Ilse de Lange
2 minute read
17 Sep 2015
1:50 pm

Pistorius unable to afford a new trial – Barry Roux

Ilse de Lange

Oscar Pistorius was unable to afford a new trial, his senior defence advocate Barry Roux has said in legal argument filed with the Supreme Court of Appeal this week.

Oscar Pistorius. Picture: EPA

The State’s appeal against the former Paralympic athlete’s conviction on a charge of culpable homicide, rather than murder, for the 2013 Valentine’s
Day killing of his girlfriend Reeva Steenkamp, will be argued in November. The SCA’s registrar Paul Myburgh said a definite date for the hearing was only expected next week.

Pistorius throughout his lengthy trial maintained he believed he was firing at an intruder when he shot Steenkamp behind a locked toilet door. Judge Thokozile Masipa in October last year sentenced Pistorius to five years’ imprisonment in terms of Section 276(1)(i) of the Criminal Procedure
on a charge of culpable homicide, in terms of which he had to serve 10 months behind bars before he could be considered for release.

A review board will on Friday reconsider if Pistorius should be released under correctional supervision after Justice Minister Michael Masutha in
August blocked his release, saying the Parole Board’s decision to free Pistorius had been premature.

Judge Masipa has reserved three questions of law for consideration by the Appeal Court, including if the principles of dolus eventualis were correctly
applied to the accepted facts, but Roux argued that it actually concerned questions of fact which could not be revisited.

He maintained the State had failed to prove that Pistorius did not have a genuine, subjective belief of danger when he shot Steenkamp. Roux argued that if the Appeal Court found in favour of the state, the only avenue open to it in terms of the Criminal Procedure Act would be to order a new trial, which would be severely prejudicial to Pistorius and would subject him to double jeopardy.

He said Pistorius could not be tried for the same crime twice and factors such as the extent, complexity and duration of the trial also militated
against a new hearing. The case was in the public domain and subjected to intense public scrutiny, which could only contaminate and confuse the objectivity and reliability of witnesses in the proceedings.

If there was a second trial, Pistorius would again be subjected to the same allegations and the same offence while he has already fulfilled the
custodial part of his sentence on the same facts.

Pistorius’ financial ability for a new trial is “non-existent”, he added. Roux argued that the State was trying to reintroduce its case that Pistorius
had deliberately shot Steenkamp with the direct intention to kill her. In doing so, the State failed to deal with how the trial court had erred in
its application of dolus eventualis and tried to alter the factual findings of the trial court, despite being unable to do so, he said.