Michael Ford (post until Oct. 31/18)

Pistorius trial is a truth-finding process: Rosen

The murder trial of Paralympic gold medalist Oscar Pistorius is, in many respects, a fascinating study of how the South African justice system is different from Canada’s, says Toronto criminal lawyer John Rosen.

“It’s the continental system where you have a judge and two assessors as opposed to a jury – that’s the superficial difference,” he tells AdvocateDaily.com.

“The assessors help the judge remember and assess the evidence. They’re like advisors to the judge.”

Rosen, partner with Rosen Naster LLP, says in a way it’s a like a judge alone or a mini-jury trial.

But at the root of it,  he says, “it’s a truth-finding process and so the question is whether the truth is coming out.”

Rosen says the case will ultimately come down to the runner’s explanation for his conduct and whether he acted as a reasonable person would have acted in the same circumstance.

And there might be a different threshold for reasonableness in the defence of self or property in South Africa, where violent crime is more prevalent, says the lawyer.

Pistorius is charged with premeditated murder after the shooting death of his girlfriend, Reeva Steenkamp, on Valentine’s Day 2013. She was hit three times – in the head, arm and hip – as she cowered behind a toilet in the bathroom at the athlete’s home.

The double-amputee Olympian has said he shot the 29-year-old model and law school graduate by mistake. He thought she was an intruder.

Rosen tells the online legal news service that the trial is really about whether Pistorius committed murder and not about whether he “did it,” because everybody agrees that the woman was shot after he fired through the bathroom door.

“The question is, did he think he was shooting Reeva Steenkamp or did he think he was shooting an intruder,” he says.

In addition to proving that Pistorius caused the death of Steenkamp, Rosen says the prosecution in the case has to prove that he did it unlawfully.

The lawyer says that if the athlete can “justify” his conduct and support his claim that he did it in self-defence or defence of property, “then he’s not guilty of anything.

“But if the court says that he did not act in self-defence, or he did not act in defence of his property, then he would have committed an unlawful homicide, which would be at least manslaughter,” says Rosen.

Then if it’s a manslaughter, it becomes an issue of intent, he says.

“And if his intent was to kill the so-called intruder or to cause that person bodily harm that he knew was likely to cause death, then it would be murder under our law,” Rosen tells AD.

After that determination is made, he says it becomes a question of whether it’s first- or second-degree murder.

All murder is second-degree unless there are aggravating circumstances, one of which is that it’s a murder committed as a result of planning and deliberation.

The prosecution’s theory in the Pistorius case is the Paralympian and his girlfriend got into an argument, possibly a physical argument, and that she ran to the bathroom for safety and barricaded herself in there. Pistorius then got his gun and shot her through the door, they maintain.

“By going to get his gun and shooting her through the door, a jury in Canada would possibly say that he acted pursuant to planning and deliberating,” says Rosen. “But, even if he was in the height of a domestic altercation and he wasn’t thinking clearly, then you might say he didn’t deliberate. He had a plan but he really wasn’t thinking clearly so maybe it would only be second-degree murder.”

Rosen says many criminal lawyers are watching the trial carefully.

“Lawyers are interested in it because it’s a different system and we all tend to compare it to our own system and ask ourselves, ‘what would we do if we were in that situation – how would we defend it? How would we prosecute it?’” he says.

Rosen says it’s difficult to say which system is better.

For him, he’s particularly interested in the prosecutor’s cross-examination of Pistorius.

He says the rules of cross-examination appear to be different in South Africa. Rosen says prosecutors in Canada would never be permitted to “badger” a witness as seems to be the case in the Pistorius trial.

He also described the lengthy cross-examination of Pistorius by the prosecution as “bizarre,” which he says wouldn’t happen in Ontario.

“You don’t give the witness a chance to explain himself or herself again,” he says. “What you do is ask a series of leading questions to demonstrate the improbability of what the witness says, which are designed to show inconsistencies in prior statements.”

Rosen says he plans to use the online video excerpts to teach his law students about cross-examination techniques.

“I’m going to teach my class how not to do certain things with respect to cross-examination for both the defence and he prosecution ,” he says.

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