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Oscar Pistorius appeal: judge says Steenkamp 'had nowhere to hide' – as it happened Oscar Pistorius appeal: judge says Steenkamp 'had nowhere to hide' – as it happened
(2 months later)
12.37am AEST13:37 1.37pm GMT
13:37
Latest news storyLatest news story
Our news story leads on comments made by Pistorius defence lawyer Barry Roux after the court adjourned. Roux was inadvertently recorded telling his opposite number “I am going to lose”, though the context of the quotes or whether Roux was referring to a point of law, the appeal as a whole or an unrelated matter was not immediately clear.Our news story leads on comments made by Pistorius defence lawyer Barry Roux after the court adjourned. Roux was inadvertently recorded telling his opposite number “I am going to lose”, though the context of the quotes or whether Roux was referring to a point of law, the appeal as a whole or an unrelated matter was not immediately clear.
We’re wrapping up our coverage now. Thanks for reading.We’re wrapping up our coverage now. Thanks for reading.
Updated at 9.58am AEST Updated
10.35pm AEST11:35 at 10.58pm GMT
11.35am GMT
11:35
Closing summaryClosing summary
Claire PhippsClaire Phipps
The state’s caseThe state’s case
He had defences that exclude each other … The one he elected to use, the court rejected that one and gave him another one.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 …The court should have rejected his evidence as impossible …
On the objective facts, the accused cannot escape a verdict of murder.On the objective facts, the accused cannot escape a verdict of murder.
The defence caseThe defence case
There was no place to hide in there … If you put four shots through that door you must surely see you will shoot someone.There was no place to hide in there … If you put four shots through that door you must surely see you will shoot someone.
Why would he just want to murder someone in the toilet, knowing she’s in the bedroom?Why would he just want to murder someone in the toilet, knowing she’s in the bedroom?
What happens next?What happens next?
The appeal court has reserved its judgment; it has not given a date for this to be revealed.The appeal court has reserved its judgment; it has not given a date for this to be revealed.
The ruling will rely on a majority decision among the five judges, several of whom argued today that the bench was indeed entitled to impose its own verdict (rather than simply order a retrial) should it accept the state’s argument.The ruling will rely on a majority decision among the five judges, several of whom argued today that the bench was indeed entitled to impose its own verdict (rather than simply order a retrial) should it accept the state’s argument.
The judges could reject the state’s appeal, order a retrial (although there was no appetite for that expressed by any side today), or substitute a new verdict.The judges could reject the state’s appeal, order a retrial (although there was no appetite for that expressed by any side today), or substitute a new verdict.
If the appeal court decides to impose a guilty verdict on the murder charge, the case would return to the high court for a fresh sentence.If the appeal court decides to impose a guilty verdict on the murder charge, the case would return to the high court for a fresh sentence.
Oscar Pistorius remains under house arrest at his uncle’s house in Pretoria.Oscar Pistorius remains under house arrest at his uncle’s house in Pretoria.
10.02pm AEST11:02 11.02am GMT
11:02
Given the judges’ stern questioning of both parties, it is hard to draw a conclusion about who will be feeling most optimistic after today’s hearing. But many in Bloemfontein report that the state – and the Steenkamp family and supporters – appear upbeat:Given the judges’ stern questioning of both parties, it is hard to draw a conclusion about who will be feeling most optimistic after today’s hearing. But many in Bloemfontein report that the state – and the Steenkamp family and supporters – appear upbeat:
Consensus outside the court room is that this went firmly in the state's favour #OscarPistoriusConsensus outside the court room is that this went firmly in the state's favour #OscarPistorius
June Steenkamp goes and greets Gerrie Nel with a big hug after the Supreme Court of Appeal #OscarPistorius hearingJune Steenkamp goes and greets Gerrie Nel with a big hug after the Supreme Court of Appeal #OscarPistorius hearing
#PistoriusAppeal on the basis of proceedings today - prosecution has a good chance of winning according to a retired judge I just spoke to#PistoriusAppeal on the basis of proceedings today - prosecution has a good chance of winning according to a retired judge I just spoke to
Updated at 10.07pm AEST Updated
9.48pm AEST10:48 at 11.07am GMT
10.48am GMT
10:48
Judgment is reservedJudgment is reserved
The arguments are over and court is adjourned.The arguments are over and court is adjourned.
Judgment is reserved but no date given.Judgment is reserved but no date given.
I will post a summary of the hearing’s key developments shortly.I will post a summary of the hearing’s key developments shortly.
9.47pm AEST10:47 10.47am GMT
10:47
Leach asks if Masipa’s finding that Pistorius believed there was an intruder binds the current court.Leach asks if Masipa’s finding that Pistorius believed there was an intruder binds the current court.
