State files Oscar verdict appeal
The other option is to reconvict Paralympian for the murder of his girlfriend, it argues
AS OSCAR Pistorius is preparing to leave prison, with only three more nights before he swops his prison cell for his uncle’s Waterkloof, Pretoria, mansion, the State is asking that he either be convicted of murder or that he be retried.
In its heads of argument filed with the Supreme Court of Appeal yesterday, the State said the only reasonable verdict was murder and not culpable homicide, as found by Judge Thokozile Masipa.
Advocate Gerrie Nel will argue in November that section 322 of the Criminal Procedure Act paved the way for the appeal court to, itself, convict Pistorius of murder. This section also empowers the court to order that new proceedings be instituted on the original charge, as if the accused (Pistorius) had not previously been arraigned. Nel, however, also made it clear that a retrial was not the only option, but that the appeal court could directly deal with the matter itself.
The State is turning to the appeal court as it feels that Judge Masipa made a mistake not to convict Pistorius of mur- der. According to the State, the judge wrongly applied the principles of dolus eventualis. This means Pistorius should have foreseen he could kill Reeva Steenkamp when he fired four shots through the toilet door on Valentine’s Day two years ago.
The first point that is expected to be argued is whether the State is launching the appeal proceedings on an error in law or fact. As the law stands, the State can only argue errors in law, which Nel said was the case here.
Pistorius’s advocate, Barry Roux, however, is contesting that the appeal is based on findings in law. According to him, the State is attacking the findings on fact, which it is not entitled to do.
Some of the questions under the spotlight will be whether the principles of dolus eventualis were correctly applied to the accepted facts regarding Pistorius’s conduct that morning when he shot his girlfriend and whether the legal principles regarding circumstantial evidence were applied by the trial court.
Nel said that if it were found that Judge Masipa did indeed incorrectly apply the principles of dolus eventualis, the conclusion that Pistorius should have been convicted of murder is inescapable.
Nel, in this regard, pointed out the findings of the court that Pistorius armed himself and deliberately fired through the locked toilet door.
“He fired not one but four shots,” Nel said. Judge Masipa at the time said: “The accused clearly wanted to use the firearm, and the only way he could have used it was to shoot at the perceived danger.”
Nel said Pistorius clearly knew someone was behind the door when he fired the shots, he was trained in using firearms, and on these facts, he should, at the very least, have been convicted of murder with intent.
He said the judge should have evaluated all the evidence and not only certain portions.
Nel said the judge should have asked what Pistorius thought the person was doing in the toilet cubicle, whether he considered the person’s posi- tion before he fired and why he didn’t aim at the floor or the feet of the person behind the door.
Pistorius was sentenced to five years’ imprisonment, in terms of which he had to serve only 10 months before he was considered for parole.
His 10 months is lapsing on Friday, and Correctional Services has indicated he would be granted parole. Pistorius will be subjected to house arrest – with some time off in between to go to church and other activities. This will last until his full five-year term had lapsed.
The defence is expected to submit its heads of argument next month.