Oscar Pistorius: state appeal against murder acquittal can go ahead – as it happened
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Version 0 of 1. 8.27pm AEST09:27 Closing summary This live blog is closing now. Thank you for reading. You can read our story on this morning’s developments here. Updated at 11.27pm AEST 8.01pm AEST09:01 It looks as if the supreme court at Bloemfontein will not be hearing the Pistorius appeal any time soon: NPA spokesman tells @eNCAnews that state hopes to file full trial record by end May - and it'll take 2-3months for heads to be filed... “Heads” refers to the written heads of arguments that need to be submitted to the court by both prosecution and defence teams. It is therefore possible – given that legally Pistorius could be allowed to leave prison under house arrest after serving 10 months of his sentence; that is, in August this year – that he could be out of jail by the time any appeal hearing takes place. Mgobhozi on release of #Pistorius to house arrest. "It's in the hands of Correctional Services. We have no control over time frames." Updated at 8.02pm AEST 7.47pm AEST08:47 Velekhaya Mgobhozi, a spokesperson for South Africa’s National Prosecuting Authority (NPA), is now speaking to eNCA news: The NPA is very happy with the decision reached by the court today. By “late May” the NPA will file the transcript of the original trial to the supreme court, after which a date can be set for an appeal hearing, he said. Asked why the NPA was pursuing the appeal against Pistorius’ acquittal on the charge of murdering Reeva Steenkamp, Mgobhozi said: We feel in our hearts, respectfully, that the judge erred in her judgment and that a different court would reach a different verdict. Updated at 7.51pm AEST 7.40pm AEST08:40 Marius du Toit, an attorney, is being interviewed on the eNCA news channel about the case. He doesn’t believe the defence will be too concerned about today’s outcome. I don’t believe this was an exercise in futility … [It was] making sure that by the time it gets to the SCA he can now say, I did appeal it and it was dismissed. The supreme court of appeal (SCA) cannot now refuse to hear arguments on the grounds that the defence didn’t attempt to appeal against the state application. Today was all about Barry Roux “dotting his i’s and crossing his t’s”, he says. It is now likely that the SCA will have to decide before anything else is heard whether Masipa was right to allow the state leave to appeal at all. 7.29pm AEST08:29 Summary In the end, then, Judge Masipa dispatched the defence application very speedily. Her court was not the right place to hear this application, she said, adding that there was “really nothing new” in what the defence had submitted. You can read a summary of the defence case – and the state’s successful response – here. The next round in this trial now moves to the supreme court of appeal in Bloemfontein. A date has not yet been set for this hearing. 7.18pm AEST08:18 Masipa strikes the defence application from the roll, Roux and Webber shake their heads in disbelief #Pistorius 7.16pm AEST08:16 Judge strikes out defence application There is really nothing new in the submissions by counsel for the applicant [Pistorius]. She strikes out the application by the defence. 7.15pm AEST08:15 Masipa: I am not satisfied that this is the correct court to hear this application. 7.14pm AEST08:14 Judge Thokozile Masipa: Roux argued that he cannot argue against my decision to grant appeal unless the application is granted. 7.14pm AEST08:14 As we know, Masipa likes to explain her reasoning behind all decisions. So she begins by setting out what we’ve heard so far this morning (here’s a brief summary by me). 7.13pm AEST08:13 Court is back in session Judge Masipa has returned to the court room. 7.02pm AEST08:02 The key arguments The defence case Barry Roux, for Pistorius, insisted this was not an application for leave to appeal against the state’s leave to appeal. It was his legal obligation, he said, to raise this argument now – ahead of the full appeal hearing in the supreme court – to ensure he would be able to make the points at that later date. He asked Judge Masipa to agree that her earlier ruling – giving the state leave to appeal based on an agreement that a different court could reach a different verdict on the murder charge based on interpretation of the law – could have been wrong. Roux argues that the culpable homicide verdict was reached on matters of fact, which cannot be the basis for an appeal. The state’s case Gerrie Nel, for the prosecution, said the defence application should be struck off the roll. He said there was no provision in law for the court to even hear an application of this kind, let alone to grant it. And, he said, there was no reason why the defence could not raise its arguments in the supreme court. 