On Valentine’s night 2013, Pistorius, according to his evidence, searched for a suspected intruder in the bathroom. Hearing a noise coming from the toilet, he killed his girlfriend, Reeva Steenkamp, the well-known photo model, with four shots, fired through the closed door. Their tragedy was in the center of interest at the time, because of their fame. The premature release of Pistorius, who was sentenced to 5 years in prison for culpable homicide, provoked outrage. Moreover, the circumstances of the case also have given rise to a suspicion of murder. Judge Leach was unable to escape the influence of the media and public opinion, he erred finding Pistorius guilty of murder, in lack of proof beyond a reasonable doubt, as becomes clear from the following analysis of Judge Leach’s judgment. According to the aggravated judgment, the prison term was tripled, from 5 years to 15 years, which would not be too much for murder. Lawyers want to meet the expectations of the media and the public. Some judges tend to judge on the basis of their internal conviction, rather than confining themselves to facts proven beyond a reasonable doubt. As a result, the accused is exposed to a kind of show trial, where any set of incoherent arguments can be admitted as sufficient proof of his or her guilt.  In Hungary, the chief advocate of this approach is Budapest Prosecutor, Tibor Ibolya.

Oscar Pistorius already has been punished for killing his girlfriend, Reeva Steenkamp, ​​a beautiful South African photo model, blindly shooting her through the closed door of the toilette in fear of an alleged intruder on the fatal Valentine’s night of 2013. He was sentenced to 15 years in prison for murder, but the intent has not been satisfactorily demonstrated, even in the very weak dolus eventualis form.

A remarkable analogy can be found between the Pistorius case and a 2008 case in Hungary. A desperate farmer protected his garden with a bare wire fed from a household network. Three intruders climbed several fences to steal cucumbers from the garden, while two of them suffered an electric shock, one of those, an elderly man who had previously had a heart attack, suffered a fatal electric shock. The court of the first instance found the accused guilty of homicide and bodily harm and sentenced him to 1 year in prison, the execution of which was suspended for a probation period of 2 years, and in the second instance, it was commuted to reprimand. Pistorius was sentenced in the first instance to 5 years in prison for homicide, supplemented by 3 years of suspended imprisonment for a restaurant shooting classified as a negligent endangerment. After Judge Leach found him guilty of murder in the Supreme Court instead of murder, it was aggravated to 15 years in prison. This 15-year difference between the final adjudication of the two cases can be said to be significant, given that from a criminal point of view, the two acts are quite similar. Although in the case of Pistorius, the prosecutor tried a version that said the couple would have quarreled, and this escalated to the point where Pistorius shot his girlfriend, but the judges did not give credit to that version.

There is a significant difference between Hungarian and South African law, but the most important ideas can be formulated regardless of the legal system. However, before turning to the judgment of the South African Supreme Court proving intent, that is, murder instead of culpable homicide, I must make some general remarks on trials and proof.

There is a particularly strong need for exemplary punishment for certain offenses that are considered to be particularly serious in their social perception and cause great outrage. Information about the case is passed on to society by the media, and public opinion is also expressed by the media. We play a similar role as "Soldier in White" in the well-known hospital episode of Catch-22. The process might work without the society, but the media makes it with such politically correct professionalism that we can usually only agree, so we probably won't disturb the process, even if we vote as needed, text, and occasionally respond to a public opinion interview.  Public opinion formes so that if the media perceives that there is an interest in the matter, the audience is high, then the party that the media thinks is right will get even more airtime, get more opportunity to speak. This process is called trial by media. The most important difference from ordinary court proceedings is that they are judged at the outset and the idea of ​​impartiality does not arise from then on. If the media embraces the defendant’s case, it is relatively harmless. If guilt is proven, he can still be convicted, but if a culprit is left to run for the sake of the media, it is also a much smaller mistake than convicting an innocent. Nor would it be an absolute disaster, should the accuser win the support of the media, if the judges did not take the public opinion expressed by the media too seriously. However, even if they manage to remain deaf to the trial by media, the accuser does not fail to draw the court's attention to the public opinion, and judges are advised to pay attention because otherwise, they may regret their "bad" judgment.