The finding was wrongly made, Nel says.The finding was wrongly made, Nel says.
Was there a genuine threat, and what was the alternative action, Nel says. The trial court did not ask or answer these questions.Was there a genuine threat, and what was the alternative action, Nel says. The trial court did not ask or answer these questions.
9.46pm AEST10:46 10.46am GMT
10:46
The judges have further questions for Gerrie Nel.The judges have further questions for Gerrie Nel.
Why did Pistorius fire, Nel is asked.Why did Pistorius fire, Nel is asked.
Nel says we don’t need to know why he shot. The point is that he did shoot.Nel says we don’t need to know why he shot. The point is that he did shoot.
9.44pm AEST10:44 10.44am GMT
10:44
Pistorius was “scared, really scared”, says Roux. Why would he have fired the shots? There is no reason unless he is genuinely afraid for his life.Pistorius was “scared, really scared”, says Roux. Why would he have fired the shots? There is no reason unless he is genuinely afraid for his life.
And that’s it from Roux. He sits down.And that’s it from Roux. He sits down.
9.42pm AEST10:42 10.42am GMT
10:42
We can’t simply give everyone with an anxiety disorder the right to shoot, says a judge. Roux agrees, says #OscarPistorius is being punishedWe can’t simply give everyone with an anxiety disorder the right to shoot, says a judge. Roux agrees, says #OscarPistorius is being punished
9.41pm AEST10:41 10.41am GMT
10:41
Roux swings the focus on to Pistorius’ personality. He wants to talk about the “two Oscars” – one the famous athlete, the other an anxious, vulnerable person.Roux swings the focus on to Pistorius’ personality. He wants to talk about the “two Oscars” – one the famous athlete, the other an anxious, vulnerable person.
The defence previously told the high court that a report by a clinical psychologist, following a 30-day mental health evaluation ordered by the court, described aThe defence previously told the high court that a report by a clinical psychologist, following a 30-day mental health evaluation ordered by the court, described a
split in his personality … the one a vulnerable, scared disabled person; the other a strong physical person achieving beyond expectation and finding reward for it both intra-physically and interpersonally.split in his personality … the one a vulnerable, scared disabled person; the other a strong physical person achieving beyond expectation and finding reward for it both intra-physically and interpersonally.
Pistorius’ state of mind is key, Roux says.Pistorius’ state of mind is key, Roux says.
He should not have fired four shots. He should not have fired shots at all.He should not have fired four shots. He should not have fired shots at all.
But case law tells us we cannot isolate the actions from who the person is, Roux adds.But case law tells us we cannot isolate the actions from who the person is, Roux adds.
Related: Pistorius murder trial hears of 'two Oscars'Related: Pistorius murder trial hears of 'two Oscars'
9.33pm AEST10:33 10.33am GMT
10:33
Majiedt says the court has heard all the evidence. If it finds for the state, why would it be in anyone’s interest – including the accused – to have a retrial? Why shouldn’t this court substitute its own verdict?Majiedt says the court has heard all the evidence. If it finds for the state, why would it be in anyone’s interest – including the accused – to have a retrial? Why shouldn’t this court substitute its own verdict?
Now Judge Mhlantla weighs in with more legal precedent on when and why the appeal court can substitute its own verdict. Leach too. Roux is being pressed very hard.Now Judge Mhlantla weighs in with more legal precedent on when and why the appeal court can substitute its own verdict. Leach too. Roux is being pressed very hard.
9.24pm AEST10:24 10.24am GMT
10:24
Judge Majiedt asks Roux why the defence submits that – if the appeal court finds the law was misapplied – this court cannot substitute its own verdict:Judge Majiedt asks Roux why the defence submits that – if the appeal court finds the law was misapplied – this court cannot substitute its own verdict:
Why … in the interest of justice can this court not give the judgment that ought to have been given?Why … in the interest of justice can this court not give the judgment that ought to have been given?
The defence argument is that there would need to be a retrial, Roux says.The defence argument is that there would need to be a retrial, Roux says.
Majiedt says a retrial is not an ideal option, “given all that has gone before”. He doesn’t clarify – he’s perhaps referring to the televising of the original trial? It’s unclear.Majiedt says a retrial is not an ideal option, “given all that has gone before”. He doesn’t clarify – he’s perhaps referring to the televising of the original trial? It’s unclear.
But the judge says he does not understand Roux’s argument that this court could not reach its own verdict.But the judge says he does not understand Roux’s argument that this court could not reach its own verdict.
