by Mandy Wiener
At the same time, relief was beginning to seep into the defence camp, but no one was celebrating prematurely. ‘I hate judgments,’ despaired a stressed-looking Barry Roux, rocking back on his chair. In response to a comment from us that the judgment seemed to be going in Oscar’s favour, a member of the Pistorius family responded swiftly, ‘It has nothing to do with favour; it’s about the truth.’
Masipa took her seat again and immediately picked up with the defence’s case.
The defence had pointed to the evidence of Professors Derman, Vorster and Scholtz to confirm that Oscar had discharged his firearm in reflex because he felt vulnerable and was fearful. Masipa said this evidence, along with the versions presented by the accused while on the stand, showed that ‘we are dealing with a plethora of defences’.
She worked her way through each of these, starting with ‘criminal capacity’, which emerged during the course of the trial. ‘The inevitable question therefore was whether the accused could distinguish between right and wrong and whether he could act in accordance with that distinction. Though not clearly expressed in so many words the defence had the hallmarks of temporary non-pathological incapacity.’ This was the defence that emerged when Professor Vorster was on the stand and the result was that Oscar was referred for psychiatric evaluation.
The judge referred to the report of the panel constituted to analyse Oscar while at Weskoppies Psychiatric Hospital, and that of the psychologist, which found that he did not suffer from a mental illness that would have rendered him criminally not responsible. She also spoke to the defence’s contention that Oscar suffered from an increased startled response as described by Professor Wayne Derman and that Oscar had shot with a reflex impulse.
‘I disagree with this submission. There is a huge difference, as submitted by state counsel, between a reflex action and involuntary action. The latter has a hallmark of a defence of non-pathological insanity as it gives the impression that the accused had no control over his action when he fired the shots at the door. That this cannot be is clear from the steps that the accused took from the moment he heard the sounds of the window opening until the time he fired the four shots. There was no lapse of memory or any confusion on the part of the accused. On his own version, he froze, then decided to arm himself and go to the bathroom. In other words he took a conscious decision. He knew where he kept his firearm and he knew where his bathroom was. He noticed that the bathroom window was open, which was something that confirmed his correctness about having heard the window open earlier,’ read Masipa.
She found that this behaviour was inconsistent with lack of criminal incapacity and continued: ‘In any event the experts have already pronounced on this defence and this court has not been given any reason not to accept their evidence. This court is satisfied that at the relevant time the accused could distinguish between right and wrong and that he could act in accordance with that distinction. It is also clear that the defence of non-pathological insanity has no foundation.’
The feeling in the courtroom was that the scales of justice could be tipping back in the state’s favour. ‘This is a roller-coaster ride,’ whispered one journalist. ‘My nerves are frayed,’ said another, riding the judgment wave through peaks and troughs. Oscar was no longer crying but looking straight ahead at Masipa through heavy eyelids.
Masipa then moved on to the next of Oscar’s suggested defences – putative private defence. Did he genuinely believe there was an intruder in the house and that he and Reeva were under real threat?
Oscar’s defence team had relied on his testimony to show that he shot because he believed an intruder was about to attack him and Reeva. However, Masipa’s view was that this testimony was contradictory and she referred to extracts from the accused’s testimony to show this. She also reminded those in the courtroom that in evaluating putative private defence, the court applies a subjective test as opposed to an objective test, which means the court needs to consider the accused’s state of mind and perception.
She found that Oscar deliberately armed himself with a loaded weapon and moved towards the perceived danger. ‘It would be absurd, for instance, to infer from the accused’s conduct that he was going to hit the intruder over the head with it as he could easily have used a cricket bat for that purpose.’ She agreed with Professor Derman’s view that Oscar is a ‘fight’ rather than a ‘flight’ reaction person. ‘This court also accepts that a person with an anxiety disorder as described by Dr Vorster would get anxious very easily, especially when he’s faced with danger. It is also understandable that a person with a disability such as that of the accused would certainly feel vulnerable when faced with danger.’
But she hastened to add that Oscar was not unique in this respect. ‘Women, children, the elderly and all those with limited mobility would fall under the same category. But would it be reasonable if without further ado they armed themselves with a firearm if threatened with danger? I do not think so as every case would depend on its own merits.’
Masipa believed Oscar clearly wanted to use the firearm and the only way he could have used it was to shoot at the perceived danger. ‘The intention to shoot however, does not necessarily include the intention to kill,’ continued the judge. Oscar’s chest shifted up and down as he took a deep breath.
‘Depending on the circumstances of each case the accused could be found guilty of dolus eventualis or culpable homicide. In this case there is only one essential point of dispute and it is this: did the accused have the required mens rea [guilty mind] to kill the deceased when he pulled the trigger? In other words, was there intention? The essential question is whether, on the basis of all the evidence presented, there is a reasonable doubt concerning the accused’s guilt.’
