Oscar Pistorius 'not guilty' of girlfriend's murder, rules judge Thokozile Masipa

Pretoria: Oscar Pistorius has arrived in a South African courtroom ahead of the verdict in the murder trial of the double-amputee athlete.

(Photo: AP)

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"It follows that the accused's erroneous belief that his life was in danger excludes dolus. The accused therefore cannot be found guilty of murder, dolus eventualis. That however is not the end of the matter, as culpable homicide is a competent verdict," said Judge Masipa.

Before the break, Judge Masipa ruled out "dolus eventualis", saying Mr Pistorius could not have foreseen he would kill the person behind the toilet door.

"How could the accused have reasonably foreseen the shot he fired would have killed the deceased? Clearly he did not subjectively foresee this, that he would have killed the person behind the door, let alone the deceased," said Judge Masipa.

The judge said the defence argues it is highly improbably the accused could have made this up so quickly and consistently, even in his bail application, and before he was privy to evidence at the bail application.

Evidence shows that at time he fired shots at toilet door, Mr Pistorius believed the deceased was in the bedroom, the judge says. This belief was communicated to a number of people shortly after the incident, she added.

The judge said there is "nothing in the evidence to suggest that Mr Pistorius' belief was not genuinely entertained". She cites reasons including the bathroom window being open, and the toilet door being shut.

"In the present case in his own version, the accused suspected that an intruder had entered through the bathroom window. He… [said] he genuinely, though erroneously, believed that his life and that of the deceased was in danger," the judge said.

"In the present case the accused is the only person who can say what his state of mind was when he fired the shots that killed the deceased," the judge said.

The starting point is "whether accused had intention to kill person behind toilet door," the judge said.

"The blow was meant for the person behind the toilet door who the accused believed was an intruder. The blow struck and killed the person behind the door. The fact that the person behind the door turned out to be the deceased and not an intruder [is] irrelevant," the judge said.

The judge has ruled out premeditated murder, which would have a mandatory life term and 25 years before parole. However, Mr Pistorius could still be found guilty of common-law murder, which carries a minimum of 15 years, or culpable homicide (manslaughter), which has a maximum of 15 years.

"If there is any reasonable belief that his explanation is true, then he is entitled to his acquittal. The onus is on the state to prove beyond reasonable doubt that he is guilty of offence which which he is charged," the judge added.

Earlier, Judge Masipa had emphasised the issue of onus: "No onus rests on the accused to convince this court of the truth of the explanation he gives. If he gives an explanation, even if it is improbable, the court is not entitled to convict unless it is satisfied that not only is it improbable, but that it is beyond reasonable doubt false."

"The state clearly has not proved beyond reasonable doubt that the accused is guilty of premeditated murder. There are just not enough facts to support such a finding," added Judge Masipa.

Timeline and chronology of events tip the scales in favour of the accused's version in general, said Judge Masipa.

In the charge of premeditated murder, the evidence is purely circumstantial, the judge said.

The accused was clearly not candid with the court when he said he did not want to shoot anyone, as he had a loaded firearm and was ready to shoot, the judge said.

The deceased was killed under "very peculiar" circumstances, the judge said. It makes no sense that Ms Steenkamp did not hear Mr Pistorius scream "get out". The other question is why the accused fired not one, but four shots before he ran back to the room to try and find Ms Steenkamp, the judge says.

However, "the conclusion that because a witness is untruthful, he is probably guilty, must be guided against, because a false statement does not always justify the most extreme conclusion", Judge Masipa said.

The defence argued that the accused was suffering from enormous stress, and was under medication when he gave evidence, the judge said.

"This argument does not make sense," Judge Masipa said. "The accused's performance during examination in chief could not be faulted. It was only under cross examination that he contradicted himself and visible felt uncomfortable."

"The accused was a very poor witness," the judge said.

Mr Pistorius had approached the bathroom with a gun, the judge said. However, the state has argued that if Mr Pistorius had no intention to shoot anyone, he cannot use self-defence as a defence, the judge said.

The essence of the accused's defence is that he had no intention to shoot anyone, but if he is found to have such an intention, it was because he believed he was under threat from an intruder, the judge added.

"This court is satisfied that at the relevant time, the accused could distinguish between right and wrong, and that he could act in accordance with that distinction. It is also clear that the defence of non-pathological insanity has no foundation," said Judge Masipa.

Oscar Pistorius' doctor said Mr Pistorius shot as part of a "startle" response. However, the judge said: "I disagree with this submission. There is a huge difference, as submitted by state counsel, between a reflex action and an involuntary action."

However, a psychiatrists' report requested by the judge found the following, Judge Masipa recounts: "At the time of the alleged offences, the accused did not suffer from a mental disorder or a mental defect that affected his mental ability to distinguish between rightful or wrongful nature of his deed. A mental disorder or mental defect did not affect his ability to act."

The defence argued that Mr Pistorius "may have lacked criminal capacity or may have diminished his criminal capacity at the time of the accident", the judge said.

The judge announced an adjournment for thirty minutes.

Judge Masipa: "[Mr Pistorius] stated that if he wanted to shoot the intruder, he would have shot higher up and more in the direction where the opening of the door would be to the far right of the door and at chest height. I pause to state that this... is inconsistent with someone who shot without thinking. I shall revert to this later in my judgement."

"The accused stated that he never thought of the possibility that he could kill people in the toilet. He considered however that thinking back retrospectively, it would be a probability that someone could be killed in the toilet."

