BLOEMFONTEIN, South Africa - South Africa's Supreme Court of Appeal grilled Oscar Pistorius' attorney and a prosecutor on Tuesday as it weighed whether to convict him of murder for killing his girlfriend, uphold a lower court's manslaughter conviction or order a retrial.
Prosecutors say the North Gauteng High Court erred in convicting Pistorius of the lesser charge, and that the double-amputee Olympian should have known that someone could be killed when he fired four times into a locked toilet cubicle in his home. In the trial last year, prosecutors said Pistorius killed Reeva Steenkamp as she sought shelter in the toilet cubicle during an argument on Valentine's Day 2013. The defense said Pistorius opened fire because he thought an intruder was about to burst out of the toilet.
One of the five appeals court judges noted during the session on Tuesday, broadcast across the country and around the world on live TV, that Pistorius could still be convicted of murder even if he didn't think it was Steenkamp in the cubicle but knew someone was in there. Under the concept of dolus eventualis in South African law, a person can be convicted of murder if they foresaw the possibility of someone dying through their actions and went ahead anyway.
"If you look at the photographs, there's room behind there for a toilet bowl and a person and just about nothing else," Justice Lorimer Leach said to defense lawyer Barry Roux. "There's nowhere to hide. It would be a miracle if you didn't shoot someone."
The five judges questioned prosecutor Gerrie Nel and Roux for about three hours in the court in Bloemfontein, a city in central South Africa that is the country's judicial capital, with Steenkamp's mother June Steenkamp and many journalists in attendance. The toughest and longest questioning was directed at Roux who, according to local news website News24, said "I'm going to lose" in Afrikaans after the proceedings were finished, with his microphone still on. The full context of the statement is unclear, however.
Brian Webber, another Pistorius lawyer, said he could not comment on the reported remark by Roux without hearing the recording or knowing the context in which the remark was allegedly said.
"We think we've got a very arguable case," Webber said.
But, in a bad sign for Pistorius, who was not present, some of the Supreme Court judges suggested he could have known he would kill someone, whether his girlfriend or a possible intruder, by firing his pistol. Prosecutors argue that knowing his actions could be deadly, Pistorius should have been convicted of murder, and not the lesser offense of culpable homicide, which is similar to manslaughter.
"On the objective facts, the accused cannot escape the conviction of murder," Nel said.
Responding to a barrage of questions from Leach, defense attorney Roux said there was a space behind a wall in the toilet cubicle that could have been safe from gunfire, but acknowledged that the "probable consequence" of Pistorius shooting through the door would have been injury or death. However, Roux said that did not contradict the defense argument that Pistorius, allegedly terrified that he was about to be attacked by an intruder, did not foresee that his actions would lead to someone's death.
Pistorius, 28, was released from jail last month after serving a year in prison and was moved to house arrest at his uncle's mansion. He was not required to attend the hearing.
While prosecutor Nel's arguments to the panel were relatively brief, Roux, faced tough and lengthy questioning from the black-robed judges who sat on ornate wooden chairs with red backing in the wood-paneled courtroom.
A murder conviction would call for a minimum sentence of 15 years in prison for Pistorius, the multiple Paralympic champion who became one of the world's most famous athletes and the first amputee to run at the Olympics and the able-bodied world championships.
Asking the Supreme Court judges to upgrade Pistorius' conviction to murder, Nel said that Judge Thokozile Masipa didn't correctly apply the law at the culmination of Pistorius' dramatic seven-month trial. Nel also said Masipa ignored or simply paid "lip service" to some circumstantial evidence against Pistorius.
After Tuesday's session, the judges retired to consider their judgment. They said they would not be issuing their decision on Tuesday and there is no timeframe for when they will, although the court has said it would aim to release a decision by the end of this month.
The judges had already studied the tens of thousands of pages of court transcript from Pistorius' trial. The panel of five judges, three men and two women, can reach a decision through a simple majority.