Oscar’s fate known tomorrow
Former world icon Oscar Pistorius will have to wait until tomorrow to find out is his conviction was erroneous or if his sentence of five years for the death of Reeva Steenkamp was too lenient.
Paralympic athletics icon Oscar Pistorius will know tomorrow if the prosecution had convinced Judge Thokozile Masipa that she had erred in not finding him guilty of murder or by not giving him a much stiffer prison sentence.
State advocate Gerrie Nel this morning brought an application in the High Court in Pretoria for leave to appeal against the finding that Pistorius was guilty of culpable homicide for causing the death of his girlfriend Reeva Steenkamp in February last year and also against the “shockingly inappropriate” light sentence of five years behind bars for the crime.
He claimed that the court had made an error in law by not finding the athlete guilty of murder with a legal intent (dolus eventualis) and said there was a strong possibility that the Supreme Court of Appeal (SCA) could come to a different finding than Masipa had.
The application was opposed by defence lawyer Barry Roux, SC, who argued that Masipa’s findings had been factually correct – not a matter of law – and therefore the State had no legal right to ask for leave the appeal.
“The State has no right to appeal against factual findings even if the findings were wrong – not that it had been wrong in this case.
“This court had correctly applied the law based on its findings, the State simply did not like the court’s factual findings,” Roux argued.
Starting with his argument before Masipa, Nel said it was never easy to ask for leave to appeal and that the State did so with the utmost respect to the judge.
He said in her findings, the judge failed to give enough weight to the consequences of Pistorius’ actions on the night of the shooting and that she should have made the legal finding that the bilateral amputee should have foreseen the outcome of firing four shots into a tiny locked cubicle.
“The court should not have relied on the events which occurred after the shooting, matters such as his remorse during the trial and the fact that there were no railings for an amputee in prison bathrooms,” Nel argued.
He said Steenkamp had died in the most horrific circumstances and Pistorius had known there was someone in the toilet when he fired the four shots. “He knew that person could not escape.”
According to Nel, Masipa had exaggerated the element of mercy in sentencing Pistorius to such a light sentence and that it sent the wrong message to the public.
“This court incorrectly imposed the shortest period of incarceration it could possibly impose,” Nel said, especially based on the finding that his actions had been grossly negligent.
He said the court had found that Pistorius was not a truthful witness and therefore the judge should have rejected the “plethora” of different defences the athlete had relied on during trial. If the court had taken the circumstantial evidence into account, it would have rendered Pistorius’ version of events on the night of Steenkamp’s death impossible.
“This court should either have accepted or rejected Pistorius’ testimony as a whole,” Nel argued, adding that if Masipa had done so, the end result of the trial would have been different.
Nel said though the State was not in full agreement with some of the factual findings made by Masipa, his argument was based purely on the judge’s interpretation of the law.
Roux argued that every point raised by the State in its argument had been incorrect and that the trial court was in the best position to decide on the correct sentence.
He said that the court clearly made a factual finding that Pistorius had not foreseen the death of Steenkamp and that he had no intention to kill her.
“This is not a case where the court made an erroneous ruling in law and therefore another court may not make a different finding in fact,” he said, concluding that no part of the judgment had been legally incorrect, simply that the factual findings were disliked by the prosecution.
Masipa said she needed some time to think and said she would make her ruling at 9.30 on Wednesday.
Also read:
State’s bid to appeal Oscar case to be heard
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