9.17pm AEST10:17 10.17am GMT
10:17
Roux says he would like to move on to his next point.Roux says he would like to move on to his next point.
But Judge Leach would like to ask him another question, about Seekoei (I covered this earlier; it covers the state’s right to appeal to the supreme court). Roux says it’s not part of the defence case; there was general agreement earlier that it is no longer a useful law.But Judge Leach would like to ask him another question, about Seekoei (I covered this earlier; it covers the state’s right to appeal to the supreme court). Roux says it’s not part of the defence case; there was general agreement earlier that it is no longer a useful law.
But he does dangle the question of double jeopardy – is this appeal giving the state a second chance after it failed to get the verdict it wanted?But he does dangle the question of double jeopardy – is this appeal giving the state a second chance after it failed to get the verdict it wanted?
Updated at 9.18pm AEST Updated
9.12pm AEST10:12 at 10.18am GMT
10.12am GMT
10:12
#PistoriusAppeal Leach:Do you accept this was an incorrect finding? R: I can't make that concession. Leach: We're here to argue not concede#PistoriusAppeal Leach:Do you accept this was an incorrect finding? R: I can't make that concession. Leach: We're here to argue not concede
9.10pm AEST10:10 10.10am GMT
10:10
This is a compelling battle between Roux and Leach – the judge pushes Roux to concede that Masipa’s findings on the identity issue were wrong. Roux will not.This is a compelling battle between Roux and Leach – the judge pushes Roux to concede that Masipa’s findings on the identity issue were wrong. Roux will not.
Once you accept that factual finding, Roux says, you cannot find Pistorius guilty of murder.Once you accept that factual finding, Roux says, you cannot find Pistorius guilty of murder.
(His problem is that at least one of these judges does not appear to accept that this was a factual finding. The appeal court ruling relies on a majority decision among the five judges.)(His problem is that at least one of these judges does not appear to accept that this was a factual finding. The appeal court ruling relies on a majority decision among the five judges.)
9.02pm AEST10:02 10.02am GMT
10:02
Roux says Masipa determined that Pistorius was wrong – this is why she found him guilty of culpable homicide.Roux says Masipa determined that Pistorius was wrong – this is why she found him guilty of culpable homicide.
But Masipa did accept that he genuinely thought he was in danger and that he believed Steenkamp was in the bedroom.But Masipa did accept that he genuinely thought he was in danger and that he believed Steenkamp was in the bedroom.
That is a factual finding, Roux argues. And given that:That is a factual finding, Roux argues. And given that:
Why would he just want to murder someone in the toilet, knowing she’s in the bedroom?Why would he just want to murder someone in the toilet, knowing she’s in the bedroom?
In that context, Masipa’s finding on dolus eventualis was correct, Roux argues.In that context, Masipa’s finding on dolus eventualis was correct, Roux argues.
8.58pm AEST09:58 9.58am GMT
09:58
This helpful extract by reporter Nastasya Tay from Judge Masipa’s judgment shows its focus on the identity of Steenkamp.This helpful extract by reporter Nastasya Tay from Judge Masipa’s judgment shows its focus on the identity of Steenkamp.
At least one of the judges on the bench today seem to be arguing that this was wrong – that dolus eventualis can apply regardless of the identity of the deceased.At least one of the judges on the bench today seem to be arguing that this was wrong – that dolus eventualis can apply regardless of the identity of the deceased.
In evaluating #OscarPistorius’ dolus eventualis, Masipa references Reeva’s identity. Judge Leach says that’s wrong. pic.twitter.com/htDFJJ2mrxIn evaluating #OscarPistorius’ dolus eventualis, Masipa references Reeva’s identity. Judge Leach says that’s wrong. pic.twitter.com/htDFJJ2mrx
8.56pm AEST09:56 9.56am GMT
09:56
Roux finds a reference in his notes. Leach says it does not support the defence argument that Masipa made a factual finding that Pistorius genuinely believed there was an intruder.Roux finds a reference in his notes. Leach says it does not support the defence argument that Masipa made a factual finding that Pistorius genuinely believed there was an intruder.
He didn’t know if it was a 12-year-old child or a man with a submachine gun, Leach says.He didn’t know if it was a 12-year-old child or a man with a submachine gun, Leach says.
The fact that Pistorius was wrong is something else, says Roux.The fact that Pistorius was wrong is something else, says Roux.
Did he believe that he was entitled to shoot in those circumstances, Leach asks.Did he believe that he was entitled to shoot in those circumstances, Leach asks.
He thought his life was in danger, Roux insists. He was vulnerable and on his stumps.He thought his life was in danger, Roux insists. He was vulnerable and on his stumps.
