Mitigating Oscar: What we can learn from Pistorius and the commonwealth in cases of fatal domestic violence
by Jaqueline Julyan S.C. and Dennis Kavanagh
“The discharge was accidental M’Lady. I believe that someone was coming out. I believed the noise that I heard inside the toilet was somebody coming out to attack me or take my life” (3309-3310)
Dwarfed by the enormity of his crime, Oscar Pistorius cut a much diminished figure in cross examination, seemingly a man murmuring practiced excuses in the shadow of an offence so grave the Supreme Court of Appeal of South Africa would come to call it a “tragedy of Shakespearian proportions” (Leach JA in Director of Public Prosecutions, Gauteng v Pistorius (96/2015)  ZASCA 204. If the concept of a Shakespearian narrative was invoked by a unanimous Supreme Court of Appeal to describe external forces at work through mere human ciphers, with Pistorius an ethnically mismatched Othello to Reeva Steenkamp’s Desdemona, forces outside the court were engaged in an equally Shakespearean collision between the high expectations placed on the common law in cases of fatal domestic violence and the prosaic reality of fact-finding in circumstantial cases. Reeva Steenkamp, quite literally, after all, was killed “behind closed doors”, the linguistic calling card of all matters domestic. Shakespeare, and Othello, in particular, are obvious and fertile sources for apparent wisdom on the subject of crimes and passions. The Supreme Court of Appeal could be forgiven for having in mind Iago’s reflection that “Men in rage strike those that wish them best”. Similarly, those who stress the strength and efficacy of the common law appellate tendency to correct first-instance mistakes might cite Iago again; “How poor are they that have not patience! What wound did ever heal but by degrees?”
If the wounds of the first-instance Pistorius judgment were soothed and sealed by an appellate re-appraisal, a parallel and diametrically opposite course ran in the Australian case of the murder of Alison Baden Clay by her husband in R v Baden Clay  QCA 265. Thousands of miles from Gauteng, to the West of Brisbane, the Baden-Clays carried on, to all appearances, a suburban and unremarkable existence that could not be further from the high octane lifestyle of Pistorius and Reeva Steenkamp.. Mr Baden-Clay was a real estate agent with three children, Mrs Baden-Claywas a full time mum who went jogging of a morning. Yet on closer examination, he had been conducting a longterm affair and wrote in an email to his lover on 3rd April 2012 he would be free of the marriage by July. So he was. Alison Baden Clay’s badly decomposed body was discovered in her jogging gear on 30th April 2012 on a ridge by Kholo Creek. As with Mr. Pistorius, only Mr. Baden-Clay could speak authoritatively and clearly to the circumstances of how the woman he loved came to die. And as with Mr. Pistorius, that account came to be comprehensively and robustly rejected as dishonest, evasive and fundamentally untrue.
Baden-Clay was convicted of the murder of Alison before Byrne J and a Jury in the Supreme Court of Queensland on 15th July 2014 in Brisbane. A year later the Queensland Court of Appeal quashed that conviction and substituted manslaughter, holding that no matter how many lies Baden Clay had told, no matter how scratched his face was, no matter how implausible his account of the blood in the car was, that the Prosecution had made a window too far into the man’s soul, stretching to breaking point the frontiers of circumstantial inferences. Lie he might have done, but, said the Supreme Court, so long as the Court itself could navigate the facts and steer a safe harbour to a reasonable version of events inconsistent with murder, such must be the right verdict. If there is a Shakespearean comparator for the case, it is a suburban half-fit rather than a case on point, Alison’s final resting place recalling Millais’s portrait of Ophelia. Not because her final rest was that of a porcelain figure serenely holding flowers in death, but rather because forensic botanical evidence of plant and leaf material and spores from the body resting on a ledge by the creek revealed that the place of death was likely that most domestic of environments, the home in which she had lived with her murderer, the home in which she had raised children and the home in which she had attempted to mend a broken marriage.
Despite the different lifestyles of the men accused of killing their partners, the media glare was not to be confined to the Pistorius trial.
