:00:00. > :00:00.the evidence as a whole, and the circumstances of the case, to
:00:00. > :00:07.determine the presence or absence of intention at the time of the
:00:08. > :00:11.incident. In the present case, on his own version, the accused
:00:12. > :00:17.suspected that an intruder had entered his house through the
:00:18. > :00:22.bathroom window. Is version was that he genuinely, though erroneously,
:00:23. > :00:36.believe that his life and that of the deceased was in danger. There is
:00:37. > :00:39.nothing in the evidence to suggest that this belief was not honestly
:00:40. > :00:44.entertained. I say this for the following reasons. The bathroom
:00:45. > :00:48.window was indeed open, so it was not his imagination at work, when he
:00:49. > :00:55.thought he heard the window slide open. He armed himself with a loaded
:00:56. > :01:02.firearm and went to the direction of the noise. He heard a door slammed
:01:03. > :01:06.shut. The toilet door was indeed shut when he fired four shots at it
:01:07. > :01:12.after he heard a movement inside the toilet. On his version, he was
:01:13. > :01:16.scared as he thought the intruder was coming out to attack him. There
:01:17. > :01:23.is no doubt that when the accused fired shots through the toilet door,
:01:24. > :01:30.he acted unlawfully. There was no intruder. Instead, the person behind
:01:31. > :01:44.the door was the deceased, and she was dead. I need deal with dolus
:01:45. > :01:54.eventualis. The question is, one did the accused foresee it could be
:01:55. > :01:59.deceased behind the toilet door? Two, not withstanding the foresight,
:02:00. > :02:02.did he fire the shots, thereby reconsighing himself to the
:02:03. > :02:06.possibility that -- reconsighing himself to the possibility that it
:02:07. > :02:10.could be the deceased in the toilet? The evidence before this court does
:02:11. > :02:17.not support the state's convention, that this could be a case of dolus
:02:18. > :02:22.eventualis. On the contrary, the evidence shows that from the onset,
:02:23. > :02:27.the accused believed that at the time he fired shots into the toilet
:02:28. > :02:34.door, the deceased was in the bedroom while the intruders were in
:02:35. > :02:46.the toilet. This belief was communicated to a number of people
:02:47. > :02:52.shortly after the incident. At 3. 19, the accused disclosed this, when
:02:53. > :03:05.he was requested to quickly come to his house.
:03:06. > :03:11.At 3.22am, he told his version of this. A few minutes later the same
:03:12. > :03:16.information was relayed to the doctor when he arrived at the
:03:17. > :03:24.accuse's house and lastly it was told to the police at about 4am, the
:03:25. > :03:27.same day. Counsel for the defence correctly argued it was highly
:03:28. > :03:34.improbable that the accused would have made this up so quickly and be
:03:35. > :03:39.consistent in his version, even at the bail application before he had
:03:40. > :03:45.access to the police docket and before he was privy to the evidence
:03:46. > :03:56.on behalf of the state at the bail application. The question is, did
:03:57. > :04:04.the accused foresee the possibility of the result in death, yet
:04:05. > :04:07.persisted in his deed, reckless whether death happened or not? In
:04:08. > :04:15.the circumstances of this case, the answer has to be no. How could the
:04:16. > :04:22.accused reasonably have foreseen that the shot he fired would kill
:04:23. > :04:28.the deceased? Clearly, he did not subjectively foresee this as a
:04:29. > :04:33.possibility that he would kill the person behind the door, let alone
:04:34. > :04:39.the deceased, as he thought she was in the bedroom at the time. To find
:04:40. > :04:45.otherwise would be tantamount to saying that the accused's reaction,
:04:46. > :04:51.after he realised that he had shot the deceased was fate, that he was
:04:52. > :04:58.play acting, merely to delude the on lookers at the time. Dr Stipp, an
:04:59. > :05:04.independent witness, who was at the accused's house, minutes after the