8.51pm AEST09:51 9.51am GMT
09:51
Roux insists there was a factual finding by the trial court that Pistorius genuinely believed his life was in danger.Roux insists there was a factual finding by the trial court that Pistorius genuinely believed his life was in danger.
Show me, says Judge Leach.Show me, says Judge Leach.
Wow, Justice Leach not given Roux an inch, demands he "show him the factual finding," Roux forced to page through his notes #OscarPistoriusWow, Justice Leach not given Roux an inch, demands he "show him the factual finding," Roux forced to page through his notes #OscarPistorius
#PistoriusAppeal Roux now frantically leafing through mountain of paperwork with multiple luminous sticky tabs#PistoriusAppeal Roux now frantically leafing through mountain of paperwork with multiple luminous sticky tabs
8.49pm AEST09:49 9.49am GMT
09:49
Leach says the trial judge found Pistorius to be a “shocking” and “unreliable” witness, but then went on to accept his claim that he honestly believed his life was in danger, without evidence to support it.Leach says the trial judge found Pistorius to be a “shocking” and “unreliable” witness, but then went on to accept his claim that he honestly believed his life was in danger, without evidence to support it.
He was armed with a firearm and went to confront the noise, Leach adds.He was armed with a firearm and went to confront the noise, Leach adds.
Roux asks, do we think he is lying?Roux asks, do we think he is lying?
8.47pm AEST09:47 9.47am GMT
09:47
Roux says it makes sense to him that Masipa ruled she could not find dolus eventualis because Pistorius genuinely thought it was an intruder in the cubicle.Roux says it makes sense to him that Masipa ruled she could not find dolus eventualis because Pistorius genuinely thought it was an intruder in the cubicle.
But why does the identity matter, the bench wants to know: did Pistorius think he was entitled to shoot at whoever was behind the door?But why does the identity matter, the bench wants to know: did Pistorius think he was entitled to shoot at whoever was behind the door?
Identity doesn’t come into it, says Roux, because it never entered Pistorius’ mind that the person behind the door was Steenkamp.Identity doesn’t come into it, says Roux, because it never entered Pistorius’ mind that the person behind the door was Steenkamp.
Roux is very animated; he is being pushed hard by the judges now.Roux is very animated; he is being pushed hard by the judges now.
8.40pm AEST09:40 9.40am GMT
09:40
Roux comes back. Pistorius believed his life was in danger, he says. He thought he was firing shots at an intruder.Roux comes back. Pistorius believed his life was in danger, he says. He thought he was firing shots at an intruder.
He says the judge’s comments on dolus eventualis relate to whether the accused foresaw that it could have been Steenkamp in the cubicle. He did not, Roux says.He says the judge’s comments on dolus eventualis relate to whether the accused foresaw that it could have been Steenkamp in the cubicle. He did not, Roux says.
8.39pm AEST09:39 9.39am GMT
09:39
Leach: When he fired the bullets did he know there was a person behind the door?Leach: When he fired the bullets did he know there was a person behind the door?
The issue is whether Pistorius foresaw the consequences, Leach goes on. Masipa’s ruling was that he did not because he did not know that it was Steenkamp.The issue is whether Pistorius foresaw the consequences, Leach goes on. Masipa’s ruling was that he did not because he did not know that it was Steenkamp.
His view is that this intepretation is legally wrong.His view is that this intepretation is legally wrong.
8.37pm AEST09:37 9.37am GMT
09:37
Leach is still not happy. Masipa defined dolus eventualis correctly, he repeats, but she then failed to apply it to anything other than Steenkamp being behind the door.Leach is still not happy. Masipa defined dolus eventualis correctly, he repeats, but she then failed to apply it to anything other than Steenkamp being behind the door.
Her analysis of dolus eventualis, it seems to me, was wrong …Her analysis of dolus eventualis, it seems to me, was wrong …
The issue was he knew a person was in the cubicle.The issue was he knew a person was in the cubicle.
That’s not really the issue, Roux interjects. Leach comes back:That’s not really the issue, Roux interjects. Leach comes back:
Of course it’s the issue.Of course it’s the issue.
8.34pm AEST09:34 9.34am GMT
09:34
Roux finds his feet again: the court found that Pistorius genuinely believed he was in danger and that Steenkamp was in the bedroom.Roux finds his feet again: the court found that Pistorius genuinely believed he was in danger and that Steenkamp was in the bedroom.
That can’t be ignored, he says.That can’t be ignored, he says.
