Oscar Pistorius Trial: Thursday 11 September 2014, Session 3 from 50:52
There is no doubt that when the accused fired shots through the toilet door he acted unlawfully. There was no intruder. Instead, the person behind the door was the deceased and she was dead.
I now deal with Dolus Eventualis or legal intent.
The question is:
1) Did the accused subjectively foresee that it could be the deceased behind the toilet door?
and
2) Notwithstanding the foresight, did he then fire the shots, thereby reconciling himself to the possibility that it could be the deceased in the toilet?
The evidence before this court does not support the States contention that this could be a case of Dolus Eventualis. On the contrary, the evidence shows that from the onset the accused believed that at the time he fired shots into the toilet door the deceased was in the bedroom while the intruders were in the toilet.
This belief was communicated to a number of people shortly after the incident:
- At 03:19 the accused disclosed this to Johan Stander when he requested him to come quickly to his house.
- At 03:22 he told his version to Carice Viljoen on her arrival in the company of her father, Stander.
- A few minutes later the same information was relayed to Dr Stipp when he arrived at the accuseds house.
- And lastly, it was told to the police at about 4 oclock in the morning the same day.
Council for the Defence argued correctly that it was highly improbable that the accused would have made this up so quickly and be consistent in his version even at the Bail Application before he had access to the police docket and before he was privy to the evidence on behalf of the State at the Bail Application.
The question is: Did the accused foresee the possibility of the resultant death yet persisted in his deed reckless whether death ensured [ensued] or not?
In the circumstances of this case the answer has to be no.
How could the accused reasonably have foreseen that the shots he fired would kill the deceased? Clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door let alone the deceased as he thought she was in the bedroom at the time.
To find otherwise would be tantamount to saying that the accuseds reaction, after he realised that he had shot the deceased, was fate; that he was play acting merely to delude the onlookers at the time.
Dr Stipp, an independent witness who was at the accuseds house minutes after the incident had occurred stated that the accused looked genuinely distraught as he prayed to God and as he pleaded with him to help save the deceased. There was nothing to gainsay that observation and this Court has not been given any reason to reject it and we accept it as true and reliable.
It follows that the accuseds erroneous belief that his life was in danger excludes Dolus. The accused therefore cannot be found guilty of murder Dolus Eventualis.
That however is not the end of the matter as Culpable Homicide is a competent verdict.