One Tragic Night

by Mandy Wiener

  Derman: It was never demonstrated to me.

  Nel: You think it is possible?

  Derman: I have never seen him walk backwards, but I do not see why it should not be possible.

  Nel: Apart from the demonstration in the corridor did you see any other demonstration of the accused running?

  Derman: No, I have a number of times when we have been travelling seen him moving on his stumps from bed to bathroom and around his room. That is the only time I have seen it.

  That was the closest Nel came to referring to the leaked video footage, which depicted Oscar walking backwards, unaided with his right hand up as if holding a firearm. Oscar had explained that in the dark of his room and as he shuffled around on his stumps, he would use one hand on the floor to guide himself and remain steady.

  The prosecutor thus challenged Derman’s evidence that Oscar was vulnerable, as he was a person living in a secure complex with an alarm system, who has a big support group around him that includes family and Derman as his doctor. ‘Now, that whole scenario mitigates his vulnerability in his context,’ Nel suggested.

  Derman: I disagree strongly.

  Nel: But we have the person with a gun on the night. If Mr Pistorius was vulnerable on that night he armed himself. Am I right?

  Derman: He did.

  Nel: At least he will concede with a gun in hand he is less vulnerable.

  Derman: He might indeed be less vulnerable, but how much less vulnerable I do not know and I cannot think if that would reduce his vulnerability absolutely.

  The centrality of the so-called third startle showed itself again as Nel returned to the issue. One of Oscar’s hobbies was shooting and he spent a fair amount of time at a shooting range. Why wouldn’t the sounds of those shots trigger a startle response? asked Nel.

  ‘M’Lady, as I understand this phenomenon,’ explained Derman, ‘if one is expecting a sound, and is in control of that sound, then it does not have the same startle response as if you are not expecting a sound.’

  It was the answer Nel wanted – standing in the bathroom with the belief that there was someone hiding in the toilet, surely Oscar would have expected a noise to emanate from inside the cubicle. On this expectation, he argued, an auditory stimulus would not have triggered the startle response. And add to that the fact that Oscar was still reacting to the second startle – the toilet door closing – he would have experienced heightened awareness of his surroundings.

  Derman disagreed entirely. ‘M’Lady, with respect, Mr Nel has got it wrong,’ he said. ‘It is exactly the opposite. The startle would be potentiated in the fear setting. It is exactly opposite to what Mr Nel said.’

  For Nel the most crucial aspect he needed to prove to the court was Oscar’s ‘intention’. Did he intend to shoot at whoever was behind the door?

  Derman ventured his opinon. ‘From what I understand, M’Lady, it was his intention to shoot. That is how I understand it,’ said Oscar’s doctor.

  Derman was the final defence witness to be called, his role was to bring together the factors set out by the previous witnesses. He was there to explain Oscar’s conduct in the context of his psychological make-up, his physical shortcomings, his inherent fears and the physical and emotional environment in which he found himself – in that bathroom, that night, firearm in hand, facing a threat that lurked behind a closed door. Could his response – his impulse to pump four shots through that door – be considered reasonable for such a man in such a position?

  Oscar’s Changing Defence

  When Oscar finally stepped off the stand, following days of gruelling cross-examination and only a brief response from Roux, the defence case was arguably far weaker than before he had testified. Oscar’s evidence was heavily criticised by legal experts, who judged him to be forgetful, evasive, combative and contradictory.

  On all four charges, he did himself no favours. He denied that the sunroof incident took place at all, despite two other witnesses saying it had happened. On the Tashas shooting he admitted he had Fresco’s gun in his hand but claimed the firearm went off without him pulling the trigger. He told the court he was keeping ammunition for his father and yet he hadn’t spoken to his dad for years. Crucially, he explained the gun went off in the bathroom but he never intended to fire it, despite his strategy of putative private defence.

