Pistorius bail hearing: Defence emerges on top after roller-coaster day
If you had been in a deep sleep for the last week, and had awoken to immediately dip into the action of Courtroom C at the Pretoria Magistrates Court on Wednesday, it’s likely that you would have assumed that what was going on was a full-scale criminal trial. Instead, it was only the continuing bail hearing for murder-accused Oscar Pistorius. But in terms of both the evidentiary scope and the passionate interest of the public, it was as if occasionally everyone forgot they weren’t in full trial yet. By REBECCA DAVIS.
The stakes of Wednesday’s proceedings at the Pretoria Magistrates Court felt very high. Partly, this is probably due to the passionate interest in the Pistorius case: numerous jokers have made quips about the probable dip in national productivity as the bail hearing continues. (It’s worth considering how much more intense this would have been had Magistrate Desmond Nair granted permission for TV cameras to film proceedings.) Partly, it’s due to Pistorius himself, whose emotions in the dock have been akin to a man about to hear his final sentencing. And mostly, it’s due to the way to the hearing itself has played out: with affidavits, evidence and cross-examination presented in a breadth more usually heard at a full trial.
While many have expressed surprise at the evidentiary scope, legal experts point out that sometimes opposing bail is a way for the prosecution in a case to gain valuable insights into what will constitute the defence’s case at trial. It is apparently customary for the prosecution to lay out more of its case at this stage, but if bail is being opposed, the defence has to bring more to the table to keep its client out of jail awaiting trial. Of course, then there are some difficult considerations about exactly how much to reveal on both sides – especially because the information given at this stage is generally admissible in the full trial.
Nonetheless, it was at times painfully obvious during Wednesday’s proceedings that the state’s case against Pistorius is far from complete. Under the smooth guidance of state prosecutor Gerrie Nel, the case’s investigating officer Hilton Botha delivered what seemed to be a damning case against Pistorius in the morning session. But when defence advocate Barry Roux began his cross-examination of Hilton, it took very little time for things to fall apart. As a criminal lawyer pointed out to the Daily Maverick, “the skills of the prosecutor mean nothing if the IO [investigating officer] caves in the stand.” After a full grilling from Roux, the police work on the case was made to look sloppy and careless.
But the morning started strongly for the prosecution. Botha, with skillful questioning from Nel, brought forward a series of damaging claims to cast doubt on Pistorius’s testimony that the shooting was an accident. In his affidavit yesterday, Pistorius had painted the picture of a couple very much in love, happily tucked up in bed by 22:00. Botha said they had a witness who had heard “non-stop talking” – which could have been fighting – between 2:00 and 3:00. Pistorius had claimed that upon discovering Steenkamp was shot, he immediately phoned Netcare and the estate management. But Botha said police had found two iPhones in the bathroom and two further BlackBerrys elsewhere, and that none of the phones had been used all night.
Pistorius had said that one of the reasons he fired through the bathroom door was that he felt “vulnerable” because he didn’t have his legs on at the time – he was walking on his stumps, which grant him limited mobility. But Botha said the bullets which were fired went through the top part of the door, and the trajectory was angled down – consistent with the idea that he was wearing his legs at the time. Furthermore, Botha said that the shots would have had to be fired at a distance of 1,5m from the door, and would have to be specially angled at the toilet bowl because one wouldn’t be able to hit the toilet by firing straight at a door.
Pistorius had claimed that he kept his gun under the bed, but Botha testified to the fact that the gun’s holster was found on the same side of the bed as Steenkamp’s possessions: an overnight bag and slippers. Pistorius had said that one of the reasons he felt scared about noises coming from the bathroom was that construction work had been taking place on the house, and a ladder had been left propped up next to the bathroom window. There were indeed builders’ ladders around, said Botha, but they were not near to the bathroom window. Furthermore, as always, Pistorius’s large dogs were below.
Pistorius had said that the reason he didn’t know that Steenkamp wasn’t in his bed was that it was too dark to see, and that he had been too scared to turn on the light. In one of the day’s most dramatic claims, Botha said police had a witness who claimed they heard three shots, looked at Pistorius’s house, saw the lights on, heard screams, and then three more shots.
There were two other damaging claims made by Botha. Firstly, that police had found a box of .38 calibre ammunition in Pistorius’s bedroom cupboard. Pistorius was not licensed to possess this ammunition, Botha said, and as such, they would be adding a charge of possession of unlicensed ammunition. Secondly, Botha said, police found two bottles of testosterone, needles and injections. This latter claim in particular caused a tremendous stir: international news outlets carried reports of it within minutes.