:05:05. > :05:10.incident had occurred, stated that the accused looked generally
:05:11. > :05:16.distraught, as he prayed to God. As he pleaded with him to help safe the
:05:17. > :05:20.deceased. There was nothing to gain say that observation. And this court
:05:21. > :05:25.has not been given any reason to reject it and we accept it as true
:05:26. > :05:34.and reliable. It follows that the accused in
:05:35. > :05:39.honest belief his life was in of danger dolus. The accused therefore
:05:40. > :05:46.cannot be found guilty of murder, dolus eventualis. That however is
:05:47. > :05:47.not the end of the matter, as culpable homicide is a competent
:05:48. > :06:19.verdict. We will take an early lunch. The
:06:20. > :06:34.court will adjourn. FORCEWHITE
:06:35. > :06:40.STUDIO: Well, an early lunch there. The adjournment there in the last
:06:41. > :06:45.couple of seconds made by the judge after a very significant past few
:06:46. > :06:50.minutes, where she has discussed the whole issue of intention in the
:06:51. > :06:55.shooting of Reeva Steenkamp by Oscar Pistorius. And then, at the last, in
:06:56. > :07:00.the last few seconds has said the accused cannot be found guilty of
:07:01. > :07:04.murder. Using the term dolus eventualis. Now, I will go through
:07:05. > :07:09.some of the legal terminology that the judge has been using because it
:07:10. > :07:15.has been very, very thorough with the former judge William Heath. Has
:07:16. > :07:21.she discounted the prospect of finding Oscar Pistorius guilty of
:07:22. > :07:27.murder per se. Dolus eventualis is indirect intention. So, if you
:07:28. > :07:31.foresee the possibility, although you don't inten to murder somebody,
:07:32. > :07:35.but if you foresee they could be killed, then of course can be
:07:36. > :07:40.guilty. She has found there was no proof of such. In this instance, she
:07:41. > :07:46.has accepted his evidence, which is very strong. Which will reflect in
:07:47. > :07:51.when she deals with the culpable homicide. After saying it is not
:07:52. > :07:55.possible to find Oscar Pistorius guilty of murder, dolus eventualis,
:07:56. > :08:01.she mentioned that is not the end of the matter. There is the matter of
:08:02. > :08:04.culpable homicide. How strong an indication, she has said, this is
:08:05. > :08:09.what I am going to find him guilty of? She did not say that. She needs
:08:10. > :08:14.to deal with alternative convictions. She needs to go through
:08:15. > :08:17.that. If that is a possibility in law, of an alternative, she needs to
:08:18. > :08:23.deal wit. There's no indication she has any intention to find him guilty
:08:24. > :08:27.of culpable homicide. She mentioned the existence of culpable homicide,
:08:28. > :08:32.which other countries know as manslaughter. What is that charge?
:08:33. > :08:38.How much does it relate to intent or negligence? There's no intention
:08:39. > :08:48.whatsoever, so it is on the basis that the accused did not behave as
:08:49. > :08:52.would be the same. If he was not acting reasonably, then he is
:08:53. > :08:58.negligent and guilty of culpable homicide. Just what was lacking...
:08:59. > :09:02.On the facts we have listened to, it's going to be interesting to see
:09:03. > :09:07.whether she arrives at that conthe collusion. I am really -- at that
:09:08. > :09:12.conclusion. I am really looking forward to that. Possibly an hour
:09:13. > :09:21.until the court resumes. I mean, just what was lacking in the state's
:09:22. > :09:24.case that didn't ashave, A, a premeditated murder conviction or
:09:25. > :09:29.any lesser charge of murder? In fact, more than one element of the
:09:30. > :09:34.crimes were actually miss in the prosecution's case. The first is of
:09:35. > :09:39.course the intention. The second one, on the basis she had found what
:09:40. > :09:46.his thoughts were when he was approaching the bathroom. There was
:09:47. > :09:50.no malice and was it unlawful when he decided he must protect himself.
