by Mandy Wiener
Oscar took a guest visiting from the UK, fellow athlete Martyn Rooney, to meet up with his friend Darren Fresco and professional boxer Kevin Lerena. In an attempt to remain inconspicuous, the men chose a table in the far left corner inside the restaurant, close to the wooden tables heaped high with confectionary.
The patrons against the wall sat on plush cushioned couches, while on the opposite side of the table were two wooden chairs. Oscar sat in the corner, with a wall at his back and to his left. Lerena was opposite him, while Rooney was to the athlete’s right and Fresco diagonally across from him, next to the boxer. It was lunchtime and the restaurant was packed as usual, with at least 200 people both inside and outside under a canopy of umbrellas to shield them from the scorching January sunshine. A queue of would-be patrons stood out in the piazza, holding tags and waiting for their numbers to be called.
Between the talk of nutrition, kilojoules and body mass, Oscar asked Fresco if he could see his firearm. The athlete had his eye on a Glock 27 and wanted to inspect his friend’s handgun. This particular variant of the US-made weapon is a .40 calibre, described by the manufacturer as ‘small, light, accurate, powerful … and popular with police both on and off duty’. Unique to this handgun is its trademarked ‘Safe Action’ system – it has no hammer and the trigger must be pulled for the weapon to discharge.
Fresco believed Oscar to be a competent firearm owner – they’d spent time at the shooting range together – and didn’t question why he wanted to see the weapon. As Fresco leaned forward, with Oscar leaning in towards him to take the firearm, he allegedly warned the athlete: ‘There is one-up.’
The buzz of multiple conversations was suddenly interrupted by the deafening crack of a single gunshot.
After the bang rang out a silence fell over the place. White noise filled the ears of the men around the table. ‘Is everybody okay? asked Oscar.
Fresco was shocked. ‘Just carry on as if nothing has happened.’
Oscar continued, ‘I don’t know what happened, how the gun went off. I’m sorry, it was a mistake. Are you okay?’
Lerena looked down and saw a hole in the tiles next to his foot. His toe had been hit by shrapnel and was bleeding. Fresco thought that their close proximity to the kitchen might lead some patrons to believe that the noise had been a gas explosion.
Owner of the franchise Jason Loupis and his wife Maria were working the lunchtime rush when they heard the bang. Jason’s immediate thought was that it was a firearm – but he wanted to believe it was a balloon popping.
As he later testified:
I went in the direction of the noise where Kevin and Oscar and them were sitting and I asked the guys, I said: ‘Guys, what happened here?’ And they all looked at me and then I said: ‘No, seriously, guys, what happened here?’ and Mr Fresco said to me: ‘Sorry, Jason, my gun fell out my tracksuit pants’. And then I said: ‘Are you guys being serious because this is, this is not a joke?’ Because I thought someone could get hurt.
Jason couldn’t believe what he was hearing. He turned around and walked back to his wife, checking to see whether anyone had been hurt.
‘Can you believe that was a gun?’ Jason asked Maria, who was still in the outside area. She also went to have a word with the men – Fresco told her the same story he had given her husband just moments earlier. ‘But what is the first rule of owning a gun, “Safety First”’? asked Maria.
As Fresco answered yes, she slapped him over the head and walked off.
The group wanted to get out of there as quickly as possible. Oscar paid the bill. Lerena said he never again spoke of the incident, agreeing with everyone at the table that it should be kept under wraps. Fresco agreed. But by 2pm, Oscar had told Reeva and, in a message, pleaded with her to keep quiet about it:
Angel please don’t say a thing to any one.. Darren told everyone it was his fault. I can’t afford for that to come out. The guys promised not to say a thing.
