11/09/2014 BBC World News

the evidence as a whole, and the circumstances of the case, to

determine the presence or absence of intention at the time of the

incident. In the present case, on his own version, the accused

suspected that an intruder had entered his house through the

bathroom window. Is version was that he genuinely, though erroneously,

believe that his life and that of the deceased was in danger. There is

nothing in the evidence to suggest that this belief was not honestly

entertained. I say this for the following reasons. The bathroom

window was indeed open, so it was not his imagination at work, when he

thought he heard the window slide open. He armed himself with a loaded

firearm and went to the direction of the noise. He heard a door slammed

shut. The toilet door was indeed shut when he fired four shots at it

after he heard a movement inside the toilet. On his version, he was

scared as he thought the intruder was coming out to attack him. There

is no doubt that when the accused fired shots through the toilet door,

he acted unlawfully. There was no intruder. Instead, the person behind

the door was the deceased, and she was dead. I need deal with dolus

eventualis. The question is, one did the accused foresee it could be

deceased behind the toilet door? Two, not withstanding the foresight,

did he fire the shots, thereby reconsighing himself to the

possibility that -- reconsighing himself to the possibility that it

could be the deceased in the toilet? The evidence before this court does

not support the state's convention, that this could be a case of dolus

eventualis. On the contrary, the evidence shows that from the onset,

the accused believed that at the time he fired shots into the toilet

door, the deceased was in the bedroom while the intruders were in

the toilet. This belief was communicated to a number of people

shortly after the incident. At 3. 19, the accused disclosed this, when

he was requested to quickly come to his house.

At 3.22am, he told his version of this. A few minutes later the same

information was relayed to the doctor when he arrived at the

accuse's house and lastly it was told to the police at about 4am, the

same day. Counsel for the defence correctly argued it was highly

improbable that the accused would have made this up so quickly and be

consistent in his version, even at the bail application before he had

access to the police docket and before he was privy to the evidence

on behalf of the state at the bail application. The question is, did

the accused foresee the possibility of the result in death, yet

persisted in his deed, reckless whether death happened or not? In

the circumstances of this case, the answer has to be no. How could the

accused reasonably have foreseen that the shot he fired would kill

the deceased? Clearly, he did not subjectively foresee this as a

possibility that he would kill the person behind the door, let alone

the deceased, as he thought she was in the bedroom at the time. To find

otherwise would be tantamount to saying that the accused's reaction,

after he realised that he had shot the deceased was fate, that he was

play acting, merely to delude the on lookers at the time. Dr Stipp, an

independent witness, who was at the accused's house, minutes after the

incident had occurred, stated that the accused looked generally

distraught, as he prayed to God. As he pleaded with him to help safe the

deceased. There was nothing to gain say that observation. And this court

has not been given any reason to reject it and we accept it as true

and reliable. It follows that the accused in

honest belief his life was in of danger dolus. The accused therefore

cannot be found guilty of murder, dolus eventualis. That however is

not the end of the matter, as culpable homicide is a competent

verdict. We will take an early lunch. The

court will adjourn. FORCEWHITE

STUDIO: Well, an early lunch there. The adjournment there in the last

couple of seconds made by the judge after a very significant past few

minutes, where she has discussed the whole issue of intention in the

shooting of Reeva Steenkamp by Oscar Pistorius. And then, at the last, in

the last few seconds has said the accused cannot be found guilty of

murder. Using the term dolus eventualis. Now, I will go through

some of the legal terminology that the judge has been using because it

has been very, very thorough with the former judge William Heath. Has

she discounted the prospect of finding Oscar Pistorius guilty of

murder per se. Dolus eventualis is indirect intention. So, if you

foresee the possibility, although you don't inten to murder somebody,

but if you foresee they could be killed, then of course can be

guilty. She has found there was no proof of such. In this instance, she

has accepted his evidence, which is very strong. Which will reflect in

when she deals with the culpable homicide. After saying it is not

possible to find Oscar Pistorius guilty of murder, dolus eventualis,

she mentioned that is not the end of the matter. There is the matter of

culpable homicide. How strong an indication, she has said, this is

what I am going to find him guilty of? She did not say that. She needs

to deal with alternative convictions. She needs to go through

that. If that is a possibility in law, of an alternative, she needs to

deal wit. There's no indication she has any intention to find him guilty

of culpable homicide. She mentioned the existence of culpable homicide,

which other countries know as manslaughter. What is that charge?