:09:51. > :09:57.That is the justification of something which may otherwise have
:09:58. > :10:02.been unlawful. That he reasonably expected an attack or he was in
:10:03. > :10:08.danger, then of course he cannot be convicted of. That if you put
:10:09. > :10:15.yourself in that position, he is outside the door. Maybe somebody has
:10:16. > :10:20.broken into your house unlawful. It is not uncommon that such a person
:10:21. > :10:26.is armed. So, there's a real risk that that person may fire shots as
:10:27. > :10:30.well. And it will play no role and serve in purpose if he's waiting for
:10:31. > :10:34.the other person to respond, because the other person could have killed
:10:35. > :10:43.him. And if he was just waiting and the other person opened the door and
:10:44. > :10:50.fired the shot because he's in the process, then... A reminder, Judge
:10:51. > :10:54.Masipa has been saying the court cannot find Oscar Pistorius guilty
:10:55. > :10:57.of murder and now we are going to hear, after lunch, after this
:10:58. > :11:01.adjournment of perhaps an hour, of whether she is going to find Oscar
:11:02. > :11:06.Pistorius guilty of the lesser charge of culpable homicide. So, I
:11:07. > :11:11.mean we now expect a listing of her findings that the key parts of
:11:12. > :11:15.evidence, what she thinks of them, with regard to this lower charge. A
:11:16. > :11:23.lot of people have asked throughout this, why didn't A, the prosecution
:11:24. > :11:27.go for culpable homicide rather than murder and B, the defence accept a
:11:28. > :11:31.lesser charge rather than fighting? It does not follow necessarily that
:11:32. > :11:36.if you are acquitted on a more serious crime that you must be
:11:37. > :11:43.convicted of the lesser crime. You've still got elements in law,
:11:44. > :11:49.which need to be proved, beyond reasonable doubt they were proved.
:11:50. > :11:58.That's the crux of the legal system, such as yours and ours and many
:11:59. > :12:02.countries. That is that you give the person the doubt, whether they had
:12:03. > :12:07.the intention, whether it was unlawful. I have listened to so many
:12:08. > :12:15.comments by the public about this case. People are so quick to say, he
:12:16. > :12:19.obviously intended to kill her. Why didn't he check she was in the
:12:20. > :12:25.bedroom. What was his mind focussed on? It was focussed on noises he
:12:26. > :12:31.heard. I do not believe without proper analysis of the evidence you
:12:32. > :12:34.can find somebody guilty because you can't do that. That is not a
:12:35. > :12:41.democratic society. You just can't do that. And we talked a little
:12:42. > :12:44.earlier about the pressure on a judge, South Africa's first
:12:45. > :12:48.televised trial. You mentioned that everybody has an opinion about it.
:12:49. > :12:51.Everybody thinks they know what Oscar Pistorius did or was thinking
:12:52. > :12:55.that night. For the judge, how difficult is it for a judge to
:12:56. > :13:01.distance yourself from every single thing you read and hear around you,
:13:02. > :13:06.and focus purely on the evidence? Well, after years of experience, you
:13:07. > :13:12.do acquire the ability to do that. Not all judges, but most of them.
:13:13. > :13:16.And she has obviously acquired it. I am very impressed with the
:13:17. > :13:22.reasoning. One can debate that she's right or wrong, but the reasoning,
:13:23. > :13:29.the crux she's analysing, as she does, that is so true basic prince
:13:30. > :13:34.pals of criminal law. That is where it comes from. If the onus was on
:13:35. > :13:36.the accused to prove he was not guilty, as you find in other
:13:37. > :13:40.countries, it may have been different. There is a difference
:13:41. > :13:46.between the systems. Is there any doubt now that we will find out by
:13:47. > :13:51.the end of the day Oscar Pistorius's fate? Will we be getting a verdict
:13:52. > :13:56.in maybe a couple of hours? Probably not more than one hour, I would
:13:57. > :14:04.imagine. Straight after the lunch adjournment? Yes. We are seeing just
:14:05. > :14:09.about the wider legal process and what it shows about the South
:14:10. > :14:14.African legal system - has this been an edifying view of the legal
:14:15. > :14:18.process in action for people to maybe be discounted of their
:14:19. > :14:22.prejudices about it, how it worked, how they thought it worked? Well,
:14:23. > :14:28.that is why I am very grateful for this opportunity that the press was
:14:29. > :14:33.there and it was actually on video camera. It has proved when you are
:14:34. > :14:37.watching and listening, that we are applying the principals of law. It
:14:38. > :14:42.is not just the discretion of finding, we applied principals of
:14:43. > :14:49.law. And she is a very good example of exactly that.
