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. 

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