Reeva agreed to play along:
I have no idea what you talking about
A second message followed 20 seconds later:
But thank u for telling me I appreciate it x
In court, more than a year later, the hefty boxer in a black suit and red tie waited to be sworn in. He stood with his hands crossed in front of his waist with his shoulders back and his head high – easily mistaken for a bouncer outside a nightclub. He was to testify about the first of the firearm-related charges against Oscar, the incident at Tashas. Later the state would call the athlete’s ex-girlfriend, Samantha Taylor, to tell the court about an incident in April 2012, when Oscar allegedly fired a gun out of the sunroof of a car. And then Fresco – allegedly present at both incidents – would be called by the prosecution to tie it all together.
In the days after the Valentine’s Day shooting and before the formal bail application, the police busied themselves trying to find as much ‘dirt’ on Oscar as possible. As part of this process, former Scorpions investigator Andrew Leask, who is currently based at the Special Investigating Unit under the National Prosecuting Authority, paid his own visit to Tashas in Melrose Arch. He met with Marc Batchelor and his circle of friends, who had reason to feed information about Oscar to the authorities. Through ‘Batch’ and his mates, Leask was directed to Fresco, Taylor and Lerena, from whom he learnt about the Tashas shooting and the sunroof incident.
The additional firearm-related charges – counts two and three on the indictment – were only added to the charge sheet in late 2013 after attempts by the defence to have these excluded. While they have no direct link to the shooting on 14 February, the state used them to paint a specific picture about the accused: of a person who was reckless with firearms, who showed scant regard for the laws surrounding the use of guns, and who, when in trouble, refused to take responsibility for his actions. The charges were the mechanism to introduce character evidence, which is exactly what the defence believed the state was doing.
The official reasoning given by the state at the time of adding the gun charges was for convenience – the prosecutor argued that the gun charges dealt with many of the same witnesses thus it made sense to deal with the matters in one court in one trial from a pragmatic perspective.
‘Arguably this is a thinly veiled argument. It is quite clear that the state has relied on the gun charges as a means to enter much more character evidence than they would otherwise have been permitted to do,’ explains law lecturer Kelly Phelps. ‘The gun charges set a backdrop implication of Pistorius having a bad character, which essentially forced Pistorius to put evidence of his good character on record to address the perception created. Once an accused puts evidence of his good character on record the state is permitted to cross-examine him on evidence of bad character.’
Professor James Grant largely agrees. ‘These are clearly legitimate charges in themselves and it is perfectly legitimate for the prosecution to have coupled them with the murder charge. However, a more critical view would be to recognise that coupling these charges was more strategic than coincidence. The firearm charges relate to the reckless or negligent use of firearms. These charges will draw attention to the character of Pistorius, and the evidence led to prove the charges will invariably tend to show that Pistorius has a “bad character”.’
As a general rule in South African courts, evidence about someone’s character or their general reputation is only admissible in exceptional circumstances.
‘By bringing the firearm charges at the same time as the murder charge, both “similar fact” evidence (evidence of prior bad acts), and bad character evidence will be admitted, albeit, on different charges. The effect of this is that, although and unless similar fact evidence and character evidence is deemed admissible in respect of the murder charge, it may, at least, operate at a subconscious level on the court,’ explains Grant. ‘Beyond this, evidence of the reckless use of a firearm may be argued to show something about Pistorius – in the sense that would make the character evidence and similar fact evidence
admissible in its own right.’
The runner’s lawyers made representation to the National Prosecuting Authority in September 2013 arguing why the charges should not be added, stating that they would unfairly prejudice their client:
The charges have no relevance to discharging a firearm to cause any possible harm to any person …
… the attempted consolidation is not to consolidate all the charges in the interests of justice, but patently to attempt an irrelevant and unconscionable character assassination of our client …
The alleged offences are not only removed in time and jurisdiction, but have no relevance to the shooting incident on 14 February 2013 other than to unlawfully seek to introduce inadmissible evidence to attack the character of our client.
The North Gauteng Director of Public Prosecutions, Advocate Sibongile Mzinyathi, disagreed, stating that it is ‘to the advantage of the state and relevant to the murder charge to expose the accused’s reckless nature regarding firearms’.
