There’s enough reasonable doubt

2014-09-11 00:00

THE burden of proof is on the state to prove its case beyond reasonable doubt.

If there is reasonable doubt about the accused’s guilt, he must be released. Is there a possibility that the accused is not guilty?

The evidence about the relationship between the accused and the deceased and other evidence that points to the accused having a weak character, is in some cases technically permissible because the defence led evidence on the accused’s good character, but the fact remains the accused was not on trial for having a weak character.

We therefore view this evidence as so negligible that we excluded it from our considerations.

The state’s evidence of the woman’s screams is in another league.

Sound expert for the defence Dr Ivan Lin, however, said it is totally possible for someone to have mistaken the screams of a man for those of a woman.

Although he admitted that most people can accurately differentiate between a male and a female voice, his admission is not enough — the state has to prove that it was Steenkamp and not Pistorius who “screamed like a girl”. There is thus reasonable doubt whether the screams that were heard, were made by the deceased.

We differ from the state’s argument that the accused’s two defences (involuntary actions and putative self defence), are incompatible.

An involuntary action does not mean the accused did not think, but it simply means whatever the accused was thinking, did not direct his actions.

This means the accused did act under the impression that an intruder was hiding in the toilet. He then shot his pistol either involuntarily due to his heightened state of fear, or voluntarily in putative self defence.

The accused has supported his defence of involuntary action with the testimonies of Dr Wayne Derman and Professor Merryll Vorster that Pistorius is extraordinarily alert.

This created enough doubt about the voluntary choice the accused may have had over his actions the moment he pulled the trigger.

In the absence of reliable evidence to support the state’s version, especially the allegation that the screams were made by the deceased, we cannot accept the state’s version.

The question is not whether we think the accused’s version is probable or true, but if there is a reasonable probability that it could have happened.

As we accept the accused is very anxious and the state had — ironically — showed him to be reckless and inept with firearms, there is a reasonable possibility that he had made a mistake and fired through the door while he was under the impression that he was justified to defend himself and his property.

The mistaken impression excludes the intent to kill illegally. We therefore cannot find the accused guilty of murder.

• Grant is a criminal law specialist at Wits.

The examples of possible verdicts do not indicate in any way what the final verdict will be, but are examples of what the different verdicts of guilty or not guilty may look like.

The court has the final authority in making a verdict and these examples do not intend in any way to undermine this authority.

The legal experts did not choose which verdict to support, and their arguments are therefore not a reflection of their personal opinions.

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