However, all good intentions are in vain, if the crime on which the desired punishment would be based cannot be proved beyond a reasonable doubt.

Frustrated by the failure in the case of the post-1956 Communist Minister of the Interior, Béla Biszku, Budapest Prosecutor, Tibor Ibolya in his article published in Magyar Jog (Hungarian Law) No. 9, 2015, titled On the Survival of an Authoritarian Evidence Assessment Theory he proposes radical facilitation of proving guilt in order to improve the efficiency of the prosecution.

"The main problem with the seemingly appealing theory of closed chains of circumstantial evidence is that when trying to prove a real-world crime within the framework of the rule of law, especially in complicated, multi-actor, complex cases, it is very often impossible to set up a closed logical chain, even after a thorough, professional investigation. Some of the spectacular failures of personal evidence, errors of recognition, or the recognition of the negative role of subjectively true but objectively false testimonies, along with the incredible advances in criminal technology, have led to an appreciation of objective evidence worldwide. However, circumstantial evidence does not necessarily form a single logical chain in any given case, it is possible that multiple chains may be formed separately, all pointing to the same accused person, though not connectable, to form some kind of closed system."

And this is consistent with a somewhat subjective interpretation of certainty beyond a reasonable doubt by the Hungarian High Court, Curia, based on the judge's internal conviction, according to which, depending on the judge's naivety, any argument, leaving no doubt in the judge's mind is admissible as proof beyond a reasonable doubt. On this basis, the accused may be convicted without a logically correct proof of guilt on the basis of the judge's internal conviction, making it possible to conduct show trials.

Turning to the subject, we examine whether Pistorius is rightly found guilty of murder by Judge Leach. In paragraph 55 of the judgment, he finds Pistorius guilty of murder on the ground that he fired the fatal shot with criminal intent in the form of a dolus eventualis.

Dolus eventualis arises when the perpetrator foresees the risk of his act but nevertheless continues to act appreciating the risk and reconciling with the possible unfortunate outcome. Two facts must, therefore, be examined: (1) foresight of the possibility of death (foreseeability not enough, actual foresight required) (2) reconciliation with the foreseen possibility. Presumably, after showing (1), (2) it is self-evident since the act was indeed continued by Pistorius, and a fatal outcome also occurred. The proof of reconciliation leaves something to desire, but it is more of a dramatic phrase, and Judge Leach, himself is prone to dramatic expression. He saw Shakespearean proportions in the human tragedy of Oscar and Reeva, probably because of the analogy with the case of Polonius, stabbed hiding behind the curtain.

In paragraphs 51 and 54, the judge states in a characteristic turn that the accused foresaw the risk: "he must have foreseen, and therefore did foresee". I have no doubt that Pistorius should have reasonably foreseen the possibility of a fatal outcome, so I will only examine the conclusion, that he did foresee the possibility of fatal outcome. Did Pistorius indeed foresee what he had to foresee?

The arguments of the counsel for the accused are presented in paragraph 48, and according to the following paragraph, the judge finds it unacceptable referring to the own version of the accused. Paragraph 52. and 53. follow the same pattern.

'[48] In arguing that the State had failed to show that the accused lacked the necessary subjective intention in respect of both elements of dolus eventualis, counsel for the accused emphasized the accused’s physical disabilities, the fact that he had not been wearing his prostheses at the time and that he had thus been particularly vulnerable to any aggression directed at him by an intruder. He also placed considerable emphasis on the psychiatric evidence that the accused suffers from a general anxiety disorder, and would become anxious very easily in a situation of danger, although he also has a ‘fight rather than flight’ reaction. The argument appears to have been that in the circumstances that prevailed, the accused may well have fired without thinking of the consequences of his actions.