In his plea explanation, Oscar denied both the firearm charges as well as the fourth charge for possession of the .38 calibre ammunition found in his safe. Many commentators believed this decision to plead not guilty was a major error, arguing that had Oscar taken the hit and pleaded guilty, he would have avoided character evidence being introduced. However, it was clear that Oscar maintained his innocence and thought the gamble was one worth taking.
The Knock-Out Kid, Kevin Lerena, was the first witness in the box to testify on the gun-related charges. He had updated his Facebook page days earlier, responding to questions about whose side he was on. ‘There are no sides. Two lives and families have been affected by this,’ said Lerena. ‘So I’m on no side. I have been called to court, not to slate Oscar or the state, but to answer simple questions.’
Lerena consented to having his face shown in the live broadcast feed of the trial. He was the first witness in the trial to do so, which meant that he inadvertently made history as the first witness in a criminal trial to be broadcast live in South Africa.
In days past, the budding boxer had looked up to Oscar, regarding him as a sporting icon. The pair met at a Daytona Group track day at Kyalami Race Track in Midrand. Lerena used to date Gina Myers and was familiar with the circle of friends. Amongst the group at the event was Daytona owner Justin Divaris and Darren Fresco.
Lerena grew up in an athletic family and is no stranger to professional sport. His two cousins, Gavin and Brandon Lerena, are top jockeys in South Africa, and his parents were involved in horse racing. As a young boy, he was headed on the same equine career path, but in high school he started playing rugby and went on to represent the Lions in the Under-19 Currie Cup. Lerena’s single mother couldn’t support that career, so he started bouncing at nightclubs to earn an income, and this is where he was spotted by boxing promoters.
In Oscar, Lerena found a potential mentor. He was looking to someone he admired to help him advance in his sporting career. ‘He is an icon and a legend in sport and athletics, you know, for me as a young sportsman to get help from a guy like him was very important,’ Lerena testified in court. ‘So I was rubbing shoulders with him and he was going to help me with a diet and a little bit of running.’
Lerena was preparing for a fight on 16 February and wanted to meet Oscar to discuss a plan to reduce his body weight. ‘I fight in the cruiserweight division and Oscar knew how to, you know …’ he said, briefly pausing before clarifying in his flat Joburg accent why he’d seek the athlete’s guidance. ‘… obviously being an athlete, how to like get in tip-top shape.’
During lunch at Tashas on 11 January 2013, the boxer ordered a pasta, while the three others at the table had soft drinks. Lerena testified that he was sitting opposite Oscar and next to Fresco, and told the court he heard Fresco warn the athlete that there was a bullet in the chamber:
Nel: Was anything being said whilst the gun was handed over? Whilst the gun was passed to Oscar?
Lerena: Yes, from what I remember correctly, Darren said: I am one-up. There is a bullet in the cham … there is … I am one-up. I then believe Oscar removed that bullet out of the [intervened]
Nel: You believe or did you see it?
Lerena: I did not see that happen.
Nel: You did not see it?
Lerena: No.
Nel: But let us just explain to the court exactly what you saw and what you heard. You saw the gun being passed under the table?
Lerena: Well, the movements, the actions. I did not see the gun.
Nel: And you heard what Mr Fresco said?
Lerena: I am one-up. Yes.
Nel: One-up. What do you understand by one-up?
Lerena: That there is one loaded into the chamber. That people who carry guns, I suppose carry one-up.
Nel: And what happened next?
Lerena: A shot went off.
Lerena testified that when he looked down he saw a hole in the floor. He also noticed there were ‘grains’ on his toe and he wondered whether it was from the marble tiles or the shrapnel. He was scratched from the shrapnel and there was blood on his toe. The boxer got up from the table and went to the bathroom to wipe it.
