Once
again many eyes will focus on the Gauteng North High Court in Pretoria on Tuesday
9 December 2014 where the State and Pistorius defence team lock horns again in
the State’s application for leave to appeal the verdict and/or lenient sentence
imposed on Pistorius. Many will be wondering and arguing what could have gone
wrong and whether the Steenkamp family will eventually get justice for the
heinous murder of the daughter Reeva. While
Judge Masipa has been criticized from different quarters for her handling of
the case, particularly for her verdict, I have been impressed by the manner she
presided over the trial over-all – for that I would give ten or even eleven out
of ten. With the exception of a few circumstances, I listened religiously to
the trial of Oscar Pistorius daily on EWN “gavel by gavel” and “minute by
minute”. I listened to witnesses being examined, cross-examined and re-examined
by both state and Defence. I cannot falter her the way she conducted the trial
proceedings. She remained attentive, sober and displayed great focus on the
evidence being presented day in and day out. I was also impressed by her sentence
judgment (S v Pistorius ([2014]
ZAGPPHC 924). It was well-reasoned, with case law authorities. It was almost flawless.
However, like the majority of the members of
the public I was disappointed with her verdict, particularly her lack of
reasoning on the evidence that the witnesses presented before the court ([2014]
ZAGPPHC 793). (Coincidentally, both Masipa judgments are written in an
old-fashioned manner that has no paragraph numbering, but sentence numbers.
This lack of paragraph numbering, contrary to what has become the norm for
judgments, does not help the judgment’s course). The fact that she never
considered some crucial evidence – such as the evidence led regarding the
sliding door, curtains, blinds, the position of the couple’s duvet and blood
spatters on the floor & in relation to the duvet – for no plausible
explanation was disappointing. Masipa confessed to the amount of evidence led,
by way of a point of departure that a lot of evidence was led, hence her one
page summary of the evidence – which is in my view is inadequate for the issue
on hand. However, this was not the first time that the court has been seized with
such a high volume of evidence. For instance, in State v Zuma, numerous
witnesses testified, especially, for the Defence (2006 (2) SACR 191 (W), 2006
(7) BCLR 790 (W)). Judge Van Der Merwe analysed the evidence in satisfactory
fashion, instead of taking a short cut. Thus, taken holistically, Judge
Masipa’s judgment (verdict) lacks the tenacity displayed in her sentence
judgment.
It is this disappointment and an academic
curiosity of what could have been as well as what the court of appeal may have
to consider when the matter finally reaches the Supreme Court of Appeal that has
prompted the writing of this article. Whereas it partly deals with intention,
it largely is limited to some crucial evidence that Judge Masipa should not
have ignored in reaching the verdict, especially when determining whether or
not Pistorius has acted intentionally or negligently. However, I do not dare
venture into the controversial of the dolus eventualis that has been debated in the public.
Intention in general
In
this case of Pistorius, the central question (issue) was whether the accused had
acted intentionally or not, at least with dolus eventualis (often
referred to as “constructive” or “legal intention”) or not when he killed the
deceased. The State had built its case on circumstantial evidence and argued that
at least Pistorius’ intention was in the form of dolus eventualis. Intention
is assessed subjectively. Thus CR Snyman cautions the court against “subtly
applying an objective instead of a subjective test [required] to determine
intention. More often, accused persons will deny acting intentionally. In this
regard Snyman says: “it is, after all, a well-known fact that many accused who
in fact have intention, subsequently falsely deny in court that they acted
intentionally. If this happens, a court may base a finding that X acted
intentionally on indirect proof in intention. This means that the court may
infer the intention from evidence relating to X’s outward conduct at the time
of the commission of his act as well as the circumstances surrounding the events.”