Earlier, the judge said that, when asked to explain what he meant by accident, the accused said: "The accident was that I discharged my firearm in the belief that an intruder was coming out to attack me." The accused said that the discharge of the gun was accidental.

He (Pistorious) said he "fired before I could think, before I even had a moment to comprehend what was happening... Out of fear I fired the shots," the judge said.

Mr Pistorius said he remembered pulling the gun's trigger in rapid succession but did not recall firing at the door four times, the judge said.

The defence has argued that Mr Pistorius suffered from generalised anxiety disorder, which would have affected his behaviour the night of the incident, the judge said.

The judge Thokozile Masipa is now recounting the evidence from the defence.

(Photo: AP)

he prosecution has argued that the presence of partly digested food in Ms Steenkamp's stomach indicated that Mr Pistorius' testimony of when the couple had their last meal was not true, the judge noted.

However, she said: "The experts agreed that gastric emptying was not an exact science. It would therefore be unwise for this court to figure out what the presence of partially digested food might mean."

The state used WhatsApp messages between the couple to argue that their relationship was "on the rocks", the judge said. However, Judge Masipa argues that relationships are "dynamic". "This court refrains from making inferences one way or the other in this regard," she added.

Reeva Steenkamp had taken her mobile phone into the toilet with her, the judge noted.

"There could have been a number of reasons why the deceased felt the need to take the cell phone with her to the toilet. One reason could be for lighting purposes, as the light in the toilet was not working. To try to pick just one reason would have been to delve into the realm of speculation," she said.

Some witnesses said they heard three loud bangs or thud sounds. This "is consistent with the version of the accused that soon after he had realised that the person behind the toilet door might have been the deceased, he ran to the balcony, where he struck the toilet door three times," said Judge Masipa.

One of the neighbours said she heard four gunshots, which was estimated was at about 3 o'clock. "It seemed to her it was a woman's voice but her husband told her it was the accused crying," the judge said. This piece of evidence can "throw some doubt" on the witnesses who are adamant that they heard a woman scream, the judge added.

"The accused's phone records... Show that at 03:19:03, immediately after the sounds caused by the cricket bat were heard, which was approximately 03:17, the accused was on the phone calling [his friend]. A minute later he called 911… thereafter about half a minute later he called security," said Judge Masipa.

"This court has objective evidence in the form of technology which is more reliable than human perception and human memory, and against which all the other evidence can be tested," the judge said. This includes phone records, she added.

"It would be unwise to rely on any evidence by the witnesses - this includes evidence called by the defence - without testing each of the claims against objective evidence," the judge says. Human beings are fallible, and their memory changes over time, she said.

Most witnesses got their facts wrong, said Judge, citing media attention and fact that witnesses had followed trial in news.

"The last reason why the court had to approach evidence of each witness with caution, was because it happened early in the morning, when most witnesses were in bed, " the judge Thokozile Masipa stated.

The judge said, "She believes most witnesses got their facts wrong. Almost every witness asked under cross examination whether they had followed the news over the killing said yes."

"This suggests that the deceased could not have screamed multiple times," the judge says.

"The head wound would have been "immediately incapacitating", the judge said, citing the pathologist's report. "He or she would also be almost immediately unconscious."

"Factors such as how long a witness has known a suspect, if at all, proximity, visibility… play an important role and are always taken into consideration by our courts," said Judge Masipa.

"None of the witnesses have ever heard the accused cry, or scream, let alone when he was anxious. That in itself poses a challenge as the witnesses had no prior knowledge" as to what he sounded like, the judge says.

"In the present case, we are dealing with sounds, and voice or scream identification, as well as interpretation, that experts refer to as intelligibility," the judge says. This is "tricky", she added further.

Just because a witness has some contradictions in their statement, does not mean all their testimony should be discounted, the judge says. "Before addressing the credibility of the witness… [the] court has to [take] into account the nature of the contradictions, their number, their importance," judge stated.

"The judge is addressing the issue of conflicting witness statements over how many shots they heard. Only four shots were fired, yet some witnesses described hearing more than four shots, while others said they heard fewer than four," the judge added.

"During the course of the trial, it became clear that some of the sounds that witnesses interpreted as gunshots were actually not gunshots but sounds of a cricket bat striking against a toilet door," the judge said.

(Photo: AP)

It serves no purpose to rehash the evidence in detail, said judge Masipa, implying a quicker verdict.

"There were a number of issues which arose during the course of the trial. These issues took a lot of the court's trial, as at such time such issues were important to the parties. These concerned… whether police contaminated the scene, the length of the extension cord that went missing from the accused's bedroom, and the authenticity of photographs of items depicted in various exhibits," said Judge Masipa.

"There were no eyewitnesses. Notwithstanding this fact, there was no dearth of witnesses willing to assist this court… several witnesses gave evidence regarding what they heard, or what they thought they heard at the time of the incident," the judge Thokozile Masipa said.

Pistorius hugged his brother Carl, who was seated in a wheelchair because of injuries suffered in a recent car crash.

(Photo: AP)

The parents of Reeva Steenkamp, the girlfriend fatally shot by Pistorius in his home in 2013, were also in the packed gallery on Thursday.

(Photo: AP)

(Photo: AP)

There were also many journalists at the courthouse, where the sensational trial has unfolded over the last six months.

Judge Thokozile Masipa's verdict is expected to take hours and possibly two days to present as she reviews testimony and legal arguments.

Pistorius faces 25 years to life in prison if he is convicted of premeditated murder for shooting Steenkamp