Excerpts from the judgement of South Africa's Supreme Court of Appeal, finding athlete Oscar Pistorius guilty of murder. Justice Eric Leach wrote on behalf of a unanimous court comprising five judges:
[1] This case involves a human tragedy of Shakespearean proportions: a young man overcomes huge physical disabilities to reach Olympian heights as an athlete; in doing so he becomes an international celebrity; he meets a young woman of great natural beauty and a successful model; romance blossoms; and then, ironically on Valentine's Day, all is destroyed when he takes her life. The issue before this court is whether in doing so he committed the crime of murder, the intentional killing of a human being, or the lesser offence of culpable homicide, the negligent killing of another.
[2] It is common cause that in the early hours of 14 February 2013 the respondent, Mr Oscar Pistorius, shot and killed the 29 year old Miss Reeva Steenkamp at his home in a secured complex known as Silver Woods Country Estate in the district of Pretoria. Pursuant to this, he was tried in the Gauteng Division of the High Court, Pretoria on several charges, including one of the murder of Miss Steenkamp. Throughout the proceedings in the trial court, the respondent was referred to as 'the accused' and, for convenience, I intend to do so as well. I trust that those near and dear to her will forgive me if I refer to Miss Steenkamp at times by her given name of Reeva, although I shall endeavour to do so only where it is necessary to emphasize her identity. I shall otherwise refer to her simply as 'the deceased'.
[3] The proceedings in the trial court were attended by unprecedented publicity. As far as I am aware, for the first time in the history of this country the trial was covered on live television (as was the appeal in this court). Although I did not follow the proceedings closely, it was impossible not to learn that although it was common cause that the accused had shot and killed the deceased, the trial court had found him not guilty of her murder but guilty of culpable homicide. Contending that the trial court erred on certain legal issues, the Director of Public Prosecutions, with leave of the trial court, now appeals to this court on questions of law reserved, arguing that the appropriate conviction would be one of murder.
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[14] It was common cause at his trial that the accused was responsible for the death of the deceased in that he had fatally injured her when he fired four shots with a 9 mm pistol through the door of a toilet cubicle in the bathroom adjacent to his bedroom. Relying upon a web of circumstantial evidence, including the screams that had been heard before the sound of the shots that the accused had fired, the State attempted to persuade the trial court that the accused had threatened the deceased during the course of an argument, that she had locked herself into the toilet cubicle in the bathroom to escape from him, and that he had thereupon fired the fatal shots through the door and killed her.
[15] The accused, on the other hand, alleged that he had awoken from his sleep in the early hours of the morning. It was very warm and, when he sat up, he noticed that two fans he had earlier positioned near the sliding door in the room leading onto a balcony were still running and the door was still open. Although it was dark in the room, he was aware that the deceased was awake in the bed next to him as she rolled over and spoke to him. He got out of bed, brought the two fans into the room, closed and locked the sliding doors, and drew the curtains. It was very dark in the room, the only light being from a small LED on an amplifier at the TV cabinet. He noticed a pair of jeans lying on the floor, and had just picked them up in order to place them over the amplifier to cover the light when he heard the sound of a window opening in the bathroom. The bathroom is situated not directly adjacent to the bedroom but down a short passage lined with cupboards. He immediately thought that there was an intruder who had entered the house through the bathroom window, possibly by climbing up a ladder. He quickly moved back to his bed and grabbed his 9mm pistol from where he kept it under the bed. As he did so, he whispered to Reeva to 'get down and phone the police' before proceeding to the passage leading to the bathroom. He was not wearing his prosthetic legs at that stage and, overcome with fear, he started screaming and shouting both for the intruder to get out of his house and for Reeva to get down on the floor and to phone the police. When he reached the entrance to the bathroom, he stopped shouting as he was worried that the intruder would know exactly where he was. As he neared the bathroom he heard the toilet door slam.
Photographs of the bathroom showed that facing the passageway entrance there is a shower cubicle immediately adjacent to a toilet cubicle, the latter having an external window. The toilet cubicle is fitted with a door, and is very small. Also in the bathroom is a triangular built-in corner bath, immediately to the left as one enters.
