Oscar Pistorius : What is the motive behind the States Appeal?
The States appeal will be heard by the SCA on Nov 3rd but what should really be considered is whether the appeal should be allowed in the first place and what exactly is the motive behinds the States appeal. The States argument is that Oscar was acquitted of murder therefore the conviction of Culpable Homicide should not be considered a competent verdict.
In suggesting that CH is not a competent verdict what Nel is also doing is effectively attempting to determine that CH can never be a competent verdict for murder. This therefore leaves the door open for any future CH verdicts to be appealed by the State. The State in attempting to overcome the ‘Seekoei Hurdle’ only makes reference to the term acquittal. However in the Seekoei judgement it goes further to define what is meant by ‘acquittal.
“In re S v Seekoei held that by 'acquittal' in section 322 (4) is meant a finding whereby the accused is set free completely. Where someone stands trial on a charge and is then convicted of an offence whereof he, according to the provisions of the Act, could be convicted, it cannot be said that there was an “acquittal” (of the offence charged) as intended. “What however the State has never mentioned either in their appeal papers or in the interviews or commentary on the case is what the legal interpretation of an acquittal is. The State abysmally omits to clarify the definition of the term ‘acquittal’ as determined in Seekoei.
Nel therefore can't argue that Seekoei doesn't apply as Oscar was acquitted of murder. Nel and Grant are effectively taking a legal term and applying their own interpretation to the legal precedent, one that fails to consider the ruling as a whole. Oscar was not completely set free so therefore there was no acquittal. Not only does CH remain a competent verdict but the State can't appeal the case as Oscar was sentenced to 5 years in prison. Considering the appeal was presented by a person who is regarded as the most experienced State Prosecutor in South Africa and a former associate law professor who has written extensively about the subject, one has to question how such an important part of the Judgement could simply be ignored. For the State to suggest that the Judge misinterpreted a legal principle, when their practice is indicative of selective omission of aspects of legal precedents, it raises serious ethical and questions regarding the States intentions and practice in the case.
Furthermore if CH was not a competent verdict for murder, the SCA in the case of Jub Jub would not have found the trial court erred in its original verdict and overturned the murder conviction to one of CH. The Jub Jub case is relevant because it looks at the distinction between murder and CH. His legal team argued that he could not be found guilty of Dolus Eventualis on the grounds that the drugs he had taken prevented him from seeing the consequences that his actions would or could kill. While some may consider Seekoei a part of South African legal history that should remain in the past. In their eagerness to to jump on the media and State sensationalist band wagon they are prepared to erode basic human rights to gain a harsher conviction and sentence for Oscar Pistorius. The precedents they wish to set would ultimately enable the State to appeal any case simply to get a harsher sentence. To prove Dolus Eventualis the State have to prove beyond reasonable doubt that Oscar knew his actions would or could kill, that this was indifferent to him and that he reconciled himself to the consequence if his actions. There is a difference between what one should know and what one did know at that precise moment. Jub Jub may well have realised when he was sober that driving under the influence of drugs may affect his ability to drive and that drag racing while high on a cocktail of drugs was very dangerous. That however is different from claiming Jub Jub knew at the time he started drag racing that his actions would kill. Oscar similarly may know that shooting 4 shots may be fatal to whoever was behind the door when he was not in such a heightened state believing he was about to be attacked. However believing an intruder was about to come out the door and attack was imminent was in most probability all he was thinking about. Fear is one of our strongest emotions, it is all consuming preventing rational thought as it propels us to act instinctively. The process of reconciliation required to prove DE involves the ability to think rationally.
In order to reconcile ones actions with the subsequent events one has to think through the process. The process of reconciliation is not possible without thinking. Yet Oscar throughout his testimony repeats that he wasn't thinking.
Oscar said in his cross examination “What I am saying is that at that time I did not know what to think. I fired into the toilet door which ... I believed somebody coming out to attack me.“
At a later stage Oscar said “I can say when I heard a noise inside the toilet, before thinking, out of fear, I fired four shots. When I realised the scale of what was happening, I stopped firing and I stood there and I was in shock.” And again“Before I even had a moment to comprehend what was happening, I believed someone was coming out the toilet.”I pulled the trigger at that moment when I heard the noise. I did not have time to think about what was happening. I knew that somebody... or I thought that somebody was coming out to attack me. That is what I thought.
