Heads of argument filed by the State on Monday in its appeal against Oscar Pistorius’s conviction and five-year sentence for shooting his girlfriend Reeva Steenkamp through a locked bathroom door on Valentine’s Day two years ago, focused largely on the trial court’s handling of circumstantial evidence, and its treatment of intent in the form of dolus eventualis.
The State is asking the Supreme Court of Appeal to substitute the conviction of culpable homicide with one of murder. This will mean that, if the appeal is successful, Pistorius’s sentence will be substituted with a much heavier one of at least 15 years in prison.
Pretorius’s defence that he had mistaken Steenkamp for an intruder came under scrutiny in the State’s papers. The State pointed to the fact that, apart from a formal admission by Pistorius that he had shot and killed the deceased, they had to rely on circumstantial evidence to prove their case against him on the charge of murder.
Quoting South Africa case law, they pointed to the fact that it was the duty of the court to carefully weigh the cumulative effect of all the pieces of circumstantial evidence together, “and it is only after it has done so that the accused is entitled to the benefit of any reasonable doubt which it may have as to whether the inference of guilt is the only inference that can reasonably be drawn”.
They claim that the trial court wrongly excluded relevant evidence and exhibited a fragmented approach in evaluating circumstantial evidence. For instance evidence pointed out on police photographs as to the position of certain items in the main bedroom, was erroneously ignored.
“We argue with conviction that if the fan was in front of the door; the duvet was on the floor; and if the denim jeans were lying on top of the duvet, the respondent’s version of events (whichever version the Court preferred) could never have been found to be remotely reasonably, possibly true”, the State claimed.
A large part of their submission was devoted to the court’s treatment of intent in the form of dolus eventualis. The criminal law writer CR Snyman defines dolus eventualis as follows: “A person acts with intention in the form of dolus eventualis if the commission of the unlawful act or the causing of the unlawful result is not his main aim, but:
(a) He subjectively foresees the possibility that, in striving towards his main aim, the unlawful act may be committed or the unlawful result may be caused and
(b) He reconciles himself with the possibility.”
Citing various examples of South African case law, the State claimed: “It is respectfully submitted that dolus eventualis is proved if the accused foresees a risk of death, however slight, but nevertheless decides to take a chance and gambles with the life of the deceased, reckless the consequences. It is respectfully submitted that such a state of mind on the part of the accused can be inferred objectively from the totality of all the facts.”
They reached the conclusion that: “The court a quo’s finding, that the respondent armed himself and approached the bathroom door with the intention to shoot, read with the accused’s own perception of foreseeability and the objective facts inclusive of him firing four shots at the torso level of a normal human being in circumstances where there was no perceived or real attack on him, can with respect, only be evaluated as the respondent having at least the intention to kill in the form of dolus eventualis. He gambled with the life of another.”
The State also claimed that it was irrelevant whether Pistorius believed he was aiming at an intruder, while it was actually his girlfriend behind the closed door (the socalled “error in objecto” principle.)
Quoting German and Dutch law writers, they pointed out that: “A mistake about the identity of the object attacked is irrelevant, as long as the objects are of the same nature.”
They go on to state that: “It is respectfully submitted that murder is committed any time a person unlawfully and intentionally kills a human being, not merely if a person kills that particular human being who, according to his conception of the facts, corresponds to the person he wanted to be the victim.”
They also claim that the trial court placed too much emphasis on Pistorius’s reaction shortly after the shooting, which seemed to indicate an intense feeling of remorse. They quoted the Dutch writer Jeroen Blomsma that wrote: “It is clear that desires and motives are irrelevant to dolus and it is no longer a condition for dolus (eventualis) that the actor would have continued if he knew the particular result would occur. The fact that the defendant regrets his mistake should only be incorporated in sentencing.”
The State then ultimately asked that “the court may give the judgement that ought to have been given at the trial, which is the conviction on the main count of murder”.
Pistorius’s legal team has until the 17th of September to file papers in response.
ANA