Roux rested his cheek on his fist and stared at his water bottle. Nel continued doodling in his notebook. Oscar shut his eyes as Masipa continued: ‘The accused was a very poor witness. While during evidence-in-chief he seemed composed and logical, with the result that his evidence flowed and made sense, while giving his version under cross-examination he lost his composure.’ This comment sent the pendulum of expectation firmly to the prosecution’s side.
The defence had explained Oscar’s poor performance by saying he was suffering from enormous emotional stress, had been traumatised by the incident and was under medication when taking the stand. ‘This argument does not make sense in my view,’ found Masipa.
‘What we are dealing with here is the fact that the accused was amongst other things an evasive witness. In my view there are several reasons for this. He failed to listen properly to questions put to him under cross-examination giving an impression that he was more worried by the impact that his answers may cause rather than the questions asked. Often a question requiring a straightforward answer turned into a point of debate about what another witness did or said. When contradictions were pointed out to him … he often blamed his legal team for the oversight.’
Reinforcing the perception that the tide was turning against Oscar, Mapisa posed several questions that were top of mind for many who had been watching the trial, and had been raised by Magistrate Nair as ‘improbabilities’ at the bail hearing.
‘In the current case, the accused was killed under very peculiar circumstances. There are indeed a number of aspects in the case that do not make sense,’ noted the judge. Why didn’t Oscar ask Reeva whether she had heard anything when he heard what he thought was the window opening? Why didn’t he check to see whether Reeva had heard him before making his way to the bathroom? Why didn’t Reeva communicate with Oscar when she was in the toilet and he just a few metres away? Why didn’t she phone the police as Oscar had asked her to? Reeva could have done this irrespective of whether she was in the bedroom or the toilet because she had her phone with her. Why did Oscar fire not one, but four shots before running back to the bedroom to try to find Reeva?
‘It makes no sense to say she did not hear him scream, “Get out” – the accused version is that he screame
d on top of his voice when ordering the intruders to get out,’ continued the judge.
‘These questions unfortunately will remain a matter of conjecture. What is not conjecture, however, is that the accused armed himself with a loaded firearm when on his own version he suspected that an intruder might be coming in through the bathroom window. He was not truthful when asked about his intentions that morning as he armed himself with a lethal weapon. The accused was clearly not candid with the court when he said he had no intention to shoot at anyone as he had a loaded firearm in his hand, ready to shoot.’
Masipa reminded the court that the onus rests with the state and not with the defence to prove the case beyond reasonable doubt. She also commented that, should Oscar’s version be found to be reasonably possibly true, he would be entitled to an acquittal.
Unexpectedly, Masipa appeared to be reaching a climax in her ruling as she summed up the circumstantial evidence with respect to the murder charge and Oscar’s explanation. The prosecution had hoped that the weight of all the individual feathers of evidence together could be enough to prove its case, but would it be?
‘The timelines as set out in the chronology of events tip the scales in favour of the accused version in general. Viewed in its totality, the evidence failed to establish that the accused had the requisite intention to kill the deceased let alone with premeditation. I am here talking about direct intention. The state clearly has not proved beyond reasonable doubt that the accused is guilty of premeditated murder. There are just not enough facts to support such a finding.’
BREAKING #OscarPistorius NOT GUILTY of Premeditated Murder
With the premeditated murder charge ruled out, Judge Masipa swiftly moved on to the murder charge. Here she had to deal with several dense legal concepts that leave much open to interpretation and were ultimately the source of debate and dispute surrounding her ruling.
Essentially, the state had argued that even if Oscar thought he was shooting at an intruder, he should still be convicted of murder because by shooting through the closed door he had intended to kill a human being and that all the elements of murder dolus eventualis had been met. In turn, the defence had contended that the state was trying to reintroduce the concept of ‘transferred malice’, which is not part of South African law.
Masipa took some time explaining two separate legal concepts that are sometimes confused: aberratio ictus, which literally translated means ‘going astray of the blow’, and error in objecto, ‘error as to the object’.
As Professor James Grant explains, aberratio ictus applies when a shooter ‘misses a target’. ‘If I shoot a gun at a particular person, but I miss, the law recognises that the bullet may easily come to rest in a wall, a tree, or fall harmlessly to the ground somewhere. It could also, of course, strike another person – and this is where things get interesting. Our law used to take the view that this was no defence – you had still killed a human being. It used to do this by “transferring intent” from the intended victim to the actual victim. But we have now shifted to the position that recognises that, if you miss your target, whether you are liable for murder – if the bullet happens to strike another person and kill him or her – must depend on whether you had intention (in law, at least foresight) of this prospect.’
This is very different from scenarios of error in objecto. In this case, it doesn’t matter if you intended to kill one person but killed another instead, so the identity of the victim makes no difference.
An example of this would be if you wait in a parking lot to shoot Jim; you see who you think is Jim walking towards his car, you fire and the target is killed. But it’s not Jim; it’s actually Bob who happens to look a lot like Jim.
The problem is that it’s easy to confuse these two legal principles.