8.33pm AEST09:33 9.33am GMT
09:33
Leach going to heart of this appeal: #OscarPistorius can be convicted of murder, even if he thought Reeva was in the bedroom,not behind doorLeach going to heart of this appeal: #OscarPistorius can be convicted of murder, even if he thought Reeva was in the bedroom,not behind door
8.33pm AEST09:33 9.33am GMT
09:33
Leach is now reading from Masipa’s judgment about the shooting.Leach is now reading from Masipa’s judgment about the shooting.
Is that not an incorrect application of the law regarding dolus eventualis, Leach asks Roux.Is that not an incorrect application of the law regarding dolus eventualis, Leach asks Roux.
Leach goes on: Masipa’s application of dolus eventualis applies only to whether Steenkamp (the judge calls her “Reeva”) was the person inside the cubicle. Isn’t that a wrong interpretation of the law, he says.Leach goes on: Masipa’s application of dolus eventualis applies only to whether Steenkamp (the judge calls her “Reeva”) was the person inside the cubicle. Isn’t that a wrong interpretation of the law, he says.
Roux seems rather flustered. He can’t find the right page in his notes, he says. But he says he does not agree.Roux seems rather flustered. He can’t find the right page in his notes, he says. But he says he does not agree.
8.29pm AEST09:29 9.29am GMT
09:29
Judge Leach is coming back at Roux with a sheaf of papers of his own.Judge Leach is coming back at Roux with a sheaf of papers of his own.
If a trial judge fails to apply herself to all the evidence, that is a misapplication of law, Leach tells Roux.If a trial judge fails to apply herself to all the evidence, that is a misapplication of law, Leach tells Roux.
Doesn’t that give you considerable difficulty, he asks the defence.Doesn’t that give you considerable difficulty, he asks the defence.
Looks like Roux is going to have to work hard to bring Judge Leach to his side today. Leach is leading the attack on defence #OscarPistoriusLooks like Roux is going to have to work hard to bring Judge Leach to his side today. Leach is leading the attack on defence #OscarPistorius
Updated at 8.29pm AEST Updated
8.24pm AEST09:24 at 9.29am GMT
9.24am GMT
09:24
Court resumesCourt resumes
Roux continues with his line that the court cannot consider the state’s appeal if it relies on points of fact, rather than points of law.Roux continues with his line that the court cannot consider the state’s appeal if it relies on points of fact, rather than points of law.
A person’s intention is a question of fact, he says.A person’s intention is a question of fact, he says.
8.10pm AEST09:10 9.10am GMT
09:10
My colleague Simon Allison reports from the court room in Bloemfontein:My colleague Simon Allison reports from the court room in Bloemfontein:
Gerrie Nel looked grateful to take his seat after an exhausting opening submission. It must be daunting for any lawyer, no matter how experienced, to argue in front of five of South Africa’s finest legal minds, all of whom are working their hardest to pick holes in your argument.Gerrie Nel looked grateful to take his seat after an exhausting opening submission. It must be daunting for any lawyer, no matter how experienced, to argue in front of five of South Africa’s finest legal minds, all of whom are working their hardest to pick holes in your argument.
Nel looked flustered at times, especially as he scratched around for case law to further his position, and the constant interruptions from the bench didn’t allow him to build his case as smoothly as he would have liked.Nel looked flustered at times, especially as he scratched around for case law to further his position, and the constant interruptions from the bench didn’t allow him to build his case as smoothly as he would have liked.
It’s important not to read too much into the judges’s questions or their general demeanour, however – the combative approach is designed to put legal teams under pressure, and in this case the burden of proof lies with the prosecution.It’s important not to read too much into the judges’s questions or their general demeanour, however – the combative approach is designed to put legal teams under pressure, and in this case the burden of proof lies with the prosecution.
8.06pm AEST09:06
Court adjourns for 15 minutes
We take a short break.
Roux still has more to say, but will have to wait while the judges adjourn for 15 minutes.
8.05pm AEST09:05
Judge Baartman pushes Roux on why four shots were necessary; Roux concedes that injury or death was a “possible consquence”.
8.02pm AEST09:02
Judge Majiedt wonders why Roux has not dealt with the evidence of Captain Christian Mangena, a police ballistics expert who testified that Steenkamp was standing close behind the door when she was shot.
Majiedt says the firing of the four bullets were aimed in a direction that could only have caused great damage.
Judge Leach points out that the “very restricted” size of the cubicle meant there was little chance of survival for anyone inside it:
There was no place to hide in there … If you put four shots through that door you must surely see you will shoot someone.
Reeva Steenkamp had “nowhere to hide”, he says.
Related: Reeva Steenkamp was standing when Pistorius fired first shot, court told
Updated at 8.04pm AEST
7.58pm AEST08:58
Roux: The state needed to find, or to construct, questions of law from factual findings.
