Saturday, 20 September 2014

The Puzzling Problem of the Pistorius Plea

A blog post by Felicity Gerry QC has today left me thinking again about the verdict in the Oscar Pistorius trial.  I need to disclaim at the very start that I saw very, very little of the actual trial and thus did not have the evidence in front of me that was placed in front of the judge.  However, given the provocative title of Ms. Gerry's post, 'The Oscar Pistorius verdict: was it a miscarriage of justice?', I was slightly surprised at her conclusion that
"justice was done and seen to be done. It may or may not be the truth, but on the available evidence, the important standard of proving serious criminal charges beyond a reasonable doubt was maintained."
What puzzles me about the verdict is an issue that I highlighted back in April,  which is that the Pistorius defence boiled down to something along the lines of "I killed Reeva when I accidentally fired through the toilet door thinking there was an intruder behind it."  From what I have seen and read, in her verdict Judge Masipa has not adequately dealt with the issue of transferred malice, and the blurring of what were essentially two separate defences offered by Pistorius: 1) That he acted in putative self-defence (which would require an assessment of whether it was reasonable under the circumstances as he perceived them for Pistorius to think that the force he used to avert the perceived threat was reasonable); or 2) He fired the gun accidentally.

This problem with the verdict has been highlighted by a number of South African legal scholars, and put very clearly by Pierre de Vos, of the Constitutionally Speaking blog, when he wrote:
The state can only prove intention via the concept of dolus eventualis [indirect intention/transferred malice] where the state can prove that while Pistorius might not have meant to kill the victim (Reeva Steenkamp or the putative intruder), he nevertheless foresaw the possibility and nevertheless proceeded with his actions (in legal terms he nevertheless reconciled himself to this possibility and went ahead).
In 2013 Judge Fritz Brand reminded us in the Humphreys case that it is not sufficient for the state to show that the accused should (objectively) have foreseen the possibility of fatal injuries to convict him or her of murder on the basis of dolus eventualis. The state must show that the accused actually foresaw the possibility of his actions killing someone (in this case, the person – whomever it might have been – behind the toilet door). It is not about what a reasonable person would have foreseen (which would speak to whether he is guilty of culpable homicide).
In this case the judge found that Oscar Pistorius did not actually (subjectively) foresee as a possibility that he would kill the person behind the toilet door when he pumped four bullets through the door. 
Like Mr. de Vos, when I wrote my original post I could not see how the judge could fail to come to the conclusion, on the facts known, that Pistorius did not foresee that possibility.  As far as I can see the issue was not properly dealt with in the judgment either.  What is more puzzling is that an acceptance of the argument that he fired the gun as a result of an involuntary muscle spasm would then be somewhat inconsistent with a guilty verdict on the count of culpable homicide.

While it would certainly have led to an undramatic trial, I always felt that by trying to prove the intentional murder of Reeva Steinkamp, the prosecution was aiming too high.  The state allowed Pistorius's defence to cloud the issues.  The simplicity of the question at the heart of the tragedy was overshadowed and drowned out in the melodrama of the saga of Oscar and Reeva, but it remained a simple question: Did Oscar Pistorius fire four shoots through the door believing that there was an intruder on the other side, and if so did he foresee that it could kill that intruder?  The issue of guilt or not on the charge of murder would hinge on whether it was reasonable for him to use lethal force. From what I know of South African law I believe the answer inescapably points to 'No'.

As Pierre de Vos concluded:
In the Pistorius case the question is whether there was any reason to believe Pistorius did not share the foresight that his actions could lead to the killing of a human being. The judge found that there was. The question is whether the facts support such a finding.
Perhaps the judge felt compelled to find as she did because the prosecution, in her view, failed to make this point beyond reasonable doubt.  If so, it is an appalling oversight on the part of Gerrie Nel, the prosecution barrister and in which case then perhaps Felicity Gerry is correct, and justice was done and seen to be done, however imperfect it may be.  But in the absence of clearer reasoning from Judge Masipa, we are left to guess, which is unsatisfactory from everybody's point of view.

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