Oscar Pistorius is also found guilty of one weapons charge, but not guilty of murdering Reeva Steenkamp
Oscar Pistorius has been found guilty of culpable homicide, after yesterday being cleared of murdering Reeva Steenkamp on Valentine’s Day last year. Reading from her written judgment, Judge Thokozile Masipa told the court that there was not enough evidence to prove beyond reasonable doubt that the athlete was guilty of premeditated murder or murder. He was also found guilty on one firearms charge, but acquitted on two others. Pistorius could face up to 15 years in jail on the culpable homicide charge, but he will not be sentenced until next month.
Here is what has been heard so far:
Noon: Judge Masipa returns to give her ruling on Pistorius’s bail application. She recaps on the arguments made by defence lawyer Barry Roux and prosecutor Gerrie Nel. The judge says that if the prosecution was so concerned that Pistorius had sold his properties, then it would have investigated the matter long ago and brought it to the court’s attention. She has therefore granted the defence’s bail application. Masipa agrees to adjourn until 13 October.
10.20am: Defence lawyer Barry Roux and prosecutor Gerrie Nel are putting forward their arguments for whether or not Pistorius should be given bail. Roux says his client’s existing bail agreement should be valid until the sentence is imposed. The athlete has complied with all his bail conditions and detaining him would make it difficult for the defence team to prepare its submissions for sentencing, he says.
Nel points out that Pistorius has now been convicted of causing “the death of an innocent woman”. He suggests that “lengthy imprisonment” is probable and the athlete now knows for a fact that he has been convicted. The prosecutor says Pistorius has sold his house and, although he has no evidence to prove it, he can “draw an inference” that Pistorius sold it so he did not have to stay in South Africa. Nel also mentions the incident at a nightclub in which Pistorius was allegedly involved and says that Pistorius is a suicide risk.
Roux says Pistorius’s appearance at the nightclub was a mistake and that his client now accepts he cannot go to such public places. He says that the athlete sold his property to pay for legal costs and is not planning to go abroad. In a controversial move, the lawyer reads out the address of Pistorius’s Uncle Arnold, with whom the athlete has been staying for 18 months.
Judge Masipa adjourns the court to consider her decision, with Pistorius taken to the cells for the duration of the break.
9.20am: Masipa recaps the four counts against Pistorius and her findings. She repeats again that the state did not prove beyond reasonable doubt that Pistorius was guilty of premeditated murder or murder. Today, she is giving a detailed legal explanation of why she acquitted Pistorius of murder dolus eventualis – a decision which received some criticism from legal experts yesterday. Finally, Masipa asks Pistorius to stand and announces:
- Count one: not guilty of murdering Reeva Steenkamp, but guilty of culpable homicide
- Count two: not guilty of firearms charge relating to sunroof incident
- Count three: guilty of negligence in regards to firearms charge relating to Tashas restaurant
- Count four: not guilty of firearms charge relating to possession of illegal ammunition
Masipa then moves straight onto the issue of whether or not witness Darren Fresco should receive indemnity from prosecution for his evidence. Despite earlier describing some of his testimony as “dishonest”, she allows him indemnity.
9.10am: Pistorius’s final firearms charge is the illegal possession of .38 ammunition in his Pretoria home. The athlete did not have a gun that takes that ammunition, but neither did he have a permit to be in possession of the ammunition. Pistorius told the court the bullets belonged to his father and he had them for safe-keeping, although his estranged father declined to sign an affidavit to confirm that the ammunition was his own. Masipa says the accused must have the “necessary mental intention to possess a firearm or ammunition before there can be a conviction”. The state failed to prove that Pistorius had the necessary mental intention to possess the ammunition, she says. Therefore, he cannot be found guilty on this count.
9am: The second firearms charge faced by Pistorius relates to an incident in January, before Steenkamp’s death, when a Glock pistol went off while in his possession in a Johannesburg restaurant called Tashas. Masipa says Pistorius may not have intended to fire the gun, but this “does not absolve” him from the crime of negligence. Masipa says she accepts in full the evidence of state witness Kevin Lerena. Pistorius was trained in firearms, she says. “He should not have asked for a firearm in a restaurant full of patrons.” The state has proved beyond reasonable doubt that he is guilty on this count, says the judge.
