Closing summary
-
Oscar Pistorius has been found guilty of the murder of Reeva Steenkamp, in an appeal court ruling that set aside his original conviction for culpable homicide:
As a result of the errors of law … and on a proper appraisal of the facts, he ought to have been convicted not of culpable homicide on that count but of murder.
In the interests of justice the conviction and the sentence imposed in respect thereof must be set aside and the conviction substituted with a conviction of the correct offence.
- The five judges, who were unanimous in their verdict, said Pistorius’ evidence and explanations for killing Steenkamp were “implausible” and he had “never offered an acceptable explanation” for firing four times through a closed door.
- The appeal court said the original trial judge, Thokozile Masipa, had been wrong on several points of law, chief among them her conclusion that Pistorius had not foreseen that his actions could kill somebody (dolus eventualis).
- Justice Eric Leach, reading the ruling on behalf of the bench, said:
I have no doubt … the accused must have foreseen and therefore did foresee that whoever was behind that door might die.
- The judges said it was clear that Pistorius had criminal intent in firing, and was therefore guilty of murder by dolus eventualis (see here for what that means).
- Pistorius, who was not at the supreme court in Bloemfontein to hear the ruling, will have to appear at the high court in Pretoria for fresh sentencing by Masipa.
- Until then, he is likely to stay under house arrest at his uncle’s home and will not immediately return to prison.
You can read our full report here:
I’m wrapping up this live blog now. Thank you for reading and for your comments. We will have live coverage again when Pistorius returns to the high court for his fresh sentencing.
Appeal court ruling 'not a slight' on trial judge
The appeal court, despite having ruled that Judge Thokozile Masipa, who presided over the original trial, had made several errors of law, nonetheless commended her role:
Before closing, it is necessary to make a final comment. The trial was conducted in the glare of international attention and the focus of television cameras, which must have added to the inherently heavy rigours that are brought to bear upon trial courts in conducting lengthy and complicated trials.
The trial judge conducted the hearing with a degree of dignity and patience that is a credit to the judiciary.
The fact that this court has determined that certain mistakes were made should not be seen as an adverse comment upon her competence and ability.
The fact is that different judges reach different conclusions and, in the light of an appeal structure, those of the appellate court prevail.
But the fact that the appeal has succeeded is not to be regarded as a slight upon the trial judge who is to be congratulated for the manner in which she conducted the proceedings.
Pistorius family statement
The Pistorius family has put out this statement:
We have taken note of the judgment that has just been handed down by the supreme court of appeal.
The legal team will study the finding and we will be guided by them in terms of options going forward.
We will not be commenting any further at this stage.
Updated
This was a crucial part of the appeal court ruling, in answer to the argument that the ordeal of the trial, the original culpable homicide verdict, and the serving of prison time meant that a murder conviction was theoretical or unnecessary:
The interests of justice require that persons should be convicted of the actual crimes they have committed, and not of lesser offences.
That is particularly so in crimes of violence.
It would be wrong to effectively think away the fact that an accused person is guilty of murder if he ought to have been convicted of that offence.
Could Pistorius appeal?
Could the defence appeal against the overturning of the culpable homicide verdict and the imposition of a murder conviction?
South African legal experts say it is possible that Pistorius could appeal to the constitutional court, but this is a rare step.
The key to such an appeal would be for the defence to argue that Pistorius did not receive a fair trial.
The defence will also get the opportunity to make a fresh argument in mitigation of sentence when Pistorius returns to stand in front of Judge Masipa in the Pretoria high court, probably next year.
The result of that new sentencing could determine whether or not the defence attempts an appeal, believes South African attorney David Dadic:
10 - I think that will be decisive in whether he tries to appeal again - if he gets a "bearable" sentence (eg 3 years real time)
— David Dadic (@DavidDadic) December 3, 2015
The South African National Prosecuting Authority has reportedly said that Pistorius will remain under correctional supervision – that is, under house arrest at his uncle’s home – until he appears for re-sentencing before the high court in Pretoria.
No date has been set for that hearing.
