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Pistorius defence hits back at state's application

Barry Roux said South African law is clear, that the state may not appeal on matters of fact.

Judge Thokozile Masipa sits in the High Court in Pretoria on 9 December, 2014. Picture: Pool.

PRETORIA - Oscar Pistorius's defence team has hit back at the state's application to appeal his conviction arguing that it's incorrectly attempting to appeal on matters of fact, not of law.

The state's application to have the athlete's conviction and sentence appealed has now adjourned until tomorrow morning.

In September, Pistorius was sentenced to five years in prison for shooting and killing his girlfriend Reeva Steenkamp.

The state failed to convince Judge Thokozile Masipa that he intended to kill when he fired shots through a locked toilet door at his luxury Pretoria home and he was found guilty of culpable homicide in September.

Masipa today heard arguments on the state's application for leave to appeal the athlete's conviction on a charge of culpable homicide and the five-year sentence handed down.

Defence advocate Barry Roux said South African law is clear, that the state may not appeal on matters of fact.

He referred to case law where circumstantial evidence related to an accused's state of mind was accepted as proven facts.

Roux argued that in this case, the judge made findings related Pistorius's state of mind, facts which he said the state is attempting to have reviewed.

'WRONG LEGAL QUESTION WAS APPLIED'

State prosecutor Gerrie Nel earlier claimed that the judge had incorrectly applied the legal principle of _dolus eventualis. _

Nel said that in this regard the court erred, and that if it had applied the _dolus eventualis _principle correctly, Pistorius would be guilty of murder.

He also reiterated that the sentence does not fit the crime.

He said that the court asked the incorrect question of whether Pistorius subjectively foresaw killing Steenkamp and should have asked whether he foresaw killing any person.

He further argued that the court did not take into account the circumstantial evidence that rendered the athlete's version impossible.

Nel argued that the state's appeal bid centres on a question of law.

Judgment will be handed down tomorrow.