:14:50. > :14:54.If she wanted to debate from her arguments, it could have been easy
:14:55. > :15:01.for her to say, oh, well, on this I don't believe you. That's not the
:15:02. > :15:04.end of the analysis, where he contradicts himself, but what is the
:15:05. > :15:09.essence of the facts before the court. That is what she does. She
:15:10. > :15:14.did not have good words for Oscar Pistorius's conduct. She said he was
:15:15. > :15:23.an evasive witness. As a judge, what difference does that make in the
:15:24. > :15:31.overall picture? If the judge was of the view that he is guilty, then the
:15:32. > :15:36.fact he was evasive would have corroborated her inference that he
:15:37. > :15:40.was guilty. So evasiveness is an important factor when you lock at
:15:41. > :15:48.evidence, but that is not decisive. You need to decide what. Even if the
:15:49. > :15:53.accused is an absolute liar you still must analyse the state's
:15:54. > :15:58.evidence. That is the crux of it. Just about the wider legal process,
:15:59. > :16:04.when a verdict comes, and if there is a conviction, what is the likely
:16:05. > :16:09.course of events? How much longer does a case generally, how much can
:16:10. > :16:21.it go on for, with appeals and mitigation?
:16:22. > :16:25.appeal, they would have to apply for leave to appeal, and usually, in
:16:26. > :16:32.such a complex case, they would not do it this afternoon. It may take a
:16:33. > :16:40.few weeks. And then, if the judge does rant leave to appeal, then the
:16:41. > :16:46.evidence would need to be re-examined, together with the
:16:47. > :16:49.analysis of the judge, and then, heads of argument, as we call it,
:16:50. > :16:54.would have to be filed by both parties. Only then is a date given
:16:55. > :16:58.in the Court of Appeal. And the Court of Appeal is sort of two years
:16:59. > :17:02.behind, not because they are slow, but because of the number of cases
:17:03. > :17:09.they are dealing with. So, it could take another three years. Regarding
:17:10. > :17:13.what the options are now four Judge Masipa, effectively she could find
:17:14. > :17:19.him guilty of culpable homicide or to acquit him entirely, in terms of
:17:20. > :17:23.culpable homicide, what is the range of possible sentences, and how much
:17:24. > :17:29.leeway does the judge have? Well, if it is a culpable homicide, which is
:17:30. > :17:39.so close to murder, in the sense that he was acting recklessly, and
:17:40. > :17:52.that it was brutal murder, it could be 15 years, even 20 years. As a
:17:53. > :17:55.maximum sentence. Yes. But in this case, on the assumption that she
:17:56. > :18:04.finds him guilty, I cannot imagine that it would be more than five
:18:05. > :18:10.years. What he feared, what he felt, may have exceeded the limits of the
:18:11. > :18:14.reasonableness of that, which is why he is the OT of Cobble homicide, if
:18:15. > :18:21.we assume that, but what you are looking at is, is he as booty as a
:18:22. > :18:26.person who requires a much longer sentence? You cannot say that. She
:18:27. > :18:29.has already accepted the fact that he was under the impression that he
:18:30. > :18:37.was in danger, which is why the sentence will be much lighter. In
:18:38. > :18:43.fact, it is not uncommon that the court can impose a sentence until
:18:44. > :18:47.the court the germs. That happens, not quite often, but it does happen
:18:48. > :18:57.from time to time. -- until the court adjourns. So, effectively, it
:18:58. > :19:03.is just a formality. But as you said, there are many mitigating
:19:04. > :19:09.circumstances. Of course, the judge has not convicted Oscar Pistorius of
:19:10. > :19:20.anything yet, we are still waiting to hear. The judge has said that the
:19:21. > :19:22.court is unable to find Oscar Pistorius guilty of premeditated
:19:23. > :19:29.murder, the state had not proved beyond reasonable doubt that he was
:19:30. > :19:34.guilty of that. She went on to say that murder without that S back of
:19:35. > :19:41.premeditation was also not proven without reasonable doubt. -- without
:19:42. > :19:42.that aspect. We will be hearing more when the court resumes after lunch,
:19:43. > :19:47.and we will be hearing the when the court resumes after lunch,
:19:48. > :19:54.her judgment. We are discussing this with former Judge William Heath. One
:19:55. > :20:00.option would be complete acquittal. This is one of South Africa's most
:20:01. > :20:04.high-profile cases ever... Many members of the public will be most
:20:05. > :20:07.unhappy about that, because of their own little prejudices, because of
:20:08. > :20:17.their view that he is guilty. But when you analyse it cold and apply
:20:18. > :20:21.the law, you can see why he was acquitted on the more serious
:20:22. > :20:26.charges. As a judge, this issue of what public opinion thinks of a
:20:27. > :20:32.possible outcome, held much does that play on your mind? It is
:20:33. > :20:40.actually irrelevant. There may be judges, we are all human beings, but
:20:41. > :20:50.it is of no consequence when you consider a judgment such as this.
