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The Pistorius Appeal: Are The Prosecution Likely To Succeed?

About The Author

Sophie Cole-Hamilton (Writer)

Sophie is a second year law student at the University of Birmingham. Sophie aspires to qualifying as a solicitor, with an interest in all areas of private law. Outside of her studies, Sophie is part of the Birmingham Law School pro bono group and has a passion for writing.

Following the end of Oscar Pistorius’ trial for the killing of his girlfriend, Reeva Steenkamp, South Africa’s National Prosecuting Authority (NPA) has announced it will appeal both Judge Masipa’s verdict and the sentence handed down to Mr Pistorius for culpable homicide on the grounds of dolus eventualis, a legal maxim used in South African law whereby the defendant objectively saw the possibility of their act causing death but persisted regardless. This is something the prosecution team do not feel was explored in full by Judge Masipa. The NPA hope this appeal will attract a more substantial sentence. Somewhat unexpectedly, Oscar Pistorius’ defence team have announced they will oppose the state’s appeal. This means Judge Masipa will have to rehear the defence and prosecution’s arguments, with the burden of proof on the prosecution team to show a different judge would have reached a different conclusion. Many have expressed outrage and dismay at the trial’s result, including Reeva Steenkamp’s family, who feel justice has not been done.

For an analysis of Judge Masipa’s verdict, see Joseph Switalski's recent article analysing how the decision was reached. The main focus of this article will be on the prosecution’s appeal on grounds of dolus eventualis and its surrounding arguments. However, in order to gain a thorough understanding of the prosecution’s appeal we must first explore the differences between culpable homicide and murder in South African law, and what Mr Pistorius’ sentence actually entails. Could Judge Masipa have applied flawed legal principles in her judgment, giving Mr Pistorius a softer sentence than he perhaps deserves? And ultimately, what is the likelihood of the prosecution’s appeal being successful; is it likely Mr Pistorius will receive an extended sentence for murder?

Criminal Appeals in South Africa

Oscar Pistorius’ trial was heard in the North Gauteng High Court, Pretoria, a provincial court within the High Court circuit. There are 14 High Court provincials in South Africa, with others operating in Bloemfontein, Cape Town and Johannesburg amongst other large cities and towns. High Courts in South Africa are appellant courts, with many smaller courts below including Magistrates Courts, Sexual Offences Courts, Child Justice Courts and Equality Courts. High Court provincials hear any cases deemed too serious for the smaller courts of South Africa, similar to the Crown Court system in the UK.

If the defence team had not opposed the prosecution team’s appeal, the Supreme Court of Appeal would have heard the appeal. This is the highest court in South Africa to hear criminal appeals. It is based in Bloemfontein, the judicial capital of South Africa, around 450km south of Pretoria. Between three and five judges hear appellant cases within the Supreme Court of Appeal. Instead, Judge Masipa will return to the North Gauteng High Court to hear both sides present their cases again. Thus far, a date has not been set for this.

The NPA, appealing Oscar Pistorius’ sentence, is best described as being South Africa’s version of England and Wales’ Crown Prosecution Service (CPS). Section 179 of the Constitution of the Republic of South Africa 1996 created the singular prosecution service, which has the ‘power to institute criminal proceedings on behalf of the State and to carry out any necessary functions incidental to instituting criminal proceedings.’

Why Culpable Homicide?

As previously stated, many are upset with the lenient sentence Oscar Pistorius received for killing Reeva Steenkamp. The total sentence given to Oscar Pistorius for culpable homicide was 5 years; however, this entails spending only 10 months in solitary confinement within the hospital wing of Kgosi Mampuru II, the central prison in Pretoria. The remainder of Mr Pistorius’ sentence is to be served in the form of house arrest and community service.

Furthermore, it has been announced the disgraced athlete will be allowed to compete following completion of his five year sentence. This means Mr Pistorius may compete in the 2020 Olympic & Paralympic Games in Tokyo, although it seems unlikely he will do so. When announcing Mr Pistorius’ sentence, Judge Masipa told the court ‘I am of the view that a non-custodial sentence would send a wrong message to the community. On the other hand, a long sentence would not be appropriate either, as it would lack the element of mercy’.