This means Oscar Pistorius will not be returning immediately to prison.
Reporters have now been given paper copies of the full appeal court ruling.
It doesn’t yet appear to be online in full, but I’ll post a link when there is one.
The first paragraph of the #OscarPistorius verdict... pic.twitter.com/SlcpT0gh3l
— Karyn Maughan (@karynmaughan) December 3, 2015
An aside: there was a flurry of tweets from some reporters as Justice Leach began his ruling and appeared to set aside the appeal summarily.
Those comments were in fact in relation to a separate case.
My colleague Simon Allison reports from Johannesburg:
It is not yet clear whether Oscar Pistorius will return to prison immediately, or if he will be allowed to remain in correctional supervision until a new sentence is handed down.
As is custom, Pistorius and his family were not in the court in Bloemfontein as the judgment was delivered.
June Steenkamp, Reeva Steenkamp’s mother, was present.
The Paralympic gold medallist was released into house arrest in October, having served one-fifth of his original five-year term, and has been performing court-mandated community service.
Updated
The appeal court’s ruling was damning on the issue of Pistorius’ credibility.
His evidence and explanations for the shooting were described as “implausible”.
The judges said Pistorius “never offered an acceptable explanation” for firing four times through the closed door.
Justice Eric Leach, reading the ruling on behalf of the five-judge bench, said:
I have no doubt … the accused must have foreseen and therefore did foresee that whoever was behind that door might die.
Pistorius’ claim – one of several put forward by the defence – of putative private defence, or self-defence in fear of his life, was not rational, the judges said.
His evidence was so contradictory that it is impossible to know his true reason for firing, they concluded.
But it was clear the person behind the door did not pose any immediate threat to him.
Pistorius murder verdict: key points
The appeal court found that Judge Thokozile Masipa had made errors in law when reaching her original verdict of culpable homicide.
The appeal judges said Masipa was wrong in her application of dolus eventualis, as Pistorius “must have foreseen” that firing into the door could cause the death of whoever was behind it.
Masipa also wrongly conflated the test of dolus eventualis with dolus directus in accepting that the defence argument that he did not know the person behind the door was Steenkamp meant he could not be guilty of murder.
Masipa’s verdict was premised upon an acceptance that Pistorius did not think Steenkamp was in the toilet, but this was also wrong: the key thing is that the perpetrator knows his actions could kill that person, whoever it is.
The failure to take into account all the evidence – in particular, key ballistics evidence – amounted to a failure in law, the judges said.
June Steenkamp, the mother of Reeva Steenkamp, was in the courtroom today to hear the judges rule – in a unanimous verdict – that Oscar Pistorius was indeed guilty of murdering her daughter.
June Steenkamp keeps a solemn face in the courtroom, even after #OscarPistorius is found guilty of murder
— Stephanie Findlay (@SJFindlay) December 3, 2015
Updated
Oscar Pistorius, now guilty of murder, is currently out of prison under house arrest.
The appeal court made no mention of this and it appears unlikely that he will be returned to jail right away.
It is not clear when the high court in Pretoria will reconvene for the fresh sentencing on the murder conviction.
Updated
Despite legal “errors” made by Judge Masipa, the appeal court says she conducted the trial with “dignity and patience” in full glare of live television.
She will now have to re-sentence Pistorius for murder.
Updated
Oscar Pistorius is guilty of the murder of Reeva Steenkamp
The culpable homicide verdict is set aside.
Pistorius must return to the Pretoria high court for a new sentence.
Updated
Leach says Pistorius should have been found guilty of murder.
Leach moves to the issue of putative private defence – in other words, whether Pistorius acted in self-defence in fear of his life.
His evidence is so contradictory that it is impossible to know his true reason for firing, Leach says.
But he says that Pistorius’ claim was not rational. The person behind the door did not pose any immediate threat to him. Pistorius did not fire even a warning shot.
#OscarPistorius Leach: The accused armed himslelf to shoot if there was someone in the bathroom - and he did.
