Saturday, May 28, 2022

WHY PISTORIUS REMAINS IN JEOPARDY OF A MURDER CONVICTION

People around the world were shocked to the core when Masipa J ruled that Oscar Pistorius was not guilty on the charge of murder and instead convicted him on the composite verdict of culpable homicide or the negligent killing of Reeva Steenkamp. There has been much criticism of the reasoning behind the acquittal and much speculation that the state may have grounds to appeal based on numerous errors of fact and in the application of the law made by Judge Masipa. The hope of an appeal seems to have appeased a very disappointed and shocked international and South African public, most of whom are outraged by Masipa J verdict.

Professor James Grant of the University of the Witwatersrand outlined the reasons why he is of the opinion that the state will have grounds to appeal the Pistorius Judgement should they feel the need to do so after the sentencing of Oscar Pistorius. This is what James Grant had to say!

“While Masipa J has delivered judgement in the Pistorius case, there appear to be errors of law in her judgment. These errors of law may allow the prosecution to appeal.

Many commentators are saying that Masipa’s mistake was to misconceive the form of intention in our law known as dolus eventualis. A careful analysis reveals that the apparent error relates only partly to dolus eventualis. Instead, the apparent error related to how Masipa conceived of dolus eventualis as related to a far more complex issue in our law: the difference between the scenarios of error in objecto and aberratio┬áictus. It is only by understanding these scenarios, and the settled law on these scenarios, that one can understand where Masipa appeared to go wrong.

After dismissing the prospect of premeditated murder, Masipa turned her attention to whether Pistorius was nevertheless guilty of murder.

She indicated that this required that she deal with the defence argument that a conviction in the circumstances would require that the court revive an old doctrine rejected from our law: transfered intent. This spectre of this is daunting ÔÇô because to understand that this doctrine is not in question, one must understand what it is, what it is not, and why it doesn’t apply. Correctly Masipa identified that this required an analysis of two scenarios in criminal law: error in objecto and aberratio ictus. Anyone who tells you these are easy to understand, probably hasn’t understood them. At its essence, scenarios of error in objecto (or where one is dealing with a person, error in persona) relate to circumstances in which one strikes/shoots at a particular object/person and one hit one’s target. If you have aimed at a human being (a particular human body), and you hit and kill that human being, you cannot argue that you thought that the person you killed was John, whereas, in fact, it was Peter. This (error in objecto/persona) is irrelevant.

Aberatio ictus on the other hand means “going astray of the blow” ÔÇô and ultimately describes scenarios in which one misses one’s target. This is crucial because it is the essence of the distinction between scenarios of error in objecto and aberratio ictus. It is an aberratio ictus scenario where one aims and shoots at someone (John), but misses that person and strikes and kill another (Peter).

The question arises whether this mistake is material and can form the basis of a defence.?In these scenarios, our law used used to refuse to recognise that this mistake could possibly be a defence. It used to simply regard your intention to kill John as “transferred” onto Peter. Hence, “transferred intent”. Our law has shifted and rejected this transferred intent approach. It is now possible on our law to rely on this mistake as a defence against a murder charge in respect of Peter ÔÇô but only if there was, actually, no other form of intention that actually fell on Peter. That is, our law will allow you to be convicted of the murder of Peter, if, while you intended to kill John, you also had intention in respect of Peter ÔÇô such as perhaps dolus eventualis ÔÇô you foresaw the risk of missing John and killing Peter, accepted the risk and proceeded.

Lets consider into which scenario the facts of Pistorius fits. Did Pistorius miss his target? No, he did not. He aimed at a particular human being and shot and killed that human being ÔÇô whoever was behind the door. There can be no question that this is a scenario of error in objecto and that the identity of the person behind the door was irrelevant.

Masipa discussed these scenarios, correctly stated the law, and correctly identified that we (on the facts of the Pistorius case) are dealing with a scenario of error in objecto ÔÇô in which (in the relevant sense) the identity of the victim was irrelevant. That is, it doesn’t matter who was behind the door. The significance of all of this is that it has direct implications for the way in which one enquires whether an accused had intention or not.

Then the first sign of trouble appeared. After turning her attention to the accused’s defence of putative private defence, Masipa stated that the question was: “whether the accused intended to kill.” Immediately it becomes apparent that there was a misconception regarding the nature of the defence of putative private defence. It is not the question of whether the accused intended to kill,┬á but whether he intended to unlawfully kill.

The question of whether the accused intended to unlawfully kill is the question of whether the accused believed he was under attack and entitled to resort to force in defence. This question was not engaged with. The question the judge pursued was whether he intended to kill.?At that point it seemed Pistorius was bound to be convicted of murder ÔÇô given that there seemed little question that he did intend to kill whoever was in the toilet ÔÇô despite his defence of putative private defence. But the judgement took another strange turn.

“I now deal with dolus eventualis or legal intent. The question is:?1. Did the accused subjectively forsee that it could be the deceased behind the toilet door;?2. Notwithstanding the foresight, did he then fire the shots, thereby reconciling himself to the possibility that it could be the deceased in the toilet.?The evidence before this court does not support the states contention that this could be a case of dolus eventualis. On the contrary, the evidence shows that, from the onset, the accused believed that at the time he fired the shots into the toilet door, the deceased was in the bedroom, while the intruders were in the toilet.”