(CR Snyman Criminal Law (2002), 186 – 187). As Snyman points out, to determine intention
in such circumstances, “the court must consider all the circumstances of the
case (such as the possibility of a previous quarrel between the parties) as
well as all of X’s individual characteristics which the evidence may have
brought to light…” (Snyman, 187)
To prove the existence of intention “the court
must then to the best of its ability try and place itself in X’s position at
the time of the commission of the act and then try and ascertain what his (X’s)
state of mind was at that moment – that is, whether for example he appreciated
or foresaw the possibility that his act court result in Y’s death.” (Snyman,
187) Logically, we are about what the accused would have actually foreseen and
appreciated (subjective) as opposed to what he ought to have reasonably
foreseen.
Assessing
the evidence
Among
the many aspects of evidence that the State presented in support of it case
there was evidence of several key witnesses, including Ms Estelle van der
Merwe, the pictures depicting the scene of the crime, inter alios, in relation to the two fans, the
sliding door, curtains and blinds and the duvet. The court relied on the
post-mortem report, especially about the nature of the wounds that the deceased
sustained. It is this same evidence that I look into for this work, as shown
herein below, starting with the evidence of Ms Estelle van der Merwe.
Ear witnesses’ evidence
Ms
van der Merwe lived in the same complex as Pistorius (why the court does not
mention her distance from the accused house is anyone’s guess). She testified
that she had awoken shortly before 02:00 in the morning to hear what she
perceived to be a woman’s voice engaged in argument with someone though she
could not locate the voice. She also heard “gunshots” shortly after 03:00. This
evidence is crucial for the issue at hand and for the State case. I would have
loved the court to fully explore it, paying attention on the distance of her
house in relation Pistorius house and the number of shots she had. The court
should have enlightened us in its judgment if she went back to sleep or not from
two o’clock to three o’clock. As is, I agree that as is this evidence is
doubtful. However, this is no train smash for the State case as it could be
useful when considered with other evidence. Such include what other witnesses
heard, albeit at the distance of 177m and 80m. While the evidence of Dr Lin was
used to cast doubt on the evidence of ear witnesses, I did not understand him
to mean that they could not hear the voices of people arguing. Most importantly
the witness had no reason lie against Pistorius.
Also, in relation to the
screams, the court accepted that the issue of whose voice was heard by the
witnesses was important. Yet the court says nothing about the accused’s failure
to demonstrate his claims that he sometimes screams like a woman, despite the
defence assertion during cross-examination that he would do so. This was a
using an underhanded tactic by the defence, which the court should have done
something about such omission by the Defence.
The nature of wounds on the
deceased
The
court relied heavily on the evidence of Dr Saayman – the post-mortem, which conclusively
proved that “the deceased suffered horrendous injuries”, causing (in respect of
the wound in the right hip) “almost immediate instability or loss of stability
pertaining to that limb or hip”. This, the court argued, means that deceased
could have been able to scream, as alleged by State witnesses. However, this
supposition by the Judge missed one crucial evidence – the evidence of Captain
Mangena. Mangena demonstrated irrefutably that the shots were not fired in
quick succession, that is, there was a short break in between the first shot on
the deceased hip
The fans, the curtains and
the blinds
From
the outset, I must state that this was a hotly contested issue by the parties,
especially the Defence. I also take cognizance that there were allegations that
the scene of the crime was tempered with and that there was a lost extension
cord. However, the accused could not state at what stage was the scene tempered
with. Hence, the judge may have avoided controversy by never venturing on this
part of the evidence. However, the evidence of the position of the ferns in
relation to the sliding door, the curtains and the blinds was crucial to the
verdict of murder. The accused claimed that he had removed the ferns to close
the sliding door, the curtain and the blinds. On the other hand, the State
showed pictures with ferns in their original position, while the blinds and
curtains are not closed. The accused could not say that this picture had been
tempered with. Most importantly, the police who took pictures of the scene did
not know the accused’s version regarding the removal of the ferns and closing
of the sliding door. Logically then, Pistorius’ version in this regard was a
lie. The sliding door, the curtains and the blinds were never closed. It
follows then that the bedroom was not dark, as the accused claimed, even if the
bedroom lights were never switched on when the accused went to the
bedroom/bathroom to shoot the alleged intruders. Instead, the bedroom was lit by outside
light. Consequently, the accused could tell if the deceased was in the bed or
not.
