South African authorities have published the full text of the judgment from the Supreme Court of Appeal in Bloemfontein which changed Oscar Pistorius's conviction from culpable homicide to murder.
The conclusions reached unanimously by the panel of five judges
paints a chilling picture of the tragedy before reaching its conclusion
that, "On a proper conspectus of all the evidence, the trial court ought
to have found that the accused had been guilty of murder and not
culpable homicide, and that his defence of putative private defence
could not be sustained."
The cold language of that summary at the top of the judgement
gives way to a more empathic view of a horrendous crime which shocked
the world.
"This case involves a human tragedy of Shakespearean proportions," reads the judgement.
"A young man overcomes huge physical disabilities to reach
Olympian heights as an athlete; in doing so he becomes an international
celebrity; he meets a young woman of great natural beauty and a
successful model; romance blossoms; and then, ironically on Valentine’s
Day, all is destroyed when he takes her life."
But that human note gives way at times to a brutally frank
discussion of the facts, not least in the passages relating to
Pistorius's evidence, and his trustworthiness as a witness.
"His version varied substantially," wrote Justice Eric Leach.
"At the outset he stated that he had fired the four shots
‘before I knew it’ and at a time when he was not sure if there was
somebody in the toilet. This soon changed to a version that he had fired
as he believed that whoever was in the toilet was going to come out to
attack him.
"He later changed this to say that he had never intended to
shoot at all; that he had not fired at the door on purpose and that he
had not wanted to shoot at any intruder coming out of the toilet.
" "In the light of these contradictions, one really does not know what his explanation is for having fired the fatal shots, an issue to which I shall revert in due course. There were other inherent improbabilities in his version, some of which were mentioned by the trial court in its judgment.""
Pistorius had already been panned as a witness by the trial
judge, however, and in the end it was errors in interpretation of law
which did for the Blade Runner's hopes of remaining a free man.
"A reasonable person in the same circumstances would have
foreseen the reasonable possibility that the shots fired at the door of
the toilet might kill whoever was in the toilet," the judgment
continued.
"Furthermore, the [original] finding that the accused had not
subjectively foreseen that he would kill whoever was behind the door and
that if he had he intended to do so he would have aimed higher than he
did, conflates the test of what is required to establish dolus directus
with the assessment of dolus eventualis.
" The issue was not whether the accused had as his direct objective the death of the person behind the door. What was required in considering the presence or otherwise of dolus eventualis was whether he had foreseen the possible death of the person behind the door and reconciled himself with that event. "
"The conclusion of the trial court that the accused had not
foreseen the possibility of death occurring as he had not had the direct
intent to kill, shows that an incorrect test was applied."
Leach also rejected the original finding that Pistorius was
innocent of murder because he believed that it was an intruder and not
Steenkamp behind the door.
"In this regard, it is necessary to stress that although a
perpetrator’s intention to kill must relate to the person killed, this
does not mean that a perpetrator must know or appreciate the identity of
the victim.
" A person who causes a bomb to explode in a crowded place will
probably be ignorant of the identity of his or her victims, but will
nevertheless have the intention to kill those who might die in the
resultant explosion...
"What was in issue, therefore, was not whether the accused had
foreseen that Reeva might be in the cubicle when he fired the fatal
shots at the toilet door but whether there was a person behind the door
who might possibly be killed by his actions. The accused’s incorrect
appreciation as to who was in the cubicle is not determinative of
whether he had the requisite criminal intent."
Leach also discussed the ballistics evidence which was not
adequately considered, concluding that, "all the shots fired through the
door would almost inevitably have struck a person behind it. There had
effectively been nowhere for the deceased to hide...
"All of this was circumstantial evidence crucial to a decision
on whether the accused, at the time he fired the fatal four shots, must
have foreseen, and therefore did foresee, the potentially fatal
consequences of his action. And yet this evidence was seemingly ignored
by the trial court in its assessment of the presence of dolus
eventualis."
Leach also deconstructed the defence team's claims that
Pistorius fired in an agitated state without considering the
consequences.
"The argument appears to have been that in the circumstances
that prevailed, the accused may well have fired without thinking of the
consequences of his actions. In my view this cannot be accepted.
"On his own version, when he thought there was an intruder in
the toilet, the accused armed himself with a heavy calibre firearm
loaded with ammunition specifically designed for self-defence, screamed
at the intruder to get out of his house, and proceeded forward to the
bathroom in order to confront whoever might be there.
"He is a person well trained in the use of firearms and was
holding his weapon at the ready in order to shoot. He paused at the
entrance to the bathroom and when he became aware that there was a
person in the toilet cubicle, he fired four shots through the door. And
he never offered an acceptable explanation for having done so.
" As a matter of common sense, at the time the fatal shots were fired, the possibility of the death of the person behind the door was clearly an obvious result. And in firing not one, but four shots, such a result became even more likely. But that is exactly what the accused did..."
"In these circumstances I have no doubt that in firing the fatal
shots the accused must have foreseen, and therefore did foresee, that
whoever was behind the toilet door might die, but reconciled himself to
that event occurring and gambled with that person’s life. This
constituted dolus eventualis on his part, and the identity of his victim
is irrelevant to his guilt."
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