South Africa’s Supreme Court of Appeal grilled Oscar Pistorius’ attorney and a prosecutor yesterday as it weighed whether to convict him of murder for killing his girlfriend, uphold a lower court’s manslaughter conviction, or order a retrial.
Prosecutors say the North Gauteng High Court erred in convicting Pistorius of the lesser charge, insisting that he should have known someone could be killed when the double-amputee Olympian fired four times into a locked toilet cubicle in his home. In the trial last year, prosecutors said Pistorius, 28, killed Reeva Steenkamp as she sought shelter in the toilet cubicle during an argument on Valentine’s Day 2013. The defence said Pistorius opened fire because he thought an intruder was about to burst out of the toilet.
One of the five appeal court judges noted during the session yesterday, broadcast across the country and around the world on live TV, that Pistorius could still be convicted of murder even if he didn’t think it was Steenkamp in the cubicle but knew someone was in there. Under the concept of dolus eventualis in South African law, a person can be convicted of murder if they foresaw the possibility of someone dying through their actions and went ahead anyway.
“If you look at the photographs, there’s room behind there for a toilet bowl and a person and just about nothing else,” Justice Lorimer Leach said to defence lawyer Barry Roux. “There’s nowhere to hide. It would be a miracle if you didn’t shoot someone.”
The five judges questioned prosecutor Gerrie Nel and Roux for about three hours in the court in Bloemfontein, a city in central South Africa that is the country’s judicial capital, with Steenkamp’s mother June and many journalists in attendance. The toughest and longest questioning was directed at Roux.
In a bad sign for Pistorius, who was not present, some of the Supreme Court judges suggested he could have known he would kill someone, whether his girlfriend or a possible intruder, by firing his pistol. Prosecutors argue knowing his actions could be deadly, Pistorius should have been convicted of murder, and not the lesser offence of culpable homicide.
“On the objective facts, the accused cannot escape the conviction of murder,” Nel said.
Responding to a barrage of questions from Leach, defence attorney Roux said there was a space behind a wall in the toilet cubicle that could have been safe from gunfire, but acknowledged that the “probable consequence” of Pistorius shooting would have been injury or death.