The State’s appeal against Oscar Pistorius’ culpable homicide conviction started on Tuesday, with State advocate Gerrie Nel setting out the State’s case that it believed the trial court erred on several fronts and should have found the athlete guilty of murder.
Last year the Pretoria High Court convicted Pistorius of the culpable homicide for the shooting of his model girlfriend, Reeva Steenkamp, whom he allegedly mistook for an intruder at his Pretoria East home on Valentine’s Day 2013.
The State revealed shortly after the conviction that it would attempt to overturn the culpable homicide conviction at the Supreme Court of Appeal in Bloemfontein in a bid to charge the athlete with murder.
On Tuesday morning, Nel, began his appeal arguments before the five Appeal Court judges just after 9.45am.
He said the rationale for his application was to prevent legal errors from being made by the trial courts.
“We acknowledge … we have two major hurdles to cross,” said Nel.
“These were the erroneous application of the principles of dolus eventualis and the consideration of circumstantial evidence during the trial.
“It also included the Seekoei case law which limited the State’s ability to appeal in such cases where the accused was convicted on an alternative charge.
“We were not happy with the factual findings (of the matter),” Nel told the court.
Using case law, Nel argued that while Pistorius was found guilty of an alternative charge of culpable homicide, Pretoria High Court Judge, Thokozile Masipa’s was not ruling on a competent verdict.
One of the five presiding judges, Justice Steven Majiedt, questioned the advocate’s argument, saying the case law mentioned by Nel referred to incidents where the accused was given a complete acquittal, not convicted on an alternative trial. But Nel insisted that the Seekoei case law was no longer relevant in today’s law.
Regarding Judge Masipa’s alleged errors in law – which Nel emphatically said was not an attempt to masquerade arguments of errors in fact – the state advocate said there were multiple mistakes.
He said Masipa’s judgment ignored key evidence, such as naming the effectiveness of certain witness testimony but then never bringing them up again.
Nel then went on to say the court erred in how it applied certain legal principles.
He said that had Masipa taken into account all of the state’s witness’s evidence, it would have rendered Pistorius’ version of events totally impossible.
Justice Majiedt interjected to say he was concerned at how Judge Masipa had seemingly ignored an investigating officer’s (Chris Mangena’s) crime scene reconstruction evidence, and this was “very troubling”.
Nel said that if the court had declared this witness as unreliable, he would understand this, but that Judge Masipa had noted he was a “good” witness.
The advocate then argued that Pistorius had said he had never “voluntarily” fired at Steenkamp.
Justice Majiedt pre-empted Nel when he then said this was completely incompatible with putative self-defence – the defence upon which Pistorius’ legal team had relied.
“This … is a clear error in law,” said Nel.
Nel said the court viewed all of this evidence in isolation, and erred by discounting it.
Justice Majiedt then asked about a possible argument from the defence that the State was moving closer to a different charge, rather than dolus eventualis. He said the State could potentially be implying Pistorius’ direct intent – dolus directus – to kill Steenkamp.
But Nel said this was not the State’s intention, and that he was relying entirely on the errors in law sustained during the original trial. He said the State would maintain its argument of dolus eventualis, that Pistorius definitely had the foresight that firing onto a door at torso height would likely have killed whoever was behind it.
He said the number of shots – four were fired – showed the indirect intent to kill.
Nel then moved onto legal recommendations of what the court should do if it found in his favour.
Justice Majiedt informed the court firstly that the Supreme court could not ultimately sentence Pistorius, and that if Pistorius was found guilty of murder, the case would have to return to the Pretoria High Court for sentencing proceedings.
While Justice Majiedt said certain case law suggested the court may have to send the case back for a re-trial, Nel argued that this would not be necessary and the Supreme Court had the power to alter Judge Masipa’s initial verdict.
However, presiding justice, Judge President Lex Mpati did point out that because the appeal was based on the concept of dolus eventualis, it concerned the facts of the case, rather than errors in law.
But Nel was insistent that the court had not applied the principle correctly, and thus this was most definitely an error in law.
“The court never took into account the principles of ‘error in objecto’,” said Nel, referring to Pistorius mistaking Steenkamp for an intruder.
While Pistorius initially served 11 months after his conviction in 2014, last month he was released to his uncle Arnold’s home on correctional supervision until 2019.
However, if the State is successful in its appeal to the five presiding judges, Pistorius could face 15 years for murder on the doctrine of dolus eventualis.
– African News Agency (ANA)