How much does it relate to intent or negligence? There's no intention

whatsoever, so it is on the basis that the accused did not behave as

would be the same. If he was not acting reasonably, then he is

negligent and guilty of culpable homicide. Just what was lacking...

On the facts we have listened to, it's going to be interesting to see

whether she arrives at that conthe collusion. I am really -- at that

conclusion. I am really looking forward to that. Possibly an hour

until the court resumes. I mean, just what was lacking in the state's

case that didn't ashave, A, a premeditated murder conviction or

any lesser charge of murder? In fact, more than one element of the

crimes were actually miss in the prosecution's case. The first is of

course the intention. The second one, on the basis she had found what

his thoughts were when he was approaching the bathroom. There was

no malice and was it unlawful when he decided he must protect himself.

That is the justification of something which may otherwise have

been unlawful. That he reasonably expected an attack or he was in

danger, then of course he cannot be convicted of. That if you put

yourself in that position, he is outside the door. Maybe somebody has

broken into your house unlawful. It is not uncommon that such a person

is armed. So, there's a real risk that that person may fire shots as

well. And it will play no role and serve in purpose if he's waiting for

the other person to respond, because the other person could have killed

him. And if he was just waiting and the other person opened the door and

fired the shot because he's in the process, then... A reminder, Judge

Masipa has been saying the court cannot find Oscar Pistorius guilty

of murder and now we are going to hear, after lunch, after this

adjournment of perhaps an hour, of whether she is going to find Oscar

Pistorius guilty of the lesser charge of culpable homicide. So, I

mean we now expect a listing of her findings that the key parts of

evidence, what she thinks of them, with regard to this lower charge. A

lot of people have asked throughout this, why didn't A, the prosecution

go for culpable homicide rather than murder and B, the defence accept a

lesser charge rather than fighting? It does not follow necessarily that

if you are acquitted on a more serious crime that you must be

convicted of the lesser crime. You've still got elements in law,

which need to be proved, beyond reasonable doubt they were proved.

That's the crux of the legal system, such as yours and ours and many

countries. That is that you give the person the doubt, whether they had

the intention, whether it was unlawful. I have listened to so many

comments by the public about this case. People are so quick to say, he

obviously intended to kill her. Why didn't he check she was in the

bedroom. What was his mind focussed on? It was focussed on noises he

heard. I do not believe without proper analysis of the evidence you

can find somebody guilty because you can't do that. That is not a

democratic society. You just can't do that. And we talked a little

earlier about the pressure on a judge, South Africa's first

televised trial. You mentioned that everybody has an opinion about it.

Everybody thinks they know what Oscar Pistorius did or was thinking

that night. For the judge, how difficult is it for a judge to

distance yourself from every single thing you read and hear around you,

and focus purely on the evidence? Well, after years of experience, you

do acquire the ability to do that. Not all judges, but most of them.

And she has obviously acquired it. I am very impressed with the

reasoning. One can debate that she's right or wrong, but the reasoning,

the crux she's analysing, as she does, that is so true basic prince

pals of criminal law. That is where it comes from. If the onus was on

the accused to prove he was not guilty, as you find in other

countries, it may have been different. There is a difference

between the systems. Is there any doubt now that we will find out by

the end of the day Oscar Pistorius's fate? Will we be getting a verdict

in maybe a couple of hours? Probably not more than one hour, I would

imagine. Straight after the lunch adjournment? Yes. We are seeing just

about the wider legal process and what it shows about the South

African legal system - has this been an edifying view of the legal

process in action for people to maybe be discounted of their

prejudices about it, how it worked, how they thought it worked? Well,

that is why I am very grateful for this opportunity that the press was

there and it was actually on video camera. It has proved when you are

watching and listening, that we are applying the principals of law. It

is not just the discretion of finding, we applied principals of

law. And she is a very good example of exactly that.