Botha said, in summary, that he did not believe Pistorius’s claim that he had been defending himself and protecting his girlfriend. Botha said that to his mind, a natural response if one felt in danger would be to ensure that one’s girlfriend was safe, before taking action against potential intruders. Nel did his part by pointing out the incongruity of a man who felt so at risk that he kept a gun under his bed, and yet slept with his door open. Pistorius had testified in his affidavit that he had previously been a victim of crime – yet there was no police record of this.
Getting to the matter at hand – bail – Botha testified to the effect that he believed Pistorius was a flight risk. Pistorius has a house in Italy, he said. “We don’t want this to be another Dewani case (referring to the fact that South Africa is embroiled in an ongoing legal battle for the extradition of murder-accused Shrien Dewani from the UK). In Pistorius’s safe, he added, they had found a USB stick with evidence of offshore accounts. This all added up to a man who might well attempt to flee the country.
Pistorius sobbed throughout much of Botha’s account, and by the time it came to the defence’s Barry Roux to cross-examine Botha, it seemed that he was going to have to do an enormous amount of work to swing things Pistorius’s way. But Roux proceeded to pick holes in just about every claim made by Botha.
A particular bone of contention was the ballistics claims put forward by Botha. Roux argued that both the distance travelled by the bullets, and their trajectory, were perfectly consistent with Pistorius’s account. Did Botha have any facts to prove that Pistorius put on his legs before shooting? No, Botha conceded, he didn’t. (The issue of whether Pistorius put on his legs is important because the prosecution presented it as a major factor supporting premeditation – the act of stopping to put on legs would constitute a form of planning.)
The defence had tested the levels of light in Pistorius’s bedroom at night with all curtains closed, Roux said, and it was pitch dark, supporting the accused’s claim that he couldn’t see whether Steenkamp was in bed. Botha repeated his claim that a witness said they had seen lights on in his house. But Roux pointed out that the same witness claims to have heard six or eight shots, whereas evidence of only four shots has been found. As for the witness who claimed to have heard a fight – how far, Roux asked, is the witness’s home from Pistorius’s? About 600 metres, Botha admitted.
On the matter of the claim that no phone calls had been made to emergency services, Roux asked if Botha had inquired if Pistorius had any other phones beyond those taken into evidence. No, said Botha. There was indeed another phone, Roux said, and the records showed that it was used to call Netcare at 3:20. Had police checked with Netcare to see if it had been called from Pistorius’s house? Botha admitted that had not been done.
The gun holster was found on Steenkamp’s side of the bed, according to Botha, because Pistorius had a problem with his shoulder, so had changed sides for the night. As for the prosecution’s claim that Steenkamp had entered the toilet to hide rather than use the toilet, Roux said an autopsy on Reeva Steenkamp determined that she had had an empty bladder, which would not normally be the case at 3:00. Botha agreed.
The two new discoveries – testosterone and unlicensed ammunition – were given similarly short shrift by Roux. Botha, under cross-examination, could not supply the name of the testosterone drug. Roux suggested that that was because Botha had not properly read the label, saying it was a commonly-used herbal supplement. As for the unlicensed ammunition, Roux claimed that it belonged to Pistorius’s father, and was being stored for him at Pistorius’s house.
Perhaps the most damning element of the defence’s fight-back was the picture it presented of police fumbles. The defence’s own forensics team found a spent bullet inside the toilet bowl which the police did not find, Roux claimed. Furthermore, Botha was forced to admit that he had entered Pistorius’s house without protective foot coverings, because they had run out. Roux said that in this manner he would have contaminated the crime scene.
The shredding of Botha went on. Pistorius does not have a house in Italy, Roux said, with Botha weakly claiming that he had heard that he did. Neither does Pistorius have active offshore accounts, Roux asserted. This seemed to crush much of the state’s case for Pistorius being a flight risk. Magistrate Nair, at the close of the day’s proceedings, seemed to express skepticism at the idea that Pistorius would attempt to flee the country – Pistorius is an internationally recognised face whose career depends on proving his innocence in court, he said. Botha stuck to his guns: Pistorius will run if given the chance.
The state’s case is now complete. Despite a widespread feeling that investigating officer Botha had been comprehensively taken apart, and the perception that the defence came to the party far better prepared than the prosecution, the National Prosecuting Authority nonetheless expressed confidence in its case on Wednesday after the hearing. “It is normal for the cross-examination to happen like that,” NPA spokesman Medupi Simasiku told reporters in Pretoria. “The bail application is still on, but as the state we remain confident that we will get what we want.” After Wednesday’s events, the NPA may be alone in that sentiment. DM
Photo by Greg Nicolson / Daily Maverick