Johannesburg - He is not guilty of premeditated murder, neither is he guilty of culpable homicide.
Judging him on the premise of dolus eventualis – that he foresaw the possibility he could kill the person behind the toilet door – also poses a problem: would a reasonable man in Oscar Pistorius’s condition have reacted the way he did when faced with imminent danger or a perceived intruder? The answer, according to defence advocate Barry Roux, is no.
“The accused is not guilty of culpable homicide on the basis that his conduct conformed with the conduct of the reasonable person with a similar disability acting in the same circumstances. He was anxious, he was fearful… he foresaw that if necessary he would fire… he might kill someone. We are not denying that… that is quite clear (but) If you find it was reasonable… then you must acquit him,” Roux said.
Citing Professor Wayne Derman, who had testified on behalf of the defence, Roux said while being on the stumps rendered Pistorius vulnerable, he could not simply run off but had instead opted to confront the danger, acting without thinking, because of his anxiety.
By so doing, he believed he was protecting himself – putative private defence.
“When a person’s ability to flee is compromised by disability, it would be even more unjust to deny him the right to protect himself and the person he loves. Accordingly, it is submitted that it was not unreasonable to arm himself and approach the bathroom so as to confront the intruder(s). It was also not unreasonable to point his firearm at the toilet door, where the perceived danger was and from which he had to protect himself in the event of an attack on him.
Addressing Pistorius’s contradictory statements, Roux urged Judge Thokozile Masipa to take into account the paralympian’s state of mind at the time he gave evidence when drawing conclusions.
Psychiatrists who assessed Pistorius at the Weskoppies psychiatric hospital found that he “presented with an adjustment disorder with mixed anxiety and depressed mood that developed after the alleged incident”, Roux said.
Having initially pleaded putative self defence, Pistorius changed his version when he took the stand, arguing involuntary action – he wasn’t thinking, and the shots just went off.
But this, said Roux, was due to state advocate Gerrie Nel exploiting Pistorius with his “combative and aggressive” cross-examination which saw him showing pictures to “evoke severe emotions from the accused”, and “calling him a liar on occasions where his evidence could not be branded as untruthful”.
While Roux blamed Nel’s line of questioning, Nel said all blame should be placed on the paralympian himself as he was the one who weaved a web of lies only to be entangled in it.
“The accused was an appalling witness. Tailoring evidence must have a domino effect, if one piece of the mosaic is moved, the rest also have to be moved in order to keep the picture intact. The accused’s version that he never intended to shoot anyone destroys any reliance or hope of a defence of putative self-defence,” Nel said.
He said Pistorius was “guilty of murder dolus eventualis (while there was no intention to kill Reeva Steenkamp, he foresaw the possibility he could kill whoever stood behind the door)”.
“(The) accused intended to kill a human being. He knew there was a human being behind the door so he is guilty of murder dolus and must face consequences as he had every intention to kill a human being,” Nel said.
Sunday Independent