8.50am: Masipa begins with Pistorius’s two charges of discharging firearms in public. The athlete is accused of firing a gun out of an open car sunroof in September 2012 while in the car with his girlfriend at the time, Samantha Taylor, and his friend Darren Fresco. Fresco was “not an impressive witness at all”, in fact he was proved to be a “dishonest witness”, says the judge. For example, Fresco claimed Pistorius had driven at 260km an hour, but it later emerged that it was Fresco driving at the time. Masipa says this does not always mean a witness’s whole evidence is tainted, but caution is warranted. The relationship between Taylor and Pistorius did not “end amicably” and it was clear that she had been “hurt”. Masipa says this does not necessarily mean she was out to implicate the accused, but again her evidence must be taken with “a certain degree of caution”. As Pistorius denied the incident, it is up to the prosecution to prove that it happened. Masipa announces that the state has failed to establish that the accused is guilty beyond reasonable doubt on this count and therefore has to be acquitted on one charge of discharging firearms in public.
Why wasn’t Oscar Pistorius convicted of murder?
Oscar Pistorius murder verdict as it happened – day one
1.15pm: Judge Masipa is back in court after a lunch break and is looking at the charge of culpable homicide. The question is whether or not Pistorius acted as a “reasonable” person would in the same situation. In the “reasonableness” test, the court must take into account the accused’s background, level of education and gender. The defence has argued that Pistorius’s disability should be taken into account when judging if he acted “reasonably”
Masipa says there were other paths that Pistorius could have taken rather than reaching for his firearm, such as calling security or the police, or screaming from his balcony for help. Masipa agrees that Pistorius’s conduct might be better understood by looking at his background, but she says this serves only as an explanation not an excuse. Many people in South Africa have been victims of violent crime, she says, but they have not resorted to “sleeping with firearms under their pillows”.
The judge says she is “not persuaded” that a reasonable person with the accused’s disabilities would have fired four shots into that small toilet cubicle and says they would have foreseen that whoever was behind the door might have been struck by a bullet and die. Pistorius knew there was a person behind the door, he chose to use a firearm and was competent in the use of firearms as he had undergone some training, she says. The judge says it is her view that Pistorius acted “too hastily” and used “excessive force”. It is clear that Pistorius was negligent, she says.
11.30am: Masipa looks at whether Pistorius could have subjectively foreseen that Steenkamp was behind the closed door when he fired the shots. She says the evidence does not support the state’s contention that he did. From the onset, the accused believed at the time that the deceased was in the bedroom, she says. Masipa notes that he immediately told the first witnesses at the crime scene that he had thought Steenkamp was an intruder and was genuinely distraught. She adds that Pistorius “did not subjectively foresee this as a possibility that he would kill the person behind the door, let alone the deceased”. Judge Masipa says Pistorius cannot be found guilty of murder dolus eventualis, a legal term for the accused being aware of the outcome of his or her action.
11.15am: Masipa says the essential question is whether or not there is reasonable doubt that Pistorius intended to kill on 14 February 2013. On the count of premeditated murder, the judge says the evidence is “purely circumstantial” and that the state has failed to prove beyond reasonable doubt that Pistorius is guilty of premeditated murder.
Masipa says Pistorius was a “very poor witness”. He was composed and logical in evidence in chief, but lost his composure under cross-examination. She says it does not make sense to argue this was because he was suffering from emotional distress because his initial evidence could not be faulted. He was an “evasive witness”, she says, and appeared to be more worried about the impact of his answers than the answers themselves. However, she says, untruthfulness in a testimony does not necessarily prove guilt.
Masipa says Steenkamp was killed under “peculiar” circumstances and some aspects “do not make sense”. Why did Pistorius not ascertain if Steenkamp had heard the perceived burglar or his own calls for her to phone the police, asks Masipa. She points out that Steenkamp had her phone with her in the toilet, yet never called the police.
10.50am: Judge Masipa says that “without a doubt” the court is “dealing with a plethora of defences”. First, she says, is whether Pistorius lacked criminal capacity at the time he killed the deceased. The judge points to his mental health evaluation which found that he “did not suffer from a mental illness or defect that would have rendered him criminally not responsible for the offence charged”. She disagrees with the defence’s claim that a reflex reaction is similar to lacking capacity. Pistorius, by his own admission, decided to arm himself and go to the bathroom, she says. This was a “conscious” decision and inconsistent with the lack of criminal capacity defence. Masipa says she is satisfied that the accused could distinguish between right and wrong and act in accordance with that distinction at the time of the killing.
Masipa turns to the defence of putative self-defence, where the accused uses reasonable means to defend himself against a genuinely held fear of attack. She notes that Pistorius’s testimony was “contradictory”. Masipa also points out that Pistorius is not unique in being more vulnerable to danger. She says it would not be reasonable to say that women, children and others with limited mobility should arm themselves.
