Johannesburg - Oscar Pistorius's lawyer, advocate Barry Roux, has had to fend off some difficult questions from the five judges presiding over the State's appeal to overturn the athlete's culpable homicide conviction.
Pistorius was convicted of culpable homicide at the Pretoria High Court last year after shooting dead his model girlfriend, Reeva Steenkamp, whom he allegedly mistook for an intruder at his Pretoria East home on Valentine's Day 2013.
The State revealed shortly after the conviction it would attempt to overturn the culpable homicide conviction at the Supreme Court of Appeal in Bloemfontein in a bid to charge the athlete with murder.
While Pistorius initially served 11 months after his conviction in 2014, last month he was released to his uncle Arnold's home on correctional supervision until 2019.
However, if the State is successful in its appeal to the five presiding judges on Tuesday, Pistorius could face 15 years for murder on the doctrine of dolus eventualis.
At the Supreme Court of Appeal on Tuesday morning, State advocate Gerrie Nel argued that this was a clear cut case of murder on the doctrine of dolus eventualis. He said that Pistorius knew full well that there was someone behind the toilet door at his Pretoria East home, when he fired four shots into the small cubicle, killing Reeva.
The advocate insisted that Pistorius must have foreseen the risk of death in firing those shots, meaning he indirectly intended to kill whoever was behind that door.
Barry Roux began his rebuttal, by stating he would refute each of the State's arguments from Tuesday morning.
Roux said the Pretoria High Court did not exclude the evidence, and that Judge Thokozile Masipa had dealt with each and every aspect of the trial.
He said numerous witnesses had helped to corroborate his client's version of events, from neighbours who heard him screaming on the night of the shooting to those near to the scene of the crime shortly before and after.
“It is unfair to say the court just ignored evidence,” said Roux.
Presiding Justice, Stephen Majiedt, questioned Roux about the court apparently ignoring the evidence of one of the investigating officer.
According to Roux, officer Chris Mangena's reconstruction of the crime scene had eliminated several of the State's assertions - including that Pistorius was on his stumps when firing the shots. He said this testimony had been taken into account by Judge Masipa.
However, Justice Majiedt said Mangena's evidence was important as it showed the person on the other side of the door was close to the door and standing upright, contradicting the defence's version that she was using the toilet when the shooting took place.
He also said it showed that Pistorius had chosen to use high-powered bullets that could do significant damage to a human body.
Roux was willing to admit that Steenkamp was not covered by the wall which she would have been behind if she had been using the toilet.
But he said this made no difference to the legal points being addressed in Tuesday's proceedings.
Read: Reeva’s mom: Why I’ll be in court today
On questioning by Justice Eric Leach, Roux also said it would be difficult to deny that anyone would have been killed if fired upon four times in a small, restricted space.
The advocate then referred to Canadian case law on the question of arguing law versus fact, which implied that the State can only appeal on questions of law.
Judge Leach also questioned the alleged incorrect application of dolus eventualis by the court, and whether this constituted a question of law.
Roux said Judge Masipa had correctly applied the principle.
Justice Leach indicated that Judge Masipa appeared to have only taken into account the possibility that Steenkamp had been in the toilet, rather than an intruder. Leach asked if this was not a misapplication of the principle.
Roux said that Judge Masipa had, and that the athlete had genuinely believed he was in danger and that Steenkamp was still in the bedroom.
He said that if his client believed he would be attacked, mistaking Steenkamp for a criminal was totally irrelevant.
Justice Leach said that Judge Masipa did not convict Pistorius on dolus eventualis based exclusively on the case of mistaken identity, which was a grave error. He indicated that the criminal intent was directed at the person behind the cubicle door.
“I respectfully submit that this is not an issue... He shot because of perceived danger,” said Roux.
But Leach argued that this did not affect Pistorius's intent. “The issue here is whether he foresaw (what his actions could do),” said Leach.
“There was no intention to act unlawfully... That was the judge's approach,” Roux responded, defending Judge Masipa's ruling.
He said the court needed to take the entire incident in its totality.
Justice Lex Mpati, however, asked if Judge Masipa had asked the correct questions in the application of dolus eventualis, namely if Pistorius could have foreseen that Steenkamp was his unfortunate target.
NPA Luvuyo Mfaku on the appeal: #OscarPistorius pic.twitter.com/Tv3VrSKR5s
— MojoIOL (@mojoIOL) November 3, 2015
Roux said he believed she had, as she had mentioned earlier in her ruling that Pistorius was innocent of murder - just culpable homicide - of an intruder.
When Justice Leach asked if Judge Masipa's finding on the case of mistaken identity was ultimately wrong, Roux refused to concede.
Roux then continued by saying that for the court to agree with the State's appeal, it would have to strike out the factual findings of Judge Masipa.
The advocate also began questioning how, if the court ultimately changed Judge Masipa's verdict, it would avoid double jeopardy - in other words convicting an accused of the same crime on the same facts.
Regarding a potential re-trial for Pistorius, Justice Majiedt said there would be numerous difficulties in doing so.
He said it would not be in anyone's interests to conduct a re-trial instead of potentially altering the initial conviction.
When Roux began again to refer to Pistorius's fear of the supposed intruder on the night of the intruder, Justice Elizabeth Baartman replied by suggesting that it would not be prudent to give everyone with an anxiety disorder a licence to kill.
Roux agreed with this, but said Pistorius was already being punished for his crime.
Once again referring to Pistorius status as a double amputee, Roux closed: “It's unfair to see this through the prism of someone standing there with two legs.”
The five presiding justices have reserved their judgment though it's expected be given within the next few weeks.
The Star
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