Under South African law, culpable homicide is defined as ‘unlawful or negligent killing of a person’. The maximum prison sentence available for the offence is fifteen years with no minimum sentence. However, at the time of the trial it was reported that convictions for culpable homicide in South Africa do not often attract the maximum sentence, with other recent cases attracting between four and eight years imprisonment. For example, in S v Nesane, where the defendant shot and killed his estranged wife, the defendant was sentenced to eight years’ imprisonment and was banned from owning a firearm. Similarly, in Mapipa v S, a driver killed a motorcyclist while drunk and then proceeded to blame his wife. Throughout the trial he was said to have shown no remorse. He was sentenced to four years imprisonment.

In her judgment, Judge Masipa ruled that Oscar Pistorius had acted negligently in firing four fatal gunshots through the bathroom door of his apartment when he feared an intruder was in his property. These gunshots killed Reeva Steenkamp almost instantly. The issue of intention was, of course, completely critical to the trial. Attempting to prove Oscar Pistorius’ intention to kill Ms Steenkamp, Gerrie Nel, the lead prosecutor, produced text messages showing arguments between the couple. These were dismissed by Judge Masipa, who stated that trivial arguments were a normal part of any relationship, and were therefore too vague to prove intention to kill.

Some prosecution witnesses living in Mr Pistorius’ neighbourhood also report hearing a scream before they heard gunshots, alluding to Mr Pistorius’ knowledge that Reeva Steenkamp was in the bathroom. However, Judge Masipa stated within her judgment this was more likely to be Mr Pistorius screaming for help upon realising he had killed his girlfriend, if phone records are to be believed. Further to this, upon Mr Pistorius’ realisation he had killed Ms Steenkamp, he immediately tried to resuscitate her and called the emergency services, a fact agreed upon by the defence and prosecution teams. It is unlikely someone with intent to kill would then attempt to save their victim.

In short, Judge Masipa concluded the prosecution team had failed to adequately prove Oscar Pistorius had pre-meditated intent to kill Ms Steenkamp. This therefore disregarded the possibility of convicting Oscar Pistorius of second degree murder, leaving the option of convicting Mr Pistorius of culpable homicide. This is an issue more vigorously discussed in Joseph Switalski’s article.

If Oscar Pistorius had been convicted of murder, he would have faced a prison sentence up to 25 years. The offence of murder in South Africa is singular, meaning there is no distinction between different “levels” of murder, for example first degree and second degree murder, as exists in the USA. During the appeal the NPA will attempt to prove Mr Pistorius had dolus eventualis intent to kill Reeva Steenkamp, demonstrating an attempt to disprove Mr Pistorius’ culpable homicide conviction and prove it was instead common murder. Throughout the trial, the prosecution attempted to portray Oscar Pistorius as a violent and argumentative man who had a fixation with guns, which was an ultimately unsuccessful approach.

Trial Arguments by the Prosecution

One of the prosecution team’s main arguments during the trial was Oscar Pistorius’ experience with guns and his enjoyment of target practice sessions with friends alluding to his violent nature. During the trial, lead prosecutor Gerrie Nel showed a video of Mr Pistorius firing a single shot at a watermelon when with friends at a shooting range, which abruptly exploded. Mr Pistorius can then be heard comparing shooting the watermelon to shooting a zombie, using the phrase ‘soft as brains’. Evidential photographs showed that Reeva Steenkamp’s head had been obliterated from the shots fired by Mr Pistorius, with the prosecution effectively comparing Mr Pistorius shooting the watermelon to shooting Ms Steenkamp in the head.

The aforementioned video was released by Sky News prior to the start of the trial, with the attached article commenting that many “well-to-do” South Africans enjoy visiting shooting ranges. In a country well known for its violence and social inequality, this is hardly a shocking fact. The flaw in the prosecution’s argument here was a very frail connection between Mr Pistorius’ enjoyment of visiting shooting ranges with his friends and his apparently accidental shooting of Ms Steenkamp. This, in my opinion was a weak argument in the trial and one which the prosecution are unlikely to use again given they are attempting to prove dolus eventualis rather than pre-meditated murder.

Further to this, the previously discussed messages found on Mr Pistorius’ and Ms Steenkamp’s phones showing some disagreements was a feeble argument for the NPA to use. As Judge Masipa acknowledged in her verdict and as mentioned earlier, occasional rows in relationships are normal. There was little to suggest from the prosecution’s case that these arguments were abnormally regular or abusive. Further to this, Gerrie Nel pointed out that Ms Steenkamp had never messaged Oscar Pistorius telling him she loved him. This omission is possibly an even weaker argument than the text messages, and seems more like an emotional ploy than a successful argument.