  Criminal attorney Tyrone Maseko believes Oscar did himself a disservice. ‘I was rather perturbed at how he never or very seldom conceded anything, even on questions which had little bearing on his defence. If he had made necessary concessions he would have come across more credible and a more reliable witness,’ says Maseko. ‘I thought he was a bit argumentative and unnecessarily so. He was quick to correct Nel whenever he misspoke but couldn’t answer some questions because “he doesn’t remember”. He just did not come across as someone who is believable.’

  Law lecturer Kelly Phelps is more reluctant to pass judgment on how Oscar performed on the stand, saying that that would be the judge’s duty. ‘It is fair to say that he performed more strongly in his evidence-in-chief than in cross-examination but that is what you would expect of any witness. No person will endure the kind of aggressive cross-examination that he endured and emerge unscathed. Nor does a court expect a perfect performance – human memory and character are never perfect. It will be a question of balance – taking all of his time on the stand into account does the bench think that the fundamental aspects of his story are true.’

  She continued: ‘Much was made in the media of Gerrie Nel’s accusations that Pistorius was lying – that is the prosecutor’s job, to try to convince the court that the accused’s version is unsound. However, just because the prosecutor says so, doesn’t mean the judge accepts that contention. A judge is not an empty vessel waiting to be filled with the wisdom of the legal teams – she will apply her mind critically to the various allegations made and compare the allegations with all of the evidence on record before deciding which version she believes.’

  Oscar’s evidence on the stand also led to a perception that the defence team had changed strategy. It was always the belief, from the outset, that Oscar’s legal team would argue putative private defence.

  ‘Given Oscar’s version of the events one could only really accept that this was his defence (even though never formally stated) and the one which the defence would argue tooth and nail in proving Oscar’s innocence,’ says litigation attorney David Dadic.

  But then the nature and integrity of the defence came under immense pressure. Under cross-examination Oscar seemed to give evidence that pointed to a different legal defence. He told Nel that he shot ‘by accident’ and it was ‘a mistake’. He insisted he never intended to shoot anyone, that the gun just went off in his hand:

  Nel: You referred in your plea explanation to this incident, or this occurrence as ‘an accident’. Is that correct?

  Accused: That is correct, My Lady.

  Nel: What was the accident?

  Accused: The accident was that I discharged my firearm in the belief that an intruder was coming out to attack me, My Lady.

  Nel: So the discharge was not accidental? Or was the discharge accidental?

  Accused: The discharge was accidental, My Lady. I believed that somebody was coming out. I believed the noise that I heard inside the toilet was somebody coming out to attack me, or to take my life.

  Nel: No. Do you know what an ‘accidental discharge’ is?

  Accused: Mr Nel, would like to explain to me what an ‘accidental discharge’ is, My Lady.

  Nel: You know …

  Accused: My understanding is that I did not intend to discharge my firearm.

  Nel: Okay, no then you do. So you never intended to shoot the intruders?

  Accused: I never intended to shoot anyone, My Lady. I got a fright from a noise that I heard inside the toilet. I perceived it to be somebody coming out to attack me. That is what I believed.

  As Nel continued, Oscar confirmed that he shot without thinking:


  Nel: So now I am asking you and we have five more minutes, Mr Pistorius, did your gun accidentally go off, or did you fire at the intruders? It is easy.

  Accused: My Lady, my firearm was in my possession. I was … I had my finger on the trigger … it was an accident what happened. I agree with that. I did not intend to shoot anyone. I shot … I fired my firearm before I could think. Before I even had a moment to comprehend what was happening, I believed someone was coming out the toilet.

  It seemed as though Oscar’s defence was switching to what is known as ‘sane automatism’. This is the kind of defence used for someone who was sleepwalking or epileptic and was unable to control their actions.

  David Dadic comments: ‘It seemed that Oscar was desperate to avoid admitting, while under cross-examination, that he intentionally shot at somebody (the “intruder”) on the evening (intent is a necessary element in self-defence) and actually went to the point of saying that the gun “went off by mistake” when he heard the sound in the bathroom which he assumed to be the door opening.’

