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Oscar appeal has no 'reasonable prospect' of succeeding – state

JANUARY 26, 2016
Oscar appeal has no 'reasonable prospect' of succeeding – state

The state has opposed Paralympian Oscar Pistorius' application to appeal his murder conviction on the grounds that there was "no reasonable prospect" of him succeeding.

This was according to its opposing affidavit lodged with the Constitutional Court.

"It is our respectful submission that the SCA committed no errors of law and that the arguments by the applicant are without merit and contrived," senior deputy director of public prosecutions in the priority crime litigation unit, Andrea Johnson, said in the affidavit.

"I submit that it is in the interests of justice that criminal trials ought to be finalised without undue delay and submit that it is in the interests of justice that the applicant [Pistorius] now appears before the trial Court to be sentenced on the crime he has committed."

In his application, Pistorius argued that the Supreme Court of Appeal (SCA) exceeded its jurisdiction by questioning the trial court's factual findings, and could thus not have convicted him of murder.

It also discriminated against him on the grounds of his disability, according to papers his lawyers filed with the Constitutional Court earlier this month.

Not in interest of justice

The SCA should not have reconsidered the trial court’s factual finding, namely that Pistorius genuinely, though erroneously, believed that his and Reeva Steenkamp’s lives were in danger (putative private defence).

Pistorius' lawyers argue that the SCA erred by introducing an objective rationality criterion, of the 'rational person'.

The state in its affidavit said it was not in the interest of justice to grant Pistorius leave to appeal.

It said Pistorius had failed to consider or acknowledge that the SCA did concern itself with the element of knowledge of unlawfulness by evaluating his defence of putative private defence.

The SCA had used a two-tiered approach – firstly that it considered the question of law and secondly acted in terms of the Criminal Procedures Act.

"The Applicant fails to show that the SCA in reaching the conclusion on the questions of law, erroneously amended or substituted any of the primary factual findings of the trial Court.

Legal errors

"We argue that the inevitable consequence of substituting the judgment of the trial Court must be an application of the correct legal principles to the primary facts found by the trial court," said Johnson.

Pistorius, currently out on R10 000 bail, is expected to return to the High Court in Pretoria on April 18 for sentencing proceedings. He faces a minimum of 15 years in jail for murder, unless he provided substantial and compelling reasons to deviate from this prescribed sentence.

On Valentine’s Day in 2013, he shot and killed Steenkamp, his girlfriend, claiming he mistook her for an intruder hiding in the toilet of his Pretoria home.

Pistorius has already served one sixth, or 10 months, of the five-year sentence he was handed for culpable homicide. He was released from jail in October.

In his application lodged with the Constitutional Court, Pistorius also argued that the SCA committed legal errors in its approach to dolus eventualis.



Source: http://www.news24.com/SouthAfrica/Oscar_Pistorius/oscar-appeal-has-no-reasonable-prospect-of-succeeding-state-20160125