'Evidence renders Oscar Pistorius's version impossible'

The judge is this morning expected to deliver her judgment in the state’s application to appeal.

State prosecutor Gerrie Nel during the Oscar Pistorius conviction appeal hearing on 9 December 2014. Picture: AFP

PRETORIA - Prosecutor Gerrie Nel has argued that the court in the Oscar Pistorius murder trial erroneously excluded the circumstantial evidence that rendered his version of events impossible.

Judge Thokozile Masipa is this morning expected to deliver her judgment in the state's application to appeal the athlete's culpable homicide conviction.

Pistorius was sentence to five-years in prison for the Valentine's Day shooting of his girlfriend Reeva Steenkamp.

Nel referred the court to circumstantial evidence which he argued was not considered when using Pistorius's version of events.

During the trial, Pistorius conceived that if the location of the fan and the duvet in his bedroom floor among other items, was correct, then his version of events was not possible.

Nel argued that this then would have led the court to reject his version outright and led to the conclusion that he unlawfully and intentionally killed Steenkamp.

Nel referred the court to legal principles related to circumstantial evidence which he argues were not considered when accepting Pistorius's version of events.

During the trial, Pistorius conceded that if the location of the fan and the duvet on his bedroom floor, among other items, was correct, then his version of events was not possible.

Nel argued that this then would have led to the court to reject his version outright, and led to the conclusion that he unlawfully and intentionally killed Steenkamp.

Nel has argued that if the court had taken into account the degree of negligence displayed by Pistorius when he killed Steenkamp, he would have been sent to jail for a much longer time.

"It was an innocent woman, shot and killed in the most horrendous circumstances. The sentence for what the accused did is shockingly inappropriate and does not fit the crime."

Defence advocate Barry Roux countered by saying the court had appropriately considered all factors when handing down the sentence.

DEGREE OF CULPABILITY

Nel argued that Pistorius was trained in the use of firearms and was fully aware there was a person behind the door when he opened fire.

As Masipa prepares to hand down her decision on whether Pistorius's prosecutors can appeal her judgment a 30-year-old robbery case of State vs Seekoei from the 1980s may be central to her ruling.

In 1981, Isak Seekoei was convicted on the lesser charge of theft after he was charged with a robbery on a farm in the Free State.

The appeal court made a decision the following year that would create a precedent that the prosecution could only appeal an acquittal and not a conviction on a lesser competent charge.

This would mean that the NPA can't appeal the Pistorius judgment as he was convicted on a lesser charge of culpable homicide, rather than murder.

But Nel believes this 30-year-old case should no longer apply as it has been superceded by a more recent Constitutional Court judgment.

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