If she wanted to debate from her arguments, it could have been easy

for her to say, oh, well, on this I don't believe you. That's not the

end of the analysis, where he contradicts himself, but what is the

essence of the facts before the court. That is what she does. She

did not have good words for Oscar Pistorius's conduct. She said he was

an evasive witness. As a judge, what difference does that make in the

overall picture? If the judge was of the view that he is guilty, then the

fact he was evasive would have corroborated her inference that he

was guilty. So evasiveness is an important factor when you lock at

evidence, but that is not decisive. You need to decide what. Even if the

accused is an absolute liar you still must analyse the state's

evidence. That is the crux of it. Just about the wider legal process,

when a verdict comes, and if there is a conviction, what is the likely

course of events? How much longer does a case generally, how much can

it go on for, with appeals and mitigation?

appeal, they would have to apply for leave to appeal, and usually, in

such a complex case, they would not do it this afternoon. It may take a

few weeks. And then, if the judge does rant leave to appeal, then the

evidence would need to be re-examined, together with the

analysis of the judge, and then, heads of argument, as we call it,

would have to be filed by both parties. Only then is a date given

in the Court of Appeal. And the Court of Appeal is sort of two years

behind, not because they are slow, but because of the number of cases

they are dealing with. So, it could take another three years. Regarding

what the options are now four Judge Masipa, effectively she could find

him guilty of culpable homicide or to acquit him entirely, in terms of

culpable homicide, what is the range of possible sentences, and how much

leeway does the judge have? Well, if it is a culpable homicide, which is

so close to murder, in the sense that he was acting recklessly, and

that it was brutal murder, it could be 15 years, even 20 years. As a

maximum sentence. Yes. But in this case, on the assumption that she

finds him guilty, I cannot imagine that it would be more than five

years. What he feared, what he felt, may have exceeded the limits of the

reasonableness of that, which is why he is the OT of Cobble homicide, if

we assume that, but what you are looking at is, is he as booty as a

person who requires a much longer sentence? You cannot say that. She

has already accepted the fact that he was under the impression that he

was in danger, which is why the sentence will be much lighter. In

fact, it is not uncommon that the court can impose a sentence until

the court the germs. That happens, not quite often, but it does happen

from time to time. -- until the court adjourns. So, effectively, it

is just a formality. But as you said, there are many mitigating

circumstances. Of course, the judge has not convicted Oscar Pistorius of

anything yet, we are still waiting to hear. The judge has said that the

court is unable to find Oscar Pistorius guilty of premeditated

murder, the state had not proved beyond reasonable doubt that he was

guilty of that. She went on to say that murder without that S back of

premeditation was also not proven without reasonable doubt. -- without

that aspect. We will be hearing more when the court resumes after lunch,

and we will be hearing the when the court resumes after lunch,

her judgment. We are discussing this with former Judge William Heath. One

option would be complete acquittal. This is one of South Africa's most

high-profile cases ever... Many members of the public will be most

unhappy about that, because of their own little prejudices, because of

their view that he is guilty. But when you analyse it cold and apply

the law, you can see why he was acquitted on the more serious

charges. As a judge, this issue of what public opinion thinks of a

possible outcome, held much does that play on your mind? It is

actually irrelevant. There may be judges, we are all human beings, but

it is of no consequence when you consider a judgment such as this.

This case has been all about the issue of intention, what was going

through Oscar Pistorius's mind, there was no element of a

whodunnit, which makes it all the more difficult? Of course. And the

cross examination which was done by the prosecutor sort of hammered him

always in that direction - you had done it intentionally, you knew it

was wrong, you knew it was your girlfriend behind the door, that

sort of thing. As opposed to, if he had cross-examined him in a calm

manner, he might have found different answers than what he got.

