistorius’s own version of what happened altered more than once during his evidence, ranging from a claim of putative self-defence to automatism.

Gerrie Nel, the prosecutor, did not fare much better. He doggedly pursued a case of premeditated murder even though it must have been obvious from the get-go that the better course of action would have been to argue a case of dolus eventualis. An essential skill of a trial lawyer is to work out what the best possible case is for his or her client. This tactic was an inexplicable error of judgment.

In the light of such legal blundering, it might have been expected that the judgment would not emerged unscathed. The Pistorius trial was not a difficult case. Everyone knew who had caused the death of Reeva Steenkamp. The only question was the reason for his actions.

Pistorius contended that he had not acted unlawfully because he had acted in putative self-defence. Thus the court had to examine his mistaken belief that an intruder was behind the toilet door. In State vs De Oliveira, the Supreme Court of Appeal found that an erroneous belief that an accused’s life is in danger may well depend on the precise circumstances and can exclude dolus, in which case liability for Reeva Steenkamp’s death, based on intention, would be excluded – but he could still be convicted of culpable homicide.

The problem is that it was uncertain from the judgment whether the putative self-defence was upheld or whether the court took the view that Pistorius did not foresee the possibility that when he shot four bullets through the door of a narrow toilet, the person in the toilet would be killed or that he had not acted recklessly with regard to this possibility.

In State vs Humphreys, the appeal court clarified the test for dolus eventualis. It is not enough that an accused should objectively have foreseen the possibility of fatal injuries as a consequence of his conduct. That the test is a subjective one does not mean that a court must simply accept the say-so of the accused.

As Justice Fritz Brand said in Humphreys: “Common sense dictates that the process of inferential reasoning may start out from the premise that, in accordance with common experience, the possibility of the consequences that ensued would have been obvious to any person of normal intelligence. The next logical step would then be to ask whether, in the light of all the facts and circumstances of the case, is there any reason to think that the accused would not have shared this foresight, derived from common experience, with other members of the general population.”

The answer is surely obvious. A person experienced with guns, as Pistorius is, must have known the consequences of firing four bullets through the toilet door, hence putative self-defence was his only lifeline. But here the quality of his own testimony becomes critical. At some point, he shifted from contending that he had deliberately shot through the door in self-defence to claiming he had acted in an involuntary fashion because he was so nervous.

It is uncertain whether the court, notwithstanding that it found Pistorius to be a very poor witness, believed one of his versions – putative self-defence – or whether the judge failed to apply the proper test to dolus eventualis.

Either way, the judgment is unfortunate. But the errors may well be factual ones rather than the kind of legal mistakes that would justify an appeal. This is the key question, apart from sentence, that awaits us. The case as a whole has not reflected well on the justice system in this country.

Serjeant at the Bar

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