[49] In my view this cannot be accepted. On his own version, when he thought there was an intruder in the toilet, the accused armed himself with a heavy calibre firearm loaded with ammunition specifically designed for self-defence, screamed at the intruder to get out of his house, and proceeded forward to the bathroom in order to confront whoever might be there. He is a person well-trained in the use of firearms and was holding his weapon at the ready in order to shoot. He paused at the entrance to the bathroom and when he became aware that there was a person in the toilet cubicle, he fired four shots through the door. And he never offered an acceptable explanation for having done so.

[50] As a matter of common sense, at the time the fatal shots were fired, the possibility of the death of the person behind the door was clearly an obvious result. And in firing not one, but four shots, such a result became even more likely. But that is exactly what the accused did. A court, blessed with the wisdom of hindsight, should always be cautious of determining that because an accused ought to have foreseen a consequence, he or she must have done so. But in the present case that inference is irresistible. A person is far more likely to foresee the possibility of death occurring where the weapon used is a lethal firearm (as in the present case) than, say, a pellet gun unlikely to do serious harm. Indeed, in this court, counsel for the accused, while not conceding that the trial court had erred when it concluded that the accused had not subjectively foreseen the possibility of the death of the person in the toilet, was unable to actively support that finding. In the light of the nature of the firearm and the ammunition used and the extremely limited space into which the shots were fired, his diffidence is understandable.

[51] In these circumstances I have no doubt that in firing the fatal shots the accused must have foreseen, and therefore did foresee, that whoever was behind the toilet door might die, but reconciled himself to that event occurring and gambled with that person’s life. This constituted dolus eventualis on his part, and the identity of his victim is irrelevant to his guilt.

[52] As a final counter to the State’s case, it was argued that although the accused had not acted in private or so called ‘self-defence’ ─ there had in fact been no attack upon him that he had acted to ward off ─ he had genuinely but erroneously believed that his life was in danger when he fired the fatal shots. As opposed to what is commonly known as self-defence, this is so-called ‘putative’ private or self-defence. The principles relevant to these two defences were authoritatively dealt with by this court in De Oliveira, and were explained by Smalberger JA as follows: ‘The test for private defence is objective ─ would a reasonable man in the position of the accused have acted in the same way (S v Ntuli 1975 (1) SA 429 (A) at 436E). In putative private defence it is not lawfulness that is in issue but culpability (‘skuld’). If an accused honestly believes his life or property to be in danger, but objectively viewed they are not, the defensive steps he takes cannot constitute private defence. If in those circumstances he kills someone his conduct is unlawful. His erroneous belief that his life or property was in danger may well (depending upon the precise circumstances) exclude dolus in which case liability for the person’s death based on intention will also be excluded; at worst for him he can then be convicted of culpable homicide. On appeal the unlawfulness of the appellant’s conduct was not in issue. Accordingly the only issue was whether the State had proved beyond all reasonable doubt that the appellant subjectively had the necessary intent to commit the crimes of which he was convicted, in other words, that he did not entertain an honest belief that he was entitled to act in private defence . . .’

[53] The immediate difficulty that I have with the accused’s reliance upon putative private defence is that when he testified, he stated that he had not intended to shoot the person whom he felt was an intruder. This immediately placed himself beyond the ambit of the defence, although as I have said, his evidence is so contradictory that one does just not know his true explanation for firing the weapon. His counsel argued that it had to be inferred that he must have viewed whoever was in the toilet as a danger. But as was pointed out in De Oliviera, the defence of putative private defence implies rational but mistaken thought. Even if the accused believed that there was someone else in the toilet, his expressed fear that such a person was a danger to his life was not the product of any rational thought. The person concerned was behind a door and although the accused stated that he had heard a noise which he thought might be caused by the door being opened, it did not open. Thus not only did he not know who was behind the door, he did not know whether that person in fact constituted any threat to him. In

Is everything allowed for judges?

these circumstances, although he may have been anxious, it is inconceivable that a rational person could have believed he was entitled to fire at this person with a heavy calibre firearm, without taking even that most elementary precaution of firing a warning shot (which the accused said he elected not to fire as he thought the ricochet might harm him). This constituted prima facie proof that the accused did not entertain an honest and genuine belief that he was acting lawfully, which was in no way disturbed by his vacillating and untruthful evidence in regard to his state of mind when he fired his weapon.