[16] According to the accused, he had his pistol raised in a firing position with his arm extended ahead of him. Peering around the wall at the end of the passage, he saw that there was no one in the bathroom itself but that the toilet door was closed. He alleged that at that point he started screaming again, telling Reeva, who he presumed was in the bedroom, to phone the police. He then heard a noise coming from inside the toilet and promptly fired four shots at the door. After that he retreated to the bedroom where he found that Reeva was no longer there. It then dawned on him that it could be her in the toilet. In panic he went back to the bathroom and tried to open the door, but found it to be locked. He then started screaming for help, put on his prosthetic legs, and unsuccessfully tried to kick open the door. He then grabbed a cricket bat which he used to bash out a piece from the door, and seeing the key lying on the toilet floor, he unlocked the door and found Reeva slumped with her weight on the toilet bowl. She was not breathing. He held her, and at some point thought he heard her breathing. And so he pulled her into the bathroom before telephoning another resident of the estate, Mr Stander, (the phone call was made at 3:19) followed by the emergency number of Netcare 911, a paramedic organisation (at 3:20), and then the estate's security (some 90 seconds later). He thereafter carried Reeva down the stairs where he was found, first by Mr Stander and shortly thereafter by Dr Stipp, when they arrived at the house.
[17] With ample justification, the court found the accused to have been 'a very poor witness'. His version varied substantially. At the outset he stated that he had fired the four shots 'before I knew it' and at a time when he was not sure if there was somebody in the toilet. This soon changed to a version that he had fired as he believed that whoever was in the toilet was going to come out to attack him. He later changed this to say that he had never intended to shoot at all; that he had not fired at the door on purpose and that he had not wanted to shoot at any intruder coming out of the toilet. In the light of these contradictions, one really does not know what his explanation is for having fired the fatal shots, an issue to which I shall revert in due course. There were other inherent improbabilities in his version, some of which were mentioned by the trial court in its judgment.
[18] It is not necessary to examine the accused's credibility in any greater detail for purposes of this judgment as, despite these deficiencies, the trial court concluded that it had not been shown that the State's version ─ that there had been an argument between the accused and the deceased which had led to her fleeing to lock herself into the toilet and him then shooting her through the door ─ was true beyond a reasonable doubt; and that the State had not shown that the accused had fired at the toilet door for any reason other he had thought there was an intruder behind it. It therefore concluded that it could not be said that the accused did not entertain a genuine belief that there was an intruder in the toilet who posed a threat to him, and therefore 'he cannot be found guilty of murder dolus directus'. Although it is not clear from the judgment, this finding appears to have been based on the reasoning that the accused could not be found guilty of murder with direct intent as he had not known Reeva was in the toilet (the correctness of this latter conclusion was not an issue raised in this appeal).
[19] Importantly, the trial court went on to find that the accused, in shooting as he did, had not done so with so-called legal intent or dolus eventualis (an issue that lies at the heart of this appeal). However, it found that the shooting had been unlawful and that, although the accused had not had the necessary intention to kill the deceased, he had done so negligently and was therefore guilty of culpable homicide. The accused was thereupon sentenced to five years' imprisonment capable of being converted to correctional supervision under s 276(1)(i) of the [Criminal Procedure Act] CPA.
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[25] It is necessary to explain certain of the issues that arise for consideration in a murder case. Over the years jurists have developed what has been referred to as the 'grammar of criminal liability'. As already mentioned, murder is the unlawful and intentional killing of another person. In order to prove the guilt of an accused on a charge of murder, the State must therefore establish that the perpetrator committed the act that led to the death of the deceased with the necessary intention to kill, known as dolus. Negligence, or culpa, on the part of the perpetrator is insufficient.
[26] In cases of murder, there are principally two forms of dolus which arise: dolus directus and dolus eventualis. These terms are nothing more than labels used by lawyers to connote a particular form of intention on the part of a person who commits a criminal act. In the case of murder, a person acts with dolus directus if he or she committed the offence with the object and purpose of killing the deceased. Dolus eventualis, on the other hand, although a relatively straightforward concept, is somewhat different. In contrast to dolus directus, in a case of murder where the object and purpose of the perpetrator is specifically to cause death, a person's intention in the form of dolus eventualis arises if the perpetrator foresees the risk of death occurring, but nevertheless continues to act appreciating that death might well occur, therefore 'gambling' as it were with the life of the person against whom the act is directed. It therefore consists of two parts: (1) foresight of the possibility of death occurring, and (2) reconciliation with that foreseen possibility. This second element has been expressed in various ways. For example, it has been said that the person must act 'reckless as to the consequences' (a phrase that has caused some confusion as some have interpreted it to mean with gross negligence) or must have been 'reconciled' with the foreseeable outcome. Terminology aside, it is necessary to stress that the wrongdoer does not have to foresee death as a probable consequence of his or her actions. It is sufficient that the possibility of death is foreseen which, coupled with a disregard of that consequence, is sufficient to constitute the necessary criminal intent.
