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The State cannot prove that paralympian Oscar Pistorius knew his girlfriend Reeva Steenkamp was on the other side of the bathroom door when she was shot, his lawyer said in court on Tuesday.
Evidence would also be brought if needed, of men who had shot their wives or children thinking they were burglars, advocate Barry Roux said at Pistorius' bail application in the Pretoria Magistrate's Court.
Roux said he would also bring evidence of burglaries and robberies at security complexes, if necessary.
Pistorius is charged with the murder of Steenkamp at his home in the early hours of St Valentine's Day last week.
A teary-eyed Pistorius watched while Roux countered the State's indication at his first appearance on Friday that it intended arguing that Steenkamp's death was premeditated murder.
“We submit it's not even murder,” Roux said.
“There's no agreement there, not even concession that this is murder.”
Earlier, State prosecutor Gerrie Nel repeated that the State's case was that her death was premeditated, and that it rejected that she may have been mistaken for a burglar when she was shot three times through a bathroom door.
“We say this in itself constitutes premeditated murder of a burglar,” said Nel.
“Pistorius put on his prosthetic legs, walked to his bathroom and fired four shots, three of which hit his girlfriend Reeva Steenkamp”, State prosecutor Gerrie Nel said.
"He prepared. He armed himself. The motive was, he wanted to kill," Nel alleged in Pistorius' bail application.
Nel said Pistorius, a double amputee who became an Olympic athlete, walked seven metres to the small bathroom.
“He fired four shots. Three hit Steenkamp. "It is those cold facts that makes this a premeditated murder," alleged Nel.
He said the bathroom door was broken down and, according to blood spatter analysis, Pistorius picked up Steenkamp and carried her downstairs.
Pistorius kept looking at his feet, his jaw clenched, as submissions on Steenkamp's final moments were made to magistrate Desmond Nair, who has to decide whether to grant him bail.
While this was taking place, a private family funeral service for Steenkamp was being held at the Victoria Park Crematorium in Port Elizabeth on Tuesday morning. - Sapa