[54] In order to disturb the natural inference that a person intends the probable consequences of his actions, the accused was required to establish at least a factual foundation for his alleged genuine belief of an imminent attack upon him. This the accused did not do. Consequently, although frightened, the accused armed himself to shoot if there was someone in the bathroom and when there was, he did. In doing so he must have foreseen, and therefore did foresee that the person he was firing at behind the door might be fatally injured, yet he fired without having a rational or genuine fear that his life was in danger. The defence of putative private or self-defence cannot be sustained and is no bar to a finding that he acted with dolus eventualis in causing the death of the deceased.

[55] In the result, on count 1 in the indictment the accused ought to have been found guilty of murder on the basis that he had fired the fatal shots with criminal intent in the form of dolus eventualis. As a result of the errors of law referred to, and on a proper appraisal of the facts, he ought to have been convicted not of culpable homicide on that count but of murder. In the interests of justice the conviction and the sentence imposed in respect thereof must be set aside and the conviction substituted with a conviction of the correct offence.'

The accused's evidence, deemed contradictory and untruthful, becomes crucial in paragraphs 49. and 53. at points where it was used to reject the argument of the counsel of the accused. The defendant's evidence was previously used by Judge Leach to undermine the defendant's credibility. However, the evidence in itself is not significant, in light of its role in the judge's final conclusions it has become decisive. It was mentioned in paragraph 17:

'[17] With ample justification, the court found the accused to have been ‘a very poor witness’. His version varied substantially. At the outset he stated that he had fired the four shots ‘before I knew it’ and at a time when he was not sure if there was somebody in the toilet. This soon changed to a version that he had fired as he believed that whoever was in the toilet was going to come out to attack him. He later changed this to say that he had never intended to shoot at all; that he had not fired at the door on purpose and that he had not wanted to shoot at any intruder coming out of the toilet. In the light of these contradictions, one really does not know what his explanation is for having fired the fatal shots, an issue to which I shall revert in due course. There were other inherent improbabilities in his version, some of which were mentioned by the trial court in its judgment.'

The statements of the accused seem really confusing, the order is by no means chronological. Practically merely putting the statements in the correct order yields a meaningful defense:

'Hearing a suspicious noise, I took the gun. I didn't want to use it. I took it so as I wouldn't be defenseless and vulnerable to an intruder, but I didn't think I'd shoot anyone. When I heard the toilet door close — in the firm belief that my girlfriend stayed in bed — I concluded that an intruder was inside, and if he came out, he would attack me, so without thinking, in my fear — before I could be convinced there was indeed someone inside — I instinctively fired four shots.'

So it seems like a consistent story. You don’t have to believe Judge Leach is partisan and lying. He simply did not think through the matter, so he erroneously claims that the accused's allegations cannot be reconciled. The accused, therefore, was able to pull the trigger in fear, routinely keeping it relatively low on target, where he suspected the intruder's legs, and also fired further shots out of routine. The omission of the warning shot was suspiciously explained by his fear that the ricochet might harm him. This may be an ex-post explanation. In fear, he simply couldn’t think of firing a warning shot. There really wasn’t a real emergency, but when he woke up from his sleep during the night, he didn’t notice his girlfriend getting up and going out to the toilet. Maybe she opened the window because of the heat. Pistorius noticed this, and he began to fear of an intruder. From here, everything could have happened according to the history reconstructed on the basis of Pistorius's evidence. It is a truly tragic history, and the charge of culpable homicide is obviously well-founded. Judge Thokozile Masipa's original verdict proved to be essentially impeccable. Intentionality has not been proven in the form of dolus eventualis either. Pistorius had not yet served 5 years, but it was such serious unfairness to him that he unjustifiably has been considered a murderer and sentenced to 15 years in prison, that it would be fair to compensate by early release.