Thursday, March 3, 2016

The Pistorius Case VII: Done and Dusted


Today we heard the news that the Constitutional Court has declined to hear Oscar's Pistorius appeal.

I have not read the ruling, insofar as there actually is one. I did, however, read the defence's application for the appeal some time ago. And on the basis of what was put forward by the defence, I felt that Pistorius's chances of successfully challenging his murder conviction were slim indeed.

Let me explain why.

Essentially, the defence laid out two grounds for their appeal before the Constitutional Court. Firstly, it claimed that the Supreme Court of Appeals (which had handed down the murder conviction back in December) had acted "unconstitutionally when it rejected the factual finding of the Trial Court and replaced it with a contrary factual finding of its own." The factual finding in question is the finding that Pistorius genuinely and honestly believed he was under threat.

Secondly, the appeal contended that the Supreme Court (or SCA) judgment rests on "errors of law". That is: the SCA erred in finding that dolus eventualis was present. It also erred in applying an objective test to the question of whether or not putative self defence could be claimed.

Let's have a better look at these arguments. I'll begin with the second ground, the assertion that errors in law were made. The reason I'm doing this is because I believe it to be fairly clear that these "errors" could not form any valid reason for the Constitutional Court to set aside the SCA's ruling.

Why? Well because, simply put, they're not constitutional. The assumed existence of "errors in law" does not mean that the SCA acted unconstitutionally. It may mean that the SCA acted wrongly, but that is not the same thing at all.

Consider this: all sorts of courts hand down all sorts of rulings. In some cases, those rulings may apply the law wrongly; the fact that such mistakes happen is inevitable. This does not mean, however, that in those cases a party's constitutional rights are trampled on. If this were different, any party could at any time hop over to the Constitutional Court and ask that court the retry the case; the Constitutional Court would then simply become a further appeal court.

So "errors in law" do not equate with acting unconstitutionally, and claiming that such errors were made does not mean the Constitutional Court should get involved.

It should be remembered that, under most constitutions, one is guaranteed a fair trial, but that no constitution can ever guarantee that the outcome of all trials is correct.

The defence, in fairness, realised this, at least to a certain extent. It tried to circumvent the problem by stating that the errors made are not just pertinent to Pistorius, asserting that "for as long as the SCA judgment stands and is not set aside, large numbers of accused persons will have their cases determined in accordance with the (incorrect) approach laid down by the SC." As such, it attempted to establish that an aspect of general public importance is involved.

However, why would this sway the Constitutional Court? If "errors in law" were made, courts (not to mention universities, legal institutions and the like) will realise this and not allow themselves to influenced by this single judgement. In fact, the SCA itself will no doubt soon remedy the situation. As such, the errors are by definition not of general public importance, and they are most certainly not the sort of errors the Constitutional Court should address.

So, in short, I do not find it surprising that Pistorius was not granted the right to appeal on this ground.

At first glance, things are a little less clear it comes to the other ground for appeal, though. Let's have a look at the arguments involved.

The defence maintained that the SCA exceeded it jurisdiction when it decided that Pistorius did not genuinely and honestly believe that his life (or that of Reeva Steenkamp) was in danger. It points out that the High Court had accepted Pistorius's "honest belief", when that court stated the following:

"(...) on his own version the accused suspected that an intruder had entered his house through the bathroom window. His version was that he genuinely, though erroneously, believed that his life and that of the deceased was in danger.
There is nothing in the evidence to suggest that this belief was not honestly entertained."

This assertion, the defence maintained, amounts to a matter of fact. As such, the SCA could only accept it; it had no power to re-examine the assertion, let alone to reject it and find that Pistorius had not genuinely believed his life to be in danger. And because the High Court had decided this, the SCA had to accept that Pistorius was entitled to a claim of putative self defence.

If the defence had been right, I believe that its appeal could very well have been successful. The SCA can - roughly put - only look at issues of law. It cannot deal with matters of fact. If it nevertheless does so, it does indeed exceed its jurisdiction and that would then be an issue the Constitutional Court could and should deal with. So, in theory, the defence's arguments here could well have been valid.

Having said that, though, I don't think the defence is right at all. In particular, I believe that the defence quite deliberately misrepresented what the High Court had actually said.  

Yes, the High Court found that Pistorius honestly believed that his life was in danger. However, that is not sufficient for a putative self defence claim to succeed. For such a claim to be successful, it must also be established that a number of other, equally crucial, elements existed. For example, and at the very least, it must be established that the accused believed that he was justified in acting the way he did, which inevitably requires, first and foremost,  that he had the actual intention to defend himself.      