6.58pm AEST07:58 Judge Masipa is still in her chambers, considering her decision. Given the speediness of the hearing, it’s expected that she will come back with a ruling today, but as the lengthy main trial showed, things can sometimes take a lot longer than expected. 6.33pm AEST07:33 Outside the court, there has been some controversy ahead of this hearing concerning the “privileges” apparently afforded to Pistorius inside Kgosi Mampuru II prison, where he is serving his sentence. Reports have claimed that authorities at the jail have upgraded his status from category B to category A, meaning he is now entitled to make more phone calls, wear jewellery, own a radio, and hug his visitors – the last apparently confirmed by his brother, Carl Pistorius: AWESOME morning! Our Princess's @AimeePistorius birthday - my first contact visit with my Boet @OscarPistorius. #whataday #allboutthepeople This week, South Africa’s Daily Sun published footage of Pistorius playing football in a prison yard with Radovan Krejcir, a Czech prisoner held on charges of kidnapping, attempted murder and drug dealing: 6.31pm AEST07:31 Roux is finished. Court breaks as Judge Masipa leaves the room to consider her decision. She asks for “a few minutes”. Updated at 6.32pm AEST 6.29pm AEST07:29 Roux goes on – he says the trial court made a finding in granting the application to the state in December that the issues raised could be matters of law. The court was right to dismiss the state’s attempt to secure leave to appeal against the five-year sentence, Roux adds. But he says he must have leave from this court in order to argue in the supreme court that the state challenge over the murder charge acquittal is based on matters of fact, not law. Roux says he needs leave to argue that Masipa was wrong to grant state right to appeal in the first place #OscarTrial @eNCAnews Updated at 6.30pm AEST 6.26pm AEST07:26 Nel sits down. Barry Roux is on his feet again. He says he is obliged to ask for this leave: It’s not an appeal, it’s a substantive application. (It’s unclear at this stage whether anyone understands what the difference is.) 6.22pm AEST07:22 Nel: In conclusion, this case should be struck off the roll. In fact, it should be stronger than that, he adds: The court should make it clear that it will not entertain applications for leave against leave. Updated at 6.23pm AEST 6.19pm AEST07:19 Nel says the result of an application of this nature is that the case “will become never-ending … where will it stop?” 6.17pm AEST07:17 Nel cites various other cases to support his argument that the court today is not entitled to grant the defence leave to appeal against the state’s appeal. There is no “prescription in the law”, he tells the judge. "We can't do that (grant defence) because this court is a creature of statute...you don't have the right," says Nel #Pistorius Updated at 6.17pm AEST 6.15pm AEST07:15 Nel says Masipa does not have the right to grant the leave. There is no provision to even hear the current application, he argues. Masipa is making a lot of notes as she listens. 6.14pm AEST07:14 Nel: To grant leave to appeal … is not a final order … It’s a process where one approaches the court and applies for leave to address a specific point in the SCA [supreme court of appeal] later. The accused has a right to argue whatever he wants. Nel says that Masipa did not decide, in granting the state leave to appeal, that the state was right in its arguments on the point of law (on dolus directus), merely that there was “a reasonable possibility” that another court would reach a different interpretation. 6.12pm AEST07:12 Nel says the defence is asking the court to grant leave for something it already has leave to do. Pistorius’ lawyers can already argue their point in the supreme court. This “leave against leave” is “ridiculous”. 6.10pm AEST07:10 Legally, appeals to the supreme court must be on a point of law, not on factual matters, Roux contends. He says the defence needs leave from Judge Masipa in order to argue at the Supreme Court that this is a factual matter. It needs this to be in an equal position when it comes before the Supreme Court, Roux insists. Roux sits down. Gerrie Nel, for the state, is straight up on his feet. The judge should strike this claim out, he says. 6.07pm AEST07:07 Barry Roux, lead counsel for Pistorius, speaks first. He says he is not intending to appeal against the state’s appeal. He says that the state’s appeal going to the Supreme Court would be a factual matter “disguised” as a point of law. 6.04pm AEST07:04 Court is in session Judge Masipa has arrived and the court is in session. 