OSCAR Pistorius’s lawyers fought yesterday to keep him from returning to jail as state prosecutors argued for a murder conviction in a combative appeal hearing two weeks after he was released.
The Paralympic sprinter, 28, was found guilty last year of culpable homicide after shooting dead his girlfriend, former Port Elizabeth model Reeva Steenkamp, 29, through the toilet door at his Pretoria home on Valentine’s Day in 2013.
During sharp exchanges between his lawyer and the five judges at the Supreme Court of Appeal in Bloemfontein, the killing was relived again in a packed courthouse that included Steenkamp’s mother, June.
“I’m here to support Gerrie Nel and the team,” she said.
Pistorius, who has not been seen in public since his release, did not attend the hearing.
At the crux of the appeal was how trial judge Thokozile Masipa interpreted the principle of dolus eventualis under which she acquitted Pistorius of the murder charge.
The principle means that an accused who foresees that someone may be killed, reconciles himself with that possibility and proceeds, may be found guilty. “[Masipa’s] analysis of dolus eventualis seems to me to be wrong,” one of the appeal judges, Judge Eric Leach, said.
“When he fired the bullets, did he know there was somebody behind the door? We’re talking about intent.”
Pistorius’s lawyer, Barry Roux, argued that the trial verdict could not be challenged on its factual findings.
“[The judge] was saying, ‘My factual finding is that when he fired the shots thinking it was an intruder, he genuinely believed the deceased was in the bedroom’.” But Leach wanted to know whether there was anything in the judgment that showed Pistorius’s life was in danger.
Roux countered that the trial court found there was nothing to show that Pistorius’s belief of danger was not honest.
Roux faced tough questioning from Leach, who said when Pistorius fired shots through the door, he knew there was “no place to hide” in the toilet.
The judges were also concerned with whether Masipa considered all evidence presented in reaching her findings and whether the questions reserved for appeal court determination were questions of fact or law.
The Criminal Procedure Act does not permit the prosecution to bring an appeal based on questions of fact.
State prosecutor Gerrie Nel argued that Pistorius should be convicted of murder as the athlete had intended to kill whoever was behind the toilet door through which he had fired four bullets.
Nel also said there was a fragmented approach by the high court in the evaluation of circumstantial evidence, including the failure to consider the evidence of ballistics expert Captain Chris Mangena.
Mangena testified that there was a break between the four shots fired by Pistorius, implying Steenkamp could have screamed and identified herself. Roux denied this. The court reserved judgment on the case, and is expected to take some weeks before announcing its decision.
The National Prosecution Authority appeared confident of success, with spokesman Luvuyo Mfaku saying very persuasive and compelling arguments had been presented.
Pistorius was released on October 19 – just one year into his five-year jail term – to spend the remainder of his sentence under house arrest at his uncle’s mansion in Pretoria.
If found guilty of murder, he would face a minimum of 15 years in prison.
Experts said the appeal judges could alter the trial verdict and send the case back to the high court.
Pistorius may also make his own appeal to the Constitutional Court.
But defence lawyers said Pistorius could not afford further legal battles, having already paid huge bills.
-Ernest Mabuza and AFP