10.00am: Masipa says the next question is: can the version of the accused be “reasonably, possibly true”? She dismisses some of the arguments put forward by the state. First, she rejects the prosecution’s argument that Steenkamp would have simply taken her phone to the toilet in the night. Masipa says Steenkamp might have done so for a number of reasons.
The judge also dismisses both the loving and angry WhatsApp messages between Pistorius and Steenkamp in the lead up to her death. Human beings are “fickle”, she says, and normal relationships are “dynamic and unpredictable” sometimes. The court has therefore refrained from making inferences one way or another from any of the messages.
The court has also decided not to make any inferences from the fact that Steenkamp may have had food in her stomach at the time of her death. Masipa says that even the experts note that the evidence is inconclusive so it is not certain that Steenkamp ate two hours before her death, as the prosecution claimed. The state claimed that Steenkamp went down to eat amid an argument with Pistorius overheard by neighbour Estelle van der Merwe. Masipa says that Van der Merwe did not know where the argument came from or even what language it was in, so there was no proof that this was linked to the events in Pistorius’s home.
Masipa turns to the testimony of Pistorius and says it is not quite clear whether he intended to shoot or not. She reads several quotes in which the athlete describes the exact moments that he fired the gun. Over the course of the trial, he has claimed it was “an accident”, that he “never intended to kill anyone” and that he “did not have time to think before firing”. However, Masipa says part of the evidence is “inconsistent with someone who shot without thinking”. Pistorius released the safety mechanism on the gun and shot into the door, although told the court that if he wanted to shoot someone he would have “aimed” higher. At one point in the trial, Pistorius said: “The accident was that I discharged my firearm in the belief an intruder was coming out to attack me.”
9.45am: The judge says she accepts the defence’s timeline of events, in which they argue the shots were fired at around 3.12am. The screams, heard in the following minutes, were then likely to be Pistorius rather than Steenkamp. The noises heard at 3.17am were then likely to be the sound of Pistorius knocking down the door with a cricket bat rather than gunshots. Judge Masipa uses the timeline of objective facts to test witness statements. She shows that some witnesses got their times wrong or mistakenly believed the cricket bat to be gunshots.
9.30am: Judge Masipa suggests that the screams neighbours believed came from a woman, could have in fact come from Pistorius. She notes that none of the witnesses – even Pistorius’s former girlfriend Samantha Taylor – had heard the athlete scream when faced with a life-threatening situation. The shots were fired in quick succession and Steenkamp probably did not breathe for more than a few seconds after being shot in the head, suggesting that Steenkamp was not the one screaming, she says.
The judge discusses the reliability of witness statements, noting that many “got their facts wrong” with some neighbours “genuinely mistaken” in what they heard. She says that the evidence of Michelle Burger and her husband was “unreliable”, but says they were not dishonest. Other witnesses were “disadvantaged” by the huge media attention as they had researched the case, she says. The “probability” is that some witnesses failed to separate what they knew personally, what they had heard from other people and what they had gathered from the media, she says.
“Human beings are fallible and depend on memories which fail over time,” says Masipa. But she says that the court is in the “fortunate position” that it can rely on evidence from technology, such as phone records, which is more reliable than human perception and memory. The judge says it would be unwise to rely on any evidence by any of the witnesses without testing them against the objective facts.
9.00am: Judge Thokozile Masipa outlines the charges against Pistorius. He is accused of murdering Steenkamp, as well as two counts of discharging firearms in public and one count of illegal possession of ammunition. She then outlines the defence, which is that the athlete denies shooting Steenkamp intentionally and believed there was an intruder in his bathroom who posed a threat to him and the deceased.
Masipa states the facts related to the murder charge on which both sides agree. On 14 February 2013, shortly after 3am, screams were heard from the accused’s house. While on stumps, Pistorius fired four shots into the toilet door. The deceased was inside the toilet, which was locked from the inside. Three of the four struck the deceased. She sustained wounds on her side, arm, head and web of her fingers. Steenkamp died of multiple gunshot wounds. Soon after the shots were fired, the accused called for help and used a cricket bat to break down the door. He took Steenkamp downstairs, was very emotional and was seen trying to resuscitate the deceased.
The judge notes that it would be “fruitless” to rehash all the detailed evidence, which goes into “thousands of pages”, but says it had all been taken into consideration. She adds that some issues had taken up a lot of the court’s time – which was correct to do so – but which now “pale into insignificance” in the context of all the evidence as a whole. This included whether or not police contaminated the scene, the length of an extension cord that went missing from the crime scene and the authenticity of items in various police exhibits.