He was in shock from the incident. ‘I have never been in a confined area, where a gunshot has gone off by accident, you know. There could have been a fatality, so for me, I was very shocked. I do not think it sunk in until three, four days after that, because when it happened I was not … I was shocked but it happens you know. I did not expect it. I did not understand it.’
During his testimony, Lerena was insistent that Oscar took responsibility for the incident, but asked his friend Fresco to take the blame:
Lerena: Well the shot went off and I do remember Oscar very clearly saying, apologising: Is everybody okay? Is everything okay? I apologise. I do not know what happened, how the gun went off. But he did apologise and say: I am so sorry, it was a mistake. He said: Are you okay? Is everybody okay. We all said … I remember, I was fine. I was just obviously shocked by the gun, the bang of the shot that was very loud.
Nel: What else was said?
Lerena: What else was said before, anybody came to the table, I do remember Oscar saying: Please. To Darren: Just say it was you. I do not want any tension around me. Just say it was you. And then once that was said, the people from the restaurant came to the table and then that is when Darren said it was him.
According to Lerena, the men paid the bill, left and never spoke of the event again. Just over a month later, on the Sunday after Reeva was killed, the incident at Tashas resurfaced:
I fought on the 16th, when I woke up the Sunday morning after my fight, I had over 100 missed calls on my cell phone from countries around the world, the newspapers here saying about the Tashas incident. So I never discussed anything after this. For me, after I got up from that table, I never repeated it to anyone. I did not say what had happened, I just got woken up to calls that the story had been told and basically what it was saying in the stories, was Oscar had shot me in the leg. That was when I stood up for myself and I went back to the media to protect my career and I said, that is nonsense, because I was not shot.
As Advocate Roux stepped out of his corner for cross-examination, he ventured a joke with the judge. ‘I may ask Mr Oldwadge to do the cross-examination, because I do not know if I want to cross-examine a boxer, My Lady,’ he quipped.
Roux pressed home three points with Lerena, giving an indication of what Oscar’s version of events might be. He said that Oscar was firstly angry with Fresco for giving him a weapon that was ‘one-up’ with a bullet in the chamber; secondly, he was concerned that someone could have been hurt; and, thirdly, that Oscar had asked Fresco if he understood what would happen if this incident reached the media.
There was no denial that Oscar had requested to see the firearm, nor that he had handled the firearm inside the restaurant – which would emerge in his own testimony as an inadmissible defence. Rather, the approach of the defence was an attempt to show that he did no
t hear the warning that the firearm had a bullet in the chamber. Roux told the court that his client would testify that it was in the process of opening the firearm breech that the shot accidentally went off.
The defence counsel stressed that his client was very apologetic and had checked to see whether any one had been hurt. Lerena countered that he could not definitively say what emotion Oscar was feeling and couldn’t recall if he had been angry or not.
Roux had lined up the next section of his cross-examination – to put it on the record that Oscar never asked anyone to take the blame for the incident. Instead, Roux said, it was Fresco of his own volition who said he would take responsibility for the incident.
The advocate read excerpts from the statement made by Martyn Rooney, the British athlete who was the fourth man at the table. Rooney supported Oscar’s version of events. ‘Darren kept on telling Oscar not to talk because he was apologetic all the time and apologising and I said to him: “Just keep quiet, do not talk.”’
Roux said Oscar also apologised to the owners and offered to pay for damages – another claim Lerena could not confirm. Lerena could not recall the verbatim exchange between Rooney, Fresco and Oscar, but could remember Fresco taking responsibility. Fresco would have to come and tell the court himself what went down that day.
Darren Fresco met Oscar on a breakfast run – a bunch of friends, fast cars and the open road. They shared a passion for speed and Fresco spent considerable time helping out at mutual friend Justin Divaris’s Daytona car showroom. In addition to their enthusiasm for fast cars, Oscar and Fresco liked handguns and would on occasion meet up at the shooting range to fire off a few rounds together.