One Tragic Night (36 page)

Professor Grant explains that the thinking is that it is exceedingly difficult to persist with an untrue version of events when your story is examined from different angles. ‘This is because lies offer an alternative version of events – of reality – they shift one into a hypothetical world. To succeed with a false version, one must have an excellent memory (to recall and not deviate from false statements you have already made) and a brilliant mind – to think every aspect of your lie through. Cross-examination tends to reveal inconsistencies in a false version where an accused loses track of the lies he or she has already told, or has not thought his or her lie through completely.'

In this model, cross-examination can be intense and lawyers can be aggressive and combative, which is why the judge's role is often to act as a referee. But Grant believes this style is not entirely necessary. ‘It is famously said that the art of cross-examination is not to examine crossly. Ideally cross-examination will quietly and calmly extract concessions from a witness without the witness realising that he or she is making any sort of concession. However, witnesses can often be obstinate. Regrettably, both lawyers and witnesses are humans who are discussing something over which they inevitably disagree. It is almost inevitable tempers may flare.'

Ultimately, it is up to the judge presiding over the matter to reach a determination on guilt or innocence. ‘The court' – as the judge is often referred to – has to decide whether the doubts about the guilt of the accused are reasonable or not. In this instance, on the murder charge, the judge has to make a call on
whether it is a reasonable possibility that Oscar really thought he was entitled to kill whoever was behind the door. If the defence is able to prove that any possible doubt is reasonable, he would be acquitted of murder.

The prosecution in this case took the bold approach of charging Oscar with the most extreme Schedule 6 charge of ‘premeditated murder', as well as with three firearm-related offences. While some believe this approach was taken merely to force the defence into putting a version of events on record at the bail application, it is likely that the prosecutors made an informed decision as to what might have happened on the morning of Valentine's Day 2013.

‘They believe the facts fit the charge,' explains Maseko. ‘The prosecution is also keenly aware that having charged Pistorius with premeditated murder, murder and culpable homicide are competent verdicts on that charge and they do not have to allege these separately. Therefore they have nothing to lose by charging Oscar with premeditated murder instead of murder or culpable homicide.'

The fact that the prosecution charged Oscar with ‘premeditated' murder in reality only has an impact on how easy or difficult it was for him to be released on bail and on what kind of sentence he could theoretically receive. In substantive criminal law, there is no distinction between degrees of murder (unlike in the US where there is first-degree and second-degree murder, for example). In other words, for the purpose of the judge's verdict, murder is murder.

As Professor Grant explains, the concept of ‘premeditation' ‘is quite irrelevant to a charge of murder. It is, instead, only relevant to bail and sentencing. It places a charge into Schedule 6 of the Criminal Procedure Act, and therefore into a category for which a release on bail is extremely difficult to secure. Beyond bail, its effect will be that, if convicted of premeditated murder, the default minimum sentence is life imprisonment, unless an accused can show “substantial and compelling circumstances”, which would justify a court imposing a lesser sentence. The concept of premeditation is very poorly defined in our law. It usually refers to some extent of planning.

‘In the US, premeditation is identified where an accused laid in wait for his victim. This is the basis on which we conventionally distinguish between a killing in the “heat of passion” versus a “cold-blooded killing”. Conventionally a “hot-blooded” passion killing is regarded as less culpable, but the opposite intuitions are triggered in respect of deliberate, calculated, cold-blooded killings.
Presumably part of the reason is that the time available to someone planning a cold-blooded killing presents the person with opportunities to reconsider and yet they recommit themselves to their evil purpose throughout this period.'

In Oscar's case, the prosecution argues that he only needed a couple of moments to plan the murder, which goes against the conventional understanding of premeditation in which you take hours, days or months to plot a killing.

This alternative conception of premeditation was introduced locally, in part due to outrage by the public in certain matters where shockingly low sentences were handed down to criminals for very serious crimes.

So, if Oscar were to be found guilty of premeditated murder, the minimum sentence would be life imprisonment (with a minimum of 25 years before he qualified for parole) unless he could prove substantial and compelling circumstances that would allow the judge to consider a term less than the minimum sentence.

If Oscar were to be found guilty of murder (not premeditated), the minimum sentence would be 15 years' imprisonment because he is a first offender.

If Oscar were to be found guilty of culpable homicide, he might well have a custodial sentence imposed on him because of the involvement of a firearm in the killing – this could see him jailed, receive a fine or have to do community service. The judge has no obligation to impose a particular sentence and she has discretion.

So what does the prosecution have to prove in order to convict Oscar of murder?

The legal definition of murder is ‘the unlawful and intentional killing of another person'. The intentional killing is not ‘unlawful', however, if an accused has a recognised defence and the ‘intent' is assessed subjectively – in other words, we have to ask the question, ‘What was the accused actually thinking?', not ‘What should the accused have been thinking?'

Murder is a common-law crime, which in layperson's terms means it is not a crime that has come into existence simply because of a piece of legislation. It has always been reprehensible to kill another human being where there has been an intent to do so and without an acceptable reason for the killing. ‘From a legal perspective, in order to convict a person for the killing of another human being the state has to prove its case beyond reasonable doubt. To secure a conviction for murder, the state is required to prove all of the following elements: (1) unlawfulness, (2) killing, (3) person [that a human being died] and (4) intention,' says Maseko.

