Oscar not guilty of murder, says judge

By Shain Germaner Time of article published Sep 11, 2014

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Pretoria - Oscar Pistorius will not be convicted of pre-meditated murder or murder, but it's still unclear if the athlete will face a culpable homicide conviction for killing Reeva Steenkamp.

As the court adjourned for an early lunch, Pistorius was seen sobbing and hugging his siblings and other relatives, the relief evident on his face.

After a morning of tackling contradictions among state witnesses, Judge Thokozile Masipa started her verdict on Oscar Pistorius' credibility as a witness.

But even though Masipa was hard on the athlete, she said the state had not proven beyond reasonable doubt that Pistorius had directly intended to murder Steenkamp.

Masipa said accused had repeatedly said he had no time to think during his testimony, and the defence believed this raised doubt of whether he could be held criminally accountable, or whether he could understand the difference between right and wrong in his panic.

She said in support of this defence was Vorster's diagnosis of General Anxiety Disorder for Pistorius, which meant the court was required to test this.

Pistorius was sent for psychiatric observation for 30 days, but a panel of psychologists found no indication of the disorder, or any defect that would have affected his understanding of right and wrong. She said the court had no reason to discount such a finding, and that Pistorius had a full understanding of his actions.

Another defence posed by Pistorius' lawyers referred to the athlete intentionally firing in self-defence, but Masipa said this was inconsistent with Pistorius' own testimony.

The athlete had claimed he never fired at a person intentionally, as this was the essence of his defence, according to Masipa.

The judge said that Pistorius had approached the bathroom with a firearm, and that is was unlikely he would have used it to hit the perceived threat over the head. However, Masipa said the court accepts that the accused chose - in a fight or flight situation - to fight.

“The accused clearly wanted to use the firearm... (but) the intention to shoot does not include the intention to kill,” she said.

Masipa said the onus of proof is on the state, and the accused can be acquitted if there is reasonable doubt over whether he is guilty.

She then moved onto Pistorius as a witness, whom she said gave very poor testimony. Masipa noted that Pistorius was cool and calm during his evidence in chief , but lost his composure during cross-examination claiming he had been taking certain medication but also traumatised by the shooting.

“This argument does not make sense, in my view,” said Masipa.

She said that most witnesses find giving evidence an uncomfortable experience, but Pistorius was evasive and failed to listen properly to questions posed to him. The judge said Pistorius also blamed his legal team when contradictions were pointed out.

She said, however that a lying accused does not necessarily mean he is guilty.

She moved on to say that the deceased was killed under very unusual circumstances. She asked why Pistorius didn't try to alert Steenkamp to the possible danger or determine her whereabouts before approaching the bathroom when in his mind she was just a few metres away.

It was also strange that he fired four times rather than once.

She said that such questions could only be the subject of conjecture.

However, she said that even if Pistorius' explanation for the shooting was improbable, a court could not convict someone if reasonable doubt still existed.

For the murder charge, Masipa said the evidence was completely circumstantial. The timelines set out by the defence tipped the favour of the accused's version, she said. The state had clearly not proven beyond reasonable doubt that he committed a pre-meditated murder.

However, she said that if Pistorius could have foreseen the death of the person upon which he fired, he could still be convicted of dolus eventualis, which still falls under the charge of murder.

She said that Pistorius believed the person behind the door was an intruder, but the question remained if he intended to kill that person.

Masipa said that if Pistorius had acted in private self-defence, he had acted lawfully.

If his life had been in danger, the court could exclude dolus eventualis, according to Masipa. She said that Pistorius had claimed he had no intention to kill, but the court had to use evidence to determine intention. Masipa said that the athlete could have been fearing for his life, and the open bathroom window could have further triggered this.

She said the state had not provided enough evidence to show he understood he could have killed someone behind the door.

“How could the accused have foreseen that the shots he fired could have killed the deceased?” asked Masipa.

She said witnesses had shown Pistorius was genuinely distraught on the night of the shooting, and that this could not have been play-acting on Pistorius' part.

Masipa added that Pistorius had told the same version on the night of the murder, and during the bail application, without having any serious contradictions.

She said that this excluded the charge of dolus eventualis.

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