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The Pistorius Verdict Explained

Image © NBC News

About The Author

Joseph Switalski (Guest Contributor)

Joe graduated from Durham University in 2013 with a 2:1 in Law, and subsequently undertook the Bar Professional Training Course at Nottingham Trent Law School. Joe is to start his pupillage with a leading London family law set in 2015. Outside of the profession, he endures the bittersweet existence of supporting both Leeds United and Arsenal.

The verdict in the Oscar Pistorius murder trial has been pronounced: not guilty of murder and two lesser firearms offences but guilty of culpable homicide and one lesser firearms offence. It is the verdict that many expected. I alluded to its possibility in my previous article discussing the advocacy of Gerrie Nel, counsel for the prosecution.

Culpable homicide is an alien term to those familiar only with the legal jurisdiction of the United Kingdom. Media outlets have sought to add flesh to the concept by comparing it to manslaughter. For many, this scarcely helps matters; English law students will be conscious of the subtle nuances distinguishing voluntary manslaughter, gross negligence manslaughter and unlawful act manslaughter. For the layperson, manslaughter is often unhelpfully depicted as ‘killing by accident’.

Aside from Pistorius’ fame, what has interested many about this case has been its unusual factual background. What does Judge Masipa’s ruling say about the facts of the case? Leaving aside the firearms offences, let us explore how the verdict of culpable homicide was reached.

Murder

In acquitting Mr Pistorius of murder, Judge Masipa has decided that the prosecution failed to prove beyond a reasonable doubt that Mr Pistorius fired four shots at the bathroom door with an intention to kill Reeva Steenkamp. The issue of intention is critical. It is inherently difficult, though not impossible, to demonstrate a person’s state of mind when carrying out an action. It is for this reason that Gerrie Nel sought to draw inferences about the circumstances of the shooting.

The prosecution attempted to portray the narrative of a relationship in turmoil; Mr Nel made much of text messages exchanged between the couple prior to Ms Steenkamp’s death and evidence of witnesses claiming they heard a woman screaming. This could have made a murder conviction more sustainable. Judge Masipa was far more likely to find clear intent had the incident taken place within the context of an argument. In reality, Judge Masipa was far from convinced of both the credibility and relevance of this evidence. With regard to the text messages, she noted how the majority of relationships contain an element of fluidity: that the couple had occasionally argued via text message could not point to murderous intent.

Dealing with the evidence of witnesses claiming to have heard a woman scream, Judge Masipa rebuffed such accounts with a mixture of factual evidence and a realistic appreciation for the circumstances of the case. She relied upon the evidence of Professor Simon; three of the four wounds sustained by Ms Steenkamp could have killed her instantly, the remaining injury to her right hip would have caused immediate instability. Added to this, ballistic evidence showed that the shots were fired in quick succession. In summary, there was no possibility that Ms Steenkamp screamed during the shooting.

As for the possibility that screaming could have occurred prior to Ms Steenkamp entering the bathroom, Judge Masipa felt that the witnesses, though not deceitful in their accounts, had been influenced by human fallibility. Not only were they recounting events that had awoken them in the early hours of the morning, they also admitted that they had discussed the case with other witnesses and followed media coverage of the case. It was an agreed fact that Mr Pistorius had cried for help on realising that it was Ms Steenkamp he had shot; there was the possibility that the screams witnesses heard were those of Mr Pistorius himself. Additionally, Judge Masipa was able to draw a clear chronology of events using records of phone calls made both from Mr Pistorius and his neighbours to their residential complex’s security team. The times submitted by witnesses as to when they heard the screaming did not fit with the timeline provided by the phone records. Finally, it was not a consistent feature of the evidence of neighbours in the case that a woman’s screams were heard.

The above evidence, contrasted against agreed facts between the Prosecution and Defence that Mr Pistorius had carried Ms Steenkamp down the stairs, attempted to resuscitate her and called the emergency services, led Judge Masipa to the conclusion that there was an absence of intention to kill.

Culpable Homicide

The test for culpable homicide traverses the difficult distinction between objective and subjective tests. Ostensibly, it is an objective test. It analyses the conduct of the accused against the conduct of the reasonable person in the accused’s position. It is at this juncture that subjectivity can begin to enter the fray; the reasonable person is not an idealistic construct of human nature, it is the reasonable person incorporating the characteristics of the accused. As Judge Masipa said, the ‘reasonable person’ evolves with the times. It is important to understand this idea within the context of this case. South African society is markedly different to our own, violent crime is much more commonplace against a backdrop of social inequality. This was a point the Defence were keen to stress; if Mr Pistorius believed an intruder was in his house, the level of danger he perceived could reasonably have been significant.

