This is translated and elaborated from an article, inspired by Marida Fitzpatrick, and published in the Beeld newspaper today (11 Sept 2014, see OSCAR: VAS OF VRY? http://www.beeld.com/nuus/2014-09-11-oscar-vas-of-vry via @Beeld_Nuus). It appears here subject to the disclaimer under which it was published. To be clear, Ulrich Roux and I wrote our respective pieces as an academic excercise to show what a guilty and not guilty verdict could look like; to help people to see both sides. We did not choose which verdict (guilty or not guilty) we would write; the views expressed are not necessarily our own views, and we don’t expect the court to necessarily adopt any of the views expressed.
The criminal onus requires that the state must prove its case beyond a reasonable doubt and that if there is a reasonable doubt as to the accused’s guilt, he must be acquitted. A doubt means nothing more than a possibility. Is there a reasonable possibility that the accused is not guilty? In a world in which, in a relevant sense, everything is possible, the question for us becomes whether any of these possibilities in the accused’s favour, are reasonable.
The evidence that there were moments of discontent in the relationship, that the accused may have threatened to break someone’s legs, and other evidence to the effect that the accused may be of “bad character” might, in some respects be technically admissible because the defence led evidence of the accused’s good character – as provided by s 197 of the Criminal Procedure Act or at common law. However, in line with the general reason why this sort of evidence is ordinarily inadmissible, especially that the accused is not on trial for being of “bad character”, we regard it as of such little weight that we have excluded it from our considerations.
The testimony of the “ear-witnesses” is clearly in a different league. While it is correct that is “circumstantial evidence” in that it requires the court to draw inferences, most evidence, even so called direct evidence still requires that the court must draw inferences. Furthermore, we know that circumstantial evidence is not necessarily weaker than direct evidence. It is trite that in our law the drawing of inferences from circumstantial evidence is governed by the “cardinal rules of logic” from S v Blom 1939 AD to the effect that: the inference sought to be draw must be consistent with the proved facts, and it must be the only reasonable inference. The evidence of Dr Lin was to the effect that it is entirely possible that a person would mistake a male scream for that of a female. He did concede that it is possible that person could accurately distinguish, but this concession does not assist in finding that it was a woman who screamed – as the only reasonable inference. This is just another way of saying that there appears to be a reasonable doubt as to whether the screaming that was heard, was that of the deceased.
We disagree with the prosecution that these two defences (involuntariness and putative private defence) are incompatible. It is not the case that involuntariness is a claim to not have been thinking, while putative private defence is a defence that the accused was thinking, albeit mistakenly. This is to misconceive involuntariness – it is not a claim that one was not thinking, only that, if one was thinking, whatever one was thinking did not control one’s conduct.In that case, the two defences proposed by the defence in the alternative are compatible and amount to the claim that the accused was under a mistaken belief that there was an intruder in his toilet and 1) in his heightened state of anxiety he got a fright and involuntary discharged his firearm; 2) he voluntarily discharged his firearm in putative private defence (the mistaken belief that he was entitled to kill whoever was in the toilet).
The defence raised by the accused that he discharged his firearm as a result of a “fright” is, in our view, the defence if involuntariness.A state of involuntariness prevails if the accused’s conduct was not under the control of his conscious mind (Burchell, Principles of Criminal Law 2013; S v Johnson 1969 (1) SA 201 AD; S v Chretien 1981 (1) 1097 AD). This court has stated on numerous occasions that a court is permitted to draw the natural inference that, ordinarily, conduct is voluntary and that if an accused wishes to claim involuntariness, he must provide some basis for this claim. (S v Henry (1) 1999 13 SCA). We are of the view that this basis was indeed provided in the evidence of Professors Derman and Vorster. In this, taken together with the evidence to the effect that the accused is an overly anxious person and likely to startle easily, we find a sufficient basis to place a reasonable doubt on the voluntariness of the accused’s conduct at the time of pulling the trigger.
In the absence of reliable evidence (particularly to the effect that the deceased was screaming that night) to support the version of the state as the only reasonable inference, we cannot accept the version proposed by the state. However, the question arises, on the accused’s own version whether we accept that there is a reasonable possibility that upon hearing a sound emanating from his bathroom, the accused immediately assumed an intruder or intruders had gained entrance to his home, that, throughout his response, until he fired the fatal shots, he continued to misinterpret further sounds and the situation generally as one of an attack, and that he did not foresee the possibility that he could be wrong and that it could be the deceased in the bathroom and toilet. Again, the question we must ask ourselves is not whether this could possibly be true – that is not enough for the accused. On the other hand, the question is also not whether we think this is true, nor whether this is what most likely or probably happened. The question is whether this could reasonably possibly have happened. Given that we have accepted that the accused is an overly anxious person, and that, ironically, because the State has convinced us that the accused is reckless with firearms, we are able to conceive of the reasonable possibility that he could have laboured under this mistake and fired his gun at the door in the mistaken belief that he was entitled to do so. This mistake excludes the intention to unlawfully kill and he cannot be convicted of murder.
See the article in the Beeld for Ulrich Roux’s guilty “verdict”. See also my article in the Telegraph to the effect that Oscar Pistorius is, in my view, in grave jeopardy: Legal View: Oscar Pistorius ‘in grave jeopardy’ of being convicted of Reeva Steenkamp’s murder | via @Telegraph http://fw.to/GnI3Kq