— POWER987 News (@POWER987News) December 3, 2015
Leach: I have no doubt … the accused must have foreseen and therefore did foresee that whoever was behind that door might die.
The identity of his victim is irrelevant to his guilt.
Leach says “in my view”, he cannot accept Pistorius’ version of events.
Pistorius “never offered an acceptable explanation”.
The death of the person behind the door was an obvious result of firing through it, Leach adds.
That is exactly what the accused did.
The interests of justice can allow the court to set aside the conviction of culpable homicide, Leach says.
The consequences of Pistorius’ actions would have been obvious to anyone of reasonable intelligence, he adds.
He is still speaking – we have not quite heard the ruling yet.
The accused has already served the period of imprisonment imposed by the trial court, the defence argued, so the conviction should stand.
That is “undesirable”, Leach says – people must be convicted of the crimes they have committed.
Leach says it would be “wholly impractical and not in the public interest” to have a retrial.
The principles of dolus eventualis were incorrectly applied, Leach says.
The trial court did not correctly apply legal principles with regard to evidence.
He is moving towards his conclusion.
Trial court failed to correctly deal with evidence
The failure to take into account all this evidence amounts to a failure in law, Leach says.
That’s the second point on which he has found for the state.
#OscarPistorius Leach: in the present case - there does appear to have been a lack of appreciation of relevant evidence. BB
— Barry Bateman (@barrybateman) December 3, 2015
Leach queries whether this lack undermined the finding of the trial court.
He mentions what he calls “the failure of the court” to take into account the evidence of ballistics expert Captain Mangena.
It is clear that the toilet cubicle was extremely small, Leach says.
All the shots fired through the door would almost inevitably have struck the person behind it.
There would have been nowhere for Steenkamp to hide, he adds.
Leach is now looking at the issue of circumstantial evidence and citing other case law.
He says all evidence must be taken into account in the final judgment and implicitly criticises Masipa for dismissing some of that presented in the trial.
Trial court made error in law
This first issue goes in favour of the state, Leach says. The original trial court did make an error in law.
He will now examine other points of the appeal.
The issue is whether Pistorius could foresee that there was a person behind the door – whether Steenkamp or an intruder – who could die if he fired into it.
The trial court misdirected itself on this legal issue, he says.
“There was a further fundamental error,” Leach adds.
He says Masipa’s verdict was premised upon an acceptance that Pistorius did not think Steenkamp was in the toilet and so he did not foresee that his actions could cause her death.
A perpetrator does not need to know the identity of his victim, he says, but still intend to kill the person – he cites the example of an indiscriminate bomber.
The key thing is that the perpetrator knows his actions could kill that person, whoever it is.
Dolus eventualis 'wrongly applied'
Leach says Masipa’s ruling was “confusing in various respects”.
The point was whether Pistorius foresaw the possibility of death when he fired into the door.
He says Masipa conflated the test of dolus eventualis with dolus directus in accepting that his argument that he did not know the person behind the door was Steenkamp meant he could not be guilty of murder.
The wrongdoer does not have to see death as the probable outcome of his actions, but as a possibility, Leach says.
He reads from Masipa’s verdict in which she concluded that Pistorius had not foreseen the possibility of death, and that he believed Steenkamp was in the bedroom.
This court cannot interfere with the trial finding that the state failed to prove its case that Pistorius killed Reeva Steenkamp after an argument, Leach says.
To prove murder, there must be proof of intention to kill (dolus).
Dolus eventualis means the perpetrator foresees the possibility of death, but goes ahead with his action anyway, “gambling with the life” of the victim.
The state may well feel justifiably aggrieved by the court acquitting someone when a conviction should have followed, says Leach.
But an acquittal by a competent court based on findings of fact may not be questioned, he says.
There would need to be errors of law. (The state has argued that Judge Masipa incorrectly applied the legal principle of dolus eventualis.)
Leach is dealing with the original trial judge’s verdict: culpable homicide and a five-year sentence.
This court needed to determine whether the principle of dolus eventualis was correctly applied in that trial, he says.