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[The appeal court went on to outline the trial judge's reasoning as to whether Pistorius acted with dolus eventualis when he fired the fatal shots through the door of the toilet cubicle.]
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[32] What was in issue, therefore, was not whether the accused had foreseen that Reeva might be in the cubicle when he fired the fatal shots at the toilet door but whether there was a person behind the door who might possibly be killed by his actions. The accused's incorrect appreciation as to who was in the cubicle is not determinative of whether he had the requisite criminal intent. Consequently, by confining its assessment of dolus eventualis to whether the accused had foreseen that it was Reeva behind the door, the trial court misdirected itself as to the appropriate legal issue.
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[The court then dealt with whether the legal principles relating to circumstantial evidence were correctly applied.]
[40] All of this was circumstantial evidence crucial to a decision on whether the accused, at the time he fired the fatal four shots, must have foreseen, and therefore did foresee, the potentially fatal consequences of his action. And yet this evidence was seemingly ignored by the trial court in its assessment of the presence of dolus eventualis. Had it been taken into account, the decision in regard to the absence of dolus eventualis may well have been different. In the light of the authorities I have mentioned, to seemingly disregard it must be regarded as an error in law.
[41] Consequently, the first two questions reserved for decision must be answered in favour of the prosecution to the extent that I have indicated. I thus turn to the third question, namely, whether the trial court was correct 'in its construction and reliance of an alternative version of the accused and that this alternative version was reasonably possibly true'. The question as posed is vague. Questions reserved for decision under s 319 of the CPA should be clearly formulated so that this court can identify with precision the legal issue it is called upon to decide. At best for the State, the question asks no more than whether the accused's version accepted by the trial court was reasonably possibly true. This is a factual decision. As already set out, and on the strength of the authorities to which I have referred, a finding of fact falls beyond the scope of what this court may decide under s 319.
In any event, in the light of my findings in regard to the first two questions, the third question, even if it can be construed as being a point of law, seems superfluous.
[42] To summarise, in regard to the questions of law reserved for decision of this court:
(1) The principles of dolus eventualis, including error in objecto, were incorrectly applied to the facts found to be proved relevant to the conduct of the accused; and
(2) The trial court did not correctly conceive and apply the legal principles pertaining to circumstantial evidence.
[43] The question then becomes, what should this court do in the light of these findings? ... ..
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[48] In arguing that the State had failed to show that the accused lacked the necessary subjective intention in respect of both elements of dolus eventualis, counsel for the accused emphasised the accused's physical disabilities, the fact that he had not been wearing his prostheses at the time and that he had thus been particularly vulnerable to any aggression directed at him by an intruder. He also placed considerable emphasis on the psychiatric evidence that the accused suffers from a general anxiety disorder, and would become anxious very easily in a situation of danger, although he also has a 'fight rather than flight' reaction. The argument appears to have been that in the circumstances that prevailed, the accused may well have fired without thinking of the consequences of his actions.
[49] In my view this cannot be accepted. On his own version, when he thought there was an intruder in the toilet, the accused armed himself with a heavy calibre firearm loaded with ammunition specifically designed for self-defence, screamed at the intruder to get out of his house, and proceeded forward to the bathroom in order to confront whoever might be there. He is a person well-trained in the use of firearms and was holding his weapon at the ready in order to shoot. He paused at the entrance to the bathroom and when he became aware that there was a person in the toilet cubicle, he fired four shots through the door. And he never offered an acceptable explanation for having done so.
