Sunday, 24 February 2013

Oscar Pistorius update : Bail Conditions

On 14 February 2013, international athlete Oscar Pistorius was arrested and charged with premeditated murder, a criminal offence classified in South African criminal procedure as a schedule 6 offence. The schedules, classifications contained at the end of the Criminal Procedure Act No. 51 of 1977 (“the Act”), relate to types or classes of criminal offences, and typically prescribe minimum guidelines to be used when dealing with a specific category of offence.

This level of offence automatically means that a Magistrate must hear the bail application and that exceptional circumstances must exist for the accused to be released on bail.  This is a far higher level or onus of proof required than, for example, a charge of murder; it appears the State has opted for the harshest charge available, perhaps out of the facts that present themselves, perhaps for tactical reasons.

In terms of section 60 of the Act, when dealing with a Schedule 6 offence, the court:

 shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that exceptional circumstances exist which in the interests of justice permit his or her release.

Essentially then, the court ruled that exceptional circumstances exist, which in the interests of justice permitted the release of Oscar Pistorius having earlier ruled, via Magistrate Nair, that the State had shown enough to warrant holding and prosecuting Pistorius on a schedule 6 offence.

In the course of allowing bail, Magistrate Nair went to great lengths to explain that although lead investigating officer Detective Botha was “not the State’s case”, he acted questionably on a number of matters relating to investigating cell phone accounts and records, investigating foreign bank accounts, investigating foreign assets, contaminating the crime scene and repeatedly changing his version.  Make no mistake, this undermines the State’s case, but by no means is it fatal. The two versions put forward in the bail application are polar opposites of one another and a trial is the only option.  The objective facts, and due process, will determine the outcome.

Keep in mind that in South African criminal law, the charge of premeditated murder can be downgraded to a charge of murder or even culpable homicide by virtue of the Act.  The State, in the course of its prosecution of a crime of premeditated murder will conceivably be able to show proof, beyond a reasonable doubt, for the crimes of premeditated murder, murder, culpable homicide and offences in terms of the Firearms Control Act, 2000 relating to a firearm and ammunition.

Consequently, and for the purposes of conjecture, if the State fails to prove premeditation, then the conviction will be for murder.  If the State fails to prove intention, then the conviction will be for culpable homicide.  Conversely, if the accused can prove the existence of facts to vitiate unlawfulness of death, for example self-defence and a version supporting an imminent danger to the accused, then there may be no conviction at all.

For now, as bail has been granted by the court, Pistorius must comply with the conditions of bail set out by the State.  These conditions are bail of 1 million Rand with immediate payment of R100 000,00.  Additionally, the following conditions:

o   Court appearance on 4 June at 8.30am;
o   Surrendering all passports;
o   Prohibited from entering any airport;
o   Surrender all firearms;
o   No possessing of any firearms;
o   Refraining from talking to any witnesses for the prosecution;
o   Probation officer and correctional official from the date of release until the case is concluded to be assigned;
o   Inform the official of all his movements and ask for permission for any journeys outside Pretoria.
o   Provide phone number and must be contactable day and night;
o   Not to be charged with an offence of violence against women;
o   Not to use drugs or alcohol;
o   Not to return to his home and must not make contact with any residents of his estate except the Stander family.

At first blush this would appear harsh, but bare in mind that the offence is premeditated murder. For the schedule of offence, this would appear standard and as much has been conceded by several South African criminal law experts.  From this one can logically infer that a schedule 6 offence is a serious one.  The State allegedly has a strong case and until the facts are fully ventilated in a court of law, all discussion will be non-conclusive.

For now, it is for the State to set a trial date and for both sides to develop their arguments and investigate various expert reports.  It is not clear when the trial will be, typically in South Africa one can wait up to 24 months for a trial.  However, with something of this nature, criminal law and a variety of public interest, I would expect the trial to certainly take place this year and probably by about June or July.

Ultimately, it is disappointing to watch South Africans, who only several months ago cheered at the Olympics, vilifying an individual who has not even told his story or had his day in court.  Perhaps the facts will show guilt, perhaps innocence, but the behavior of many individuals and media houses leaves a lot to be desired. 

Monday, 18 February 2013

Oscar Pistorius and unlawful killing

Before we pass judgment, or a crude joke relating to the alleged murder of a South African model, it is probably important to understand that we do not know all the facts.  A Pristorius family member recently stated that the alleged crime would not be “knowingly done” by the world-renowned athletics phenomenon and full and complete details are clearly not available at this time.

We know this: a young lady tragically lost her life and a globally renowned sports star is accused of her murder.  The facts will expose themselves in the fullness of time, for now, it would be premature to speculate in any conclusive manner.

Pistorius was arrested amidst widespread media confusion on Valentines Day 2013.  His fairly recent girlfriend, Reeva Steenkamp (a local South African model) was shot dead at his upmarket golf course estate home in Pretoria. 

The 26-year-old Olympian is currently in police custody with a bail application set for Tuesday, 19 February 2013.  The State is set to oppose bail with political groups in South Africa calling for bail to be denied.

As it currently stands, Pistorius is being detained in a police station for his own protection. Latest reports indicate the State Prosecutor will seek to charge Pistorius with premeditated murder.  In terms of the Criminal Procedure Act, this offence carries a minimum life sentence.

Pistorius, a global role-model, has been charged with murder.  In South African law, murder is simply defined as the unlawful and intentional killing of a human being.  Contrast this with the definition for culpable homicide, which is the unlawful negligent killing of another human being, and you will not require a post doctoral degree in law to spot that the only difference is intention.  The specific mindset of the accused.  As an aside, there is no manslaughter in South African law but culpable homicide is the comparable specific offence.

By way of example, if you were travelling in a car at 145km per hour, after four beers, and you were involved in an accident with loss of life, you may well face culpable homicide charges.  This is because in this situation you would not have intended to kill someone (murder), however, if the loss of life has resulted from your negligence, it is likely that a charge of culpable homicide will be pursued.  Conversely, if one intentionally takes another’s life, only then will a murder charge be appropriate.  The talk of premeditation in the murder charge relates to one planning and then knowingly committing a murder.  This is a severe offence.

Insofar as the bail application is concerned, it is important to remember that bail is non-penal in character.  In other words, it should not form part of the sentence to punish the accused. The basic principle guiding bail applications in South Africa relates to the interests of justice.  If, after considering all relevant factors, the court is satisfied that the interests of justice so permit, the accused will be released on bail; pending the final verdict or decision. This principle is protected in South Africa’s Constitution and restated and emphasized in the Criminal Procedure Act.

Factors that the court will consider on Tuesday to weigh up the interests of justice are:

    the accused's period already in custody since his arrest;
    the probable period of detention until the disposal of the case if there is no release;
    the reason for delay, and whether the fault is the accused's;
    the financial loss the accused may suffer on account of his detention;
    any impediment to the defence which detention may cause;
    the accused's health; and
    any other factor.

Clearly, the introduction of “any other factor” leaves bail applications wide open to the introduction of any relevant factor.  Consequently, without knowing all the facts, one cannot accurately determine whether the charge of murder or premeditated murder will succeed.  Equally, one cannot with unequivocal certainty speak to the success of the bail application until being in possession of all relevant facts.

A remarkably terrible coincidence is a Nike advert comparing Pistorius to a bullet in a chamber.  This advert has been taken down from diverse sources; in the real and digital world. Various corporate entities will be considering sponsorship agreements and whether guilty or innocent, the lives of the individuals involved will never be the same.