The North Gauteng High Court will today continue to hear closing arguments in the Oscar Pistorius murder trial. Yesterday saw Gerrie Nel conclude his arguments for the state, admitting that the evidence against Pistorius is mainly circumstantial, but in totality, sufficiently damning. Today is the last chance for the defence to argue that their client should escape a conviction for murder. By REBECCA DAVIS
09.00 With Judge Masipa having stated yesterday that she is not available at all next week, we know that the airing of closing arguments in the Pistorius trial must wrap up today.
The general consensus seems to be that Gerrie Nel did a solid job in his summation. Wits law professor James Grant has an op-ed in the Telegraph today arguing in conclusion:
“When these pieces of evidence are considered in light of the poor impression [Pistorius] probably made as a witness, especially when he claimed that, at the crucial times, the gun simply discharged “by itself”, in my view, the reasonableness of any doubts about his guilt start to fade.”
There are holes in Nel’s case, however, that Barry Roux will undoubtedly seek to exploit today. One is the timeline in terms of the noises heard by neighbours: loud bangs accompanied by screams, followed by further bangs. Experts are in agreement that Steenkamp would have had a minuscule window of opportunity to scream once shots began.
The state has settled on the idea that the gunshots happened at 3.17am, but these were the second set of sounds heard by the neighbours. Yesterday Nel did not appear to offer any explanation for the first set of sounds. The confusion about the timeline will probably be exploited by Barry Roux today.
11.00 Barry Roux has spent a great deal of time this morning on the evidence given by neighbour witnesses Johan Stipp and his wife, which is a clear indication that it is their testimony which he finds a major threat to the defence case. He returned to one of the defence’s greatest hits during the trial: when Mrs Stipp denied holding a curtain open in her bedroom for a photo, to produce an unobscured view of Pistorius’s house, and the defence was then able to prove that in fact her hand was visible in the photo. The point here was both to disparage the Stipps’ credibility as witnesses and to cast doubt on how well they would have been able to see Pistorius’s house.
Police incompetence was another major theme. Roux cannily dismissed one suggestion by Nel: the defence does not claim that the police were involved in some complex conspiracy to incriminate Pistorius. Rather, they simply say that the police inadvertently disrupted elements of the scene. Colonel van Rensburg had claimed he didn’t touch anything on the scene; a police photo shows him holding an extension cord and a plug. Police lied about being on the scene alone. The carpet had to be picked up to look for evidence.
“Don’t come to court and protest an undisturbed scene,” Roux said.
Roux disputed Nel’s contention that the court’s task is to determine whether Pistorius’s response to perceived intruders was “reasonable”. He said that intention had to be tested subjectively – what Pistorius subjectively thought at the time – not objectively. Pistorius should have been charged with culpable homicide rather than murder, Roux said.
Nel had pointed to the close grouping of shots in the toilet door as evidence that Pistorius had aimed carefully, not fired wildly. Roux said Nel was overstating the skill involved to fire the shots closely, saying he himself could probably do better considering how close to the door Pistorius had been when he fired. Roux also asked why Pistorius had not shot at the door from directly in front of it, if he had intended to kill Steenkamp, rather than firing from the entrance to the bathroom?
Nel chose to use a strange and rather inappropriate analogy to explain Pistorius’s response to threat as a disabled person. He said that Pistorius’s slow-burn anxiety over the years was like an abused woman, who eventually shot her abuser.
Judge Masipa, a known advocate for women’s rights, seemed bemused by this comparison and asked him to clarify it. He repeated again that like an abused woman, Pistorius as a disabled person had been in a position of agonizing stress and anxiety for many years which eventually culminated in this incident.
It’s not a good choice of metaphor.
Roux turned to Pistorius’s treatment by the state. “What the state did to the accused!” Roux complained. “They told him he committed pre-meditated murder!” Yet bungling policeman Hilton Botha was never called to the stand, despite the fact that it was Botha’s evidence which had led to the pre-meditated murder charge.
Was Pistorius argumentative when giving evidence on the stand? Yes. He shouldn’t have been, Roux conceded. But the questions were coming from the person who suggested he fired at his girlfriend in cold blood.
Moving to Pistorius’s three minor charges, Roux said that both Darren Fresco and ex Samantha Taylor – who testified that Pistorius fired a gun through a sunroof while driving – were unreliable witnesses. Fresco contradicted himself many times. He wanted to incriminate Pistorius because he was an accessory to the misdemeanor. Taylor had a different motivation for wanting to incriminate Pistorius: because he cheated on her.
Regarding the incident where a firearm in Pistorius’s possession went off while he was at Tasha’s restaurant, Roux suggested that the firearm could have been faulty. But under questioning he conceded that Pistorius was guilty of negligently handling the firearm – which poses the question of why Pistorius didn’t just plead guilty to this charge to start with. As for the ammunition belonging to Pistorius’s father which he was illegally storing at his home, Roux disputed Nel’s assertion that Pistorius had strict liability (absolute legal responsibility) for this. He said Pistorius lacked animus (fraudulent intent).