Nowhere does Nel show how Oscar reconciled the consequences of his actions. In order to have done so Oscar would have needed to have thought before shooting but time and time again Oscar refers to hearing a noise believing someone was coming out to attack him and before he had time to think he had fired. The Judge and her accessors based their verdict on the evidence and testimony before them. This therefore remains a factual finding.
The second obstacle standing in the way of the States appeal is their inability to appeal facts as opposed to questions of law. The State is attempting to overcome this obstacle by asserting the Judge made an error in the application of the law. Such a phrase however seems more like an attempt at a semantic discourse.
The State in their desire to appeal a factual finding opens the flood gates for further appeals. There is a huge difference between the State disagreeing with a verdict and disagreeing with a verdict that is so out of sync with the evidence presented. This however did not happen in this case. The verdict was based on the evidence presented and was carefully considered before the verdict was reached. The States quotes in their appeal HOA consists of Oscar commenting in hindsight or prior to him hearing the noise which resulted in him firing. However in hindsight it is easy to determine what we should have done, what needs to be considered, is what Oscar was thinking the precise moment he fired and how or if he was aware of the consequences of his actions, whether he reconciled himself to them and whether he knew his actions were unlawful. The State however ignores these choosing instead to rely on the following
“ ... If I think back today, My Lady, If there was someone inside the toilet and I knew about that and I fired at the door, then that would be a possibility, My Lady...That they could get shot,
This only demonstrates Oscar’s ability to reflect on his actions in hindsight and has no relevance to what he was thinking at the time. It also totally disregards that Oscar believed he was acting lawfully by defending himself if his life was under threat. Oscar stated he believed an intruder was about to come out of the toilet. Oscar was on his stumps unable to defend himself if attacked and experienced abject fear and panic.
Nel again takes a specific part of Oscar’s cross examination for consideration... M”Lady, if I had fired a shot into the shower, it would have ricocheted and possibly hit me ...
What Nel does not refer to is Oscar saying that he did not intent to shoot but fired when he heard a noise, he therefore ignores the actual moment when Oscar fired when Oscar repeatedly says he wasn’t thinking when he fired. Oscar repeated this numerous times about his panicked state, his acting without thinking. The State disregards all of this choosing instead to only look at their own agenda. Nel says“It is respectfully submitted that such a state of mind on the part of the accused can be inferred objectively from the totality of all the facts.”
The totality of the facts can not exclude crucial parts of any accused persons testimony, To state this is a contradiction in terms and flies in the face of the true meaning of Justice. Yet the State repeatedly ignores Oscar’s testimony that he wasn't thinking when he fired, that he believed his life was at imminent risk. Therefore the State does not consider the totality of the facts, they in fact do the opposite.
The States HOA both in the Trial and in the Appeal are summed up in the following lines “We however submit, that holistically considered, there exists no other reasonable inference than that the respondent’s evidence can never be found to be reasonably possible. He did not “wake up” to bring the fans in and the deceased did not, in the specific period, unbeknown to him, move to the bathroom with her cell phone and lock herself into the toilet.”The State therefore dispute the facts in the case and claim it is a point of law so they can appeal it. Again we see the practice of selectively considering only their case and ignoring effectively everything else. The State both in the trial and in this appeal, in presenting both mutually conflicting scenarios admit their inability to determine whether Oscar intended to shoot Reeva or an intruder. How can they possible then claim they knew what Oscar was thinking particularly considering the psychological assessment concluded he did not have a propensity for violence.
I can't help but question the motives for this appeal. Is it the desire to convict a person for a crime when all similar crimes have previously been viewed as CH and suspended sentences given, a desire to want to introduce DE when previous cases did not consider this? Or, is it an attempt to change the law, to set new precedents, to enable the State to effectively introduce Double Jeopardy by the back door, to allow them appeal cases based on facts as well as points of law? The repercussions of this would be significant in the terms of Human Rights and could be used for political reasons where the State can appeal because they disagree with the verdict. Combining an ability to appeal a case based on facts as well as points of law gives the State new immeasurable powers. Considering in Oscar’s case, the States practice included a failure to call lead witnesses, evidence was lost, the prosecutor received international criticism for his style of cross examination , and taking all this into account if the verdict is not one the State wants, they can simply appeal a competent verdict and appeal the facts they disagree with. This amounts to a retrial albeit on paper, a very dangerous precedent to endorse. Personally I think that is a future in Law Enforcement and Judicial Process that should be viewed as most unwelcome and avoided at any cost.