What he has done now is to create sympathy for Oscar because of the

boldness of his cross examination. That does not mean the cross

examination has not been strict and to the point, but if it is

overdone, then you build up sympathy to the point, but if it is

for the accused. Let's go back to some of what the judge has been

saying in the last hour about the issue of premeditated murder, and

the court's inability to prove, the state's inability to prove beyond

doubt that Oscar Pistorius was guilty of that crime.

Viewed in its totality, the evidence failed to establish that the accused

had the requisite intention to kill the deceased, let alone with

premeditation. I am talking about direct intention. The state clearly

has not proved beyond reasonable doubt that the accused is guilty of

premeditated murder. There are just not enough facts to support such a

finding. It follows that the accused's erroneous belief that his

life was in danger means that he cannot be found guilty of murder

dolus eventualis. That however is not the end of the matter, as

culpable homicide is a competent verdict.

We now await what the judge has 2 say on that after the lunch

adjournment. With me, my colleague Andrew Harding, who has been in

court throughout this trial. It all moved very fast...? It did, it was

extraordinary, the judge taking a scalpel, more like a sledgehammer,

too much of the prosecution's case, dismissing the evidence of the

neighbours who insisted they heard a woman screaming, dismissing the

evidence, speculation that the couple had been rowing, all of those

text messages, which the prosecution tried to show meant that surely they

were having some terrible relationship, and that he must have

deliberately gone into that toilets to kill her. And we are left with

the defence's case. It was interesting that initially, Judge

Masipa made a great deal about the discrepancies between Oscar

Pistorius's various versions of what happened in those critical few

seconds in that toilet, when he was standing, pointing his gun at the

bathroom door. She went through all of these different versions, that it

was an accident, that he knew someone was coming out and he fired

either intentionally or involuntarily, and a lot of people

in court thought, we are heading to some sort of murder charge. And

then, just in the last few minutes, she concluded that no, the

prosecution had not proved any form of murder. And we are now left with

culpable homicide, which could still get him, remember, ten years in

prison, or a fine or a suspended sentence. The judge has massive

discretion when it comes to sentencing. All, and I think this

would be a huge shock, an acquittal. But to me, what has been

extraordinary today is that essentially, the entire prosecution

case could have been forgotten about, they hardly needed to turn up

in court. This was all about Oscar Pistorius's performance on the

stand, and the crucial cross-examination by Gerrie Nel, who

did rattle Pistorius very badly. But it was really about Pistorius's own

version, and the confusion that he showed. And we are left with

essentially Pistorius's own version of events, and the possibility that

he may still go to prison, not on what the prosecution accused him of,

but on his own muddled version of what he says happened. What has his

demeanour been like in court? I was sitting behind him, and his father

and the family. I could not see his face. But towards the end his head

slumped, his neck muscles were preaching frantically. It was clear

that he was starting to sob, especially when Judge Masipa, who,

as judges often do, had not made it clear watching was going to say.

Then suddenly, after quoting all of the legal cases, she got to the

lowest murder conviction, dolus eventualis, and she said very

clearly, they have not proved that. Everybody gasps, and Pistorius

realised that he would not be found guilty of murder. He is not a

murderer. Clearly, with some sort of relief, he started sobbing. His

family, though, and I was trying to talk a bit to them afterwards,

although of course they do not know what is going to happen exactly

yet, they have got mixed emotions on their faces. Some hints of relief,

but also, they know that Pistorius could still spend years in jail. I

spoke very briefly to some of his lawyers, and it is still clearly

very unclear. I think they are looking, as we suggested for quite

some weeks, at culpable homicide as the most likely verdict. The family

of Reeva Steenkamp is also in their - any sense of their emotions? No.

To be fair, they are sitting a bit further down the line from me so I

have not seen them close-up. But throughout, her mother has been an

extraordinary example of controlled emotions, even when a photograph of

her daughter's head wounds flashed up on screen, early in the trial,

and she showed nothing, just put her head down gently. It seems like she

has been determined to maintain and extraordinary degree of composure.

Thank you very much. We will be bringing you the latest

developments. But the dramatic fact emerging from the last half-hour is

that Oscar Pistorius will not be found guilty of the charge of

murder. We wait to for curious people like us.

They just keep on coming.