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Legal Look: Why it's no surprise Pistorius is on bail

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Eric Macramalla, TSN Legal Analyst
2/22/2013 3:04:38 PM
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Magistrate Desmond Nair granted Oscar Pistorius - who's charged with one count of premeditated murder in the shooting death of Reeva Steenkamp - bail on Friday.

Bail is set at about US $100,000 and this means Pistorius is now free pending his trial, which should take place in a few months.

Some were surprised that Pistorius was granted bail - and understandably so. He was charged with premeditated murder, which is classified as a Schedule 6 offence. These are the most serious types of offences under South African law. Apart from premeditated murder, Schedule 6 offences include the killing of a law enforcement officer and gang rape. These are found in the South African statute called the Criminal Procedure Act.

From a bail standpoint, the type of offence matters. With a Schedule 6 offence, the defendant has to demonstrate exceptional circumstances warranting his release. This is different than some lesser offences, where the prosecution (or government) has to show why the defendant should not be released on bail. So the onus with a Schedule 6 offence is flipped to the defendant.

At law, it can be tough to make out exceptional circumstances. As per its wording, you need to have very good reasons for release.

In this case, however, it was not a surprise to see Pistorius released on bail. When considering whether a person should be released on bail, a court will look at things like whether the defendant is a flight risk or a danger to the community. Public policy also factors into the determination, as do the merits of the case.

While he has the financial means to flee, Pistorius is highly recognizable. That makes hiding difficult (although not impossible). As well, there was no clear evidence presented at the bail hearing that Pistorius has engaged in a pattern of violent behavior. So he wouldn't be seen as a danger to the community.

The only way bail would have been refused is if the court on the evaluation of all the evidence concluded that the case against Pistorius was overwhelmingly strong and it was highly likely he would be convicted on the charge of premeditated murder. Only then would the court be swayed and lock Pistorius up pending trial.

Other than that scenario, Pistorius would walk pending trial. And that's what happened.

One more thing - the bail hearing was not the trial. So while officer Hilton Botha may have struggled a bit on cross-examination, and while he has since been removed from the case given his own murder charges, it does not mean that Pistorius is victorious. The evidence at trial will be evaluated independently since the Court understands that the investigation into the murder of Steenkamp would have been in its infancy.

Pistorius: Jail Time

Whatever feelings of relief Pistorius' family and legal team may have with his release will be short-lived. He still has to answer for the death of Steenkamp. 

There are some possible charges, including premeditated murder, murder and culpable homicide. Premeditated murder requires planning plus intent to murder. In contrast, murder only requires intent to murder (no planning). Culpable homicide entails negligently killing someone (without the intent factor present).

So if a person kills intentionally it's murder; where a person negligently kills, it's culpable homicide. You can then divide murder up into premeditated or not premeditated.

As far as jail time, premeditated murder would get Pistorius a compulsory life sentence, while murder would result in a compulsory sentence of 15 years. For culpable homicide, the sentencing is discretionary, although it's not unusual to see prison time in South Africa of 5 to 10 years.

So this is just the beginning for Pistorius.

No Jury System

The Pistorius trial will be heard by a judge and not a jury. South Africa does not have a jury system. It is unclear at this point which side would be favoured by the absence of a jury. We do know that juries at times render unexpected or unusual decisions. They can also be swayed by public sentiment and emotion, while also potentially distracted by celebrity and irrelevant facts. A judge, however, is more likely to focus on the facts and make a ruling based upon those facts. The judge is charged with ensuring a just result, and on that basis, will carefully review and consider all the facts of a case. The judge is also aware that whatever decision the court renders could be challenged by higher court on appeal.

Eric Macramalla is TSN's Legal Analyst and can be heard on TSN Radio 1050. You can follow him on Twitter @EricOnSportslaw.

Oscar Pistorius (Photo: Dean Mouhtaropoulos/Getty Images)

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(Photo: Dean Mouhtaropoulos/Getty Images)
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