Which version of killing will court believe?

THE closing arguments in the Oscar Pistorius trial did not disappoint — with prosecutor Gerrie Nel correctly pointing out to the judge that the only way the court could acquit Pistorius was if it found his version to be reasonably and possibly true.

Nel’s argument that this would be impossible is strong. Pistorius’s version changed while he testified; he contradicted himself under crossexamination; and, most importantly, he asked the court to accept either of his two versions.

Pistorius’s advocate, Barry Roux, argued that if the court accepted that Pistorius had acted in an automated, reactive manner, then it would have to accept that he had diminished capacity when he killed Reeva Steenkamp.

But if the court decided that he had consciously acted with intent, then it must accept that he had acted in self-defence.

Nel argued that these two versions were so mutually exclusive that they were in fact “mutually destructive”.

Nel’s point was valid. Relying on two versions not only impacts your defence in a negative and destructive fashion, but it causes irreparable harm to your credibility as a whole.

The court will have to decide whether the state proved beyond a reasonable doubt that Pistorius committed premeditated murder — did he form a plan and carry it out when he shot her?

In other words, can he be found guilty of murder dolus directus — intentional and unlawful killing in a “spur-ofthe-moment” fashion — or is he guilty of murder dolus eventualis, which would mean that when he fired four shots into that bathroom door, he was aware of the real possibility of someone dying as a result, but went ahead regardless.

The latter is the defence’s biggest challenge. The only way Pistorius can escape this interpretation is if he has convinced the court that he acted in self-defence and truly believed that his and Steenkamp’s lives were in danger. This is doubtful. Nel concluded by saying that even if the court acquitted Pistorius of murder, it had no choice but to convict him of culpable homicide.

Roux questioned the integrity of both the police and Nel. He referred to the police compromising the crime scene and said Nel had tried to deceive the court by not referring to crucial evidence and witnesses.

Roux attempted to create as much doubt as possible on the main charge of murder, placing in dispute the state’s timeline of events.

He steered his argument in the direction of culpable homicide and introduced a novel legal concept: Pistorius could not be regarded as a reasonable person, but rather as a reasonable disabled person.

The problem that Pistorius faces in relying on his disability as a defence is that in case law, dating back to 1985 in State v Ngubane, the court made it clear that in the “reasonable person” test, one can only rely upon external factors influencing a person’s actions.

All internal factors are to be disregarded — in other words, any disability, mental defect or mental disorder is to be ignored when determining whether a person acted in a reasonable manner or not.

Even the world’s best lawyers are only as good as the strength of their client’s version, and one cannot see the court being convinced that Pistorius acted in selfdefence or, more importantly, that he was not aware of the fact that shooting four shots into that door, regardless of who was behind it, would lead to someone losing their life.

Roux is a director at BDK Attorneys