Oscar Pistorius Trial Judge Allows State Appeal

The judge in the Oscar Pistorius trial has ruled the state can appeal her judgment of culpable homicide and dismissal of the murder charge against Pistorius. She ruled that she can't say it's a remote possibility that the appeals court might rule differently on the legal issue of whether dolus eventualis applies.

She refused to allow the state to appeal Oscar's sentence for culpable homicide. She said that's a factual ruling and she made it based on the evidence presented. So if the appeals court upholds the judge's ruling dismissing the murder charge, his sentence cannot be increased.

Based on the cases she cited in her original ruling dismissing the murder charge, and some related cases in South Africa I looked at, I think the judge was correct in her legal ruling. I don't think the state proved Oscar had the necessary intent for a murder conviction. Dolus eventualis exists when an accused foresees that his conduct poses a risk that an unlawful killing might occur, reconciles himself to the risk, and decides to proceed anyway. There was no evidence Oscar contemplated that risk. He was operating under a mistaken assumption of fact. That his assumption was wrong does not translate to intent. Intent is a subjective test. [More...]

The issue is his actual state of mind at the time he fired his gun. If he genuinely, but mistakenly believed that an attack was imminent or his life was in danger, then he didn't have the necessary intent to commit an unlawful killing. There was no constructive intent (dolus eventualis.

Some quotes I assembled from various places:

Where the form of fault required for an offence is intention (such as for murder), the accused must intend to kill another human being, but also, to do so unlawfully – that is, s/he must know or foresee that s/he is unlawfully killing another human being.....As a result, an accused who is ignorant or mistaken as to the fact that s/he is killing another human being or that s/he is doing so unlawfully, has a valid and complete defence where the form of fault required is intention (murder).


In a case where the state has proven that an accused had shot and killed another person in his house in the absence of an attack on his life or property, it would be difficult to escape conviction for murder unless the accused is found to have acted in putative self-defence. Where an accused is found to have genuinely believed that his life was in danger and that he was using reasonable means to avert an attack on himself or his property, he may escape conviction for murder on the grounds that he lacked the requisite intention.

...As intention is tested subjectively, the pivotal question would be what the actual state of mind of the accused was at the time when he killed the victim. If an accused genuinely but mistakenly believed that an attack was imminent or that his life was in danger, the court will find that he lacked the intention to be convicted of murder.

Here's a 2011 widely cited case on dolus eventualis and a very recent one. From the latter:

The test for dolus eventualis is twofold: (a) Did the appellant subjectively foresee the possibility of the death of his passengers ensuing from his conduct; and (b) did he reconcile himself with that possibility…”.

...It is clear that the first element of dolus eventualis – subjective foresight of the possibility of death, as a result of his conduct, taking place – was present. Everything, then, turned on the second element. This element, said the Appeal court, had been explained by Jansen JA in S v Ngubane18, called the 'volitional element', which is present when the accused '''consents'' to the consequences foreseen as a possibility, he ''reconciles himself'' to it, he ''takes it into the bargain''.

There was no evidence Oscar contemplated that anyone other than the intruder was in the bathroom or that he might kill someone other than the intruder. Whether he should have known there was a possibility Reeva was in the bathroom is not the test. It's what he actually knew. Whether his belief was reasonable is the test for negligence, not intent.

In short, the state had to prove he intended to kill another human being, but also, he intended to do so unlawfully. If he never considered the possibility, then dolus eventualis shouldn't apply.

As to the weight the appeals court will give to the trial judge's ruling, here's a case on that:

In Rex v Dhlumayo 1948 (2) SA 677 (A) at 702, Davis AJA remarked that:
‘It would be most unsafe invariably to conclude that everything that is not mentioned [in a judgment] has been overlooked. … Lord Wright cites with apparent approval … the statement of Lord Buckmaster in Clarke’s case; [Clarke v Edinburgh and District Tramways Company (1919 S.C (H. L.), 35] with which Lord Atkinson had expressly associated himself, that
“Courts of appeal should not seek anxiously to discover reasons adverse to the conclusions of the learned Judge who has seen and heard the witnesses and determined the case on the comparison of their evidence.”’