Often the most fertile ground for differences between the state and the defence in a criminal trial is around the issue of ‘intention', as Maseko elaborates: ‘The theory behind “intention” as a requirement for most offences in our law is that we are not a primitive society that condemns people for actions for which they do not have a guilty mind – that is to say, they have not deliberately and conscientiously caused harm to another while having all their mental faculties intact.'

While it could be a difficult concept for the average person to wrap his or her head around, the issue of ‘intention' is central to the Oscar case.

Intention is assessed subjectively and it is up to the judge to reach a decision about the accused's state of mind when the offence was committed. Depending on whether or not Oscar had a ‘guilty mind' would determine the crime on which he would be convicted, if any, and the amount of time he would spend in prison.

There are three different kinds of ‘intention':
dolus directus, dolus indirectus
and
dolus eventualis.

Dolus directus
is what we commonly associate with the word ‘intention'. It is a direct intention to commit a crime, where an accused deliberately acts in a way that is meant to bring about an unlawful consequence. His or her aim and object is to kill that person and he or she knows it's wrong but goes ahead and does it anyway. An example of this is if you decide to rob a corner café and the owner refuses to open the safe, at which point you shoot and kill him. You thus have a direct intention to kill. The assassin acts with
dolus directus
in respect of his or her ‘mark'.

Dolus indirectus
exists where, although it is not the accused's aim and object, he or she foresees the unlawful act or consequence as certain or as virtually certain. As an example, if your aim is to kill a person inside a car by throwing a hand grenade, which detonates, into the vehicle, you have a direct intention to kill the person but an indirect intention to cause malicious damage to the car.

Another example is a scenario in which you want to burn down your competitor's store in order to boost your own business. You know a homeless man sleeps in the store at night, which would be difficult to escape in the case of a fire as the lights would be off and the store is crowded with stock. Your aim and object is not to kill the man but to destroy the store, although you realise the man will almost certainly die in the fire. You therefore have indirect intention to kill the man.

Dolus eventualis
exists where the accused's aim and object is not to bring about the unlawful consequence that follows from his or her actions, but he or she foresees the possibility of the consequence and goes ahead with his or her action anyway. The accused accepts that there is a risk of a crime being
committed, and he or she proceeds nevertheless and the risk materialises. This form of intention is often referred to as ‘legal intention'. The tricky part about
dolus eventualis
is that the accused must be shown to have foreseen the outcome.

A classic example of acting with
dolus eventualis
is when you go duck hunting. If you find ducks on a lake and take aim at a duck, but, as you are about to fire, you notice that there are children playing on the opposite side of the lake. You realise that if you fire at the duck, you may miss, and the bullet could strike and kill one of the children. You really don't want to kill a child, but you really want to kill a duck. You then accept the risk of killing the child – shrugging it off as only a remote possibility. After all, you reassure yourself, you are an excellent shot. You pull the trigger, miss the duck, and strike and kill a child. On a charge of murder, you are liable for the murder of the child on the basis that you had intention in the form of
dolus eventualis
.

Another example of
dolus eventualis
is where you steal copper cable at a railway line, which results in trains colliding and commuters are injured or die. If you foresaw that tampering with the railway cabling may affect signalling and trains may collide with a tragic outcome but proceeded to tamper with the cabling, then you had
dolus eventualis
.

Another example is where you are in a bar when you see someone flirting with your girlfriend. You want to teach the guy a lesson so that he will never flirt with your girlfriend again and so you beat him up. You pick up a glass from the bar and smash it with full force into the side of the man's head. You know that a person can die if hit with force in the temple but you proceed to smash the man in the head anyway. Your aim and object is to assault the man, not to kill him, but you foresee the possibility of the man dying and proceed with the assault. The man falls to the ground unconscious and later dies of the head injury. You fulfil the definition of
dolus eventualis
– the law considers that you had intent to kill.

The presence of
dolus directus
or
dolus indirectus
or
dolus eventualis
can prove intent and would see the accused being convicted of murder – unless, of course, the accused has a defence that could show that he or she did not have intention to kill.

‘For the purposes of the law, the concept of intention has two components: (1) the accused's state of mind must fulfil the definition of a legally recognised form of intent (
dolus
) and (2) the accused must have knowledge of unlawfulness (in other words, put colloquially, ignorance of the law
is
a defence),' explains Kelly Phelps, a senior lecturer in the Public Law Department at the University of Cape Town. ‘If either 1 or 2 is missing there will be no intent to kill. In Pistorius's case
the defence he is raising is called putative private defence (mistaken belief in private defence) – in other words, he contends that he genuinely lacked knowledge of unlawfulness and therefore did not have intent to kill as defined by the law.'

For Oscar Pistorius to be convicted of murder, the state would have to prove that one of these types of
dolus
existed and that he had a ‘guilty mind', known by the Latin term
mens rea
, with an intention to kill.

However, he could be convicted of the lesser charge of culpable homicide. For this, the state would have to prove
culpe
– that Oscar was negligent or careless. This would mean that Oscar was ‘blameworthy' and, while he did not have the intention to cause anyone's death, the death nevertheless resulted from his negligent action.