:20:51. > :20:54.This case has been all about the issue of intention, what was going
:20:55. > :20:57.through Oscar Pistorius's mind, there was no element of a
:20:58. > :21:02.whodunnit, which makes it all the more difficult? Of course. And the
:21:03. > :21:11.cross examination which was done by the prosecutor sort of hammered him
:21:12. > :21:16.always in that direction - you had done it intentionally, you knew it
:21:17. > :21:21.was wrong, you knew it was your girlfriend behind the door, that
:21:22. > :21:29.sort of thing. As opposed to, if he had cross-examined him in a calm
:21:30. > :21:34.manner, he might have found different answers than what he got.
:21:35. > :21:39.What he has done now is to create sympathy for Oscar because of the
:21:40. > :21:42.boldness of his cross examination. That does not mean the cross
:21:43. > :21:51.examination has not been strict and to the point, but if it is
:21:52. > :21:58.overdone, then you build up sympathy to the point, but if it is
:21:59. > :22:02.for the accused. Let's go back to some of what the judge has been
:22:03. > :22:08.saying in the last hour about the issue of premeditated murder, and
:22:09. > :22:11.the court's inability to prove, the state's inability to prove beyond
:22:12. > :22:18.doubt that Oscar Pistorius was guilty of that crime.
:22:19. > :22:21.Viewed in its totality, the evidence failed to establish that the accused
:22:22. > :22:29.had the requisite intention to kill the deceased, let alone with
:22:30. > :22:35.premeditation. I am talking about direct intention. The state clearly
:22:36. > :22:44.has not proved beyond reasonable doubt that the accused is guilty of
:22:45. > :22:52.premeditated murder. There are just not enough facts to support such a
:22:53. > :23:01.finding. It follows that the accused's erroneous belief that his
:23:02. > :23:04.life was in danger means that he cannot be found guilty of murder
:23:05. > :23:09.dolus eventualis. That however is not the end of the matter, as
:23:10. > :23:17.culpable homicide is a competent verdict.