That domestic violence is emerging from behind closed doors and shut curtains, from the shadows as it were, to a national priority calling for all the dexterity and force the common law world can properly bring to bear is a truism (reality?) The two cases under discussion are extreme examples, but their echoes and nuance would be recognised as daily realities to family and criminal law practitioners in the UK, a country in which 2.1 million people per year are estimated to be victims of such violence, the vast majority of whom are women (Source: Safe Lives: Ending Domestic Abuse). In a year when coercive or controlling behaviour in an intimate or family relationship has become a criminal offence (s.76, Serious Crime Act 2015), many look to such cause celebre cases and ask whether the increasing elaborate legal architecture can ever match the global expectations placed upon it. What can practitioners learn from these two seminal cases and attempt to analyse what significance they have to the wider common-law commonwealth?
Read with a lawyer’s eye, one could be forgiven for interpreting Director of Public Prosecutions, Gauteng v Pistorius as a lament for the fact that the Supreme Court of Appeal of South Africa has little discretion when it comes to interfering with first instance finding of facts favourable to the accused. Read in this way, Leach JA at paragraph 23, appears almost at pains to stress that whatever the superficial similarities, prosecution appeals are quite different in substance to defence appeals, following Magmoed v Janse van Rensburg & Others 1993 (1) SACR 67 (A) at 101 G-L, the tone being set by “the traditional policy and practice of our law” , that a competent acquittal is the end of the matter. The point is developed with the Court stressing no matter how inherently unlikely or unsatisfactory the findings of fact at first instance, the Supreme Court of Appeal simply lacks jurisdiction in the first place or arguable jurisprudence in the second to displace this well-established rule. The position is a clear one:the State, exercising a statutory right of appeal (s. 319 CPA), is not entitled to a free-for-all rehearing of the case as is the accused; this is an appeal where the limits are tramlines, not guidelines. A casual reader could be forgiven for detecting unease in the Court’s discussion of the case, for there is no doubt about it, Pistorius, says the unanimous court, was a terrible witness: “With ample justification, the court found the accused to have been “a very poor witness”. His version varied substantially (Paragraph 17 ) says Leach JA, quoting Masipa J’s judgment. Her Ladyship had been clear (and perhaps more strident) in this respect, Pistorius had been “evasive” (3319), untruthful (3321) and nonsensical in several respects (3320). Similarly, picking over the dizzying and varying Latinate forms of liability for homicide, Leach JA (paragraph 31) refers, with a sigh to the “lexicon of a lawyer”, as a creaking common law nomenclature is applied to a world of mobile phones, call schedules and text messages. The system is the system, the court seems to say, we’re stuck with it and we are where we are.
The substituted conviction the unanimous Court was based on the dolus eventualis form of homicidal criminal liability, that is to say the accused was guilty by reason of the fact that he must have foreseen someone would be killed by discharging the four bullets he did that morning. Critics point out that this is a far cry from the State’s first instance case of dolus directus, the contention that he had intentionally killed Reeva Steenkamp following an argument. In the public mind and those of many domestic violence campaigners, the evidence is still problematic (or far from simple): had Reeva taken a mobile phone to an area to retreat from attack? Had her neighbours that night heard screams? Why did the Defence contend they would refute that evidence with audio experts then fail to take that opportunity? What of the text messages? However as the dust settles across various offices, bars and wherever people gather to discuss the great stories of the day,when Pistorius comes to be sentenced these may well remain questions still to be answered. Whatever the position, one thing is clear, the plea in mitigation in this case can properly be based on a vigilante scenario in a country whose inhabitants are all too aware of the dangers of violent crime in affluent areas like the Silver Woods Country estate in Pretoria. The ultimate sting in the tail in this case may be that whatever perceived victories the appellate process accrues for those rightly and fiercely condemning domestic violence, the accused is entitled to be sentenced on the finding of fact that he believed an intruder was behind the door where Reeva Steenkamp was murdered.