[50] As a matter of common sense, at the time the fatal shots were fired, the possibility of the death of the person behind the door was clearly an obvious result. And in firing not one, but four shots, such a result became even more likely. But that is exactly what the accused did. A court, blessed with the wisdom of hindsight, should always be cautious of determining that because an accused ought to have foreseen a consequence, he or she must have done so. But in the present case that inference is irresistible. A person is far more likely to foresee the possibility of death occurring where the weapon used is a lethal firearm (as in the present case) than, say, a pellet gun unlikely to do serious harm. Indeed, in this court, counsel for the accused, while not conceding that the trial court had erred when it concluded that the accused had not subjectively foreseen the possibility of the death of the person in the toilet, was unable to actively support that finding.
In the light of the nature of the firearm and the ammunition used and the extremely limited space into which the shots were fired, his diffidence is understandable.
[51] In these circumstances I have no doubt that in firing the fatal shots the accused must have foreseen, and therefore did foresee, that whoever was behind the toilet door might die, but reconciled himself to that event occurring and gambled with that person's life. This constituted dolus eventualis on his part, and the identity of his victim is irrelevant to his guilt.
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[52] As a final counter to the State's case, it was argued that although the accused had not acted in private or so called 'self-defence' ─ there had in fact been no attack upon him that he had acted to ward off ─ he had genuinely but erroneously believed that his life was in danger when he fired the fatal shots. As opposed to what is commonly known as self-defence, this is so-called 'putative' private or self-defence.....
[53] The immediate difficulty that I have with the accused's reliance upon putative private defence is that when he testified, he stated that he had not intended to shoot the person whom he felt was an intruder.
This immediately placed himself beyond the ambit of the defence, although as I have said, his evidence is so contradictory that one does just not know his true explanation for firing the weapon. His counsel argued that it had to be inferred that he must have viewed whoever was in the toilet as a danger. But... the defence of putative private defence implies rational but mistaken thought. Even if the accused believed that there was someone else in the toilet, his expressed fear that such a person was a danger to his life was not the product of any rational thought. The person concerned was behind a door and although the accused stated that he had heard a noise which he thought might be caused by the door being opened, it did not open. Thus not only did he not know who was behind the door, he did not know whether that person in fact constituted any threat to him. In these circumstances, although he may have been anxious, it is inconceivable that a rational person could have believed he was entitled to fire at this person with a heavy calibre firearm, without taking even that most elementary precaution of firing a warning shot (which the accused said he elected not to fire as he thought the ricochet might harm him). This constituted prima facie proof that the accused did not entertain an honest and genuine belief that he was acting lawfully, which was in no way disturbed by his vacillating and untruthful evidence in regard to his state of mind when he fired his weapon.
[54] In order to disturb the natural inference that a person intends the probable consequences of his actions, the accused was required to establish at least a factual foundation for his alleged genuine belief of an imminent attack upon him. This the accused did not do.
Consequently, although frightened, the accused armed himself to shoot if there was someone in the bathroom and when there was, he did. In doing so he must have foreseen, and therefore did foresee that the person he was firing at behind the door might be fatally injured, yet he fired without having a rational or genuine fear that his life was in danger.
The defence of putative private or self-defence cannot be sustained and is no bar to a finding that he acted with dolus eventualis in causing the death of the deceased.
[55] In the result, on count 1 in the indictment the accused ought to have been found guilty of murder on the basis that he had fired the fatal shots with criminal intent in the form of dolus eventualis. As a result of the errors of law referred to, and on a proper appraisal of the facts, he ought to have been convicted not of culpable homicide on that count but of murder. In the interests of justice the conviction and the sentence imposed in respect thereof must be set aside and the conviction substituted with a conviction of the correct offence.
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[57] Before closing, it is necessary to make a final comment. The trial was conducted in the glare of international attention and the focus of television cameras which must have added to the inherently heavy rigors that are brought to bear upon trial courts in conducting lengthy and complicated trials. The trial judge conducted the hearing with a degree of dignity and patience that is a credit to the judiciary. The fact that this court has determined that certain mistakes were made should not be seen as an adverse comment upon her competence and ability. The fact is that different judges reach different conclusions and, in the light of an appeal structure, those of the appellate court prevail. But the fact that the appeal has succeeded is not to be regarded as a slight upon the trial judge who is to be congratulated for the manner in which she conducted the proceedings.
