Oscar Pistorius – the final verdict? How could the trial judge have got it so wrong?

Imagine my pleasant surprise when, at the beginning of December 2015, I read that an appeal court had agreed with my analysis of the flawed finding of fact by a single trial judge in a case.

It was slightly disappointing because it was in South Africa not Hong Kong. But, it was refreshing that the tyranny of the “fact finder” in such cases heard by a judge alone – the majority of cases are heard this way in Hong Kong – was capable of being overturned by a higher court that found the fact finding flawed.

This is how the majority of Hong Kong appeals from the magistrates courts are dealt with. However, my disappointment increased when I read the full ruling from Justice Eric Leach in the South African Supreme Court. Just as in almost all appeals from the District Court the higher court was not prepared to criticise or overturn the findings of fact of the trial judge, even though common sense, and the expert testimony, would seem to indicate that the findings of fact were, shall we be kind and say, surprising.

Why then was the prosecution appeal against Pretorius’ acquittal of murder overturned? The Supreme Court held that the judge, Thokozile Masipa, had got the law wrong. I watched a lot of the trial and thought she was an excellent lawyer but had a poor grasp of human nature, actions and real life. She seemed to apply the law like a second-rate law student who thinks that somehow law, life and reality are unconnected.

In Hong Kong a jury would have heard this case. We should be thankful for that. Juries do not always get things right, but they can, on the whole, apply sensible life experience and “common sense” to their fact-finding role.

The trial judge had dismissed Pistorius’ testimony to a great extent and found him a poor witness and not creditworthy. In other words she did not believe his version of events. Most sensible people would therefore conclude that, when there are only two people in a house, guarded by security and a high wall, and one of them, a woman, ends up shot four times by the only other person present there is clearly an element of deliberate shooting of the victim and almost certainly therefore, a deliberate killing. The law is usually fairly straightforward and simple in this way. But the courts sometimes get themselves tied in knots on these issues.