Here is my considered legal opinion to the reaction on the verdict in the Oscar Pistorious case. (Which we will all have forgotten about next week). I hope anyone reading will approach with an open mind…

It is for the prosecution to prove that OP is guilty and not for OP to prove that he is innocent, furthermore, we do not have all the evidence before us, but a summary distilled for us by a biased media.

So first we have the physical act of killing which has to be proved beyond reasonable doubt (BRD) this was not disputed by the defence. Second we have causation. i.e. did the act of the defendant OP cause the death of the Reeva? That was not also in dispute.

To sustain a conviction you have to prove BRD that the above happened while the defendant had the intention to kill or cause grievous bodily harm (GBH) to R or another. The intention is not diluted by the intention to kill or cause GBH being directed to another. This is where I think the prosecution did not exercise diligent prosecution by trying to prove and ‘either or’ case. They tried to prove that OP had intention to either kill R in a fit of rage OR kill an intruder with intent.

What this means for the standard of proof is that each alternative weakens the proof of the other alternative.

Let me illustrate. Did the prosecution prove BRD that OP killed R with the requisite intent? No, because they suggest that he may have been aiming to kill an intruder. So intent is not proved BRD.

Did the prosecution prove BRD that OP intended to kill an intruder with the requisite intent? No, because they maintain that he may have had intent to kill R.

By maintaining both alternatives could have happened the prosecution introduced reasonable doubt that either alternative happened. I believe they intended to prove the OP killed R with intent, but while they were still sub judice (course of trial) they realised their evidence will not suffice for proof BRD. Had they evaluated their evidence properly BEFORE trial they should have gone with the second alternative.

Mistaken identity does not dilute intent. Thus if A intended to kill B but killed C, subject to the actus reus being proved, A will still be guilty of murder.

The difficulty in proving the mental element or mens rea of murder is why there is a whole raft of other convictions available for unlawful killing which give the judges the discretion to sentence relative to the seriousness of the crime, taking into account the purposes of the legal system in its penal regime.

The judgement is not that OP did not kill R. the judgment is that the prosecution has not proven OP guilty of murder – murder is a technical term having strict legal definition as is culpable homicide.

Judicial interpretation Oscar killed Reeva (caused her death), but he did not murder her. He was negligent in his actions which fell short of that of a reasonable person and thus caused her death.

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African woman, lawyer, teacher, poet and researcher. Singer of songs, writer of words, very occasional dancer of dances. I seek new ways of interpreting the African experience within our consciousness to challenge static ideology.

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