13.00 After tea Roux continued to poke holes in the testimony of the state’s neighbour witnesses and the state’s timeline. The state claims that the shots happened at 3.17am; the defence says those bangs were the cricket bat striking the door. As he did yesterday, Roux pointed out that Johan Stipp claims to have heard a man shouting for help after 3.30am, well after Pistorius had called estate manager Johan Stander. At the time when the Stipps claim to have seen a man walking past Pistorius’s bathroom window, it is accepted that Pistorius was on his stumps – at which height he would not have been visible.
The state’s version did not explain when the door was bashed in, Roux said, or what the first set of noises heard by the neighbours was. Roux’s insinuation was that the defence’s neighbour witnesses – the Nhlengethwas – should be taken more seriously because they live closer to Pistorius’s house. (The Nhlengethwas only heard one bang followed by a man crying, and no woman screaming.)
The defence had not produced a witness to show that Pistorius screams like a woman because the state’s evidence that a woman had been heard screaming was so flimsy. Roux pointed to the evidence of acoustics evidence Ivan Lin, who said that from the Burgers’ house, sounds of screaming would be unlikely to be audible and less likely to be intelligible.
“We have to look at the material facts,” Roux said repeatedly. He said that the only timeline that made sense was that the sounds heard at 3.17am were not shots but the cricket bat – because at 3.19am Pistorius called Johan Stander on his cellphone.
The state had made much of pathologist Gert Saayman’s testimony that food traces in Steenkamp’s stomach meant that she could have eaten as late as 1am. “I don’t know if she had something to eat without the accused knowing about it,” Roux said. He said it was possible. But he said he did not believe it was plausible that an athlete and a model would have sat down for dinner at 1am. (In fairness, this has never been the state’s claim.)
15.00 Roux said that there were too many similarities between state witnesses Michelle Burger and Charl Johnson’s versions for the two not to have collaborated on them.
Returning to the famous WhatsApp messages, he pointed to the message Reeva Steenkamp wrote on Pistorius’s Valentine’s Day – that today was a good day to tell him she loved him – as evidence that at the time of the shooting their relationship was indeed in a good place.
The evidence of the Weskoppes psychologists’ report, Roux reminded the court, was that Pistorius had no history of psychopathy or aggression; that he was genuine in his feelings towards Reeva; and their relationship showed no traces of abuse or coercion.
Roux made short work of some of the “13 Lies of Oscar” identified by Nel. He said it was to be expected that there were discrepancies between Pistorius’s bail application and his testimony on the stand because the former was an abridged version, and must be read in combination with his verbal evidence. Regarding the position of fans and duvets, Roux reiterated the defence’s claim that the police did not correctly preserve the scene.
He disputed the idea that Steenkamp’s behaviour in Pistorius’s version was strange. Why couldn’t she have walked past the toilet to open the bathroom window, Roux said, if it was hot and she wanted some fresh air to circulate? Why was it strange that Steenkamp took her phone to the toilet? “Young people” are often attached to their phones in this manner, he said. It isn’t strange that Reeva didn’t shout out when she heard Pistorius calling to her; she was scared of giving away her whereabouts.
Simultaneously, he said that Reeva would not have been standing facing the door if she thought Pistorius was about to shoot her.
Roux denied that Pistorius intended to kill anyone. If he directly intended to murder Reeva Steenkamp, why wouldn’t he stand directly in front of the door? How would he be able to come up with his story within two minutes? Pistorius did not foresee that Steenkamp was in the toilet. “It did not enter his mind that she was in the toilet.” He thought she was in the bedroom, and was “fixated” on the potential threat of the intruder.
The notion of “reasonable” actions in this case had to take into account Pistorius’s disability, he stressed. “The law is not that reasonable man from the 60s,” Roux said. “We’ve moved away.”
If the court found Pistorius’s actions reasonable, they must acquit him. It was 3am, Roux reminded the court in a final flourish. Pistorius knew of other housebreaking incidents. Should he have discharged his firearm?
And with that, the defence’s case officially closed.
Judge Masipa allowed Gerrie Nel to make a few points of law in response. The most important of these was Nel’s insistence that the defence could not claim both automatism and putative private defence as their defence: the two were mutually exclusive. Putative private defence by definition requires intent, Nel said, whereas automatism did not.
Nel snuck in a last plea to the court: “The accused intended to kill a human being,” he said. “He knew there was a human being in the toilet. If he fired indiscriminately while knowing there’s a human being, he is guilty of murder dolus eventualis.”
The day of reckoning, poetically, will be September 11th. On Pistorius’s very own 9/11, he will learn his fate from Judge Thokozile Masipa.
Will we ever know the truth about what happened on the morning of 14th February? It seems unlikely. Any trial, US writer Janet Malcolm once noted, is less a quest for the truth than a struggle between “two competing narratives”. It’s simple: “the story that can best withstand the attrition of the rules of evidence is the story that wins”. In just over a month’s time, we’ll find out which story wins – but Reeva Steenkamp will still be dead. DM
Photo: Oscar Pistorius during his ongoing murder trial, Pretoria, South Africa, 07 August 2014. EPA/WERNER BEUKES / POOL
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