Summary of Legal IssuesIt is quite clear from the numerous media reports and newspaper articles that the Oscar Pistorius trial has attracted attention never before seen in the South Africa legal system. It is in our view important to comment on some of the legal issues raised during the bail hearing.
1. BAIL IS NOT A PUNISHMENT People often forget that the bail proceedings have no penal nature to it and it is not the first attempt by the prosecution team to sentence a person or to score points in the public perception. Sadly, it is often portrayed as such in the media. Whether Oscar was therefore granted bail or denied bail should never have been seen as a punishment of any sorts on the one side or as a stain on our legal system on the other side.
2. PREMEDITATED MURDER OR NOT There was never any evidence produced during the bail hearing by the prosecution team, in our view, remotely substantiating an allegation that Reeva Steenkamp was killed as a result of a premeditated action by Oscar Pistorius. The argument submitted by the prosecution team that the premeditation is founded in the time Oscar had to reconsider his actions whilst fitting his prosthesis is not only remote and fanciful but quite cosmetic in nature.
In a recent High Court ruling in the matter of State v Raath, the full bench of the Cape High Court found that where a father forced his son to remove a firearm from the safe so that he could kill the son’s mother was not sufficient to constitute premeditated murder and it is with that in mind that we are of the view that there is no premeditation at this stage present in Ocar Pistorius’ matter.
3. MURDERIt is not going to be easy for the prosecution team to convince the trial court of convicting Oscar of the murder of Reeva Steenkamp. At the bail hearing, it was submitted there were neighbours who apparently overheard some verbal argument between Oscar and Reeva prior to the shooting incident. The Prosecution team then sought to allege that Reeva Steenkamp fled to the toilet to hide from Oscar and that whilst being in the toilet she was shot dead. That is off course possible, but that argument could easily fit Oscar’s version too and we know that whenever a South African court is asked to draw an inference from circumstantial facts it must be the only reasonable inference possible. Equally it is a reasonable possibility that Reeva could have gone to the toilet whilst Oscar went outside to bring the fan in and that he thought a burglar had climbed through the window and was hiding in the toilet. If there are other reasonable inferences that could be drawn from circumstantial evidence then one cannot exclude the defence team’s version. We are of the view that the facts presented at the bail hearing supports Oscar own version rather than that of the prosecution team.
4. SELF DEFENSE / CULPABLE HOMICIDEAlthough this discussion is not an attempt to try and prejudge this matter, it is important to note that there can never be talk of self-defence during this trial. The reason for this contention lies in the fact that in order to prove self-defence there must objectively be an attack against which you defended yourself. We know factually, there was never an attack on Oscar or we would have found a dead burglar in the toilet. Accordingly, the issue of unlawfulness should be common cause and the only issue that should be raised is whether this putative defence on the part of Oscar Pistorius excludes his intention.
Our courts have often stated that where a person believes he is being attacked, but he is not, it is regarded as a putative defence. If that version is accepted by the courts the person relying on it cannot be convicted of murder as he never had the intention to kill the person he ultimately killed. I.e. if the court finds that Oscar version is reasonably possibly true then he cannot be convicted of murder except if his actions were completely out of proportion to that of a reasonable amputee
If it is found that the reasonable amputee would have acted differently to the way in which Oscar acted he could be convicted of Culpable Homicide. That would mean that he negligently killed Reeva Steenkamp. At the very least we believe that if the bail proceedings are anything to go by he could be convicted of culpable homicide. To prove that he did not at least act negligently will be a very tough hurdle for Oscar’s defence team to surmount.
If the court accepts his version but finds that he acted so grossly out of proportion to how a reasonable amputee in his position would have acted his actions could even be viewed as a new attack and he could then even be convicted of murder.
5. CONCLUSIONAt writing hereof we are still months away from any trial in this matter, and we assume a lot of new evidence will emerge in this matter which could easily sway this matter in favour of either of the Prosecution or Defence team. Whatever happens we are sure it will be landmark trial and the verdict will be discussed over every cup of coffee. It will place the South African legal system under the microscope like never before.
Comment: What to expect during the Oscar Pistorius TrialIt is important to understand that the prosecution team in the Oscar Pistorius ( Oscar’s) trial bears the onus to prove Oscar’s guilt beyond any reasonable doubt. As a result of bearing the onus the State will start by calling witnesses in order to lay the basis for a conviction on either premeditated murder or murder.
Before calling any witnesses the proceedings will start by the prosecution team putting all the charges to Oscar Pistorius so that he could plead to these charges. It is expected that he will plead ”not guilty” to all the charges and he may then briefly set out the basis for his defence on each count. He may of course remain silent and not disclose any version whatsoever, if he so wishes.
Once he has pleaded the judge presiding over the matter will record his plea and ask whether he confirms the version as was presented by his legal representative. Once that is done both parties, i.e. the prosecution team and the defence team, will have an opportunity to address the Court on what they seek to prove and disprove during this trial. It is important to note that during these preliminary stages Oscar Pistorius will not speak directly to the court other than stating what his plea is as his advocates are specifically there to represent him and to speak on his behalf.
The prosecution team will thereafter call various witnesses. Oscar’s defence team will cross-examine every witness that is called to testify and usually they will only have one opportunity to do so. There are however exceptions to this rule. During cross examination of the witnesses the defence will attempt to specifically identify discrepancies in the witnesses’ evidence and they may of course elicit evidence which might be favourable to the accused. If the evidence is damaging to the accused the defence will attempt to discredit the witness or they may attempt to soften the effect of the evidence. Oscar version relevant to that specific witness has to put to the witness for his/her comment and the prosecution team could use that version to later cross-question Oscar’s witnesses.
The Prosecution team i.e. the State will then close their case and by that is it understood that they will not call any further witnesses on the merits of the case. It is often referred to on TV as the State “rests”, but in South Africa the parties closes their cases. Once the prosecution team has concluded all the evidence, then of course the accused will have an opportunity to present his case.
In his defence he can of course testify himself but he can also call witnesses. In this instance we are of course aware of the fact that there are various witnesses that the defence team will call and once they have adduced all their evidence, the prosecution team will equally have an opportunity to cross-examine every witness the defence team calls. Once the defence has called all their witnesses and adduced all the evidence, they will then close Oscar’s case.
Once the defence case is closed, both parties i.e. the prosecution team and the defence team will now have an opportunity to address the Court on the liability of Oscar Pistorius and whether he ought to be convicted of any offence. The judge will thereafter interact with both parties during the addresses whereafter the Court will schedule a date on which the judgment will be made known to the Accused . The judgment will of course be handed down and once the judgment is known, should he be convicted, then of course the sentence proceeding starts. In the event of Oscar Pistorius being convicted of any offence, the defence team will then have an opportunity to adduce evidence in mitigation of sentence. This will mean they might call correctional officers to testify or criminologists or probation officers or maybe just character witnesses. Equally the prosecution team will also thereafter have an opportunity to adduce evidence which they believe might assist the Court in imposing a heavier sentence. Once all of that is completed, the judge presiding in the matter will then consider all the factors but the judge alone will hand down sentence in this matter.
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