The Oscar Pistorius Trial: What did he do? – David Dadic

DOLUS 2

At the time of concluding the State’s case it seemed to many people that Advocate Nel did so prematurely and that he hadn’t done enough in proving a solid enough case against Oscar to ensure a conviction. In fact there was even talk in some circles at the time that possibly the Defense would ask for a section 174 discharge due to insufficient evidence being lead by the State. I found this to be dumbfounding and in reflecting as to the reason why people felt this way, I reverted to an issue that had long been nagging at me ever since the inception of the trial. One that I have wanted to write about and deal with, but just simply hadn’t had the chance to get to in light of all that we have seen and heard to date. I actually wanted to write this piece before Oscar took the stand and shortly after the State concluded its case, as I felt it would be most relevant then. But after today’s testimony and the consequent flood of tweets I have received, I think there would be no better time.

The issue quite simply is, what crime is Oscar accused of having allegedly committed and equally what charge can he be convicted of? (I am not going to deal with the ammunition or unlawfully discharging of a firearm charges in this post). Now, it seems from almost all media channels, he stands accused of committing a crime known as premeditated murder. I don’t believe this to be the case, and I’m not even sure where this thinking may have started, but its development and evolvement into the psyche of the South African public as the crime with which Oscar has been charged has rapidly increased at levels that Oscar himself may have been proud of attaining in his chosen track events. No, the indictment is clear, he is charged with murder read with section 105 of the Criminal Law Amendment Act, which basically sets out he can receive life if convicted.

The fact is I am not sure we even actually have a crime called premeditated murder in South Africa, as far as I know (I must re-iterate, as I have on many occasions in the past, that I cut my teeth in my first 3 years of law practice in a small criminal firm, but haven’t touched it much since then, so I am very open to being proven incorrect in this regard), we follow the Roman Dutch principles of murder which can be divided into 3 differing sorts of murder crimes. I would think that possibly the premeditated characteristics would fall within the first one, but from what I know it certainly doesn’t stand alone.

Before looking at those 3 crimes I also want to deal with another smaller issue that seems has been confusing to my twitter followers and which I feel will play strongly into the clarifications below. Motive and intent are NOT the same thing! This difference must be clearly understood if we have any chance of progressing as young aspiring legal minds. Intent is essentially the subjective wrongful state of mind (dolus, you may have heard being bandied about) of the accused to which fault for the crime can be attached (he must know or at least foresee that his conduct is wrongful). It is essentially knowing that what you are about to do, or have done is wrong, but you continue nonetheless. Motive on the other hand relates to reasons or factors that exist in your life inducing you to do the wrongdoing. It is essentially external aspects surrounding the crime that make you do something wrongful such as a need for money, or perhaps finding out your lover is cheating on you. In many murders you have both, but while intent is necessary for murder motive is not.

So having broken that down let’s look at what competent crimes the state can try and prove against Oscar (It must be mentioned – again – that if the State doesn’t succeed in proving the main charge the court can convict and sentence on a lesser competent charge based on its assessment of the evidence before it). Also I want to highlight that all I will do at this point is describe the crimes (to the best of my ability) and give some indication of where the current evidence suits each crime (I do, of course, realize that for each one there has been counter argument/s as presented by the Defense in its cross examination of the State’s witnesses, but because we haven’t heard the Defense’s actual case yet, we can’t fully consider these arguments). You can then, with your ever improving legal minds assess and decide which of them best fits the evidence (don’t ask me for my opinion).

MURDER – DOLUS DIRECTUS

Dolus Directus (direct intent), is where the accused meant to perpetrate the prohibited conduct, or to bring about the criminal consequence and where the consequences of an action were both foreseen and desired by the perpetrator. You want to kill someone, so you shoot him. In this case the perpetrator had a specific victim in mind and then went about killing him (or her as my friend Rebecca Davis will no doubt remind me) and often does so with motive. I would think that, if anything, premeditated murder would fall within this category as it’s defined as the crime of wrongfully and intentionally causing the death of another human being after rationally considering the timing or method of doing so, in order to either increase the likelihood of success, or to evade detection or apprehension (I’m still to be convinced that this crime actually exists in SA). So, it’s not necessarily the planning of committing the crime beforehand, but can also be the calculated strategy in avoiding prosecution. So, is there evidence of this crime I hear you shouting? Well the State has lead some evidence that he intended to kill Reeva and had motive to do so, namely: screams of hers as heard by neighbors before and during shooting, text messages of alleged problems in their relationship and timing between bullets where he could have stopped but continued to fire. But most importantly I think is the evidence they will try show that he is lying under oath in an attempt to avoid prosecution i.e. the strenuous cross examination of his version.

MURDER – DOLUS INDIRECTUS

Dolus indirectus, (indirect intent), exists where, although the unlawful conduct or consequence was not the accused’s aim and object, he foresaw the unlawful conduct or consequence as certain or virtually certain. You want to kill someone and blow up his car while he and his family are in it, knowing that you will kill them as well by doing so. Not applicable in this instance.

MURDER – DOLUS EVENTUALIS

Dolus eventualis exists where the accused does not mean to actually cause the unlawful consequence which follows from his conduct, but foresees or should foresee the possibility of the consequences ensuing, and nonetheless proceeds with his conduct. An example would be of an assault where a perpetrator gets into a fight and uses a knuckle duster to beat up the victim, not actually intending to kill the victim, and the victim dies. It would be expected that he could have and should have foreseen such consequences and despite this reconciled himself with his conduct and persisted in the wrongful act. He would be charged with murder in such a scenario. Again what, if any, evidence of this crime has been lead by the State which could still convict Oscar of murder, albeit in a different form? In order to answer this question one must look at certain objective components of the act, which could in themselves be assessed as factors which should have had the upshot of Oscar at least foreseeing the death of the victim and thereby demonstrating his intent to kill. I would suggest the evidence lead in this regard comprise the following: firing four bullets into a confined area, using black talon bullets, distance from the door when shooting, type of firearm used. It’s important to understand that in this crime, the identity of victim and existence of motive are not in question, what is in question is whether the conduct itself and the way it was done suffices as in intent to kill. Also it’s said that the more the combined objective factors point in the direction of foreseeability the more the existence of subjective intent.

CULPABLE HOMICIDE

Culpable homicide has been defined simply as the unlawful negligent killing of a human being. The essential difference with this crime from those mentioned above lies in the fact that the fault in this crime stems from negligence (culpa) and not intent. The test in determining whether the accused is guilty of this crime lies in the question – “what a reasonable person would have done given the same circumstances?” But this reasonable man test doesn’t lie in isolation, one must still look at certain subjective factors relating to the accused himself which could elevate or decrease his reasonability. In this case Oscar is a certified and licensed firearm owner, which comes from writing certain formal tests where he was given exact violent or possibly violent situations, and asked how he would react in each situation. So, he is no longer tested as simply the reasonable person but rather as the “reasonable gun owner”. Would other reasonable gun owners have done the same thing? The evidence of Sean Rens relating to the gun tests taken by Oscar obviously set up the state’s case in this regard.

So there you have it. These are, for me, the competent crimes which Oscar could be convicted based on the evidence currently before the court, and I would suggest the State has certainly mad a case for one or more (who would want to be a judge, right?). I must stress again that I haven’t dealt with any of the defenses raised to the said crimes in this post, but believe me I am fully aware of their existence and greatly appreciate all arguments relating to such defenses (fear, psychology of a disabled, police incompetence etc.). I will, of course, deal with the defenses in a future post when we have heard more of the Defense’s case.

*certain definitions and explanations have been sourced and referenced from other works, and I of course credit those writers and thank them for their material.

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