'Oscar's disability ignored' by Supreme Court of Appeal - Times LIVE
   
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Fri Dec 09 17:24:31 SAST 2016

'Oscar's disability ignored' by Supreme Court of Appeal

Marzanne van den Berg | 2016-01-13 06:37:01.0
Judge Eric Leach delivering his judgement in the Oscar Pistorius case in the Supreme Court of Appeal in Bloemfontein, December 3, 2015. File photo.
Image by: REUTERS/Johan Pretorius/Pool

The Supreme Court of Appeal (SCA) unfairly discriminated against Oscar Pistorius on the grounds of his disability, vulnerability and anxiety when it found him guilty of murder.

This is one of the arguments in Pistorius's bid to have the Constitutional Court overturn his murder conviction.

Pistorius, 29, filed papers on Monday asking the Constitutional Court to hear his appeal against the SCA's judgment last month in which it set aside his culpable homicide conviction and found him guilty of murder.

The Pretoria High Court convicted Pistorius of culpable homicide in September 2014 for shooting and killing his model and law graduate girlfriend, Reeva Steenkamp. He said he thought she was an intruder.

In his Constitutional Court application, lawyer Andrew Fawcett argued on behalf of Pistorius that the amputee sprinter "has incorrectly and unfairly been convicted of murder".

He said the SCA did not have the right to reject 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.

The SCA did not have the power to reject factual findings of the trial court but could only concern itself with questions of law, Fawcett said.

The second ground for the appeal is that the SCA allegedly made legal errors in its application of the principle of dolus eventualis.

The court found that Pistorius had intention to kill in the form of dolus eventualis.

Fawcett said the court only considered the first component of dolus eventualis, namely that the accused foresaw the risk of death occurring and nevertheless continued to act, appreciating that death might occur.

The court disregarded the second component, namely that the accused must have known his actions are unlawful, he said.

He said Pistorius genuinely believed that his life was in danger and that he was acting in self-defence and therefore lawfully.

According to Fawcett, the SCA also made a mistake by introducing an objective test of the "rational person" to consider what Pistorius believed when he fired the shots. Only Pistorius's subjective state of mind mattered, he said.

"The objective rationality criteria applied by the SCA to determine [Pistorius's] state of mind negated or ignored the subjective state of mind of [Pistorius] and in particular his anxiety disorder, his serious physical disability and his vulnerability as a result thereof. At the time of the incident [Pistorius] was on his stumps, which made him more vulnerable and anxious."

He said by measuring Pistorius's conduct against the objective standard of a rational person, the SCA "unfairly discriminated against [Pistorius] on the grounds of his disability, vulnerability and anxiety".

Fawcett also said the SCA should have taken Pistorius's state of mind into account in considering his evidence because his depression had a negative impact on the quality of his testimony during the trial.

He added that the prosecution exploited Pistorius's compromised state of mind by cross-examining him aggressively for seven days, insisting he look at a picture of Steenkamp's wounds and calling him a liar several times.

The state has ten days in which to respond if it plans to oppose the application.

After convicting Pistorius of murder, the SCA referred the case back to the high court for a new sentence to  be imposed.

Pistorius was granted bail in December last year to await the outcome of his Constitutional Court application. The new sentencing process will not go ahead until the Constitutional Court has either dismissed his application or heard the case and made a ruling.

Pistorius was initially sentenced to five years in prison and spent a year behind bars before his sentence was converted to correctional supervision in October last year.

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