She repeats this again twice: did he forsee the possibility of killing the deceased ÔÇô although, on the third occasion coming closer to what ought to have been addressed: whether the accused foresaw the possibility of killing whoever was behind the door. She says, on the third occasion, that the accused did not forsee killing “the person behind the door, let alone the deceased, as he thought she was in the bedroom at the time”. But accepting that the accused thought that the deceased was in the bedroom does not exclude the possibility of there being someone else behind the door. Indeed, ironically, that is his own version: that he thought there was someone else behind the door. Applied to the undisputed law on error in objecto where one mistakes one person for another ÔÇô which is immaterial ÔÇô the question ought to have been: “did the accused forsee the possibility of killing whoever was behind the door”. This is an entirely different question which,┬á in turn,┬á begs the question whether the accused must have, and by inference did, forsee that he would kill whoever was in his toilet by firing four shots through the door.

It is true that, on day two of her judgement, she referred to several authorities on how one may reason to a finding of dolus (intention). These authorities make the valid point that one must be careful not to conclude that just because a reasonable person would forsee something (death of someone for our purposes), that the accused did. This is the usual and well founded caution against a logical error of thinking that just because something should be true, doesn’t make it true. Just because someone should have realised something doesn’t mean s/he did realise it.

She also summarised her findings and, in reference to dolus eventualis, said that “this court has already found that the accused cannot be guilty of murder dolus eventualis on the basis that, from his belief and conduct, it could not be said that he forsaw that either the deceased, or anyone else for that matter, might be killed when he fired the shots at the toilet door.” Regretably this takes things no further because it is a bare conclusion without the all important reasons for this statement. We are left having to rely on the reason she provided previously in her judgement ÔÇô that he did not forsee killing “the deceased or anyone else for that matter” because, as she said previously, the accused thought that the deceased was in the bedroom. As discussed above, a belief that the deceased was in the bedroom does not exclude someone else being in the toilet and this is exactly what he believed, on his own version.

What is also revealing is that, on a defence of putative private defence, even if a court accepts that the accused acted in putative private defence (mistakenly believed he was under attack and was entitled to resort to force in defence), the problem of how much force in defence arises. It is not the question of whether the extent of force actually used was allowed, because, given that there was no attack, no force at all would be allowed. The question ÔÇô a very necessary question ÔÇô becomes, did the accused foresee that he was not allowed to resort to that extent of force. Masipa ought to have asked, if she engaged properly with a defence of putative private defence, whether, not only was the accused mistaken, but was he so mistaken that he could have believed he was entitled to fire four shots through a door at an intruder. The court could have gone either way on this, but that is not the point.

The point is that this is another reason to think the Court did not properly engage with the defence of putative private defence.

On the charge of unlawful possession of ammunition Masipa seemed to conflate the mental requirement for possession (knowledge of possession), with the mental requirement (known as fault) for the crime ÔÇô that is, can one only be guilty of this crime if one intends to unlawfully possess ammunition or even if one only negligently unlawfully possesses ammunition. The statute that creates this offence is silent on the issue, which requires, in turn, that a court must decide what form of fault, if any is required. This analysis is conspicuously missing from her judgement. The significance is that an analysis could have led her to the conclusion that only negligence was required. If that were so, his defence that he did not know he was not entitled to be in possession of the ammunition would have to stand up to the appropriate test of negligence: would the reasonable firearm owner know that this is prohibited??In the final analysis, Masipa appears to have erroneously conceived of the defence of putative private defence, and to have misconceived the test of intention when dealing with a problem of error in objecto. Also, she appears to have conflated a requirement for possession for the fault required for the unlawful possession of ammunition. These are all, arguably, errors of law. As errors of law, the state may appeal. The effect is that, if the state does appeal, and one may well expect that it will, Pistorius continues to face the prospect of a murder conviction.”

More of James Grant’s insights can be found on his blog http://criminallawza.net. For any law student this site is a goldmine!
Given what Prof Grant had to say above, for those of us who are disappointed with regards to the Pistorius verdict it appears that there is still some hope that Reeva Steenkamp may get some justice despite Judge Masipa’s flawed judgement.

The Steenkamp family on the other hand is reportedly going ahead with a civil suit against Pistorius where they are allegedly looking for a settlement of R 4 000 000.00.

It has been of concern to me over the last few months of the trial that, Reeva Steenkamp’s family appears to have set out to profit from her death by whatever means possible. They started negotiating with and selling interviews to the foreign media on the first day of the trial. June Steenkamp, Reeva’s mother was allegedly paid $ 50 000.00 interviews that she gave to British TV station Channel 5 and American Channel NBC. They now admit that they are contracted to foreign media houses for further interviews.

Furthermore June Steenkamp is reportedly writing a memoire about her daughter’s life and her experiences during the trial. The book titled, Reeva – A Mother’s Story is scheduled for release in November. In my opinion, Reeva’s death has inadvertently led to her parents making more money than they ever dreamed possible and they are milking the situation for every cent they can. I have serious questions regarding the morality of the situation. What are your thoughts?

I would like to thank my friend Prof. James Grant for granting me permission to incorporate his article into this one. His insights are always spot on and his legal arguments well reasoned.

I am available to assist anyone who requires help with legal or criminological issues. Expert Profiling is contactable on Tel: 390 9957 email – [email protected] or [email protected] or on Twitter @LauriePieters.

RELATED STORIES

Read this week's paper