Marais JA in S v Naidoo 2003 (1) SACR 347 (SCA) para 26 also emphasized the above quotation by saying the following:

‘In the final analysis, a Court of appeal does not overturn a trial Court’s findings of fact unless they are shown to be vitiated by material misdirections or are shown by the record to be wrong.’

I wouldn't call the judge's ruling a slam dunk for the state by any means.

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    This is a pretty informative link (5.00 / 1) (#2)
    by Reconstructionist on Thu Dec 11, 2014 at 10:08:10 AM EST
     Criminal Law of South Africa

    The link above is a general, scholarly summary of the S.A. law of criminal liability.

     On the left side of the page, the professor has links which set forth his views on the verdict and errors in reasoning he believes the judge committed. These are analytical but much more argumentative.

      Of particular interest might be:

      Pistorious remains in jeopardy of murder conviction

    Unsuccessful Attempts to Justify Judge Masipa's Errors

    Excellent links (none / 0) (#5)
    by jbindc on Thu Dec 11, 2014 at 11:25:59 AM EST
    Thank you.

    Here's an article (none / 0) (#7)
    by Jeralyn on Thu Dec 11, 2014 at 03:04:25 PM EST
    explaining why the judge's ruling was correct.

    In Oscar's case, the State failed to prove this "actual reconciliation" beyond a reasonable doubt. In fact, it was not the State's case that Pistorius foresaw that he was going to kill the "intruder" and reconciled itself to that possibility. Instead, quite befuddlingly, Advocate Nel (the State prosecutor) opted for what most of us thought was an impossible route - proving that Pistorius intended to kill Steenkamp.

    It is worth noting that saying  Pistorius "should have foreseen" that opening fire at the "intruder" would lead to the intruder's death is negligence, not intention. That is a "reasonable man" or objective standard. A subjective standard is what Pistorius actually foresaw and actually reconciled himself to, as the consequence of his actions.

    So If He Knew She Was In The Bathroom (none / 0) (#1)
    by RickyJim on Thu Dec 11, 2014 at 09:20:46 AM EST
    doesn't that show he didn't rely on a mistaken assumption about who was in there and thus he is guilty of murder?  He admitted to being outside the bathroom door and shouting for 20 seconds at the intruder and yet during that 20 seconds Reeva didn't tell him she was in there.  Was she too busy playing solitaire on her cellphone?  There is such a thing as unreasonable doubt.

    Interesting laws in S.A. (none / 0) (#3)
    by NYShooter on Thu Dec 11, 2014 at 10:51:06 AM EST
    Does this rule, permitting a different result than that issued by the presiding judge, replace the double jeopardy law as we know it in the U.S? Or, is that a totally different situation?

    different jurisdiction in the USA (5.00 / 1) (#4)
    by Reconstructionist on Thu Dec 11, 2014 at 11:07:44 AM EST
     have different standards as to what issues the prosecution may appeal in a criminal case and under what circumstances.

      An acquittal prevents an appeal by the prosecution based on the sufficiency or  the weight of the evidence. That includes both the factfinders acceptance or non acceptance of evidence and the inferences drawn from that evidence. That is considered

       The Double jeopardy clause does not prohibit all prosecution appeals.

      This is a recent SCoTUS CASE and in the first paragraph it cites Arizona v. Rumsey which explains the parameters onf DJ in the context of prosecution appeals and retrial, etc.

      But, states are free to have their own rules prohibiting appeals or retrials where the federal DJ clause would allow it.


    Thanks, (none / 0) (#6)
    by NYShooter on Thu Dec 11, 2014 at 11:28:30 AM EST
    gonna check out the links you provided.