Judge Masipa ought to be praised for her depiction of the legal test. She made a clear commitment to setting out the law and applying it to the facts. The framework she employed was as follows.

  1. ‘Would a reasonable person in the accused’s circumstances have foreseen the reasonable possibility that firing the shots into the bathroom might strike a person and kill them?’
  2. ‘Would a reasonable person have taken steps to guard against that possibility?’
  3. ‘Did the accused fail to take the steps that a reasonable person would have taken?’

Foresight

From a factual perspective, Judge Masipa accepted Mr Pistorius’ account that, at the material time, he subjectively believed there was an intruder in his house. That we now know that was not the case becomes irrelevant. The objective analysis of the accused’s action must occur within the subjective perspective the accused held at the time.

When delivering her verdict, Judge Masipa outlined the circumstances as she saw them in some detail. She judged that, immediately after forming the belief that there was an intruder in the bathroom, Mr Pistorius had a reasonable amount of time to reflect and think. This tied directly into her assessment of his ability to deploy foresight. A point I viewed as significant in my previous article also came to the fore; Mr Pistorius had considerable firearms experience. These two factors were key in Judge Masipa’s application of the first limb of the test. An experienced marksman, given time to pause, even in the context of a situation of perceived danger, would reasonably have foreseen that firing four shots into the bathroom door had the potential to seriously harm or kill an intruder inside.

The Reasonable Person’s Response

Having established the notion that the reasonable person would have foreseen the possibility of fatal injury, Judge Masipa then inquired as to what the reasonable person would have done to guard against that outcome. Again, an element of subjectivity was at play. Her handling of Mr Pistorius’ disability was particularly interesting; it was an intriguing feature of the case that he was not assisted by his prosthetic legs when firing the shots. Judge Masipa ruled that the disability equated to vulnerability, the kind of which one could associate with women, children and the elderly in the face of perceived violence. However, she was unequivocal that this vulnerability was therefore not unique. Undoubtedly, the reasonable person in Mr Pistorius’ position would have to incorporate the idea that his mobility was limited. That being said, vulnerability alone does not constitute justification for an unlawful killing. Perhaps it is this issue with which counsel for the defence may feel most disappointed. Moreover, the defence sought to use Mr Pistorius’ background as relevant to the ‘reasonable person’ in his position. They produced evidence that he had grown up with a mother who was overtly crime conscious and who carried a firearm for protection. Judge Masipa’s response was familiar; though that evidence helps us understand his conduct, it does not excuse it. Judge Masipa pointed out the kinds of precautions a reasonable person in the circumstances could have been expected to take: calling the complex’s security team, shouting from the balcony for help (she noted Mr Pistorius was initially closer to the balcony than the bathroom) or firing a single warning shot. One should be clear here that in applying this limb of the test, Judge Masipa was not prescribing a single course of action that had to have been taken. Rather, she was setting out the kinds of actions a reasonable person might have pursued in order to guard against an unlawful killing.

Mr Pistorius’ Response

In direct contrast to the reasonable person, Judge Masipa characterised Mr Pistorius’ behaviour as rash and excessive. He chose to take a loaded gun and fire four quick shots into the bathroom door without establishing what was taking place. She used a hypothetical comparison to explain the folly of his actions. Had he awoken to an unfamiliar silhouette hovering over his bed, instinctively grabbing his gun and shooting would be more understandable. The critical difference here was that he had the time to pause and conduct himself differently, as a reasonable person in his position would have done, and take different steps to guard against what happened.

Conclusions

One ought to remember that the law performs both a punitive and regulatory function. Some might have sympathy with Oscar Pistorius. They might imagine themselves in the clutches of panic and wonder if the ‘reasonable person’ has been pitched at an idealistic standard. Others might take a more pensive position. If it were legally acceptable to respond to an unidentified threat with a reckless application of lethal force, would that not give credence to all manner of impulsive decision making? It remains to be seen whether or not the sentencing process will shed more light on Judge Masipa’s thinking. The maximum sentence for culpable homicide stands at 15 years, though Mr Pistorius is unlikely to receive a sentence that severe. Let us hope that the judicial process itself, that invaluable moment where advesarialism is put to one side and the crux of what took place is broken down into its constituent parts, gives the Steenkamp family some small measure of comfort.

NB. The transcript for the court's verdict is not yet available. A link of the court's verdict will be added to this article once available.

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Tagged: Criminal Law, Justice

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