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Fri Sep 30 05:14:26 CAT 2016

Don't hear Oscar Pistorius's appeal‚ state asks Constitutional Court

Marzanne Van Den Berg | 25 January, 2016 17:40
Oscar Pistorius sits in the dock at the North Gauteng High Court in Pretoria, South Africa for a bail hearing, December 8, 2015.
Image by: REUTERS/Siphiwe Sibeko

The prosecutors who secured a murder conviction for Oscar Pistorius has asked the Constitutional Court to refuse to hear his appeal.

Pistorius‚ 29‚ was initially found guilty of culpable homicide in the Pretoria High Court in 2014 for shooting and killing his girlfriend‚ Reeva Steenkamp‚ 29. He shot her through the locked door of a toilet cubicle in his bathroom‚ believing that she was an intruder.

But the Supreme Court of Appeal last year overturned the high court's decision and branded him a murderer.

Pistorius wants to fight that judgment in the Constitutional Court and last month filed an application to appeal to that court.

But‚ in its papers filed last week opposing the application‚ prosecutors said he has no reasonable chance of success and it is not in the interests of justice for the Constitutional Court to hear the case.

"I submit that it is in the interests of justice that criminal trials ought to be finalised without undue delay and submit that it is in the interests of justice that the Applicant [Pistorius] now appears before the trial Court to be sentenced on the crime he has committed‚" prosecutor Andrea Johnson said in her affidavit in support of the state's opposition.

She said the Supreme Court of Appeal (SCA) made no errors in law and did not exceed its jurisdiction‚ as Pistorius's lawyers argued.

Pistorius's lawyer‚ Andrew Fawcett‚ said the SCA overstepped its bounds by considering facts when it rejected the Pretoria High Court's finding that Pistorius acted out of fear in a genuine‚ though erroneous‚ belief that his and Steenkamp's lives were in danger.

Fawcett said because Pistorius genuinely believed their lives were in danger‚ he believed he was acting in self-defence and thus lawfully. Pistorius could not have been found guilty unless he knew he was acting unlawfully‚ Fawcett argued.

But Johnson said that the SCA correctly applied the legal principles to the facts accepted by the trial court.

She said that the SCA acted with great circumspection and caution in interfering with the trial court's decision.

She said the SCA was correct when it rejected Pistorius's reliance on putative self-defence because he testified that he did not intend to shoot the person he believed was hidden behind the toilet door. To rely on putative self-defence‚ one must intend to act.

Johnson also rejected Fawcett's argument that the SCA made a mistake by introducing an objective rational person test in considering the principle of dolus eventualis while it should only have taken Pistorius's subjective state of mind into account.

"I submit further that the Supreme Court of Appeal clearly applied a subjective test and concluded that the Applicant [Pistorius] acted with dolus eventualis in causing the death of the deceased‚" Johnson said.

"The SCA did not evaluate and assess the version of the Applicant [Pistorius] against that of a reasonable person standard‚ but by referring to the “rational person”‚ suggested the view that the Applicant’s version as testified to was so preposterous or 'inconceivable' that it could not be accepted."

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