The Background

On July 6, 2016 the notorious South African Olympic & Paralympic athlete, Oscar “The Blade Runner” Pistorius, was sentenced to 6 years in prison for murdering his partner, Reeva Steenkamp on Valentine’s Day 2013.

It has been a long, slow and tragic fall from grace for Pistorius, from fame to infamy in only months.

He had become a global hero for the disabled, a double-amputee who had become a national hero in South Africa for his track successes, a world class sprinter with prosthetic legs. At the conclusion of the Olympic games in 2012, Pistorius had carried his nation’s flag in the closing ceremonies.

On that fateful night that both changed his life, and took that of Reeva Steenkamp, Pistorious awoke to the sounds of an intruder in their home. Startled, and feeling vulnerable without his artificial legs, he fired 4 shots through a bathroom door to protect them both. Inadvertently, he testified, he killed Steenkamp behind the closed door.

Prosecutors at the trial maintained that Pistorius was a volatile man who loved guns, had killed Steenkamp in a rage after an argument, and then concocted a cover-up.

The Trial

The trial of Pistorius was long and acrimonious. The chief prosecutor, Gerrie Nell, clearly detested Pistorius, and allowed this sentiment to influence his conduct of the case. At common law, the role of the prosecutor is generally deemed to be a quasi-judicial office, imposing upon the prosecution a duty of responsibility to both the court and the community at large. In this context, the prosecution is expected to be a forceful advocate, but is also expected to wield the power of the state with discretion and temperance.

It cannot fairly be said that the prosecution in the Pistorius case met this high standard. ‘Mad dog’ was a common epithet applied to the prosecutor’s demeanour as he conducted the state’s case against Pistorius.

For his part, out of necessity, Pistorius testified in his own defence. He performed poorly. He either was not well prepared for this ordeal by his counsel, or he rejected the advice he was given. In the end result, he was a surprisingly poor witness, and a particularly evasive one, who damaged his own case while on the stand.

The Verdict At Trial

In September of 2014 this sad spectacle ground to a halt. The trial judge found Pistorius not guilty of murder, but guilty of the lesser and included offence of manslaughter. Remarkably, South Africa has no jury trials, rendering it unique in common law jurisdictions. In reaching the verdict that Pistorius was guilty of manslaughter, Judge Masipa erred in law.

With the assistance of the two ‘aides’ that South African law affords a trial judge, Judge Masipa found that, in firing four shots through his bathroom door, Pistorius would have had to foresee that his actions would kill Steenkamp specifically to be guilty of murder.

This is simply wrong in law.

If Pistorius had intended to kill whoever was in his bathroom – intruders or Steenkamp – he should have been found guilty of murder.

The law is clear that if a perpetrator wishes to kill person A, but in the effort to do so he kills person B instead, the perpetrator is still guilty of murder. The reason for this is that the perpetrator has committed the murderous act (actus reus) and had the intention (mens rea) to commit murder. This confluence of act and intention is all the law requires to found a conviction for murder, and the identity of the victim is of no import.

The Verdict on Appeal

In December of 2015, the Supreme Court of Appeal corrected the error of Judge Masipa, the trial judge, saying correctly that ‘the identity of the victim is irrelevant to his [Pistorius’] guilt’.

Having quashed Pistorius’ conviction for manslaughter, the five appellate judges continued to find Pistorius guilty of murder, wrongly refusing to order a new trial despite errors in the first trial.

The Supreme Court of Appeal manipulated two factors in play in the Pistorius appeal to reach the verdict that Pistorius was guilty of murder: the criminal intent necessary for murder and the findings of fact of the trial judge.

i) Criminal intent for murder

A major issue in the Pistorius trial was the working definition of the criminal intent necessary to convict for murder, and whether Oscar Pistorius had that necessary intent when he fired 4 bullets through the bathroom door.

The South African legal system relies upon an antiquated concept of criminal intent for murder known as dolus eventualis. It comes into play ‘when the perpetrator objectively foresees the possibility of his act causing death and persists regardless of the consequences, which suffices to find someone guilty of murder’.

The Supreme Court of Appeal, through Justice Eric Leach applied dolus eventualis to the issue of intent for murder of Pistorius as follows:

‘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 . . .’ .

Objective foresight (‘must have foreseen, and therefore did foresee’) of the possibility of causing death as the criminal intent for murder has been thoroughly discredited in enlightened criminal justice systems for more than a quarter century. The necessary criminal intent for murder in progressive jurisdictions is ‘subjective foreseeability of the likelihood of death’. In practical terms, objective foreseeability means that, in shooting through the bathroom door, Pistorius should have known that death was likely to result from his actions, but subjective foreseeability would have meant that Pistorius knew that death was likely to result.

