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Version 2 Version 3
Oscar Pistorius appeal: state seeks murder conviction – live Oscar Pistorius appeal: state seeks murder conviction – live
(35 minutes later)
8.53am GMT08:53
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.
8.51am GMT08:51
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.
8.49am GMT08:49
#OscarPistorius Roux indicated in his heads that he would need five hours to argue. Let’s see what the court decides. BB
8.49am GMT08:49
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”.
8.46am GMT08:46
Defence begins its submission
Lead counsel for Pistorius, Barry Roux, takes his turn now.
8.44am GMT08:44
That is the conclusion of the state’s submission. Nel sits down.
8.44am GMT08:44
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.
8.38am GMT08:38
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.
8.34am GMT08:34
June Steenkamp, the mother of Reeva Steenkamp, is listening to proceedings.
She earlier told reporters that she was here to support Nel.
8.32am GMT08:32
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.
8.29am GMT08:29
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.
8.25am GMT08:25
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.
8.23am GMT08:23
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.
8.21am GMT08:21
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.
8.18am GMT08:188.18am GMT08:18
Nel: On the objective facts, the accused cannot escape a verdict of murder.Nel: On the objective facts, the accused cannot escape a verdict of murder.
8.17am GMT08:178.17am GMT08:17
The panel of judges are interrogating Nel quite intensely – rather different to Judge Masipa’s less frequent, but pointed, interruptions during the trial.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.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”: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.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.
8.13am GMT08:138.13am GMT08:13
The court accepted that Pistorius was a bad witness, Nel points out, but yet accepted his version of events.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 #OscarPistoriusSo far, it feels more like Judge Masipa is on trial, rather than Oscar #OscarAppeal #OscarPistorius
8.11am GMT08:118.11am GMT08:11
Nel: The court erred … to understand how to apply circumstantial evidence.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.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.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.)(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.Nel says this evidence shows the version given by Pistorius could not be true.
8.08am GMT08:088.08am GMT08:08
Nel says the court ignored circumstantial evidence; “it never became clear” what attention the judge had paid to it.Nel says the court ignored circumstantial evidence; “it never became clear” what attention the judge had paid to it.
8.04am GMT08:048.04am GMT08:04
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”.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.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'#PistoriusAppeal Nel also concerned that Masipa disregarded ear-witnesses who spoke of hearing a 'row'
8.01am GMT08:018.01am GMT08:01
(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.)(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.)
7.58am GMT07:587.58am GMT07:58
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: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 @eNCASeekoei 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.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 7.59am GMTUpdated at 7.59am GMT
7.55am GMT07:557.55am GMT07:55
Justice Mpati asks if Nel would have been satisfied if the high court had simply ruled that the murder charge was not proved.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.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.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.
7.51am GMT07:517.51am GMT07:51
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.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.There have already been several interjections from the bench; the judges have a lot of questions about Nel’s intentions here.
7.50am GMT07:507.50am GMT07:50
Remember, onus is on prosecution to prove that original judge made mistakes. They've got a mountain to climb. #OscarPistoriusRemember, onus is on prosecution to prove that original judge made mistakes. They've got a mountain to climb. #OscarPistorius
7.50am GMT07:507.50am GMT07:50
Nel dives straight into case law.Nel dives straight into case law.
He says the key element here is whether the law was correctly applied.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.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.
7.47am GMT07:477.47am GMT07:47
Judges enter the courtJudges enter the court
Gerrie Nel is first up to address the judges.Gerrie Nel is first up to address the judges.
7.46am GMT07:467.46am GMT07:46
What is dolus eventualis?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?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.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.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.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: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.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.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 …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.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'Related: Oscar Pistorius verdict: judgment seemed to support charge of 'dolus eventualis'
7.44am GMT07:447.44am GMT07:44
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.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.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.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/yEBTpgr3vVReporters view of the #OscarAppeal courtroom, note the red leatherback chairs of the judges pic.twitter.com/yEBTpgr3vV
7.39am GMT07:397.39am GMT07:39
My colleague Simon Allison sends this dispatch from the supreme court: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).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.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.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?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?
7.29am GMT07:297.29am GMT07:29
For a recap of the original trial, this article takes you through the key points of each day in court: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 dayRelated: Oscar Pistorius trial: the full story, day by day
7.16am GMT07:167.16am GMT07:16
Although Pistorius will not be present at the court today, June Steenkamp, the mother of Reeva Steenkamp, will attend.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: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.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.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#OscarPistorius Reeva's mom June Steenkamp has arrived... pic.twitter.com/wWYGFIqdRf
Updated at 7.16am GMTUpdated at 7.16am GMT
7.04am GMT07:047.04am GMT07:04
What will happen today?What will happen today?
Five judges of the supreme court will hear the appeal: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.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.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#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.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.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.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.Masipa in the original trial accepted Pistorius’ claim that he had not foreseen such an outcome.
The prosecution argues: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 …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 …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.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.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#OscarPistorius Defence's Barry Roux just arrived at court. MV pic.twitter.com/uQYDXxitHT
6.42am GMT06:426.42am GMT06:42
Opening summaryOpening summary
Claire PhippsClaire 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.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.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.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.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.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.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.Alternatively, the judges could order a retrial, or dismiss the state’s argument.
Lawyers for Pistorius will argue that the original conviction should stand.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.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.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).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.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.