A world famous sportsman accused of killing his partner is controversially acquitted with public uproar. Some have drawn similarities between OJ Simpson and Oscar Pistorius, although the comparisons should not be overstated. Not least because, whilst Mr Pistorius left Court on 12 September after the verdict, he did not (as may papers state) “walk free”, as he was bailed pending sentence. Although acquitted of murder and pre-meditated murder, he was convicted of “culpable homicide” (pretty close to what would be manslaughter in English law). As a consequence, he faces up to 15 years in prison.
How did the Judge (Thokozile Masipa) come to this conclusion? Whilst it is much more fun to express outrage at the athlete “getting away” with the murder of Reeva Steenkamp, or having a pop at the South African judicial system, the boring answer is that she appears to have applied the burden and standard of proof and properly given Mr Pistorius the benefit of the doubt (it should be noted that there were three other charges that Mr Pistorius faced – one of possession of illegal ammunition and two relating to discharge of a firearm, of which he was convicted of one).
A critical question, of course, was whether Mr Pistorius knew that the person in the bathroom was Ms Steenkamp or whether he might have believed that it was an intruder there. If the former, then he would be guilty of murder. South Africa, like most common law countries apart from ours, has different degrees of murder, with premeditated murder being defined differently from, and more serious to, “ordinary” murder.
Judge Masipa looked at the fact that the ear-witnesses to the timeline of the evening had had their evidence undermined and the fact that Mr Pistorius said immediately to the authorities that he had believed that it was an intruder which, the Judge thought, was not consistent with this being a fabricated account. True it is that she also said that Mr Pistorius was (to paraphrase) a terrible witness but, as a Judge has to direct herself (or a jury in this country) that that does not mean that he is incapable of being truthful, or that all he says should be discounted.
What has caused a great outcry is the supposed conclusion that it was not foreseeable that firing four bullets at a bathroom door would kill the person inside. Murder in South Africa has the rule of “murder dolus eventualis” – you are guilty of murder if you foresee the consequence of your action, but continue anyway.
In fact, it seems that the Judge recognised that whilst there was an objective risk here, Mr Pistorius did not foresee, at the time that he fired, that shooting through the door would cause the death of the person inside. An English lawyer would recognise this as the difference between Caldwell (MPC v Caldwell  1 AC 341) and Cunningham (R v Cunningham  2 QB 396) recklessness.
Whilst it may seem odd that someone would not have been aware of this, given how quickly the incident panned out, in the dark and confusion, it is not impossible that this all happened without Mr Pistorius thinking and simply acting instinctively. Certainly, bearing in mind the burden of proof, it is hard to say that the Judge was unreasonable in concluding that she could not be sure.
It is not completely clear why the Judge (the written judgment has not yet been published) concluded that he fired the shots, but she ruled out self-defence, saying in effect that she was sure that it was not reasonable for him to fire in to the door. This would give rise in England to a verdict of manslaughter, most likely on the basis that there was no intention to kill.
On the facts as the Judge found them to be, it is worth remembering that the verdict would be the same here. The only thing that could be said is that in all the circumstances of the case (a man with disabilities believing that an intruder is in his flat in a country where criminals regularly carry guns), I can imagine that many juries would give him the benefit of the doubt in relation to whether he was acting in self-defence.
A further issue that has caused some surprise is that the various messages back and forth between Ms Pistorius and Ms Steenkamp were discounted. It seems that what has happened is that the Judge concluded that the messages were within the normal boundaries in terms of ups and downs that one would expect in a relationship, and therefore they cannot assist with determining what happened on the night in question. Again, this is well within the bounds of what an English Judge would conclude.
So, this issue will run and run. The disappointment and disbelief of the verdict can be seen, and is understandable, however we can also see why the Judge ruled as she did. The advantage of a jury is that, not having to give reasons, they are spared millions of people poring over their reasons, poking holes in it.