State's Appeal Against Pistorius Murder Acquittal Allowed

In a welcome move, at least for those of us who had serious concerns about how Judge Masipa dealt with dolus eventualis in the Oscar Pistorius judgment (see my previous blog post on the matter here), Judge Masipa has permitted the State's appeal, which will now be heard in front of the South African Supreme Court.

To recap, in a nutshell, without making it clear in her judgment why and on what grounds, Masipa J. had to have accepted that Oscar Pistorius did not foresee that firing four bullets through a closed toilet door risked causing the death of the person behind the door. You don't have to be a lawyer to see the problem with that (though the lawyers out there may note that the State got a lucky break that the Honourable Judge didn't explain her reasoning fully in the original judgment, for if she had perversity could well have been the only avenue available for the appeal, and that is a very difficult bar to get over. As it is, Masipa J. accepted that it is a point of law as to whether she correctly applied the principle of dolus eventualis to the facts.)

The Guardian's liveblog of the original judgment had a useful explanation of what happened:

Read the State's grounds for appeal below.

  State papers for Oscar Pistorius sentencing appeal by eNCA.com

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.

The Pistorius defence

I would appreciate comment from any lawyerly folks out there.

I haven't been following the Pistorius trial very closely (hardly at all), but is it just me or are the media getting somewhat mixed up by the fact that he appears to be trying to argue, in two completely different ways, that there was not the necessary intent to be convicted of murder?  ("I fired the gun accidentally" [no intent] and "I intentionally fired the gun mistakenly believing that there was an intruder behind the door" [putative/mistaken self-defence]).

The fact that the media seem to be quite confused by it indicates how it might work as a trial strategy in front of a jury, but it is hardly going to wash in front of the Honourable judge.

Consider this from the BBC's Andrew Harding: "He knows that he could be cleared of deliberately killing Reeva Steenkamp, but still be found guilty of intentionally murdering "someone" behind a closed door."

That's not right at all, and Harding is mixing up transferred intent and the victim.  There aren't two murder charges - if without a lawful defence he deliberately fired at "someone" through a closed door that resulted in the death of Reeva Steenkamp then he is guilty of the murder of Reeva Steenkamp.

Who Killed Apartheid?

Who Killed Apartheid?

As a follow up to the post on Mandela, my friend Mike Levine shared this fascinating interview with me on Facebook.  It raises some interesting questions.  I have no doubt in my own mind that with the end of the Cold War the external and internal pressure on South Africa to democratise would have become irresistible, so that by the mid-90s, white minority rule would have been a thing of the past in any case.

The big question is what kind of South Africa would have replaced it?  As Howard Barrell asserts, the ANC's armed struggle gave them the moral and political authority to dominate the New South Africa and its creation, and put in place a constitutional and political system based on human and democratic rights that should stand as an inspiration to the rest of the world, as imperfect as it may be.

The big question, I suppose, is in the absence of that, would we have got the same South Africa, or something more closely resembling Robert Mugabe's Zimbabwe, or worse still, Idi Amin's Uganda?

Mandela And His Legacy

NB: The videos embedded in this blogpost may not play on mobile devices.

The death of Nelson Mandela prompted an outpouring of tributes from around the world, and raised some interesting questions about his legacy and those of the conservative governments of the 1980s.  It has been been particularly interesting for me to observe the US media struggling with how to deal with Mandela's life history and worldview, and ultimately choosing to portray him as a Gandhi-like figure, for whom peaceful change was the goal, which is to completely misinterpret Mandela and his Long Walk to Freedom.  (As a side-note, Henry Kissinger once opined in conversations with the Chinese in 1971/2 that Gandhi's non-violence was a tactical not a philosophical decision, based on the nature of his opponent: the British).  Mandela's genius was to be able to react and change tactics as the circumstances allowed and dictated.