His argument here is that the court is not entitled to overturn the original verdict.
7.56pm AEST08:56
The screams have no relevance to dolus eventualis, Roux says – they are relevant only if the state argues that Steenkamp was running away from Pistorius during an argument.
But the state is no longer pursuing that argument.
7.55pm AEST08:55
Another question from the bench: this time clarifying that Steenkamp had locked herself inside the toilet cubicle, and had her phone with her.
Roux says he would have locked the door if he had heard someone scream (as Pistorius said he did, telling the supposed intruder to get out of his house).
Find it interesting that female judge raises question about Reeva in toilet with phone. From experience, women often raise this point.
7.53pm AEST08:53
Roux is now reciting Masipa’s comments on the evidence that Nel says she ignored.
The judge was not persuaded by the state’s evidence, he says.
7.51pm AEST08:51
Roux: It was not possible for the deceased to have screamed after the shots.
The high court was right to dismiss evidence about the screaming, he says. Testimony that a woman was screaming was incorrect and the judge was right to find it unreliable.
7.49pm AEST08:49
#OscarPistorius Roux indicated in his heads that he would need five hours to argue. Let’s see what the court decides. BB
7.49pm AEST08:49
Here is the thrust of Roux’s argument – the questions posed by the state are not questions of law, and so cannot be considered by this court.
He says Masipa did not ignore the circumstantial evidence, as Nel alleges. This was dealt with in her ruling, Roux says, “every aspect”.
7.46pm AEST08:46
Defence begins its submission
Lead counsel for Pistorius, Barry Roux, takes his turn now.
7.44pm AEST08:44
That is the conclusion of the state’s submission. Nel sits down.
7.44pm AEST08:44
Nel now says his submission is complete. But the judges have questions.
Isn’t his argument for dolus eventualis an issue of fact, not of law, given that the principle of dolus eventualis is inferred from facts?
Nel disagrees: the misapplication of the principle is an issue of law.
The court correctly defined dolus eventualis, he says; but it applied it incorrectly.
The court said on two occasions that Pistorius could not have foreseen that he would shoot Steenkamp because he thought she was in the bedroom.
Judge Leach says this is a misapplication of dolus eventualis – the issue of whether it was Steenkamp in the cubicle is wrong.
7.38pm AEST08:38
Nel says neither state nor defence would be “keen for a retrial”. Neither of us have the stomach for it, he adds, gesturing to Roux.
But if that’s the only way of correcting an error, that’s what we will have to do, he adds.
His preference would be for this court to substitute a conviction of murder.
7.34pm AEST08:34
June Steenkamp, the mother of Reeva Steenkamp, is listening to proceedings.
She earlier told reporters that she was here to support Nel.
7.32pm AEST08:32
Nel and the judges agree that even if the supreme court decides that Pistorius ought to be convicted of murder, the case would need to be referred back to the high court – and to Masipa – for sentence.
7.29pm AEST08:29
Judge Mpati asks whether it matters who – Reeva Steenkamp or an intruder – was behind the closed cubicle door.
For the purposes of the appeal, it does not, says Nel. There was a criminal intent to bring about the demise of whoever was inside the toilet cubicle.
Judge Baartman asks if this is because of the number of shots fired (four)?
Nel agrees.
7.25pm AEST08:25
Nel is not arguing for dolus directus (premeditated murder), he insists, when pressed by one of the judges.
He wants a finding of dolus eventualis (more on what that means here).
#OscarPistorius Judge says it seems like Nel is arguing premeditated murder sometimes - Nel says that is not the intention.
7.23pm AEST08:23
On to the screams heard by various neighbours of Pistorius before and after the gunshots.
Nel says he won’t talk about these because the judge made a ruling on these that they were not credible, and so he can’t go over that in this court.
The supreme court judges, however, are quite keen to talk about the screams. Nel confirms: yes, it was Pistorius’ contention that any screams heard before the gunshots came from him.
7.21pm AEST08:21
Nel is now talking about evidence relating to when Reeva Steenkamp last ate and the contents of her stomach. The original trial heard a lot of evidence about this, and the forensics of gastric emptying. Judge Masipa dismissed it in her ruling as too disputed and not relevant to her verdict.
7.18pm AEST08:18
Nel: On the objective facts, the accused cannot escape a verdict of murder.
7.17pm AEST08:17
The panel of judges are interrogating Nel quite intensely – rather different to Judge Masipa’s less frequent, but pointed, interruptions during the trial.
Judge Mhlantla says that Pistorius could not claim a lack of intention to kill, but also rely on self-defence to justify the shooting.