However, the prosecution do have some points not fully addressed in Judge Masipa’s verdict which could be successful if used again. During the trial, there was uncertainty regarding the position of fans and a duvet in Oscar Pistorius’ bedroom, as he changed his version of events several times. The prosecution accused him of tampering with crime scene evidence in order to disguise the fact he knew Ms Steenkamp was in the bathroom and therefore intended to kill her. The defence team argued it was in fact the police who had tampered with the scene. This is a more weighty argument against Pistorius and it seems this could be brought up again in an appeal; however, as the evidence is scarce here it may be difficult to prove. It would seem the prosecution’s arguments surrounding dolus eventualis are the strongest, and it comes as no surprise that this is the main crux of the NPA’s appeal.

Dolus Eventualis: a successful appeal?

The maxim Dolus Eventualis, in South African law, states it is enough to find someone guilty of murder if the perpetrator objectively foresees the possibility of their act causing death and persists regardless of the consequences. This is also known as common murder and attracts a maximum custodial sentence of 15 years. It is unsurprising that the NPA have opted to use this within their appeal; as previously discussed, the prosecution’s evidence pointing toward pre-meditated murder was flimsy. Proving Judge Masipa incorrectly applied the principles of Dolus Eventualis is a far more robust argument.

Dolus Eventualis appears to be a grey area amongst South Africa’s legal minds. Following Judge Masipa’s verdict, academics had conflicting views over whether the principle had been applied correctly. Jonathan Burchell, a criminal law professor at the University of Cape Town, said Judge Masipa had applied the law correctly to the facts and reached a justifiable and balanced result. Conflictingly, Wits law professor James Grant argued the NPA’s appeal was imperative, arguing ‘there are so many important legal issues which need to be redefined or clarified’.

It is unclear exactly what arguments the prosecution will use to attempt to prove Dolus Eventualis. However, the main crux will be that Oscar Pistorius objectively foresaw the possibility that shooting four bullets through a door could cause death to Reeva Steenkamp, or, as he apparently saw it, the perceived intruder, but persisted shooting regardless of these consequences.

Dolus Eventualis is not to be confused with oblique intention, which operates within English law. With our oblique intention, R v Woollin created the two part ‘virtual certainty’ test:

  1. Objectively, would a reasonable person feel sure that death or serious injury was a virtual certainty of the defendant’s actions?
  2. Subjectively, did the defendant themselves realise death or serious injury was a virtual certainty of their actions?

In contrast to this, Dolus Eventualis is only concerned with whether the perpetrator foresaw the possibility. This is therefore quite different to our own test; there is no ‘reasonable person’ test here, and it is based on a possibility rather than a virtual certainty that the perpetrator’s actions would result in death or serious injury. On the one hand, the test being based on a ‘possibility’ increases the likelihood of the appeal’s success. It is of course very ‘possible’ that shooting four bullets through a door would result in death or serious injury. However, the fact this is based on Oscar Pistorius’ objective thinking rather than that of a reasonable person could be problematic for the prosecution.

During the verdict, Judge Masipa spoke about Oscar Pistorius’ perceived vulnerability when not wearing his prosthetic legs. At the time of shooting, Mr Pistorius was not wearing these. This could be a flaw in the prosecution’s argument, as could the fact Mr Pistorius would have been substantially shorter when not wearing his prosthetics. The defence, in their counter argument, could submit Oscar Pistorius objectively did not see the possibility that shooting from a reduced height could cause death. Despite this, the NPA’s appeal carries more weight now it is focussed on dolus eventualis rather than attempting to prove Oscar Pistorius’ pre meditated intent to kill Reeva Steenkamp. It will be much easier for the prosecution to prove Mr Pistorius saw the possibility that shooting four times would kill whoever was in the bathroom.

Conclusion: is the NPA’s appeal likely to succeed?

During the trial, many of the prosecution’s arguments were weak and lacked the depth necessary to secure a murder conviction and substantive sentence for Oscar Pistorius. Their over-emphasis of Oscar Pistorius’ violent fixation with firearms and the dynamics of his relationship with Reeva Steenkamp ultimately failed due to flimsy evidence. The NPA’s focus on Dolus Eventualis presents a far more robust case due to relying on objective principles. In my mind, it would be difficult to disprove the possibility that shooting four times through a closed door could result in death, and it is possible the NPA will succeed in securing a murder conviction. It is certainly likely they may attain a more substantive sentence for Mr Pistorius. Let us hope their appeal succeeds on at least a minor level in order to gain some closure and peace for Reeva Steenkamp’s family.

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Tagged: Criminal Law

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