By: Shain Germaner
Bloemfontein – Oscar Pistorius has been found guilty of murder, though it may be some time before he finds out exactly how long he is set to spend behind bars.
In a fairly brief judgment by Judge Eric Leach, Pistorius was found to have been indirectly murderous in his actions by firing four shots into a closed bathroom door when not knowing who or if anyone was behind it.
The State revealed shortly after the conviction it would attempt to overturn the culpable homicide conviction at the Supreme Court of Appeal in a bid to charge the athlete with murder.
In November, prosecutor Gerrie Nel spent hours arguing that the judge presiding over the original trial, Judge Thokozile Masipa, had failed to correctly apply the principles of dolus eventualis, the concept that suggests Pistorius was aware that when he shot through the toilet door at his Pretoria home, he knew he could potentially kill someone.
On Thursday morning at the Supreme Court, Judge Leach read the unanimous judgment of all five justices presiding over the appeal.
He described Steenkamp’s death and Pistorius’s fall from grace as a tragedy of Shakespearean proportions.
Judge Leach apologised for using Steenkamp’s first name in his judgment, saying it was part of ensuring her identity was kept intact.
He said the trial court had held that the State had not proved Pistorius was guilty of murder, but rather of culpable homicide.
Judge Leach then detailed Pistorius and Steenkamp’s relationship from 2012 and the night in 2013 where the athlete shot and killed his girlfriend.
He said the State’s case alleged Steenkamp and Pistorius had had an argument that night, and that Pistorius shot her out of anger after she fled to the bathroom. However, the defence’s case was that Pistorius believed an intruder had entered his house through the bathroom window and that Pistorius in his frightened state opened fire on the bathroom door. It only then dawned on Pistorius that he could have fired on Steenkamp.
The judge said he and his fellow presiding officers could not interfere with Masipa’s ruling on whether Pistorius had intended to kill Steenkamp because of an argument.
Judge Leach acknowledged that Pistorius’s version of events had changed, had numerous inconsistencies and that throughout the trial he had been seen as a poor witness.
However, Judge Leach said the State’s case revolved around whether the trial court had failed to properly rule on the concept of dolus eventualis.
He said, however, that negligence was insufficient to prove it.
“The person must have been reconciled with the foreseeable outcome,” said Judge Leach.
He said Judge Masipa’s ruling on dolus eventualis was “confusing”.
The high court found the presence of someone behind the door was not provable, which Leach said the judges of the Supreme Court struggled to believe.
He said the trial court had focused on whether Pistorius had known the person inside the cubicle was Steenkamp, meaning he could not have been guilty of foreseeing her death. However, according to Leach, the identity of the victim had no bearing on a guilty or innocent verdict of dolus eventualis.
The accused’s incorrect understanding of who was in the cubicle had no effect on his intent to kill, Judge Leach explained.
He then said that when choosing to acquit or convict, a judge may not ignore certain evidence, which he believed Judge Masipa had done.
The failure of the court to take into account crime scene analyst Chris Mangena’s evidence despite him being described as a good, useful witness was a major issue.
According to Mangena, Steenkamp was standing by the bathroom door at the time of the shooting.
The expert also said the Black Talon ammunition used by Pistorius would cause devastating wounds to anyone hit by them.
Judge Leach said Judge Masipa had failed to acknowledge this evidence, and this was a major error of law.
He then moved onto the State’s issues with Judge Masipa’s choice to choose an alternative version of events from what Pistorius had told the court in her ruling.
However, he said considering the other arguments in favour of the State meant this last point was “superfluous”.
Judge Leach said it would be wholly impractical to re-trial Pistorius, considering the amount of time already passed since the incident.
He said that the Supreme Court of Appeal was as good as a trial court to examine the facts of the case.
The judge then set aside the culpable homicide conviction.
Read full Oscar appeal judgement
Judge Leach then moved onto the defence’s argument that Pistorius was incredibly anxious and vulnerable at the time of the shooting, as he was not wearing his prosthetic legs.
Judge Leach said Pistorius was well-trained with firearms, and had never offered a reasonable explanation for why he fired on the door.
The nature of the firearm and the ammunition used, meant Pistorius would have foreseen the person behind the door would have died. “This constituted dolus eventualis on his part,” said Judge Leach.
Leach said the defence had argued Pistorius genuinely but erroneously believed his life was in danger when he shot, meaning he fired in self-defence.
However, Judge Leach said he had a problem with this, as Pistorius testified he had not intended to fire on the intruder, which excluded him from arguing putative self-defence.
Judge Leach said Pistorius had also failed to fire a warning shot, and he had had no rational fear that his life was in danger.
It was for these reasons Pistorius was charged with murder.
Leach acknowledged that Pistorius had already served a year of his culpable homicide sentence, but that a new sentence would have to be argued again.
“The trial was covered in the glare of international attention,” he said and for this reason he believed this factor may have affected Judge Masipa’s judgment.
He added the order to overturn the conviction was not an indictment on Judge Masipa’s conduct.