“Not Guilty” – translation from the Beeld.

Posted: 11th Sep 2014 by James Grant in Uncategorized

This is translated and elaborated from an article, inspired by Marida Fitzpatrick, and published in the Beeld newspaper today (11 Sept 2014, see OSCAR: VAS OF VRY? http://www.beeld.com/nuus/2014-09-11-oscar-vas-of-vry via @Beeld_Nuus). It appears here subject to the disclaimer under which it was published.  To be clear,  Ulrich Roux and I wrote our respective pieces as an academic excercise to show what a guilty and not guilty verdict could look like; to help people to see both sides. We did not choose which verdict (guilty or not guilty) we would write; the views expressed are not necessarily our own views, and we don’t expect the court to necessarily adopt any of the views expressed.
The criminal onus requires that the state must prove its case beyond a reasonable doubt and that if there is a reasonable doubt as to the accused’s guilt, he must be acquitted. A doubt means nothing more than a possibility. Is there a reasonable possibility that the accused is not guilty? In a world in which, in a relevant sense, everything is possible, the question for us becomes whether any of these possibilities in the accused’s favour, are reasonable.
The evidence that there were moments of discontent in the relationship, that the accused may have threatened to break someone’s legs, and other evidence to the effect that the accused may be of “bad character” might, in some respects be technically admissible because the defence led evidence of the accused’s good character – as provided by s 197 of the Criminal Procedure Act or at common law. However, in line with the general reason why this sort of evidence is ordinarily inadmissible, especially that the accused is not on trial for being of “bad character”, we regard it as of such little weight that we have excluded it from our considerations.
The testimony of the “ear-witnesses” is clearly in a different league. While it is correct that is “circumstantial evidence” in that it requires the court to draw inferences, most evidence, even so called direct evidence still requires that the court must draw inferences. Furthermore, we know that circumstantial evidence is not necessarily weaker than direct evidence. It is trite that in our law the drawing of inferences from circumstantial evidence is governed by the “cardinal rules of logic” from S v Blom 1939 AD to the effect that: the inference sought to be draw must be consistent with the proved facts, and it must be the only reasonable inference. The evidence of Dr Lin was to the effect that it is entirely possible that a person would mistake a male scream for that of a female. He did concede that it is possible that person could accurately distinguish, but this concession does not assist in finding that it was a woman who screamed – as the only reasonable inference. This is just another way of saying that there appears to be a reasonable doubt as to whether the screaming that was heard, was that of the deceased.
We disagree with the prosecution that these two defences (involuntariness and putative private defence) are incompatible. It is not the case that involuntariness is a claim to not have been thinking, while putative private defence is a defence that the accused was thinking, albeit mistakenly. This is to misconceive involuntariness – it is not a claim that one was not thinking, only that, if one was thinking, whatever one was thinking did not control one’s conduct.In that case, the two defences proposed by the defence in the alternative are compatible and amount to the claim that the accused was under a mistaken belief that there was an intruder in his toilet and 1) in his heightened state of anxiety he got a fright and involuntary discharged his firearm; 2) he voluntarily discharged his firearm in putative private defence (the mistaken belief that he was entitled to kill whoever was in the toilet).
The defence raised by the accused that he discharged his firearm as a result of a “fright” is, in our view, the defence if involuntariness.A state of involuntariness prevails if the accused’s conduct was not under the control of his conscious mind (Burchell, Principles of Criminal Law 2013; S v Johnson 1969 (1) SA 201 AD; S v Chretien 1981 (1) 1097 AD). This court has stated on numerous occasions that a court is permitted to draw the natural inference that, ordinarily, conduct is voluntary and that if an accused wishes to claim involuntariness, he must provide some basis for this claim. (S v Henry (1) 1999 13 SCA). We are of the view that this basis was indeed provided in the evidence of Professors Derman and  Vorster. In this, taken together with the evidence to the effect that the accused is an overly anxious person and likely to startle easily, we find a sufficient basis to place a reasonable doubt on the voluntariness of the accused’s conduct at the time of pulling the trigger.
In the absence of reliable evidence (particularly to the effect that the deceased was screaming that night) to support the version of the state as the only reasonable inference, we cannot accept the version proposed by the state. However, the question arises, on the accused’s own version whether we accept that there is a reasonable possibility that upon hearing a sound emanating from his bathroom, the accused immediately assumed an intruder or intruders had gained entrance to his home, that, throughout his response, until he fired the fatal shots, he continued to misinterpret further sounds and the situation generally as one of an attack, and that he did not foresee the possibility that he could be wrong and that it could be the deceased in the bathroom and toilet. Again, the question we must ask ourselves is not whether this could possibly be true – that is not enough for the accused. On the other hand, the question is also not whether we think this is true, nor whether this is what most likely or probably happened. The question is whether this could reasonably possibly have happened. Given that we have accepted that the accused is an overly anxious person, and that, ironically, because the State has convinced us that the accused is reckless with firearms, we are able to conceive of the reasonable possibility that he could have laboured under this mistake and fired his gun at the door in the mistaken belief that he was entitled to do so. This mistake excludes the intention to unlawfully kill and he cannot be convicted of murder.
See the article in the Beeld for Ulrich Roux’s guilty “verdict”. See also my article in the Telegraph to the effect that Oscar Pistorius is, in my view, in grave jeopardy: Legal View: Oscar Pistorius ‘in grave jeopardy’ of being convicted of Reeva Steenkamp’s murder | via @Telegraph http://fw.to/GnI3Kq

