Nel has no right to question Masipa’s findings – Roux

2014-12-09 14:01

Oscar Pistorius’ defence lawyer Barry Roux has argued that state prosecutor Gerrie Nel has no right to question the factual findings made by Judge Thokozile Masipa in his client’s murder trial and that no higher court would find different anyway.

Pistorius has spent 49 days in jail after being sentenced to five years behind bars in October for the culpable homicide of his girlfriend Reeva Steenkamp. When the sentence was handed down prosecutors called the five-year prison term “shockingly light” and Nel reiterated this today in the North Gauteng High Court in Pretoria.

Nel started by stating how difficult it is to lodge an appeal and that this decision was not taken lightly.

He said that in his application he was not going to argue the merits of the case again.

The state was not saying that the “court did not deal with the principles at sentencing” but “the weight of the principles was not dealt with”.

“We will argue that the court erred when it referred to events that happened after the incident”.

Nel also argued that the court did not take into account that Pistorius would serve an effective 10 months behind bars.

Judge Thokozile Masipa interjected, asking whether the time Pistorius spent in jail was not up to the commissioner.

Roux’s rebuttal was that in 10 months Pistorius would only be considered for release. It was not a definite case.

Nel continued his argument, asking that if the court found that the accused acted with gross negligence which bordered on dolus eventualis and his sentence of five years was appropriate, what precedent did it set for less negligent cases.

“What happens to the man who acted with that degree of negligence and actually had an intruder in his house and he shot him under the circumstance of the reasonable man – that clearly must be less than this,” said Nel.

He went on to argue that the court’s interpretation of dolus eventualis was flawed and that once a higher court found that Pistorius was negligent under the law he would be guilty of murder.

Nel reiterated that the appeal was based on the ruling that Pistorius was found not guilty of the charge of murder.

Nel touched briefly on that the reasonable man shooting into a tiny cubicle should have known that there was a possibility of killing whoever was behind the door.

“What was the defendant’s intention as he shot through the door? He shot four times,” said Nel.

But Roux said the state was arguing a factual finding which it had no right to.

“Every single point the state has made we have shown that the court has taken it into consideration before judgment. The state is not happy with the factual findings of the court and that is something it has no right to appeal to a higher court. The state has to show where the court went wrong in applying the law; it hasn’t done that,” said Roux.

But Nel thinks even the mercy shown by Masipa in terms of the sentencing was exaggerated.

Nel also added that Masipa had “erred in over-emphasising the personal circumstances of the accused” and that there was not enough emphasis placed on the horrendous nature in which Steenkamp died.

The prosecution had called for the maximum 15-year sentence for culpable homicide.

Masipa asked to be given until tomorrow to think about the arguments.

Neither the Pistorius nor the Steenkamp family was in court today.

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