Nel enthusiastically agrees – this was a favourite theme of his during the trial, during which he often referred to the accused’s “plethora of defences”:
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.
7.13pm AEST08:13
The court accepted that Pistorius was a bad witness, Nel points out, but yet accepted his version of events.
So far, it feels more like Judge Masipa is on trial, rather than Oscar #OscarAppeal #OscarPistorius
7.11pm AEST08:11
Nel: The court erred … to understand how to apply circumstantial evidence.
If the court did not apply the principles surrounding circumstantial evidence, and ignored evidence, that’s a legal question.
He says Masipa was wrong to dismiss evidence about the condition of the bedroom: the fan, the duvet and the denim.
(The positions of these items, and what they suggested about the movements of Pistorius and Steenkamp on the night of the shooting, were pored over during the trial, but given little credence by Masipa in her ruling.)
Nel says this evidence shows the version given by Pistorius could not be true.
7.08pm AEST08:08
Nel says the court ignored circumstantial evidence; “it never became clear” what attention the judge had paid to it.
7.04pm AEST08:04
Nel moves on to his second point. The original judge was wrong to throw out circumstantial evidence, he argues, by looking at it piece-by-piece, rather than as a “mosaic”.
Judge Masipa paid only “lip service” to such evidence, he says.
#PistoriusAppeal Nel also concerned that Masipa disregarded ear-witnesses who spoke of hearing a 'row'
7.01pm AEST08:01
(The defence is expected to argue against Nel’s interpretation. It will likely say that the state offered the judge two options on which to convict Pistorius: murder or culpable homicide.)
6.58pm AEST07:58
Nel and the judges are discussing the Seekoei case, a principle that could determine whether or not the supreme court is able to overturn the culpable homicide verdict:
Seekoei ruling says state CANNOT appeal a "competent verdict" - conviction on alternative charge. It can only appeal acquittal @eNCA
Judge Majiedt says Seekoei is no longer good law; things have moved on. Nel agrees. It is not applicable any more, he says, and so this court should make a ruling in this appeal.
Updated at 6.59pm AEST
6.55pm AEST07:55
Justice Mpati asks if Nel would have been satisfied if the high court had simply ruled that the murder charge was not proved.
No, says Nel: the effect is the same – it is an acquittal on the charge of murder.
In order to ascertain that the supreme court is entitled to hear this appeal, Nel must establish that Pistorius was in fact acquitted of murder. His conviction on an alternative count – of culpable homicide – seems to have made this a grey area.
6.51pm AEST07:51
Nel says the state was not happy with the factual findings of the high court, but he will not attack those. He will focus on what he says were the errors in law made by the original judge.
There have already been several interjections from the bench; the judges have a lot of questions about Nel’s intentions here.
6.50pm AEST07:50
Remember, onus is on prosecution to prove that original judge made mistakes. They've got a mountain to climb. #OscarPistorius
6.50pm AEST07:50
Nel dives straight into case law.
He says the key element here is whether the law was correctly applied.
There are two hurdles, he says: to convince the court that it is entitled to consider the case although the trial did not end in a complete acquittal; and to establish that there were errors in law.
6.47pm AEST07:47
Judges enter the court
Gerrie Nel is first up to address the judges.
6.46pm AEST07:46
What is dolus eventualis?
The original trial catapulted what might once have been an obscure legal principle into the global spotlight. Today it will be central to the state’s case that 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.
Related: Oscar Pistorius verdict: judgment seemed to support charge of 'dolus eventualis'
6.44pm AEST07:44
With the court due to convene at 10am local time – in around 15 minutes’ time – most parties, bar the judges, are now in place in the court room.
Gerrie Nel, for the state, and Barry Roux, for Pistorius, are here, as is June Steenkamp, the mother of Reeva Steenkamp.
Oscar Pistorius will not be in court today. He remains under house arrest at his uncle’s house in Pretoria.
Reporters view of the #OscarAppeal courtroom, note the red leatherback chairs of the judges pic.twitter.com/yEBTpgr3vV
6.39pm AEST07:39
My colleague Simon Allison sends this dispatch from the supreme court:
It’s a bright sunny day in Bloemfontein, although unseasonably cold. The crowds that attended the first trial are absent (journalists aside: there are plenty of us here, as the case continues to fascinate global audiences).
A small band of ANC Youth League members – perhaps a dozen of them – have arrived to show their support for Reeva Steenkamp, dressed in bright green and yellow outfits and singing struggle songs.
That the court is in Bloemfontein at all is a quirk of South Africa’s unusual history. To my knowledge, South Africa is the only country in the world to boast three official capital cities: Pretoria for the executive, Cape Town for the legislature, and Bloemfontein for the judiciary.
