International news is filled with the trial of Oscar Pistorius who is accused of the murder of his girlfriend Reeva Steenkamp in South Africa on Valentine’s Day in 2013.
The prosecution case is that Ms Steenkamp was shot whilst behind a closed toilet door. There is no dispute that Mr Pistorius pulled the trigger more than once. The bullets were designed to expand on impact and each would probably have been fatal. This is a short summary of reports of evidence relating to the cause of death, which was not broadcast as part of the trial. Otherwise, the evidence is being live streamed across the world. It is a really good showcase for court TV and how it can work to inform people about what actually goes on in a criminal trial.
The defence case appears to be that Mr Pistorius fired the gun thinking the person in the toilet was an intruder. South Africa is notorious for its high level of violent burglaries. One South Africa Today news article suggests that South Africans live in constant fear. Mr Pistorius will have fallen into the category of a potential wealthy target and he is additionally vulnerable because he is a double amputee.
There has been evidence given of high pitched screams before the shots were fired, but the issues are clouded by the suggestion that Mr Pistorius has a high pitched scream, the distance over which those screams were apparently heard, and the use of a cricket bat to break down the door.
Reeva Steenkamp is not here to confirm or refute the version of events given by the suspect or the witnesses. As I said in an article at the time of the killing: in any murder prosecution, the evidence is essentially circumstantial as the main witness is dead. The reliability of any evidence will depend on an unbiased and good quality police investigation, usually with the assistance of firearms, post mortem and blood spatter experts. Conclusions can only be reached after the evidence has been tested in a robust cross-examination of witnesses. These things can take time and much can change between initial arrest and trial.
There are numerous frequently asked questions about the trial. What is surprising is how little the law has been reported.
Pistorius’ fate will be determined by a single judge, Thokozile Masipa, together with two assessors. The assessors are there to help her make a decision. They listen to the evidence and can give their opinion with which the judge may agree or disagree. Without a jury (despite all the emotion in court), this will be a clinical legal exercise.
On the Legal Brief website, Professor Annette van der Merwe, a criminal procedure law expert at the University of Pretoria, said the two assessors could overrule the judge when it comes to a verdict on the facts in a majority finding. This means that if the two assessors were to rule in favour of murder, or the judge and one assessor were to rule so, then that verdict would be the accepted one. The same would apply if two of them were to rule in favour of an acquittal.
The questions that most lawyers will be asking can be neatly summarised as follows:
What are the elements of the charge?
Pistorius is facing charges of premeditated murder and the illegal possession of ammunition. There are also firearms charges relating to separate incidents of illegally discharging a firearm through the sunroof of a car and under a table at a restaurant. In relation to murder, the act of killing is not disputed. In relation to state of mind, the prosecution seek to prove he intended to kill Ms Steenkamp, probably on the basis that there is no other use for such ammunition and that the gun was fired more than once by someone with experience of firearms, along with evidence of an argument.
What if the judge concludes on the facts that he did make a mistake and intended to kill a burglar? At common law, the doctrine of transferred malice applies where the state of mind of the alleged offender can be transferred. For example, if X shoots at Y intending to kill Y, but misses and hits and kills Z, transferred malice can operate so that X’s intention to kill Y can be transferred to the killing of Z. Consequently, X is liable in legal principle for the murder of Y. The principle has been around a while. In R v Saunders the defendant gave his wife an apple that he had poisoned with arsenic. He intended to kill her so that he could marry someone else. The wife took a bite from the apple, then gave it to their daughter. The daughter died from arsenic poisoning. The court held that the defendant was liable for the murder of his daughter as his intention to kill was transferred. In R v Latimer the defendant hit another man with a belt and, in doing so, hit a woman in the face. The defendant was held to be liable for the injuries inflicted on the woman despite the fact that he did not intend to harm her. His intention to cause harm was transferred.
It is currently unclear whether this principle will be applied in the Pistorius case as, if the judge concludes he was intending to kill Reeva Steenkamp, there will be no need to go further in relation to the fault elements of the offence.
If the judge concludes he did not intend to kill anyone, but was acting unreasonably, there can be consideration of an alternative homicide offence based on a less culpable state of mind – recklessness or negligent killing. What will also have to be considered would be any defence raised and whether it can be rebutted on the evidence.
What is the defence?
The defence to possession and discharge of ammunition and firearms is not yet clear. In relation to the alleged murder, Mr Pistorius apparently claims he had no intention of killing Steenkamp; he suspected an intruder had entered his home and he acted to take reasonable steps to protect himself, his girlfriend (whom he believed to be in bed) and his property. In simple terms, the judge will need to consider whether Pistorius’ actions on Valentine’s Day were necessary and reasonable having regard to all the circumstances – those circumstances depending on the evidence, and not speculation or assumption. Was it reasonable to stay in bed and wait to see if it was an intruder, or was there something more to the events that night? The judge will have to examine the issues, apply the law to the facts and reach a rational and logical verdict. It’s the same job as a jury, but without the benefit of public input.
The judgment will be eagerly awaited across the world by many, including the lawyers.