Leach points out that Pistorius’ version of accounts changed a number of times:
One really does not know what his explanation is for firing the fatal shots.
He says there were “other implausible” elements to Pistorius’ version. But the state failed to show that there had been an argument between the couple.
This ruling is not the quick, to-the-point explanation many were expecting. Leach is running through in some detail the events of 14 February 2013, the evidence, witnesses and Pistorius’ account.
We are hearing again about the phone calls Pistorius made after the shooting.
Leach now sets out the competing versions: the state said Pistorius and Steenkamp had an argument. The defence maintained that Pistorius believed there to be an intruder in his house.
Leach is running through the accounts by witnesses of the moments after Steenkamp was shot.
Pistorius was charged with her murder, he says.
Much of what emerged at the trial was “common cause” – that is, state and defence agreed that Pistorius fired four times through the toilet cubicle door.
Leach discusses the legal issue of whether the state was entitled to appeal to this court (the defence argued it was not).
He says it was entitled.
He now turns to the matter of the appeal itself.
Leach says it is not disputed that Pistorius shot Steenkamp.
He is now running through the trial process and says he will refer to Pistorius as “the accused” as he was throughout that time.
He says he hopes the Steenkamp family will not mind if he refers to the victim as “Reeva”.
Justice Eric Leach says he will read out the summary on behalf of the five-judge panel.
He says this case is “a human tragedy of Shakespearean proportions”.
Court is in session
The judges have arrived.
What is dolus eventualis?
The original trial catapulted what might once have been an obscure legal principle into the global spotlight.
Today the supreme court will decide if Judge Masipa got it wrong when she found Pistorius not guilty of murder. But what does it mean?
A simple explanation is that it hinges on whether an accused did foresee the outcome of his actions, rather than whether they should have.
In this case, Masipa accepted Pistorius’ argument that he did not think his actions would lead to the death of the person behind the door.
But in deciding that a reasonable person should have foreseen that, she did find him guilty of culpable homicide.
South African barrister Ulrich Roux argued after the verdict that the principle of dolus eventualis should have resulted in a murder conviction for Pistorius:
According to the law, someone is guilty of murder if they know that their actions could lead to the killing of a person and reconcile themselves to that fact, and act anyway.
In delivering her ruling, judge Thokozile Masipa said that “a reasonable person would have foreseen if he fired shots at the door, the person inside the toilet might be struck and might die as a result”, which suggests a classic case of dolus eventualis.
But the judge seems to have cleared him of this charge because she felt that, to be guilty of common-law murder, Pistorius needed to have foreseen that his actions would kill a specific person – Reeva Steenkamp …
I would say that the law is clear – it doesn’t have to be a specific person whose death can be foreseen, it can be anyone.
My colleague Simon Allison reports from South Africa:
Last year, as South Africa prepared for Judge Thokozile Masipa to deliver her verdict, the country talked about little else. Did Oscar Pistorius really think there was an intruder? Was he justified in firing anyway? Was he a murderer, or just a confused young man who had made a terrible mistake?
Everyone suddenly became an expert in the relatively arcane legal concept of dolus eventualis, and all could argue the distinction between murder and culpable homicide.
This time round, as the Supreme Court of Appeal prepares to rule on his case again, Pistorius is no longer setting the national agenda. The fate of the disgraced paralympian doesn’t dominate dinner table discussions, and newspaper columnists have moved on to other things.
South Africa seems to have been struck with a kind of Oscar-fatigue, the dominant emotion being relief – that today, one way or the other, the case will be finalised and we can all move on.
But of course, it’s not that simple. If he’s found guilty of murder, then there is likely to be a sentencing trial, where defence and prosecution will once again be required to present arguments.
There is also the unpopular option of a retrial, which means we’ll be back to square one.
Updated
June Steenkamp, mother of Reeva Steenkamp, is in court today, accompanied by members of the ANC women’s league:
#OscarPistorius June Steenkamp (Reeva's mother) seated in court. pic.twitter.com/FWPL6rfgZn
— Maryke Vermaak (@MarykeVermaak) December 3, 2015
Only one of the panel of five judges – expected to be Justice Eric Leach – will read out their decision.