The High Court did not, however, establish this at all. The court accepted Pistorius's "fear", and it also accepted that this fear was "honest", but that is as far as it went. In fact, although the court's reasoning here is oblique, it seems to have felt that Pistorius could not have acted in putative self defence. Consider the following observation by the court:

"Counsel for the state, correctly in my view, submitted that if the accused never intended to shoot anyone, he cannot rely on a defence of putative self defence".

And consider, too, that the court, elsewhere in its ruling, did indeed find that Pistorius had not intended to shoot anyone.

In other words: insofar as the High Court had decided on the putative self defence claim, it seemed to have rejected it. Not because it felt that Pistorius's belief was not genuine, but because it felt that such a belief was in itself insufficient.

So it appears that Pistorius's constitutional appeal simply misrepresented what the High Court actually determined. The High Court did not honour the putative self defence; if anything, it rejected it.   

There is another - more legal - way to look at this. As I mentioned above, the defence tried to argue that the High Court's assertion that Pistorius "honestly believed" his life was in danger is a factual issue, and one that the SCA must therefore accept. It then moves on to assert that, given this belief, the putative self defence claim must be honoured. This line of reasoning supposes that the term "honest belief" - as used by the High Court - does in fact encompass all the legal elements of the "belief" necessary for a putative self defence claim to succeed.

As stated above, that doesn't seem correct. But even it if were to be true, one would then immediately have to accept that the High Court's finding of "honest belief" includes a decision on all the legal elements required by law for a putative self defence claim to succeed. And that, in turn, means that the High Court's finding is, by definition, not merely a factual matter, but a matter of law as well. Which in turn means that the SCA could clearly take it into account.

Looking at the matter this way, one reaches the same conclusion: the SCA did not exceed its authority when determining that Pistorius could not have acted in putative self defence. And as a result, this ground for the appeal failed as well.

Is that the end of the matter? Well, yes. But there is something else to be said. After all, I may have discussed the issues the affidavit for appeal raised, but I have not discussed two issues on which it was curiously silent.

Firstly, the appeal did not contend that Pistorius's trial was unfair due to the overwhelming attention it got in the media and the fact that it was televised. Secondly, it did not contend that the SCA overstepped its bounds in deciding upon Pistorius's putative self defence claim because it gave that decision itself (instead of referring the case back to anther High Court).

As far as I know, the first of these two grounds is probably not that strong, for the very simple reason that Pistorius would have been too late in raising it. He did object to the trial being televised at the time, but after the court made its decision on the matter he took no further action. He's just too late now. I would imagine this to have been sufficient reason not to attempt any appeal on this matter, but I do point out that there were many indications that this matter would form a important part of any appeal process. As such, it is a little surprising that it vanished into thin air.

The absence of the second possible ground is a bit more of a puzzle, though. If the High Court had reached exactly the same decision on putative self defence as the decision reached by the SCA, Pistorius would have had the opportunity to appeal against it. The High Court did not, however; it never clearly and equivocally decided on this claim at all. It seems - as I stated above - to have felt that the claim should be rejected, but it never really tackled the issue head-on.

As a result, the decision by the SCA was the first unambiguous and fully substantiated decision on the matter. The problem is, though, that since it was a decision given by the SCA - the appeal court itself - there was no possibility to appeal against it.

Because of this, it might be argued that Pistorius's right to appeal - which is, I point out, a constitutional right - had somehow dissipated. Now I realise that this argument can be countered by simply pointing out the obvious (which is that we know exactly what such an appeal would have amounted to, given the decision by the SCA) but I am not so sure that is sufficient. If one has the right to appeal, one has that right, regardless of what the chances of such an appeal are.

It should also be remembered that the prosecution did not directly appeal against the High Court's decision on putative self defence; the SCA's ruling on the issue was therefore not necessary and, given the limitations of that appeal, not very logical either. One might therefore also attempt to assert that, in dealing with the putative self defence claim as it did, the SCA disallowed Pistorius adequate time and facilities to defend himself, which would mean that the appeal trial was, in this regard, essentially unfair. That would again be a constitutional matter.

However, as I said, this simply was not an issue that the defence raised with the Constitutional Court at all. And in any case, given the dismissal by the Constitutional Court, it's all water under the bridge now.

Having been convicted of murdering Reeva Steenkamp, and that decision now being irreversible, Pistorius will be sentenced accordingly in April. Justice has been done.

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