The States appeal will be heard by the SCA on Nov 3rd but what should really be considered is whether the appeal should be allowed in the first place and what exactly is the motive behinds the States appeal. The States argument is that Oscar was acquitted of murder therefore the conviction of Culpable Homicide should not be considered a competent verdict.
In suggesting that CH is not a competent verdict what Nel is also doing is effectively attempting to determine that CH can never be a competent verdict for murder. This therefore leaves the door open for any future CH verdicts to be appealed by the State. The State in attempting to overcome the ‘Seekoei Hurdle’ only makes reference to the term acquittal. However in the Seekoei judgement it goes further to define what is meant by ‘acquittal.
“In re S v Seekoei held that by 'acquittal' in section 322 (4) is meant a finding whereby the accused is set free completely. Where someone stands trial on a charge and is then convicted of an offence whereof he, according to the provisions of the Act, could be convicted, it cannot be said that there was an “acquittal” (of the offence charged) as intended. “What however the State has never mentioned either in their appeal papers or in the interviews or commentary on the case is what the legal interpretation of an acquittal is. The State abysmally omits to clarify the definition of the term ‘acquittal’ as determined in Seekoei.
Nel therefore can't argue that Seekoei doesn't apply as Oscar was acquitted of murder. Nel and Grant are effectively taking a legal term and applying their own interpretation to the legal precedent, one that fails to consider the ruling as a whole. Oscar was not completely set free so therefore there was no acquittal. Not only does CH remain a competent verdict but the State can't appeal the case as Oscar was sentenced to 5 years in prison. Considering the appeal was presented by a person who is regarded as the most experienced State Prosecutor in South Africa and a former associate law professor who has written extensively about the subject, one has to question how such an important part of the Judgement could simply be ignored. For the State to suggest that the Judge misinterpreted a legal principle, when their practice is indicative of selective omission of aspects of legal precedents, it raises serious ethical and questions regarding the States intentions and practice in the case.
Furthermore if CH was not a competent verdict for murder, the SCA in the case of Jub Jub would not have found the trial court erred in its original verdict and overturned the murder conviction to one of CH. The Jub Jub case is relevant because it looks at the distinction between murder and CH. His legal team argued that he could not be found guilty of Dolus Eventualis on the grounds that the drugs he had taken prevented him from seeing the consequences that his actions would or could kill. While some may consider Seekoei a part of South African legal history that should remain in the past. In their eagerness to to jump on the media and State sensationalist band wagon they are prepared to erode basic human rights to gain a harsher conviction and sentence for Oscar Pistorius. The precedents they wish to set would ultimately enable the State to appeal any case simply to get a harsher sentence. To prove Dolus Eventualis the State have to prove beyond reasonable doubt that Oscar knew his actions would or could kill, that this was indifferent to him and that he reconciled himself to the consequence if his actions. There is a difference between what one should know and what one did know at that precise moment. Jub Jub may well have realised when he was sober that driving under the influence of drugs may affect his ability to drive and that drag racing while high on a cocktail of drugs was very dangerous. That however is different from claiming Jub Jub knew at the time he started drag racing that his actions would kill. Oscar similarly may know that shooting 4 shots may be fatal to whoever was behind the door when he was not in such a heightened state believing he was about to be attacked. However believing an intruder was about to come out the door and attack was imminent was in most probability all he was thinking about. Fear is one of our strongest emotions, it is all consuming preventing rational thought as it propels us to act instinctively. The process of reconciliation required to prove DE involves the ability to think rationally.
In order to reconcile ones actions with the subsequent events one has to think through the process. The process of reconciliation is not possible without thinking. Yet Oscar throughout his testimony repeats that he wasn't thinking.
Oscar said in his cross examination “What I am saying is that at that time I did not know what to think. I fired into the toilet door which ... I believed somebody coming out to attack me.“
At a later stage Oscar said “I can say when I heard a noise inside the toilet, before thinking, out of fear, I fired four shots. When I realised the scale of what was happening, I stopped firing and I stood there and I was in shock.” And again“Before I even had a moment to comprehend what was happening, I believed someone was coming out the toilet.”I pulled the trigger at that moment when I heard the noise. I did not have time to think about what was happening. I knew that somebody... or I thought that somebody was coming out to attack me. That is what I thought.