It’s expected that Leach will read an abridged version of the ruling, with full papers distributed later.
Judge Thokozile Masipa took two days to deliver her original verdict, but it’s anticipated that this one will be over in a considerably shorter period.
#Oscarpistorius Process could take minutes as full ruling is not expected to be read out but State lawyer told me cd take hour too
— Alex Crawford (@AlexCrawfordSky) December 3, 2015
The defence case
The defence has asked the supreme court to dismiss the state’s appeal.
- Barry Roux, for the defence, said in the appeal hearing that the state’s case rested on issues of fact, rather than points of law, and were therefore not a matter for the supreme court.
- But he faced questioning from the judges over Pistorius’ intentions when firing into the tiny cubicle, with Judge Leach telling him:
There was no place to hide in there … If you put four shots through that door you must surely see you will shoot someone.
- Roux maintained that the trial judge was correct to apply the principle of dolus eventualis to the question of whether Steenkamp was in the cubicle, given that the judge had already accepted that Pistorius genuinely believed there was an intruder in the bathroom, and that his girlfriend was still in bed:
Why would he just want to murder someone in the toilet, knowing she’s in the bedroom?
- The defence insists that Pistorius was scared, vulnerable and on his stumps; his state of mind rules out murder.
The state's case for murder
You can read our live blog of the appeal hearing here.
Here is a quick rundown of the prosecution’s case for discarding the culpable homicide conviction in favour of one of murder.
The state’s case
- South Africa’s supreme court of appeal heard arguments from state prosecutors that trial judge Thokozile Masipa was wrong when she found Oscar Pistorius not guilty of the murder of Reeva Steenkamp.
- Chief prosecutor Gerrie Nel told the panel of five judges that Masipa had erred in her application of the legal principle of dolus eventualis, and that she was wrong to conclude that Pistorius had not foreseen that firing four shots into a locked door was likely to kill or injure the person behind it.
- Masipa further erred in her exclusion of dolus eventualis because she accepted that Pistorius believed Steenkamp was in bed, Nel argued: there was a criminal intent to bring about the demise of whoever was inside the toilet cubicle. (On this point, at least one judge openly agreed.)
- The state further alleged that the trial judge was wrong to dismiss circumstantial evidence that it said proved the accused’s version of events to be impossible.
- Nel argued that the supreme court was entitled to overturn the decision of the high court, because the finding that Pistorius was guilty of culpable homicide was a de facto acquittal on the charge of murder.
- Neither state nor the defence “has the stomach” for a retrial, Nel said, as he asked the appeal court to instead impose its own verdict of murder:
He had defences that exclude each other … The one he elected to use, the court rejected that one and gave him another one.
The court should have rejected his evidence as impossible …
On the objective facts, the accused cannot escape a verdict of murder.
Opening summary
Welcome to live coverage as South Africa’s supreme court delivers its decision in the state’s appeal against Oscar Pistorius’ conviction for the culpable homicide of Reeva Steenkamp.
Prosecutors want that conviction upgraded to one of murder, arguing that Pistorius must have known that firing four bullets through the door of a tiny toilet cubicle could kill the person behind it.
Steenkamp was killed in Pistorius’ home in Pretoria in the early hours of 14 February 2013.
Today at 9.45am in Bloemfontein (7.45am GMT/6.45pm AEDT), one of the panel of five judges will read out their decision.
If they rule that the original trial judge erred in finding Pistorius guilty of the lesser charge, it is likely that the case will be referred back to the high court in Pretoria for fresh sentencing.
Alternatively they could decide that Judge Thokozile Masipa applied the law correctly, and the culpable homicide conviction and five-year sentence will stand.
Pistorius is currently living under house arrest at his uncle’s home in Pretoria, having been freed from prison after serving less than a year behind bars.
This live blog will have all the latest news and I will be tweeting key developments @Claire_Phipps.
