Wednesday, October 8, 2014

Oscar Pistorius Trial 2: Did Judge Masipa Really Err?

This is the second article, which was posted on News24 and questions whether Masipa J, in her judgment finding Pistorius guilty of culpable homicide but not of murder, did make an error:

The Sunday Time proclaims, “Oscar Judge Under Fire “ (Sunday 14thSeptember 2014). It is so interesting that so much of the mainstream media who backed the wrong horse right the way through the trial now have to grasp at straws to cover up their bias. The focus of attack in the media now shifts to a judge who, just last week, was being hailed as a competent jurist, a champion for justice and women’s rights. Now she is criticized by every armchair expert as well as in certain legal circles. Yet, we are justified in asking whether the judge did err in any way in her application of the law of intent.
 In an article written by HJ Van Der Merwe in “Law, Democracy and Development” (Vol 17 2013 at p 64ff) the author makes it clear that the Supreme Court of Appeal (SCA) clarified the application of dolus eventualis in criminal matters in the Humphreys’ case on appeal. Dolus is a mental element of the crime of murder that is comprised of two parts: (1) that the accused foresaw as a real and substantial possibility that death would occur and (2) that the accused reconciled himself / was reckless or indifferent to that outcome. First, the accused must have foreseen the real and substantial possibility of death occurring and in the Humphreys’ case, the accused foresaw that outcome, but did not reconcile himself to that outcome and, therefore, was not guilty of murder. In Humphreys, the Appellate Division clarified this second aspect of dolus and I suspect that it was this second element that Judge Masipa found lacking - the accused in the Pistorius case was not indifferent / had not reconciled himself / was not reckless as to that outcome. Therefore, far from making a mistake of law, it shows that the judge has read and applied the Humphreys’ test for dolus correctly and that this is a clearer understanding and application of the law relating to this second aspect of dolus eventualis than the "experts" who have been so critical of the judge.
The verdict also points to the prosecutorial failure in the Pistorius case where the prosecution tried to establish "pre-meditated" murder despite the challenges of proving this where there were no reliable witnesses – an enterprise that was doomed before it began. Strangely enough, it was probably Gerrie Nel's bullying tactics that convinced the court that the accused did not reconcile himself / was not reckless or indifferent to the outcome that he had foreseen - he was clearly devastated by the outcome and showed remorse when attacked by the prosecution in the witness box. The prosecution also made a meal of the accused’s proficiency with firearms and, interestingly, in terms of the Humphreys’ judgment, it could well have been the accused’s proficiency with firearms that also convinced the judge that he had not fulfilled the recklessness aspect of dolus – it was because of the accused’s knowledge of firearms that he thought that he could shoot into that enclosed space without causing death.
 Clearly the judge has understood the law and applied it correctly and I suspect that there will not be an appeal by the prosecution. If there is one, it is doomed.  

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