Oscar: Nel’s 4 points

2014-12-10 00:00

PRETORIA — If the appeal court finds that Judge Thokozile Masipa erred on any of four points of law, it will lead to a finding that Oscar Pistorius must be found guilty of murder, with which he was charged.

He would also have to be found guilty under the Firearms Control Act for the ammunition found in his house.

These were the arguments submitted by advocate Gerrie Nel when the state applied for leave to appeal the verdict and sentence imposed on the athlete in the shooting death of Reeva Steenkamp.

Pistorius is serving his five-year sentence in Pretoria’s Kgosi Mampuru II prison.

The state is not permitted to appeal the judge’s findings on the facts. Nel applied under article 319 of the Criminal Procedure Act to appeal Masipa’s verdict on certain points of law.

The state wants to place these four points before the appeal court:

• Whether Masipa correctly applied the principles of dolus eventualis (intent to commit murder by virtue of awareness of the possibility that a death could result) to the accepted facts and the actions of the accused; the issue includes the principle of error in objecto (when you aim an attack at someone and hit another victim).

• Whether the court correctly interpreted and applied the legal principles related to circumstantial evidence, and/or the many discrepancies in Pistorius’s version.

• Whether the court was correct in its “construction” of an alternative version by Pistorius and its reliance on that version being reasonably possibly true.

• Whether the court correctly interpreted and applied the law regarding Pistorious’s possession of ammunition when he did not own the firearm to fire it.

Nel said Pistorius should have foreseen that the shots he fired through the toilet door could have deadly consequences (thus murder, dolus eventualis).

If it is found that the court misapplied the principle of dolus eventualis, the conclusion that Pistorius must be guilty of murder is inevitable, Nel argued.

He said the court did not take the totality of the circumstantial evidence into account.

This evidence made Pistorius’s testimony that he thought there was an intruder improbable.

Among the evidence was the conditions inside Pistorius’s bedroom.

If it is found that the court incorrectly excluded the circumstantial evidence or didn’t consider it in its totality, it would have the following practical effect: the evidence about the position of the fans, the jeans and the duvet and Steenkamp’s position when she was shot, would have to be considered and accepted, Nel said.

A finding that Pistorius’s version was not only unlikely but impossible, would then be inevitable.

According to Nel, the inclusion of evidence by a court is a point of law and not of fact.

He said that the court made a mistake by choosing one of Pistorius’s versions and “constructing” it so it was deemed reasonably possibly true.

The court could not then choose another version even after it ruled that Pistorius was a poor witness who lied.

Whether a court must choose one version out of several mutually exclusive versions, is also a point of law, he said.

Another court could find that when Pistorius armed himself and walked towards the bathroom with the intention of shooting, he already foresaw the possibility that a death could result, and he reconciled himself to that possibility by firing four times through the toilet door. This is a question of law.

The appeal could find that Pistorius foresaw the possibility that four shots could kill the person in the toilet, and nevertheless recklessly continued to shoot towards the person, Nel said.

The prosecutor said the state does not want to appeal against Pistorius’s conviction for culpable homicide, but against his acquittal of murder.

The acquittal was based on an incorrect interpretation, because the court should have found that Pistorius did not offer a credible version of events and thus left the court with objective facts that should have led to a conviction for murder.

On charge four (the illegal possession of ammunition) of which Pistorius was acquitted, Nel said the Firearms Control Act forbids the possession of ammunition for which a person does not have a corresponding firearm licence. Bullets found in the house belonged to Pistorius’s father.

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