The Pistorius trial: What must the state prove? And what is “dolus”?

pistoriustrial“For murder, though it have no tongue, will speak”   (Shakespeare, Hamlet)

The human tragedy underlying this high profile case, and the media frenzy accompanying the trial, have been accompanied by much confusion as to the legal principles involved.

What follows is of necessity a greatly simplified summary of some very complex concepts, but hopefully it will help you to follow the proceedings as we join the world in watching our justice system in action.

In order to achieve a conviction for murder the State must prove beyond a reasonable doubt that the accused –

  1. Caused the death of another human being
  2. Unlawfully (a killing is lawful if for example it results from legitimate self-defence; reasonableness and proportionality to the threat being defended against are critical elements here)
  3. Intentionally (If the killing was negligent then the crime is the lesser one of “culpable homicide”).

Motive v Intention

Firstly, note that in law motive is different from intention.  A person’s motive is his or her reason for committing a crime, but it is irrelevant in determining whether or not the person had intention. To complicate matters, “intention” in the legal sense does not mean the same as it does in non-legal situations.  In the legal sense, “intention” (which lawyers often refer to by its Latin name “dolus” to distinguish it from the non-legal meaning) is a highly technical term encompassing both knowledge (of the act and its unlawfulness), and the “will” to act.

What is ‘dolus eventualis’?

Unfortunately it gets even more complicated – “intention” can be actual intent (“direct” or “indirect”) or – and there is much speculation that this will feature in the Pistorius verdict – it can be in the form of “dolus eventualis”.  Our courts have defined it thus: “Where the accused performs an action knowing or foreseeing that somebody may be killed, and yet, despite that knowledge and reckless of the eventuation of the possible result, persists with that action, the form of intention is known as dolus eventualis.”  In other words, an accused doesn’t actually mean to cause a death but proceeds with his course of action “reckless of” or “reconciled to” the possibility that his actions will cause someone’s death.

As mentioned above, if the State doesn’t prove intention as defined above, but can prove negligence, that could lead to a conviction of culpable homicide.

The “Involuntary action” defence

There is at date of writing no clarity as to whether a defence of “involuntary action” (referred to in legal circles as “automatism”) may be raised by the defence team.   Conduct must (with a few exceptions) be “voluntary” to amount to criminal conduct, so if the accused’s actions “…were attributable to mechanical behaviour or muscular movements of which he was unaware and over which he had no control…” (as a 2013 Supreme Court of Appeal judgment puts it) he would be acquitted of all charges.

Sentence 

What will the verdict be?  Only time will tell.

But if Mr. Pistorius is indeed convicted of any crime, he faces –

  • If he is convicted of “planned” or “premeditated” murder – a minimum* sentence of life imprisonment with no possibility of parole for 25 years, or
  • If he is convicted of unplanned/non-premeditated murder – a minimum* sentence of imprisonment for 15 years, or
  • If he is convicted of culpable homicide, the Court will be free to assess an appropriate sentence.

(*Note that the Court can impose a lesser sentence only if it finds there to be “substantial and compelling circumstances” justifying the imposition of less than the minimum sentence.)

Ashersons Attorneys

Ashersons Attorneys

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