  1. David says:

    Poor analysis. You ignored all the massive holes and inconsistencies in Oscars story. Like the fans being in the wrong position and the duvet, all which according to Oscar himself make his version impossible, unless police moved it all.

  2. Richard says:

    Professor Grant this is a brilliant article and I was thinking exactly the same about the main point of error in objecto but of course I don’t have legal training.
    The other point that strikes me about this was the element of intent. On Day 22 OP said when asked by Nel why OP didn’t “fire a warning shot into the shower”. OP replied “the bullet might have richocheted and hit me.” (see transcript) This implies that he did think through his actions BEFORE he shot and the shot was not a reflex action.
    Moreover by extension he knew there was someone in the bathroom and the intention was there to kill because he fired four shots knowing what damage that action might cause. But to me Judge Masipo says that the case did not prove its case. To me it very much did prove its case.
    I hope the State does appeal because as it stands it doesn’t appear emotionally fair as the public are not satisfied, neither is justice served because of a perceived error in law.

  3. Harriet says:

    Thank you very much for posting this interesting piece. Now that Judge Masipa’s verdict has been given, I must say I am deeply puzzled. As I understand it, she has said that although Pistorius ought to have foreseen that the person inside that toilet cubicle might well be killed (as the ‘reasonable man’ would have done), he in fact did not, and therefore it is not dolus eventualis. While I can see how she has come to the judgment that he did not foresee the possibility that Reeva Steenkamp would be killed, I simply don’t know how she has come to the decision that he did not foresee an intruder being killed. The cubicle was small, he fired multiple shots and the type of ammunition was particularly lethal. He was experienced enough in the use of guns to know the dangers, and in picking up the gun in the first place and then firing it, he was showing that he thought this was a way to ward off danger – by incapacitating (at the very least) the intruder he thought to be there. I don’t know why this is negligence not dolus eventualis. Can you shed any light on this for me? Many thanks.

  4. Brad says:

    Ignorance of the law is no excuse.

  5. Jason says:

    Can OP prosecute the state for allowing this trial to be publically broadcast. I see a lot of angry responses to this decision and some responses that seem like threats to OPs health.

