South Africa's Supreme Court of Appeal is considering whether to convict Oscar Pistorius of murder for killing his girlfriend, uphold a lower court's manslaughter conviction or order a retrial.
Prosecutors say the North Gauteng High Court erred in convicting Pistorius of the lesser charge, saying that he should have known that someone could be killed when the double-amputee Olympian fired four times into a locked toilet cubicle in his home.
In the trial last year, prosecutors said Pistorius killed Reeva Steenkamp as she sought shelter in the toilet cubicle during an argument on Valentine's Day 2013. The defence said Pistorius opened fire because he thought an intruder was about to burst out of the toilet.
One of the five appeal court judges noted during Tuesday's hearing that Pistorius could still be convicted of murder even if he did not think it was Ms Steenkamp in the cubicle but knew someone was in there.
Under the concept of dolus eventualis in South African law, a person can be convicted of murder if they foresaw the possibility of someone dying through their actions and went ahead anyway.
"If you look at the photographs, there's room behind there for a toilet bowl and a person and just about nothing else," Justice Lorimer Leach said to defence lawyer Barry Roux. "There's nowhere to hide. It would be a miracle if you didn't shoot someone."
The five judges questioned prosecutor Gerrie Nel and Mr Roux for about three hours in the court in Bloemfontein, the country's judicial capital, with Ms Steenkamp's mother June and many journalists in attendance. The toughest and longest questioning was directed at Mr Roux.
In a bad sign for Pistorius, who was not present, some of the Supreme Court judges suggested he could have known he would kill someone, whether his girlfriend or a possible intruder, by firing his pistol.
Prosecutors argue that knowing his actions could be deadly, Pistorius should have been convicted of murder, and not the lesser offence of culpable homicide, which is similar to manslaughter.
“On the objective facts, the accused cannot escape the conviction of murder,” Mr Nel said.
Responding to a barrage of questions from Justice Leach, defence lawyer Mr Roux said there was a space behind a wall in the toilet cubicle that could have been safe from gunfire, but acknowledged that the “probable consequence” of Pistorius shooting through the door would have been injury or death.
But Mr Roux said that did not contradict the defence argument that Pistorius, allegedly terrified that he was about to be attacked by an intruder, did not foresee his actions would lead to someone’s death.
Pistorius (28), was released from jail last month after serving a year in prison and was moved to house arrest at his uncle’s home. He was not required to attend the hearing.
While prosecutor Mr Nel’s arguments to the panel were relatively brief, Mr Roux, faced tough and lengthy questioning from the black-robed judges who sat on ornate wooden chairs with red backing in the wood-panelled courtroom.
A murder conviction would call for a minimum sentence of 15 years in prison for Pistorius, the multiple Paralympic champion who became one of the world’s most famous athletes and the first amputee to run at the Olympics and the able-bodied world championships.
Asking the Supreme Court judges to upgrade Pistorius's conviction to murder, Mr Nel said that Judge Thokozile Masipa did not correctly apply the law at the culmination of Pistorius's dramatic seven-month trial. Mr Nel also said Judge Masipa ignored or simply paid "lip service" to some circumstantial evidence against Pistorius.
After Tuesday’s session, the judges retired to consider their judgment. They said they would not be issuing their decision on Tuesday and there is no timeframe for when they will, although the court has said it would aim to release a decision by the end of this month.
The judges had already studied the tens of thousands of pages of court transcript from Pistorius’s trial.
The panel of five judges, three men and two women, can reach a decision through a simple majority.
AP