:23:18. > :23:22.We now await what the judge has 2 say on that after the lunch
:23:23. > :23:25.adjournment. With me, my colleague Andrew Harding, who has been in
:23:26. > :23:33.court throughout this trial. It all moved very fast...? It did, it was
:23:34. > :23:37.extraordinary, the judge taking a scalpel, more like a sledgehammer,
:23:38. > :23:40.too much of the prosecution's case, dismissing the evidence of the
:23:41. > :23:45.neighbours who insisted they heard a woman screaming, dismissing the
:23:46. > :23:51.evidence, speculation that the couple had been rowing, all of those
:23:52. > :23:54.text messages, which the prosecution tried to show meant that surely they
:23:55. > :23:57.were having some terrible relationship, and that he must have
:23:58. > :24:03.deliberately gone into that toilets to kill her. And we are left with
:24:04. > :24:09.the defence's case. It was interesting that initially, Judge
:24:10. > :24:12.Masipa made a great deal about the discrepancies between Oscar
:24:13. > :24:17.Pistorius's various versions of what happened in those critical few
:24:18. > :24:20.seconds in that toilet, when he was standing, pointing his gun at the
:24:21. > :24:24.bathroom door. She went through all of these different versions, that it
:24:25. > :24:28.was an accident, that he knew someone was coming out and he fired
:24:29. > :24:31.either intentionally or involuntarily, and a lot of people
:24:32. > :24:36.in court thought, we are heading to some sort of murder charge. And
:24:37. > :24:39.then, just in the last few minutes, she concluded that no, the
:24:40. > :24:44.prosecution had not proved any form of murder. And we are now left with
:24:45. > :24:49.culpable homicide, which could still get him, remember, ten years in
:24:50. > :24:52.prison, or a fine or a suspended sentence. The judge has massive
:24:53. > :24:59.discretion when it comes to sentencing. All, and I think this
:25:00. > :25:04.would be a huge shock, an acquittal. But to me, what has been
:25:05. > :25:07.extraordinary today is that essentially, the entire prosecution
:25:08. > :25:11.case could have been forgotten about, they hardly needed to turn up
:25:12. > :25:16.in court. This was all about Oscar Pistorius's performance on the
:25:17. > :25:21.stand, and the crucial cross-examination by Gerrie Nel, who
:25:22. > :25:24.did rattle Pistorius very badly. But it was really about Pistorius's own
:25:25. > :25:31.version, and the confusion that he showed. And we are left with
:25:32. > :25:35.essentially Pistorius's own version of events, and the possibility that
:25:36. > :25:39.he may still go to prison, not on what the prosecution accused him of,
:25:40. > :25:45.but on his own muddled version of what he says happened. What has his
:25:46. > :25:49.demeanour been like in court? I was sitting behind him, and his father
:25:50. > :25:53.and the family. I could not see his face. But towards the end his head
:25:54. > :25:58.slumped, his neck muscles were preaching frantically. It was clear
:25:59. > :26:03.that he was starting to sob, especially when Judge Masipa, who,
:26:04. > :26:08.as judges often do, had not made it clear watching was going to say.
:26:09. > :26:12.Then suddenly, after quoting all of the legal cases, she got to the
:26:13. > :26:15.lowest murder conviction, dolus eventualis, and she said very
:26:16. > :26:20.clearly, they have not proved that. Everybody gasps, and Pistorius
:26:21. > :26:26.realised that he would not be found guilty of murder. He is not a
:26:27. > :26:29.murderer. Clearly, with some sort of relief, he started sobbing. His
:26:30. > :26:34.family, though, and I was trying to talk a bit to them afterwards,
:26:35. > :26:41.although of course they do not know what is going to happen exactly
:26:42. > :26:47.yet, they have got mixed emotions on their faces. Some hints of relief,
:26:48. > :26:53.but also, they know that Pistorius could still spend years in jail. I
:26:54. > :26:59.spoke very briefly to some of his lawyers, and it is still clearly
:27:00. > :27:03.very unclear. I think they are looking, as we suggested for quite
:27:04. > :27:07.some weeks, at culpable homicide as the most likely verdict. The family
:27:08. > :27:12.of Reeva Steenkamp is also in their - any sense of their emotions? No.
:27:13. > :27:21.To be fair, they are sitting a bit further down the line from me so I
:27:22. > :27:24.have not seen them close-up. But throughout, her mother has been an
:27:25. > :27:30.extraordinary example of controlled emotions, even when a photograph of
:27:31. > :27:34.her daughter's head wounds flashed up on screen, early in the trial,
:27:35. > :27:40.and she showed nothing, just put her head down gently. It seems like she
:27:41. > :27:50.has been determined to maintain and extraordinary degree of composure.
:27:51. > :27:54.Thank you very much. We will be bringing you the latest
:27:55. > :28:00.developments. But the dramatic fact emerging from the last half-hour is
:28:01. > :28:01.that Oscar Pistorius will not be found guilty of the charge of
:28:02. > :28:22.murder. We wait to for curious people like us.
:28:23. > :28:24.They just keep on coming.