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’ bid to have the Constitutional Court overturn his murder conviction.
Pistorius, 29, filed papers on Monday to ask the Concourt to hear his appeal against the SCA’s judgment in December last year, 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, while believing that she was an intruder.
In his Constitutional Court application, lawyer Andrew Fawcett argued that the amputee sprinter had “incorrectly and unfairly been convicted of murder”. He said the SCA had no right to reject the Pretoria High Court’s finding that Pistorius acted out of fear that his and Steenkamp’s lives were in danger. Neither did the SCA have the power to reject factual findings of the trial court; it could only concern itself with questions of law.
The second ground for appeal is a claim that the SCA made legal errors when it 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. The second, disregarded component was that the accused must have known his actions were unlawful, he said.
He said Pistorius believed 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 state of mind negated or ignored the subjective state of mind of and in particular his anxiety disorder, his serious physical disability and his vulnerability.
“At the time of the incident 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 had “unfairly discriminated against on the grounds of his disability, vulnerability and anxiety”.
Pistorius’s depression also had a negative impact on the quality of his testimony during the trial, Fawcett said, adding that the prosecution exploited Pistorius’s by cross-examining him aggressively for seven days, insisting he look at images of her wounds and calling him a liar.
The state now has 10 days to oppose the application.
After convicting Pistorius of murder, the SCA sent 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 ConCourt 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.
SCA ‘discriminated against’ Oscar
This is one of the arguments in Pistorius’ bid to have the Constitutional Court overturn his murder conviction.
Pistorius, 29, filed papers on Monday to ask the Concourt to hear his appeal against the SCA’s judgment in December last year, 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, while believing that she was an intruder.
In his Constitutional Court application, lawyer Andrew Fawcett argued that the amputee sprinter had “incorrectly and unfairly been convicted of murder”. He said the SCA had no right to reject the Pretoria High Court’s finding that Pistorius acted out of fear that his and Steenkamp’s lives were in danger. Neither did the SCA have the power to reject factual findings of the trial court; it could only concern itself with questions of law.
The second ground for appeal is a claim that the SCA made legal errors when it 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. The second, disregarded component was that the accused must have known his actions were unlawful, he said.
He said Pistorius believed 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 state of mind negated or ignored the subjective state of mind of and in particular his anxiety disorder, his serious physical disability and his vulnerability.
“At the time of the incident 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 had “unfairly discriminated against on the grounds of his disability, vulnerability and anxiety”.
Pistorius’s depression also had a negative impact on the quality of his testimony during the trial, Fawcett said, adding that the prosecution exploited Pistorius’s by cross-examining him aggressively for seven days, insisting he look at images of her wounds and calling him a liar.
The state now has 10 days to oppose the application.
After convicting Pistorius of murder, the SCA sent 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 ConCourt 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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