Pistorius Trial: Week 8, Day 3

By Rebecca Davis 14 May 2014

This could be one of the most significant days in the Oscar Pistorius murder trial thus far. Today Pistorius will find out whether Judge Thokozile Masipa will grant the state’s application to have him referred for observation at a psychiatric hospital for up to a month: a prospect which the athlete would likely not be relishing, and one which would significantly delay the resolution of the trial. By REBECCA DAVIS

09.00 It’s likely been a tense 18 hours or so for Judge Masipa and her two assessors. After court adjourned yesterday at lunch, they were faced with the task of determining whether the law does indeed provide for Pistorius to receive independent mental evaluation at an institution, as the state contends.

The defence has vehemently and seemingly genuinely opposed the application. Apart from the strain it might cause Pistorius, another motivation behind their opposition is possibly psychiatrist Merryl Vorster’s testimony that it would be highly unlikely for the outcome of the evaluation to find that Pistorius cannot be held criminally responsible for his actions. As such, there’s little in it for them.

The state acknowledged yesterday that if granted, the move will cause a lengthy delay to justice in this case. But Gerrie Nel is adamant that since Pistorius has been diagnosed with a psychiatric disorder, Section 78 of the Criminal Procedure Act dictates that he should be referred. The state is likely hoping to head off a later appeal on the grounds of Pistorius’s mental state.

Much of this will come down to Masipa’s interpretation of the Criminal Procedure Act, as well as what case law tells her has happened in previous similar matters. The opinion from a number of legal minds is that Masipa may well grant the application. If so, we’re looking at a very short day in court.

10.30 As expected, it’s been a short day at the North Gauteng High Court. Judge Masipa has granted the state’s application for Oscar Pistorius to be referred for mental evaluation.

Court kicked off late because Masipa was meeting counsel from both sides in chambers, apparently to inform them of her decision. Upon returning to the courtroom, the defence’s Barry Roux spoke with his client Pistorius, who was then seen busily making use of his phone.

It’s a sign of the judge’s thoroughness that she had prepared a ten-page typed judgment overnight. It was fairly clear from early on in which direction her ruling would go: at the outset she described it as “strange” that the state’s application for evaluation was being opposed on behalf the accused.

Masipa said that the wording of Section 78 of the Criminal Procedure Act was “peremptory”, which in law means that it brooks no debate. The state had been clear on the fact that the court has no discretion, in how they act, once the criteria for referral have been met. Masipa said that she had found the case law referred to by the state to be very informative.

Opposing the application, the defence had submitted that the court had not heard any “allegation” [of a mental disorder possibly affecting criminal responsibility] as envisaged in Section 78, and that if there had been such an allegation made, it had not been substantiated.

Masipa disagreed with this. She said: “The accused may not have raised the issue that he was not criminally responsible in so many words,”, but other evidence could not be ignored. Psychiatrist Merryl Vorster had said under oath that Pistorius’s generalized anxiety disorder (GAD) may have affected his conduct on the night of the shooting. She had also said that Pistorius was “hyper-vigilant”: continuously checking his environment for potential threats.

It was not within the purview of the court to diagnose mental illness without the aid of psychiatrists, Masipa said. Vorster’s report could not replace a full enquiry: she only had two interviews with the accused. As such, Masipa granted the state’s application.

The full order of what observation will entail – where, and for how long – will be handed down next Tuesday. Masipa indicated that it might be appropriate for Pistorius to undergo observation as an out-patient of a psychiatric facility rather than a full-time patient.

“The aim of referral is not to punish the accused twice,” Masipa said – prompting inevitable speculation about whether she definitely intended to punish him once. “So if there is a possibility of the accused being an out-patient, that would be preferable.”

11.30 Pistorius’s Uncle Arnold has just given a very short statement on behalf of the Pistorius family outside the North Gauteng High Court. “As a family, we are comforted by the thoroughness of this judgment,” Pistorius said, saying it was clear that Judge Masipa was using “every avenue to ensure a fair trial”. He repeated that a “fair trial” was what it was all about. “[The judgment] affirms our belief in the South African justice system,” Pistorius concluded.

Positive words from the Pistorius family, despite the fact that Oscar on Monday described the state’s attempt to have him referred as a “joke”. He may not be seeing the funny side now.

Journalist Aislinn Ling tweeted earlier that Masipa’s judgment may not have only taken Pistorius by surprise. “A member of the police investigating team told me they were not expecting it,” she reported.

But what is actually in store for Pistorius?

  1. Where will Pistorius go?

It seems most likely that Pistorius would be sent to the Weskoppies Psychiatric Hospital in Pretoria, not too far from where he lives, which is the oldest such institution in the country and the largest in Gauteng. Weskoppies is where the ‘Modimolle Monster’, Johan Kotze – accused of orchestrating an attack on his ex-wife and stepson – was held for mental observation. If Pistorius is taken in there, it will be at the state’s expense.

South Africa has a shortage of both psychiatric facilities and forensic psychiatrists, which often means that awaiting trial prisoners are held in jail for some time before their assessment can be carried out. An 2012 article in the African Journal of Psychiatry notes that in March 2010 there were 735 pre-trial detainees awaiting observation in South Africa with only 168 beds available in 11 mental hospitals. “The time to observation in one province was 15 months”, the paper reported.

Of course, it’s likely that Pistorius will be fast-tracked here, with the eyes of the world upon us. If he doesn’t require a bed, as an out-patient, that would presumably simplify matters.

2. What happens during mental observation?

A useful article on Health 24 explains:

– a psychiatrist will assess the accused fairly frequently
– psychological and other medical tests and investigations may be done
– the observations of nurses and others will be taken into account.

After this, a report is prepared for the court giving insight into the accused’s mental state, to determine: whether the person is fit to stand trial; whether they were criminally responsible for their actions; and what to take into account during verdict and sentencing.

3. What are the potential outcomes?

We heard from the defence’s own witness Vorster yesterday that she did not consider it likely that evaluation would find that Pistorius should not be held criminally responsible for his actions. In the highly unlikely event that it did, however, the court could order that Pistorius be detained in a mental hospital or other institution; that he be released subject to certain conditions; or that he be released unconditionally.

If the assessment finds that Pistorius was criminally liable for his actions, but confirmed Vorster’s diagnosis of GAD, it may be a factor for the judge to take into account in possible mitigation during verdict and sentencing. (Note, however, that the court has only really considered the relevance of GAD to Pistorius’s own version of events.)

If the assessment disputes Vorster’s diagnosis of GAD, it will very much weaken Pistorius’s version of events.

As such, there seems to be little chance of this turning out very badly for the state – even if they weren’t necessarily expecting Masipa to grant the application.

We’ll have to wait till Tuesday, however, to hear more of the details of what the assessment will entail. Till then, there obviously won’t be any courtroom action. DM

Photo: South African Olympic and Paralympic sprinter Oscar Pistorius during his trial at the high court in Pretoria, South Africa, 13 May 2014. EPA/Daniel Born

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