Johannesburg - If Oscar Pistorius is found guilty, his legal team could try to have the verdict overturned because of footage which emerged on Sunday that his lawyers claim was illegally obtained.
This is according to Stephen Tuson, an associate professor from the Wits Law Clinic, who said on Monday morning the leaking of the footage could breach Pistorius’s right to a fair trial.
The footage formed part of a documentary which was aired on Monday night on an Australian current affairs show, Sunday Night.
The footage showed Pistorius re-enacting the night he shot his girlfriend Reeva Steenkamp on Valentine’s Day last year. On Sunday night, the network which aired the footage hit back at the Pistorius defence team after they claimed the video was obtained “unlawfully”.
It was not filmed in Pistorius’s home where the shooting took place and is believed to have been created in his uncle Arnold’s Waterkloof house.
It allegedly shows the athlete acting as if he is running towards a bathroom on his stumps, his arm extended and his hand clenched as though he is holding a gun. The athlete is also reportedly filmed while screaming: “Get out! Get out of my f*****g house!”
“If leaked, the question is: Can it be used and could it result in a mistrial? I think it could,” said Tuson, who emphasised he was still studying case law to confirm this at the time of publication.
He said a mistrial was a common legal term often used in the US and the South African equivalent was referred to as a “review due to procedural irregularities”.
“Is the irregularity of such a serious nature that it renders the possibility of a fair trial impossible?” Tuson asked.
He said that in his opinion, it would compromise the right to a fair trial because the leak broke the “sacred principle” of attorney-client confidentiality.
The confidentiality extended to the forensic team because they had been hired by the defence, Tuson believed.
He said it would most likely be the defence that would ask for the review, but that it was unlikely that it would happen immediately.
“The preferred method is to wait for the end of the trial because it might be unnecessary to review if they (the defence) get a positive verdict,” Tuson said.
However, an independent criminal attorney “respectfully disagreed” with Tuson.
“The evidence is not before court, it’s in the media. (Asking for a review) is going to be a bit drastic,” said lawyer Peter Jay.
He said that prosecutor Gerrie Nel could possibly reopen the State’s case and introduce the video as evidence if they felt that the footage was important to their argument.
“But that’s for the judge to decide if there’s a strong enough reason to do so.”
Sapa reported on Monday morning that the prosecution had not seen the video, according to the National Prosecution Authority’s spokesman Nathi Mncube.
Pistorius’s lawyer Brian Webber said in a statement on Sunday that Channel 7 had purchased the footage unlawfully.
“We wish to make it very clear that the material that has been aired was obtained illegally and in breach of the non-disclosure agreement with The Evidence Room,” Webber said.
The Evidence Room are a US-based forensic team hired by the defence last October to film the recreation of the events on the night Steenkamp was shot.
Sunday night the show’s executive producer, Mark Llewellyn, said the documentary was a result of a “significant investigation”.
“We would not have run the footage if we thought we had obtained it illegally.”