6.03pm AEST07:03 June Steenkamp, the mother of Reeva Steenkamp, was a regular attendee at the high court in Pretoria during Pistorius’ trial. But she is unlikely to be here today. She told my colleague David Smith last month: I’m not focusing my life any more on Oscar. If by law they condemn him to a longer sentence, that’s got nothing to do with me. What happens to Oscar now happens to Oscar. It isn’t going to affect me. Reeva is never going to walk through that door again. I’m not a vengeful person and I don’t wish ill on anyone. The appeal is up to the law. The law must take its course and God must take his course. 5.52pm AEST06:52 It is still early but so far the scene at court does not resemble those seen during Pistorius’ original trial. Karyn Maughan, a reporter for eNCA news in Johannesburg, is in court: Prosecutor Gerrie Nel has arrived at court. So far, only me and another journalist in court. Very different from #OscarTrial @eNCAnews Prosecutor Gerrie Nel preparing his argument. #OscarAppeal @eNCAnews pic.twitter.com/ROjlY1qqYs Lawyers for Pistorius, headed by lead counsel Barry Roux, are also in the court room. 5.50pm AEST06:50 How did we get here? In the hearing last December, lead prosecutor Gerrie Nel said the court had erred in its application of the principles of dolus eventualis, because the accused should have known that firing four shots through a toilet cubicle door would result in death, even if he did not “wish the result”. Pistorius should have been found guilty of murder, he contended. Nel also argued that the five-year sentence imposed on Pistorius was “shockingly inappropriate” and a different court would be likely to impose a harsher punishment. The defence opposed the state application. Judge Masipa did, however, allow the request by prosecutors to appeal against the acquittal on the charge of murder: I cannot say ... that the prospect of success at the Supreme Court of Appeal is remote … I am also of the view ... this might have a practical effect. The application therefore in respect of count one is decided in favour of the applicant [the state]. But she refused to allow the state to challenge the five-year sentence imposed for the culpable homicide: I am not persuaded that there was any material misdirection or irregularity, or that on the facts of this matter the sentence imposed was shockingly inappropriate. The supreme court is due to hear the prosecution appeal later this year. 5.43pm AEST06:43 Opening summary Lawyers for Oscar Pistorius will today argue that Judge Thokozile Masipa was wrong when, in December last year, she granted prosecutors permission to appeal against her verdict that the Paralympian was guilty of the culpable homicide – but not the murder – of Reeva Steenkamp. Steenkamp was killed when Pistorius, her boyfriend, fired four shots through a locked toilet door in the early hours of 14 February 2013. He maintained that he had mistaken her for an intruder. In September 2014, Pistorius was cleared by the judge of a charge of murder, but convicted of a lesser charge of culpable homicide (manslaughter). Masipa decided that he could not be found guilty of murder by dolus directus (premeditated) or dolus eventualis (that he foresaw that shooting four bullets through the door would lead to death, but went ahead anyway): It cannot be said that he foresaw that the deceased or anyone else would be killed when he fired shots at the toilet door. But in December, both sides, along with Masipa, returned to court, with prosecutors arguing that the judge had made a mistake in acquitting Pistorius of the more serious charge. An appeal can only be granted on a question of law, not on factual findings. Masipa agreed with the prosecutors’ contention that the verdict was based on her interpretation of law – notably, the application of the principle of dolus eventualis. Today the defence will seek to cast doubt on this at the South Gauteng high court in Johannesburg around 9am (7am GMT/6pm AEDT). “We will argue that these are matters of fact, rather than matters of law,” Pistorius’s lawyer Brian Webber said when the defence announced last month its decision to challenge the ruling. We will have live updates here throughout the hearing. I will also be tweeting key developments @Claire_Phipps. My colleague David Smith will be reporting from South Africa; he’s on @SmithInAfrica. |