      • Brad says:

        The live broadcasting of this trial on TV and Radio (globally) was counter productive for the justice system.
        Can you imagine what kind of pressure it is for someone who is not a public figure to be broadcasted live on TV and radio?
        If I were the only witness of a crime I would refuse to cooperate with the prosecution just to pretend not to end up live on tv or radio. End of story. The state can not force me to become a star of a trial.
        Thankfully it is in other (proper) developed countries against the constitution. People like media lawyer Dario Milo (MultiChoice/PriMedia) would be a clown in those countries and immediately rejected at their constitutional courts.

      • Louise S says:

        Mr Grant,
        You have urged the NPA to appeal the sentence and verdict in this case. I am sorry but this is not necessary and is not fair on Oscar as you are now putting him through more pain and misery. This is not justice. Why use this case to change the law, and no one else’s? Why not call for an appeal in other Culpable Homicide cases? It would have been better to respect Judge Masipa and her assessors for the hundreds of hours they put in trying to come up with the fair judgement they did. I have added a very sensible article below about how Masipa got it right:
        Shaza FreeSpirit 4 November 11:44
        In an article written by HJ Van Der Merwe in “Law, Democracy and Development” (Vol 17 2013 at p 64ff) the author makes it clear that the Appellate Division clarified the application of “dolus eventualis” in criminal matters in the Humphreys’ case on appeal. Dolus is a mental element of the crime of murder that is comprised of two parts:
        (1) That the accused foresaw as a real and substantial possibility that death would occur
        (2) That the accused reconciled himself / was reckless or indifferent to that outcome.
        First, the accused must have foreseen the real and substantial possibility of death occurring and in the Humphrey’s’ case, the accused foresaw that outcome, but did not reconcile himself to that outcome and, therefore, was not guilty of murder. In Humphrey’s, the Appellate Division clarified this second aspect of dolus and I suspect that it was this second element that Judge Masipa found lacking – the accused in the Pistorius case was not indifferent / had not reconciled himself / was not reckless as to that outcome.
        Therefore, far from making a mistake of law, it shows that the judge has read and applied the Humphrey’s’ test for dolus correctly and that this is a clearer understanding and application of the law relating to this second aspect of dolus eventualis than the “experts” who have been so critical of the judge.
        The verdict also points to the “prosecutorial failure” in the Pistorius case where the prosecution tried to establish “pre-meditated” murder despite the challenges of proving this where there were no reliable witnesses – an enterprise that was doomed before it began. Strangely enough, it was probably Gerrie Nel’s bullying tactics that convinced the court that the accused did not reconcile himself / was not reckless or indifferent to the outcome that he had foreseen – he was clearly devastated by the outcome and showed remorse when attacked by the prosecution in the witness box. The prosecution also made a meal of the accused’s proficiency with firearms and, interestingly, in terms of the Humphrey’s’ judgement, it could well have been the accused’s proficiency with firearms that also convinced the judge that he had not fulfilled the recklessness aspect of dolus – it was because of the accused’s knowledge of firearms that he thought that he could shoot into that enclosed space without causing death.
        Clearly the judge has understood the law and applied it correctly and I suspect that there will not be an appeal by the prosecution. If there is one, it is doomed.
        ~by CE Gerber.

  6. Jason says:

    Hi Prof Grant,
    this is my interpretation of Judge Masipa’s decision as regards Dolus Eventualis:
    The State did not remove reasonable doubt that OP “believed himself to be acting lawfully in shooting (erroneously) an intruder because he was in fear of his life”.
    That is to say Judge Masipa is forced to accept that OP
    a) was in fear of his life
    b) that he believed he was shooting at an intruder
    c) that he believed he was legally entitled to shoot at the intruder because he was in fear of his life
    … because she believed the State had not removed to a reasonable doubt that aspect of OPs testimony. She used common cause evidence to support this decision … him saying he accidentally shot Reeva, that he mistook her for an intruder to everyone immediately after the incident.
    ps Something happened during the Judge’s ruling that seems to be a little strange. She was late resuming after lunch and there seemed to have been an unplanned meeting between her and the Defence and State counsels. Then when she resumed she adjourned proceedings after only 30 minutes.

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