Professor Grant consistently stated from the outset that this case was not one of aberratio ictus as the defence claimed; rather, it was one of error in objecto. ‘Oscar did not miss his target. He fired at and killed whoever was behind the door. It is therefore not a case of aberratio ictus. It is, at best, an immaterial/inessential error (in objecto) – no defence,’ Grant explains.
Judge Masipa’s ruling was in agreement with this viewpoint. She ruled that Oscar’s case was not one of aberratio ictus and said: ‘My view is here we are not dealing with aberratio ictus as there was no deflection of the blow. It would therefore serve no purpose to say anything more about this. We are clearly dealing with error in objecto or error in persona in that the blow was meant for the person behind the toilet door, who the accused believed was an intruder. The blow struck and killed the person behind the door. The fact that the person behind the door turned out to be the deceased and not an intruder is irrelevant.’
This took Masipa back to what exactly Oscar’s intention was: did he have the intention to kill the person behind the toilet door who he mistook for an intruder?
‘The accused had intention to shoot at the person in the toilet but states that he never intended to kill that person. In other words, he raised the defence of putative private defence.’
Masipa explained that murder requires ‘intention’ and that the test to determine this intention is subjective. ‘In the present case the accused is the only person who can say what his state of mind was at the time he fired the shots that killed the deceased,’ she said.
‘The accused has not admitted that he had the intention to shoot and kill the deceased or any other person for that matter. On the contrary, he stated that he had no intention to shoot and kill the deceased. The court, however, is entitled to look at the evidence as a whole and the circumstances of the case to determine the presence or absence of intention at the time of the incident.
‘In the present case, on his own version, the accused suspected that an intruder had entered his house through the bathroom window. His version was that he genuinely although erroneously believed that his life and that of the deceased was in danger’.
Importantly, Masipa was convinced that Oscar’s belief was an honest one – he really did think there was an intruder in the house. This, she said, was due to a number of reasons: ‘The bathroom window was indeed open so it was not his imagination at work when he heard the window slide open. He armed himself with a loaded firearm and went to the direction of the noise. He heard a door slam shut. The door [to the] toilet was indeed shut when he fired four shots at it after he heard a movement inside the toilet. On his version he was scared as he thought the intruder was coming out to attack him. There is no doubt that when the accused fired shots through the toilet door he acted unlawfully, there was no intruder’.
Then Masipa made one of the most crucial statements of her judgment, the one that would be most closely scrutinised by legal analysts. She asked the question she believed to be central to the murder charge (although many believe it was the wrong question): ‘The question is (1.) Did the accused subjectively foresee that it could be the deceased behind the toilet door? and (2.) Not withstanding the foresight, did he then fire the shots thereby reconciling himself to the possibility that it could be the deceased in the toilet?’
Those critical of her judgment argue that the question should not have been about whether or not Oscar foresaw that Reeva was behind the door – but rather whether he foresaw that it could have been any human being behind the door.
As Masipa moved towards finality on the murder charge, Oscar heaved in the dock, racked by sobs.
‘The evidence before this court does not support the state’s contention that this could be a case of dolus eventualis,’ ruled the judge.
Barry Steenkamp sighed and leaned forward on the bench in front of him; his advocate leaned across to June and whispered in her ear. Gina Myers covered her mouth with her hand and wept.
Masipa had believed that Oscar’s story was reasonably possibly true and, in support, pointed to his behaviour in the minutes after the shooting and the various versions he presented during his bail application, plea explanation and on the stand. Ironic
ally, it was arguably the greatest criticism of the defence lawyers from their colleagues – that they had given such an extensive explanation at the bail application – that had come to be their saving grace.
‘On the contrary, the evidence shows that from the onset the accused believed that at the time he fired shots into the toilet door, the deceased was in the bedroom while the intruders were in the toilet. This belief was communicated to a number of people shortly after the incident,’ said Masipa.
Oscar had given this version to Johan Stander when he phoned him; he said the same thing to Carice Viljoen when she arrived at the house, and to Dr Stipp when he tried to help save Reeva. He also said as much to the police officers when they arrived on the scene.
Masipa agreed with the defence that it was highly improbable that he would have made this up so quickly and be so consistent in his version. He had presented this same story at the bail application before he had access to the police docket and before he was privy to the evidence that was later led in court.
As the judge spoke, Kenny Oldwadge leaned back in his chair and looked skyward. For all the criticism he had drawn from his colleagues for ‘inviting the doctor to the funeral’ and for giving such a detailed statement, it seemed that the judge had vindicated him.
Nel continued doodling in his notebook.
Masipa asked the question that underlay the charge. ‘Did the accused foresee the possibility of the resultant death yet persisted in his deed, regardless whether death ensued or not?
‘In the circumstances of this case, the answer has to be “No”. How could the accused reasonably have foreseen that the shots he fired could kill the deceased? Clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door, let alone the deceased, as he thought she was in the bedroom at the time. To find otherwise would be tantamount to saying that the accused’s reaction after he realised that he had shot the accused was faked, that he was play acting, merely to delude the onlookers at the time.’