  Dadic continued: ‘Now at the time I believed Oscar had simply chosen a poor manner of speaking in responding to the barrage of questions in his attempt to avoid admitting any form of intent. But unfortunately for Oscar statements in the box do not go without repercussion, and when he uttered this comment Nel pounced all over it, accusing Oscar of now changing his defence to one of involuntary act or automatism. The defence of automatism means that the defendant was not aware of his or her actions when doing the particular deed that constituted the illegal act. It’s also a well-known defence in our law but one that’s not easily accepted by our courts and usually very difficult to prove.’

  Wits professor James Grant agrees that a claim of ‘accident’ amounts in law to a claim of involuntariness. ‘Automatism is a term used by lawyers to sound fancy. It is a reference to the absence of a fundamental requirement of liability that one’s conduct must be voluntary. It simply means that the accused was acting involuntarily. Examples of involuntariness include movements in an epileptic seizure, movement made by virtue of overwhelming physical force, such as if one is blown by a hurricane through your neighbour’s glass door. Sleepwalking is also a well-recognised instance of involuntariness. The essence of the defence is that your mind did not direct or control your conduct. His testimony seems to be raising this defence … A claim to involuntariness is a difficult one because our courts assume that ordinary conduct is voluntary.’

  Grant acknowledges that the interpretation of ‘accident’ is very technical. ‘It is understandable that an accused who is unfamiliar with the law and the legal implications of what he is saying may make this mistake. This is not, in my view, the problem. The problem is that he seems unclear as to what his defence is. On a charge of murder, there is nothing inconsistent with innocence to intentionally kill someone – so long as you think you are doing so lawfully (such as in private defence). But if this is your defence, it makes no sense to deny having intended to kill anyone. An accused who does so would appear to be unclear about his/her defence. For me this gives rise to a crucial question: why would an accused be so unclear about his defence that it seems to change as he testifies on the stand?’

  The more significant change in defence came when forensic psychiatrist Merryll Vorster was called to the stand in an effort to show that Oscar didn’t act beyond the bounds of reasonableness in the moment, in killing the ‘intruder’, and the defence wanted to give insight into his extremely fearful state of mind.

  ‘Professor Vorster was principally called to give evidence on a report she had done on Oscar only weeks prior to taking the stand in which she diagnosed him to have a psychiatric condition known as Generalised Anxiety Disorder [GAD]. She essentially said that, even though Oscar was not criminally insane, in that he knew the difference between right and wrong, he may, consequent to his condition, not have been able to act in accordance with such knowledge on the night and in the moment, a legal defence known as non-pathological incapacity,’ explains Dadic. ‘This defence suggests that in certain circumstances a person can be of such temporary impaired state of mind, while committing the act, that he may be acquitted of it. In this case it was suggested that his GAD caused him to be more fearful and more hyper-vigilant than the ordinary man and thereby caused him to do what he did.’

  The thinking was that the defence had changed to a third strategy: that of ‘pathological incapacity’.

  ‘Vorster diagnosed the accused with a psychiatric disorder (Generalised Anxiety Disorder) and insisted that this did not constitute a mental illness for the purpose of a defence of pathological incapacity. The issue then turned on whether the condition that Vorster diagnosed did constitute a mental illness. A mental condition or disorder must constitute a mental illness (or defect) to form the basis of a pathological incapacity defence. The obvious question then is what is a mental illness or defect?’ says Professor Grant.

  ‘In the Pistorius case the court was confronted with testimony of a wellrespected mental health expert to the effect that Pistorius suffered from a mental disorder that would (indirectly) make him dangerous and took the view that this may reasonably possibly constitute a mental illness. Once that was recognised and coupled with Vorster’s testimony that Pistorius’s capacity for self-control at the time of the conduct in question may have been affected, the court had no choice. It had to refer him,’ adds the law professor.

