One Tragic Night (100 page)

Masipa then applied her mind to the defence case and to Oscar's version and how he vacillated about his intentions in the moments before he shot.

‘A perusal of the evidence of the accused shows the number of defences or apparent defences. On the version of the accused it was not quite clear whether he intended to shoot or not. This was exacerbated by the fact that Dr Merryll Vorster, called on behalf of the accused, placed in doubt the accused's culpability
at the time of the incident. Dr Vorster's evidence was that the accused suffered from a general anxiety disorder which may have affected his conduct at the time of the incident.'

This comment spoke to the ‘changing defence' that so many legal commentators had written about during Oscar's time in the witness box.

Masipa carefully scrutinised the testimony of the accused and selected certain extracts from his evidence. She showed how he moved from it being an accident, to how he never intended to shoot anyone, to how he pulled the trigger when he heard the noise, that he did not purposefully fire into the door, that he shot out of fear, that the discharge was accidental and that he never aimed at the door, amongst others. She made special mention of the fact that although Oscar said that at no stage was he ready to discharge the firearm, he had released the safety mechanism on the gun and it was in a ready mode.

‘The accused stated that he never thought of the possibility that he could kill people in the toilet. He considered, however, that thinking retrospectively it would be a probability that someone could be killed in the toilet. He stated that if he wanted to shoot the intruder, he would have shot higher up and more in the direction of the opening of the door, to the far right of the door and at chest height. I pause to state that this assertion is inconsistent with someone who shot without thinking.'

And just as Masipa was on the brink of revealing whether or not she believed the state had a case of premeditated murder against Oscar, she abruptly adjourned for tea. It was cliffhanger stuff.

At this point, the sentiment from the police investigators and the state's team was that while they'd lost the possibility of a conviction on premeditated murder, they were still holding out for a potential guilty verdict on murder
dolus eventualis.

At the same time, relief was beginning to seep into the defence camp, but no one was celebrating prematurely. ‘I hate judgments,' despaired a stressed-looking Barry Roux, rocking back on his chair. In response to a comment from us that the judgment seemed to be going in Oscar's favour, a member of the Pistorius family responded swiftly, ‘It has nothing to do with favour; it's about the truth.'

Masipa took her seat again and immediately picked up with the defence's case.

The defence had pointed to the evidence of Professors Derman, Vorster and Scholtz to confirm that Oscar had discharged his firearm in reflex because he felt
vulnerable and was fearful. Masipa said this evidence, along with the versions presented by the accused while on the stand, showed that ‘we are dealing with a plethora of defences'.

She worked her way through each of these, starting with ‘criminal capacity', which emerged during the course of the trial. ‘The inevitable question therefore was whether the accused could distinguish between right and wrong and whether he could act in accordance with that distinction. Though not clearly expressed in so many words the defence had the hallmarks of temporary non-pathological incapacity.' This was the defence that emerged when Professor Vorster was on the stand and the result was that Oscar was referred for psychiatric evaluation.

The judge referred to the report of the panel constituted to analyse Oscar while at Weskoppies Psychiatric Hospital, and that of the psychologist, which found that he did not suffer from a mental illness that would have rendered him criminally not responsible. She also spoke to the defence's contention that Oscar suffered from an increased startled response as described by Professor Wayne Derman and that Oscar had shot with a reflex impulse.

‘I disagree with this submission. There is a huge difference, as submitted by state counsel, between a reflex action and involuntary action. The latter has a hallmark of a defence of non-pathological insanity as it gives the impression that the accused had no control over his action when he fired the shots at the door. That this cannot be is clear from the steps that the accused took from the moment he heard the sounds of the window opening until the time he fired the four shots. There was no lapse of memory or any confusion on the part of the accused. On his own version, he froze, then decided to arm himself and go to the bathroom. In other words he took a conscious decision. He knew where he kept his firearm and he knew where his bathroom was. He noticed that the bathroom window was open, which was something that confirmed his correctness about having heard the window open earlier,' read Masipa.

She found that this behaviour was inconsistent with lack of criminal incapacity and continued: ‘In any event the experts have already pronounced on this defence and this court has not been given any reason not to accept their evidence. This court is satisfied that at the relevant time the accused could distinguish between right and wrong and that he could act in accordance with that distinction. It is also clear that the defence of non-pathological insanity has no foundation.'

The feeling in the courtroom was that the scales of justice could be tipping back in the state's favour. ‘This is a roller-coaster ride,' whispered one journalist. ‘My nerves are frayed,' said another, riding the judgment wave through peaks
and troughs. Oscar was no longer crying but looking straight ahead at Masipa through heavy eyelids.

Masipa then moved on to the next of Oscar's suggested defences – putative private defence. Did he genuinely believe there was an intruder in the house and that he and Reeva were under real threat?

