Judge Thokozile Masipa last week cleared Pistorius of both premeditated murder and common murder (dollus eventualis) eventually convicting the paralymic star of the lesser crime of culpable homicide. This post discusses how this decision was reached and why the situation may have been different under Scot’s law.
Under the law of premeditated murder in South Africa, the prosecution attempted to prove to the court that Pistorius willfully and intentionally murdered Reeva Steenkamp after a heated argument. The evidencing of this was unsuccessful and the judge cleared Pistorius of this charge.
The crime of premeditated murder does not exist in Scotland; Scot’s law dictates that murder does not require planning or premeditated intention to occur which gives the crime a much wider scope.
The South African court then assessed the facts of the case in light of of ‘dollus eventualis’. This doctrine outlines that you are responsible for any foreseeable consequences of you actions. It is foreseeable that if you fire a gun through a door at a victim, it is foreseeable that you could cause fatal injury.
Under Scot’s law, the act would be assessed under the doctrine of wicked recklessness, where the accused has a ‘disposition so depraved’ (Cawthorne v HM Advocate 1968) that they carry out their actions with no regard for consequence. By both of these assessments it appears that Pistorius would have satisfied the legal elements for mens rea for the crime of murder, however there is a crucial difference, which allowed Pistorius to be acquitted of the crime of murder in South Africa.
Pistorius was specifically on trial for the murder of Reeva Steenkamp. In his submissions he stated that he believed that Steenkamp was sleeping in his bedroom, which made it unforeseeable that he could have killed her – leading to the lesser conviction of culpable homicide. Under Scot’s law this would be irrelevant.
In Petto v HM Advocate (2011), the court specifically addresses the issue of whether intent to kill a specific person, or knowing the whereabouts or identity of a victim is a relevant consideration in assessing mens rea and wicked recklessness. Lord Carloway said:
“… in the circumstances here, the nature of the fire raising would have merited a charge of assault on the inhabitants, even if the fire raiser had not known the specific locations or identities of those inhabitants. It would, however, be different if the presence of inhabitants could not have been anticipated.”
Although Pistorius has stated that he believed it was an intruder behind the door and that he did not intend to kill Reeva Steenkamp believing her to be in bed, the fact that the element of wicked recklessness existed in relation to any individual behind the bathroom door would be enough to convict him of murder in Scotland.
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