Moreover, to prove that the accused
version is false, Adv. Nel asked Mr Pistorius what he did after shooting. The accused
responded that he went to the balcony with the gun in his hand in all material
times, while using one hand for balance and then without putting down the
firearm, opened the sliding door. Nel thereafter pointed out that the sliding
door needed both hands to open. The only logical or probable conclusion is that
the sliding door was open when Mr Pistorius went to the balcony to cry for help
and that it had never been closed as per his version.
The duvet on the and blood
spatters
There
was also considerable argument about whether the pair of jeans was on top of
the duvet or was on the floor near the duvet. The State was adamant that it was
on top of the duvet, while the Defence argued that if one blew the picture up,
a different view was portrayed. But there was irrefutable evidence to the
effect that the duvet was on the floor at the time that the accused went to
shoot at the “intruder”. This is borne to by the evidence of blood spatters on
top of the duvet which were made when the accused carried the deceased towards
the stairways to the bottom floor. Clearly, this evidence should not have been
disregarded by the court as irrelevant. It also proves that at least Pistorius
would have been aware that Reeva was not at the time that the accused “believe
in the presence of the intruder”. This together with the rest of other evidence
points to but one conclusion that the accused new he was shooting at Reeva when
he did shoot – or at least he should have in all probability known that the person
in the toilet cubicle when he did shoot (sentence judgment, 13 par 2 – 14 par
1)
The
merits
Meritoriously,
the court failed in its analysis of the evidence, especially, in relation to
the intention. For example, if the duvet were on the floor (as the evidence
proves it was) when the accused either when he returned from “bringing in the
fans (which is a fabrication)” or when back to “arm himself (in all probability
he never went back to arm himself – must have been armed all the time he
approached the toilet), he would in all probability seen the duvet and foreseen
the possibility that Reeva was in the toilet”. Moreover, if Mangena’s
reconstruction of the sequence of the shots, the deceased would have shouted back
to alert the accused of her presence in the toilet. In that case, to the very
least, when the accused fired the three subsequent shots, knew who the
“perceived intruder” was. In all
probability, in my view, the accused acted intentionally (at least in the form
of dolus eventualis).
Eccentrically, in the present
case, the court largely disregarded the circumstances that were vital to the
form of fault that was present in the case of Pistorius. Even his behaviour
after the shooting is suspect. For example, instead of calling security guards
who would have been nearby for assistance, he called his friend Stander who
take some time to reach Pistorius’ house. Thus what was he doing all the time
while waiting for the first person to arrive at the scene? Also, why did he
remove the deceased from the actual scene if by the court’s own admission that
she would have died immediately as a result of the seriousness of the
injuries? In fact, Masipa’s own
summation of the evidence during the sentence judgment, inadvertently, is
testimony to the fact that the accused had acted with intention (at least in
the form of dolus eventualis) when he shot and killed the deceased (see sentence judgment, 13 par
2 – 14 par 1).
Moreover, one question that
the judge failed to ask even in her sentence or kept ignoring is why Pistorius
“fired” in the first place. In other words, by firing each of the four shots,
what was he seeking to accomplish. Instead of confronting this question, the
court boldly accepted the accused “would have fired higher if his intention was
to kill…” (Sentence judgment, 14 par 1). What then was his intention? We are
left in the dark in this regard.
Conclusion
Effectively,
the court ought to have taken all the evidence, in particular, the scene (as
has just been argued earlier) together with all the circumstances if it were to
come to the correct judgment regarding intention. Judge Masipa erred in
reaching her verdict. She appears to have taken a short cut with the evidence,
thereby disregarding crucial evidence, as has been pointed out above. In my
view, justice would have been served had Masipa paid attention to all the
evidence before her – even if she had rejected if after a careful analysis
thereof. She also was a bit generous to Pistorius. Not only did the judge’s
erroneous approach to evidence fail justice, but it also led to the incorrect
verdict. Therefore, it is not presumptuous to expect that the appeal court
could come to a different conclusion.
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