  That third potential defence fell away following Oscar’s evaluation at Weskoppies Psychiatric Hospital. Barry Roux was forced to place on record that, in fact, the defence was one of putative private defence. However, in closing arguments the issue became blurred once again. The defence asked in its heads of argument to consider the alternatives:

  If the honourable court were to find that the accused did not discharge the shots in a reflexive response, consequent upon an exaggerated startle, which made him incapable of acting in accordance with the appreciation of right and wrong or incapable of acting, then the alternative finding can only be that the accused intentionally discharged the shots in the belief that the intruders were coming out.

  But the prosecution believed the defence was still attempting to apply two defences, when that is simply not allowed. During oral argument, Nel stated:

  M’Lady, it is two, two concepts, two defences that you can never argue, never, M’Lady, with the utmost respect. If you put any reliance on your client’s version, if you say to this court: I do not put any reliance on my client’s version, I am just looking at all the facts, that is, I do not want to say: perhaps possible, but let me rather say: more possible than when you want to rely on the accused’s version. M’Lady, I did not act, but if you find I did, please accept that I did so intentionally with a reason. M’Lady, those two defences cannot be argued. An accused must at least have a defence but, M’Lady, this will show how the accused tailored his version, how one defence was not possible and not because of anything but the weak performance of this accused during cross-examination.

  Judge Masipa would have to decide whether this vacillation between defences would impact on her findings. ‘It’s important to note that vacillation between defences, if accepted by the court, can be damning for an accused, because it can seem tailored in that it may give the court the impression that you are making up your story as you go along, dependent on the evidence that’s been led,’ says Dadic.

  High-profile litigator Ian Levitt believes Oscar’s performance and the change of versions could be detrimental when it comes to judgment. ‘I think he performed very poorly. He changed his version in material aspects, mainly the two versions that came through. Now those two versions don’t have anything that can coincide with each other; they are mutually destructive. I think this materially affects his credibility and whether any version should be believed at all. I think it would be difficult for any court faced with two versions to try to believe anything that he says when he contradicts himself in such a material way. Assuming that
they knew that Pistorius was not going to do well in the box, all they could do was try their best to discredit the police, to discredit the crime scene, to attack every witness that the state brought to testify.’

  Opinion was that it could ultimately emerge that Oscar could be the master of his own downfall. His own testimony could trip him up.

  I Put it to You – Closing Arguments

  After a month-long hiatus, everyone returned to their seats in Court GD as if they had never left. But they had – foreign correspondents had spent the month away from the human drama of the Oscar Pistorius trial to cover violent conflict in Gaza, an Ebola outbreak in West Africa, the escalating tension in the Ukraine following the shooting down of a Malaysian Airlines plane and the kidnapping of some 200 schoolgirls by Boko Haram in Nigeria.

  But on the morning of 7 August, they were all there to witness two masters of their craft wrapping up their cases. It was Day 40 of the trial and there was an air of relief and an atmosphere of finality as the case entered its last stretch prior to judgment.

  For the first time both fathers appeared at the trial. Barry Steenkamp, a large hulking man with a thick white beard, uncomfortable in a suit, arrived with his wife June, who had attended each day. He shared a warm embrace with the ANC Women’s League’s Jacqui Mofokeng, who had been a pillar of support for the family, both emotionally and financially.

  Barry had indicated a week earlier in a Sunday newspaper that he felt dutybound to be in court for his daughter. He hadn’t attended previously because of ill-health, suffering a stroke a few weeks before the trial started. Barry took up a seat next to June, while to his left was the couple’s advocate Dup de Bruyn. June’s cousin Kim Martin, another regular supporter of the family, was also there.

  The Myers sisters and their mother were in their usual places, towards the middle of the front bench, effectively a buffer between the Steenkamp and Pistorius camps.