From a UK perspective the saga may seem of celebrity interest only - the strange apparatus of assessors sitting with a High Court Judge, Prosecution appeals swapping convictions in and out - at first blush might almost seem continental in character, but to imagine the case has nothing to say about wider common law jurisprudence is mistaken. Pistorius is persuasive authority for a point often argued but rarely appealed in UK criminal trials, namely that a vast wealth of authority prescribes the deployment and effect of circumstantial evidence, and there is plenty of commonwealth authority on the subject. Whatever criticisms are made of Masipa J at first instance, there can be no argument that her Ladyship’s employment of S v Van der Meiden 1992 (2) SA 79 (W) and associated authorities was quite correct when she ruled that it need only be reasonably possible that a defendant might be innocent to secure his acquittal, and (perhaps more importantly), that there are clear dangers of examining the account of the accused in isolation. As if pre-empting Baden-Clay a few months later, Her Ladyship, having roundly and reasonably criticised the evidence of the accused went on to set out the limits of such criticism; citing S v Mtswene 1985 (1) SA 590 (A),where the Court judges that untruthful evidence is given, this does not always justify the conclusion the accused is guilty (page 3321 first instance). There are echoes here of our native Vye direction (R v Vye  QB 720) and in a world where many practitioners bemoan a perceived tendency to rely on discretion and unfettered findings of fact as sacrosanct it may be domestic practitioners can usefully deploy commonwealth jurisprudence on the subject.
If Pistorius is taken as authority for the proposition that a “poor defendant witness does not a murder conviction make” (it was the firing of four shots and the other circumstantial evidence that did), Baden-Clay is on all fours as regards appellate re-examination of the evidence of the accused. The status of the case should not be over-estimated, as soon the ratio will be the subject of intense scrutiny by the High Court of Australia, the DPP of Queensland having appealed. As matters stand though, the case remains strikingly similar to Pistorius with Holmes CJ drawing the frontiers of circumstantial inferences against the accused thus: (46)
“In some cases, post-offence conduct may take its complexion from other circumstances: evidence of motive, forensic evidence suggesting a bloody or protracted killing, statements of intent by the accused or, in the case of concealment of a body, that there are injuries to the victim that would point to a deliberate killing. But in the present case there was no evidence of motive in the sense of a reason to kill, and the appellant had never intimated any intention of harming his wife”
Her Honour, the Chief Justice of Queensland, has weathered a fierce storm of criticism for the judgment of a unanimous Court of Appeal, with Queensland’s Courier Mail newspaper declaring on the day of the Judgment in bold capitals “THE LAW IS AN ASS”. Nuance and a proper understanding of inferences to be drawn from circumstantial evidence are likely lost on the writer of the headline, suffice it to say that while respected legal commentators differ on the ratio, few doubt that the Queensland of Court of Appeal was faithfully following the Victorian Court of Appeal precedent in R v Cintar (2006) 16 VR 26. This said, the substitution of a jury verdict is capable of creating a feeling of distance and ill-feeling towards any legal establishment, and would certainly be an event of seismic significance in our own jurisdiction. It remains to be seen how the High Court of Australia will deal with the matter but for the moment the position is clear, like Pistorius, no matter how unmeritorious the circumstances, Common law Commonwealth Courts require far more than a poorly performing accused to convict of the most serious offences.
The future and circumstantial evidence in a common-law environment
For the time being a critic could complain, with some justification, that those who abuse in private, capitalising on the repose of trust and all the vulnerability that domestic circumstances imply, will be protected by a series of circumstantial factors that mean that the most private of crimes remain the most difficult for the common law to deal with. Pistorius, it could be said, is to be sentenced for an over-zealous vigilante offence, not one that properly describes the violence men often do to women, and Reeva’s murder is profoundly a second degree murder. Does that render her a “second rate victim? might be the complaint. So too, could Alison Baden-Clay’s family complain that the Court of Appeal have invented a set of circumstances, not advanced by the accused, in which they imagine, on one possible hypothesis, that the accused can rely on a defence he had neither the wit nor audacity to give breath to himself. These may, in reality remain perennial and justifiable complaints in an area that is consistently difficult to prosecute and satisfy public demands around the common law world. It may be that the ultimate answers lie far beyond any justice system, that whether it be family or criminal, that the common law world remains an enquiry after the fact, and that no system can ever retrospectively open doors that are closed at the material time. We shall see. Pistorius is still to be sentenced and Baden-Clay still to be pronounced upon. On any view, these are testing and important times for the common law world as it faces the challenges thrown up by fatal domestic violence.