Oscar's defence team had relied on his testimony to show that he shot because he believed an intruder was about to attack him and Reeva. However, Masipa's view was that this testimony was contradictory and she referred to extracts from the accused's testimony to show this. She also reminded those in the courtroom that in evaluating putative private defence, the court applies a subjective test as opposed to an objective test, which means the court needs to consider the accused's state of mind and perception.

She found that Oscar deliberately armed himself with a loaded weapon and moved towards the perceived danger. ‘It would be absurd, for instance, to infer from the accused's conduct that he was going to hit the intruder over the head with it as he could easily have used a cricket bat for that purpose.' She agreed with Professor Derman's view that Oscar is a ‘fight' rather than a ‘flight' reaction person. ‘This court also accepts that a person with an anxiety disorder as described by Dr Vorster would get anxious very easily, especially when he's faced with danger. It is also understandable that a person with a disability such as that of the accused would certainly feel vulnerable when faced with danger.'

But she hastened to add that Oscar was not unique in this respect. ‘Women, children, the elderly and all those with limited mobility would fall under the same category. But would it be reasonable if without further ado they armed themselves with a firearm if threatened with danger? I do not think so as every case would depend on its own merits.'

Masipa believed Oscar clearly wanted to use the firearm and the only way he could have used it was to shoot at the perceived danger. ‘The intention to shoot however, does not necessarily include the intention to kill,' continued the judge. Oscar's chest shifted up and down as he took a deep breath.

‘Depending on the circumstances of each case the accused could be found guilty of
dolus eventualis
or culpable homicide. In this case there is only one essential point of dispute and it is this: did the accused have the required
mens rea
[guilty mind] to kill the deceased when he pulled the trigger? In other words, was there intention? The essential question is whether, on the basis of all the evidence presented, there is a reasonable doubt concerning the accused's guilt.'

Roux rested his cheek on his fist and stared at his water bottle. Nel continued doodling in his notebook. Oscar shut his eyes as Masipa continued: ‘The
accused was a very poor witness. While during evidence-in-chief he seemed composed and logical, with the result that his evidence flowed and made sense, while giving his version under cross-examination he lost his composure.' This comment sent the pendulum of expectation firmly to the prosecution's side.

The defence had explained Oscar's poor performance by saying he was suffering from enormous emotional stress, had been traumatised by the incident and was under medication when taking the stand. ‘This argument does not make sense in my view,' found Masipa.

‘What we are dealing with here is the fact that the accused was amongst other things an evasive witness. In my view there are several reasons for this. He failed to listen properly to questions put to him under cross-examination giving an impression that he was more worried by the impact that his answers may cause rather than the questions asked. Often a question requiring a straightforward answer turned into a point of debate about what another witness did or said. When contradictions were pointed out to him … he often blamed his legal team for the oversight.'

Reinforcing the perception that the tide was turning against Oscar, Mapisa posed several questions that were top of mind for many who had been watching the trial, and had been raised by Magistrate Nair as ‘improbabilities' at the bail hearing.

‘In the current case, the accused was killed under very peculiar circumstances. There are indeed a number of aspects in the case that do not make sense,' noted the judge. Why didn't Oscar ask Reeva whether she had heard anything when he heard what he thought was the window opening? Why didn't he check to see whether Reeva had heard him before making his way to the bathroom? Why didn't Reeva communicate with Oscar when she was in the toilet and he just a few metres away? Why didn't she phone the police as Oscar had asked her to? Reeva could have done this irrespective of whether she was in the bedroom or the toilet because she had her phone with her. Why did Oscar fire not one, but four shots before running back to the bedroom to try to find Reeva?

‘It makes no sense to say she did not hear him scream, “Get out” – the accused version is that he screamed on top of his voice when ordering the intruders to get out,' continued the judge.

‘These questions unfortunately will remain a matter of conjecture. What is not conjecture, however, is that the accused armed himself with a loaded firearm when on his own version he suspected that an intruder might be coming in through the bathroom window. He was not truthful when asked about his intentions that morning as he armed himself with a lethal weapon. The accused
was clearly not candid with the court when he said he had no intention to shoot at anyone as he had a loaded firearm in his hand, ready to shoot.'

Masipa reminded the court that the onus rests with the state and not with the defence to prove the case beyond reasonable doubt. She also commented that, should Oscar's version be found to be reasonably possibly true, he would be entitled to an acquittal.

Unexpectedly, Masipa appeared to be reaching a climax in her ruling as she summed up the circumstantial evidence with respect to the murder charge and Oscar's explanation. The prosecution had hoped that the weight of all the individual feathers of evidence together could be enough to prove its case, but would it be?

‘The timelines as set out in the chronology of events tip the scales in favour of the accused version in general. Viewed in its totality, the evidence failed to establish that the accused had the requisite intention to kill the deceased let alone with premeditation. I am here talking about direct intention. The state clearly has not proved beyond reasonable doubt that the accused is guilty of premeditated murder. There are just not enough facts to support such a finding.'