But while Pretoria and Cape Town have remained relevant, Bloemfontein is far down the country’s urban pecking order – perhaps a reflection of the relative significance of the judiciary as compared to the other branches of government?
6.29pm AEST07:29
For a recap of the original trial, this article takes you through the key points of each day in court:
Related: Oscar Pistorius trial: the full story, day by day
6.16pm AEST07:16
Although Pistorius will not be present at the court today, June Steenkamp, the mother of Reeva Steenkamp, will attend.
Steenkamp recently said of her daughter’s killer:
I didn’t want him to be thrown in jail and be suffering because I don’t wish suffering on anyone, and that’s not going to bring Reeva back.
But in my heart, I don’t want revenge towards him. I’m past that. Once you have told God that you forgive, you have to forgive. And I don’t want him to suffer … I would certainly not want to hurt another human being.
#OscarPistorius Reeva's mom June Steenkamp has arrived... pic.twitter.com/wWYGFIqdRf
Updated at 6.16pm AEST
6.04pm AEST07:04
What will happen today?
Five judges of the supreme court will hear the appeal:
The judges have already had some time to consider the arguments from both legal teams. The state submitted its heads of argument (its written case) to the court in August; Pistorius’ lawyers handed in theirs in September.
Today will see the two legal protagonists from the original trial – chief prosecutor Gerrie Nel and Barry Roux for the defence – argue their cases in person in front of the judges.
#OscarPistorius Gerrie Nel arrives at SCA. GN pic.twitter.com/wLOPQ4Lubq
Key to today’s hearing is that the state must argue not on points of fact, but on points of law – that the high court in its original verdict misapplied or misinterpreted legal principles.
No new evidence is allowed to be presented, and no witnesses will be called.
The state will say that Judge Masipa misapplied the legal principle of dolus eventualis – prosecutors will argue that Pistorius foresaw that his actions in firing four shots into the door could have led to the death of the person behind it, but went ahead anyway.
Masipa in the original trial accepted Pistorius’ claim that he had not foreseen such an outcome.
The prosecution argues:
Should it be found that the court incorrectly applied the principles of dolus eventualis, then a conclusion that the respondent should have been convicted of murder is, with respect, inescapable …
We argue that the only conceivable finding based on the facts could at a minimum be that, in arming himself, walking to the bathroom with the intention to shoot, whilst knowing that there is a person behind a closed door of a small cubicle and intentionally firing four shots, should be that he intended to kill the person in the cubicle …
It is respectfully submitted that an accused’s version must be regarded as ‘inherently improbabl[e]’ if ‘he presents conflicting versions to the court’, so much so that it cannot be reasonably possibly true.
The defence will argue that Masipa correctly applied the law, and that the state failed in the original trial to prove that Pistorius intended to kill.
#OscarPistorius Defence's Barry Roux just arrived at court. MV pic.twitter.com/uQYDXxitHT
5.42pm AEST06:42
Opening summary
Claire Phipps
South Africa’s supreme court today convenes to hear prosecutors argue that Oscar Pistorius should have been found guilty of murder for shooting his girlfriend, Reeva Steenkamp, in February 2013.
At the culmination of a months-long trial last year, high court judge Thokozile Masipa ruled that while the athlete had acted unlawfully in firing four bullets through a locked toilet door at his home in Pretoria, he had not intended to kill the person behind it.
Pistorius maintained that he thought he was firing at an intruder.
Masipa found him guilty of culpable homicide – equivalent to manslaughter – and sentenced him to five years. He was released from Kgosi Mampuru II prison last month, after one year behind bars, to serve the remainder of his sentence under house arrest at his uncle’s home.
Today prosecutors will argue before a panel of judges that Masipa’s decision was wrong and that Pistorius should have been convicted of murder.
If the supreme court agrees, it can impose a murder conviction, which could see Pistorius returned to jail for up to 15 years.
Alternatively, the judges could order a retrial, or dismiss the state’s argument.
Lawyers for Pistorius will argue that the original conviction should stand.
Tuesday will see both sides make their case to the judges. Each has submitted their heads of argument to the court; you can read the state’s submission here.
Pistorius will not attend the hearing, and the judges are expected to reserve their ruling to a later date.
This rolling blog will cover the hearing live as court convenes at 10am local time (8am GMT/7pm AEDT).
My colleague Simon Allison will be in court in Bloemfontein; you can follow his updates on this live blog and @simonallison. I will also tweet key developments @Claire_Phipps. Plus do feel free to leave comments and questions below the blog.