Notwithstanding all the hoopla being currently kicked up in the public press, I expect the verdict hardly raised a single eyebrow amongst experienced criminal lawyers anywhere around the globe. On Friday Judge Thokozile Masipa found the celebrated South African Paralympian not guilty of murder, but guilty of culpable homicide. Neither finding would likely be considered in any way surprising or remarkable to anyone with a close understanding of the British legal system.
Strip away all the emotion, and the theatre of the press spectacular that the trial became, and you are left with this; in order to find Pistorius guilty of murder the judge had to be satisfied that he not only shot his model-girlfriend Reeva Steenkamp, but that he did so intentionally, and that in so doing he intended to kill her. And the judge had to be satisfied of each of those elements beyond any reasonable doubt. That was not impossible on the evidence, but it was never going to be easy, and no one who understands criminal law concepts would be in the least bit surprised a judge was not ultimately convinced to the requisite standard.
There were no available witnesses to the shooting except Pistorius himself, and he said he fired the four rounds into the locked toilet door in the early hours of Valentine’s Day last year believing an intruder had broken into his house and was lurking there. A disabled, vulnerable man, he claimed he was terrified he and his girlfriend were in danger of attack, and he fired into the door to protect them both. You can tell all the tales you like to try to paint the Bladerunner as moody, possessive, gun-crazy or whatever else, none of that helps you to be satisfied what happened on the night. On that score the judge had only Pistorius’ eyewitness account. She decided she could not reject that account beyond any reasonable doubt, and that’s hardly surprising.
Equally, it’s hardly surprising she was convinced beyond reasonable doubt Pistorius was guilty of culpable homicide. That’s because when any person is in charge of a dangerous thing (like a gun for example) they have a positive duty to ensure they take reasonable care to avoid that thing causing injury to others, and if they don’t they’re going to be criminally liable for the consequences. Under Queensland law, that long-standing Common Law principle is enshrined in section 289 of our Criminal Code, which specifically provides “It is the duty of every person who has in the person’s charge or under the person’s control anything, whether living or inanimate, and whether moving or stationary, of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health, of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger, and the person is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty.”
Years ago I acted for a jilted lover who decided he was going to confront his girlfriend’s new squeeze and remonstrate with him. The problem was the new boyfriend was a hulking great gorilla of a man, so my client took an axe with him to even up the odds. No one seriously thought he was going to use it, least of all my client, but when he confronted his nemesis at an al fresco Surfers Paradise café he was waving the implement around like a scene from Texas Chainsaw Massacre. Unimpressed, the new boyfriend stepped forward to disarm him, but as he did the axe came into contact with his eyebrow, breaking the skin. Lover-boy protested it was all a terrible accident – he didn’t really intend to wound anybody. But that wasn’t the point. When you’ve got a dangerous weapon in your hands, you’d better take good care, or otherwise you’ll bear the consequences.
That’s a concept that was born in English common law, and Australia and other countries that adopted British Law, including South Africa, incorporated that concept into their criminal law.
It was always going to be a problem for Pistorius. Even on his own story it was open for the judge to find him guilty of culpable homicide on the basis he did not take reasonable care to ensure his actions did not cause injury to others. On the account Pistorius himself gave in the witness box there was a compelling case for lack of reasonable care, and besides, with the eyes of the world upon her, the judge undoubtedly was under pressure not to absolve him entirely of liability for his girlfriend’s death. The odds were absolutely stacked against him on that charge, and his lawyers would have told him that risk before he gave his evidence. So if you saw some stoic resignation in his televised reaction to the verdict last Friday it’s probably because he has long anticipated the possibility, and perhaps probability, of such a finding, even if the judge accepted his story as entirely true.
Since his trial began, Oscar Pistorius would have known all too well, culpable homicide was likely the best that he could hope for.
Chris Nyst – Gold Coast Lawyer, Novelist and Film Maker