Only the latter should be the proper legal test for the necessary intent for murder, imputing actual knowledge of the consequences of his actions to a murderer. The former constitutes only the criminal intent required for manslaughter or criminal negligence. Pistorius could not have been convicted on this basis in Canada.

As noted, The Court of Appeal correctly quashed Pistorius’ conviction for manslaughter, but proceeded to wrongly decide the issue of criminal intent for murder on the very questionable basis of dolus eventualis. To deny Pistorius a new trial, however, the Court of Appeal had to take one further step. The Court had to attack the findings of fact made by the trial judge on the circumstantial evidence introduced by the prosecution at trial, evidence which the trial judge declared to be insufficient to support a conviction for murder.

The Court of Appeal, simply and without ceremony, substituted its own views of the evidence for those of the trial judge. Judge Eric Leach, speaking for the Supreme Court of Appeal was quite candid in saying that the Court categorically rejected the findings of fact made by the trial judge:

‘As a result of the errors of law referred to, and on a proper appraisal of the facts, Pistorius ought to have been convicted not of culpable homicide [i.e., manslaughter] on that count but of murder’.

It is important to note Justice Leach’s phrase, ‘on a proper appraisal of the facts’. Elsewhere in his judgment, Leach J excoriated Judge Masipa for giving little weight to what Leach J strongly considered relevant circumstantial evidence , such as the type of ammunition favoured by Pistorius, or the testimony of neighbours about loud voices emanating from the Pistorius/Steenkamp residence that evening.

Legal observers contend that appeal court judges in South Africa routinely overturn verdicts reached by lower courts on the basis of their rejection of the findings of fact made by trial judges. The appellate judges in the Pistorius appeal, consonant with local custom, without hesitation, substituted their own views of the evidence (‘on a proper appraisal of the facts’) for those of the trial judge.

This is wrong in law.

Appellate judges in Canada and other common law jurisdictions are obliged to show deference to the findings of fact made by trial judges. Not to their decisions on the law, but to their findings of fact. Even if they would have reached different conclusions on the evidence, judges on appeal ought not to interfere with the findings of the trial judge. A trial judge has the great advantage of hearing and seeing witnesses in person, and thus measure their demeanour, credibility and reliability. Consequently, only where there is ‘palpable and overriding error’ should they intervene to correct a trial judge on the factual conclusions reached by the trial judge on the evidence.

The reasons for judgment of the trial judge reveal ‘no palpable or overriding error’, no finding that was obviously wrong. She thought the ammunition used by Pistorius had no connection to the fact that Steenkamp was shot through a door. And if neighbours heard raised voices, even loving couples had differences on occasion, and such arguments could not reasonably be seen as a motive for murder.

In the final result, the Supreme Court of Appeal found Pistorius guilty of murder, after a trial court had acquitted him of murder, on its own opinions of the evidence, opinions which differed radically from the findings of fact made by the better situated trial judge.

In all of these circumstances, the proper resolution for a reasonable appellate tribunal, properly constituted and applying the law to the facts before it, was to order a new trial for Oscar Pistorius. There was, however, little enthusiasm for the prospect of a new trial for Pistorius on the Court of Appeal. At least one of the appellate judges indicated that a retrial was not the preferred option.

In the final analysis, it is not clear on the evidence that Oscar Pistorius was guilty of murder. The prosecution’s case was far from overwhelming, and his defence of an honest but mistaken belief that intruders penetrated his home at night is far from ridiculous, especially in South Africa. A finding of manslaughter on the evidence at trial would not have been an unreasonable verdict. The Court of Appeal, however, wrongly substituted a verdict of guilty for murder rather than taking the path more just in the circumstances and ordering a new trial.

While it may be that South Africa undoubtedly did not want another trial for Pistorius, a court of appeal has a duty to come to a lawful and just decision, and be indifferent to the consequences of that decision – as well as to ’preferred options’. And a second trial could not possibly do more harm to the global image of South Africa than the first one had already done.

As the curtain falls, all the players on the stage of the Pistorius murder trial lose.

Oscar Pistorius loses because he will serve six years in prison for a crime that it is not clear in law that he committed.

Reeva Steenkamp, whatever crime Pistorius committed, senselessly lost her life. The South African criminal justice system doubles down and loses twice: once for its conduct of the trial, and once again for the result on appeal.

And South Africa loses because its global reputation remains at its customary low ebb in the wake of the Pistorius affair.