Constitutional Hill

Oscar’s ‘involuntary action’: Thin ice, Mr Pistorius

Gerrie Nel this week accused Oscar Pistorius of changing his legal defence from “putative self-defence” to one of “involuntary action”. This was because Pistorius seemed to suggest that he could not remember pulling the trigger of his gun and pumping four shots into his toilet door. Instead he suggested that the discharge of his firearm was an accident or, at the very least, that his conduct was not under the control of his mind.

Until his testimony and cross-examination, Oscar Pistorius’ defence was that he mistakenly thought his life was in danger and (wrongly) believed that he was entitled to act in self-defence when he pumped four bullets through his toilet door at Reeva Steenkamp. This is a valid defence. If successful, it negates the intention of the accused to commit an unlawful act.

Yet under cross-examination Pistorius seemed to suggest that the gun had gone off in his hands, but that he had nothing to do with it. This defence – if it was indeed the defence offered by Pistorius – is not easy to sustain. However, if it is sustained, the accused is acquitted of all charges. This is so because it is a trite principle of our law that a voluntary act is an essential element of criminal responsibility.

A similar defence was recently offered by Mr Jacob Humphreys in his murder trial. However this defence was rejected by the High Court as well as the Supreme Court of Appeal (SCA).

Mr Humphreys had been convicted in the Western Cape High Court on ten counts of murder and four counts of attempted murder. The convictions arose from a widely reported incident when a minibus, driven by Mr Humphreys, was hit by a train on a railway crossing near Blackheath on the outskirts of Cape Town.

There were fourteen children in the minibus, ranging in ages between seven and sixteen years. Ten of the children were fatally injured in the collision, which gave rise to the ten murder convictions in the High Court.

Although the SCA set aside the murder convictions and replaced them with convictions for culpable homicide (because it found that Mr Humphreys did not have the requisite intention to be found guilty of murder), it rejected Mr Humphreys’ contention that he had acted involuntary and should therefore be acquitted of all charges.

In a judgment authored by Brand JA, the SCA pointed out that when an accused is not conscious of his actions, the defence available to him would be that he did not act voluntarily.

If an accused person does not act voluntary he would be entitled to an acquittal if his actions were attributable “to mechanical behaviour or muscular movements of which he was unaware and over which he had no control”.

Brand pointed out that this type of involuntary behaviour “is more reminiscent of the activities of an automaton rather than a human being”, which is the reason this defence has become known as one of automatism.

It is important to note that when the defence of automatism is raised, the onus remains on the State to establish the element of voluntariness beyond reasonable doubt. However, a court will not merely assume – based on the claims made by the accused – that he had acted involuntarily.

The problem is that when an accused raises the defence of having acted involuntarily, only the accused person can give direct evidence as to his or her level of consciousness at the relevant time. But an accused would obviously have a vested interest in telling the court that he or she acted involuntarily.

As the SCA pointed out:

If the mere say-so of the accused person that the act was unconsciously committed were to be accepted without circumspection, it would tend to bring the criminal justice system into disrepute. After all, an accused person who has no other defence is likely to resort to this one in a last attempt to escape the consequences of his or her criminal behaviour. Hence it has been emphasised in earlier cases that the defence of automatism must be carefully scrutinised.

In this regard the State is assisted (in discharging the onus):

by the inference dictated by common experience that a sane person who becomes involved in conduct which attracts the attention of the criminal law ordinarily does so consciously and voluntarily. In order to disturb this natural inference, an accused person who seeks to rely on the defence of automatism is thus required to establish a factual foundation, sufficient at least to raise reasonable doubt as to the voluntary nature of the alleged criminal conduct.

In a case like the one involving Oscar Pistorius the court will require some indication of an “emotional stimulus” that could serve as a “trigger mechanism” which led to the sudden and unusual absence of control. In the past our courts – controversially – had found such a trigger in circumstances giving rise to stress, provocation, frustration and fatigue.

However, in 2002 in S v Eadie the SCA criticised courts that previously had too easily assumed that the accused had acted involuntarily. What was required in such cases, said the court in Eadie, was to carefully consider the accused’s actions before, during and after the event and to determine whether there was “planned, goal-directed and focused behaviour” involved. The court also emphasises that a detailed recollection of events by an accused militates against a claim of loss of control over his actions.

The difficulty of invoking involuntary action as a defence is illustrated by the reasoning of the SCA in the Humphrey case. Brand JA found that Mr Humphreys “did not even come close to establishing a factual basis for any doubt about the voluntariness of his conduct”.

He had not tendered any expert medical evidence on his behalf. On Mr Humphreys’ own evidence there was a glaring absence of any suggestion as to what could have triggered the rare condition of sudden unconsciousness. It could at best be inferred, said the court, that Mr Humphreys was suffering from “retrograde amnesia, which is no defence in itself”.

This means that if Oscar Pistorius is indeed now changing his defence to one that he acted involuntarily, the defence would have to tender expert evidence as to his state of mind.

Given the fact that a sane person who pumps four shots into a door and who can later recall – in great detail – much of what happened before and after the shots were fired would usually be assumed to have done so consciously and voluntarily, something more than a mere assertion that he was under extreme stress would probably have to be offered by Pistorius for a court to accept a defence of involuntary action.