Lights, Camera, Oscar!* — Did Judge Masipa find in her judgment that the broadcast led to an unfair trial?

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By Dario Milo and Stuart Scott

Tomorrow, Judge Thokozile Masipa will decide what sentence Oscar Pistorius will be given in respect of his conviction for culpable homicide. Judge Masipa’s judgment in respect of the conviction, handed down last month, led to a sea of divided opinion.

First, there was diversion amongst legal experts. Professor Stephen Tuson from the University of Witwatersrand, on the one hand, was quoted as stating “[w]e have many judgments which essentially say: ‘If you point a firearm at someone and shoot, then you intend to kill them’“.  This suggests that Oscar should have been found guilty of murder on the basis of dolus eventualis.

On the other hand, Professor Jonathan Burchell, the author of one of the leading texts on criminal law, opined that the ultimate conclusion Judge Masipa reached – that dolus eventualis had not been shown because of Oscar’s mistake as to whether he was acting lawfully – was correct.

The judgment also resulted in markedly-divided opinion amongst members of the public. As Zapiro succinctly captured in his cartoon after the judgment, everyone is now a criminal law expert.

Zapiro cartoon

In our view the kind of rigorous debate which ensued was largely due to the unique access that legal experts (who were not involved in the trial) and the public at large were granted by virtue of the live broadcast.  It presented an opportunity to follow each and every aspect of the trial as it unfolded, and to evaluate each piece of evidence that was introduced as if they were sitting in the courtroom.  In our view, this level of openness has been positive and has facilitated a better understanding of the criminal justice system in South Africa and why Judge Masipa decided the case in the way that she did.

But for us media lawyers there was another talking point, which relates to a few extraneous comments in Judge Masipa’s judgment about the impact of media publicity on the evidence led in the trial.  This has led to some journalists making the incorrect claim that Judge Masipa found that the broadcast of Pistorius’s trial compromised his fair trial rights, and that she expressed herself to be against the live TV broadcast of the trial.

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Media Law Newsletter – August 2014

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Media Newsletter 2

You can read the Webber Wentzel Media Newsletter here.

In this issue:

Recent work by the Webber Wentzel Media Team:

Griekwastad convicted murderer turns 18 — now may we identify him?

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By Dario Milo and Stuart Scott

Journalists need to take great care, from a legal and ethical perspective, when reporting on cases involving a child accused. This post deals only with the legal position.  Under our law, section 154(3) of the Criminal Procedure Act provides that no person shall publish any information which reveals or even which may reveal the identity of an accused, or witness in criminal proceedings, who is under the age of 18 unless the presiding judicial officer authorises the publication of such information. Breaching the provision is a serious criminal offence and those found guilty could be sentenced to a fine or 5 years’ imprisonment (or even both).

The position in relation to a child accused is thus reasonably clear. But what happens when a child accused attains majority during criminal proceedings or where a teenager is convicted turns 18 and there is a pending appeal? These questions have been brought sharply into focus as the teenager, who was sentenced on 13 August 2014 to 20 years in prison for the so-called Griekwastad murders, reportedly turns 18 today.

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A mistrial for Oscar Pistorius? We think not

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by Dario Milo and Stuart Scott

On Sunday night, Australia’s Channel 7 broadcast a video showing Oscar Pistorius apparently re-enacting various moments from the night he killed Reeva Steenkamp.

The footage was reportedly filmed in October 2013 by a US company, The Evidence Room, and reports say that it was commissioned by the defence team to assist with trial preparation in order to reconstruct Oscar’s version of events.

Since the broadcast, there has been a cloudburst of media attention dedicated to the issue and what it means for the trial.  Indeed, various reports around the world have used buzz words like “mistrial” quite liberally.

But could the publication of the video down under amount to a mistrial?

We submit not.

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The Oscar Trial and the curious case of the media orders

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by Dario Milo and Stuart Scott

In an article we wrote for Sunday Times last week we briefly touched on three orders relating to the media that we submit were incorrectly made by Judge Masipa during the Oscar Pistorius trial (for more detail on the first two orders see the earlier post on broadcasting the Oscar trial).

The third order in question related to the banning of any further publication of the exhibits marked “PPP” and “QQQ” (essentially the psychiatric and psychological reports compiled while Oscar was at Weskoppies Psychiatric Hospital), which went beyond the official findings that were read into the record during proceedings.

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