Nowhere does Nel show how Oscar reconciled the consequences of his actions. In order to have done so Oscar would have needed to have thought before shooting but time and time again Oscar refers to hearing a noise believing someone was coming out to attack him and before he had time to think he had fired. The Judge and her accessors based their verdict on the evidence and testimony before them. This therefore remains a factual finding.
The second obstacle standing in the way of the States appeal is their inability to appeal facts as opposed to questions of law. The State is attempting to overcome this obstacle by asserting the Judge made an error in the application of the law. Such a phrase however seems more like an attempt at a semantic discourse.
The State in their desire to appeal a factual finding opens the flood gates for further appeals. There is a huge difference between the State disagreeing with a verdict and disagreeing with a verdict that is so out of sync with the evidence presented. This however did not happen in this case. The verdict was based on the evidence presented and was carefully considered before the verdict was reached. The States quotes in their appeal HOA consists of Oscar commenting in hindsight or prior to him hearing the noise which resulted in him firing. However in hindsight it is easy to determine what we should have done, what needs to be considered, is what Oscar was thinking the precise moment he fired and how or if he was aware of the consequences of his actions, whether he reconciled himself to them and whether he knew his actions were unlawful. The State however ignores these choosing instead to rely on the following
“ ... If I think back today, My Lady, If there was someone inside the toilet and I knew about that and I fired at the door, then that would be a possibility, My Lady...That they could get shot,
This only demonstrates Oscar’s ability to reflect on his actions in hindsight and has no relevance to what he was thinking at the time. It also totally disregards that Oscar believed he was acting lawfully by defending himself if his life was under threat. Oscar stated he believed an intruder was about to come out of the toilet. Oscar was on his stumps unable to defend himself if attacked and experienced abject fear and panic.
Nel again takes a specific part of Oscar’s cross examination for consideration... M”Lady, if I had fired a shot into the shower, it would have ricocheted and possibly hit me ...
What Nel does not refer to is Oscar saying that he did not intent to shoot but fired when he heard a noise, he therefore ignores the actual moment when Oscar fired when Oscar repeatedly says he wasn’t thinking when he fired. Oscar repeated this numerous times about his panicked state, his acting without thinking. The State disregards all of this choosing instead to only look at their own agenda. Nel says“It is respectfully submitted that such a state of mind on the part of the accused can be inferred objectively from the totality of all the facts.”
The totality of the facts can not exclude crucial parts of any accused persons testimony, To state this is a contradiction in terms and flies in the face of the true meaning of Justice. Yet the State repeatedly ignores Oscar’s testimony that he wasn't thinking when he fired, that he believed his life was at imminent risk. Therefore the State does not consider the totality of the facts, they in fact do the opposite.
The States HOA both in the Trial and in the Appeal are summed up in the following lines “We however submit, that holistically considered, there exists no other reasonable inference than that the respondent’s evidence can never be found to be reasonably possible. He did not “wake up” to bring the fans in and the deceased did not, in the specific period, unbeknown to him, move to the bathroom with her cell phone and lock herself into the toilet.”The State therefore dispute the facts in the case and claim it is a point of law so they can appeal it. Again we see the practice of selectively considering only their case and ignoring effectively everything else. The State both in the trial and in this appeal, in presenting both mutually conflicting scenarios admit their inability to determine whether Oscar intended to shoot Reeva or an intruder. How can they possible then claim they knew what Oscar was thinking particularly considering the psychological assessment concluded he did not have a propensity for violence.
I can't help but question the motives for this appeal. Is it the desire to convict a person for a crime when all similar crimes have previously been viewed as CH and suspended sentences given, a desire to want to introduce DE when previous cases did not consider this? Or, is it an attempt to change the law, to set new precedents, to enable the State to effectively introduce Double Jeopardy by the back door, to allow them appeal cases based on facts as well as points of law? The repercussions of this would be significant in the terms of Human Rights and could be used for political reasons where the State can appeal because they disagree with the verdict. Combining an ability to appeal a case based on facts as well as points of law gives the State new immeasurable powers. Considering in Oscar’s case, the States practice included a failure to call lead witnesses, evidence was lost, the prosecutor received international criticism for his style of cross examination , and taking all this into account if the verdict is not one the State wants, they can simply appeal a competent verdict and appeal the facts they disagree with. This amounts to a retrial albeit on paper, a very dangerous precedent to endorse. Personally I think that is a future in Law Enforcement and Judicial Process that should be viewed as most unwelcome and avoided at any cost.
