Oscar had ‘slow burn’ of trauma - RouxComment on this story
Pretoria - Oscar Pistorius's legal team has spent Friday morning plugging up some of the holes poked in their case by the State's closing arguments.
Defence advocate, Barry Roux has begun providing a detailed timeline of events the night Reeva Steenkamp was shot.
Roux continued his closing arguments on Friday morning by showing the bedroom of Johan Stipp and his wife. The Stipps were neighbours of Pistorius who claimed they heard screams coming from the athlete's home on the night of the shooting.
He said the photograph showed someone holding open the curtain of the balcony door that looked towards Pistorius's home, and noted that at first Mrs Stipp had said she was not there when the photo was taken and had then later said it was her hand.
He added that another photo showed Colonel Giliam van Rensburg touching items at the scene. According to Roux, Van Rensburg had told the court he had not disturbed anything at the scene.
Nel put it to Pistorius during cross-examination that his story of moving fans inside the bedroom from the adjacent balcony could not be true because of the length of the extension cord inside.
However, Roux showed a third image showing the cord was indeed long enough for Pistorius's version to be true. He also noted how the extension cord had gone missing after the police investigation.
Roux argued that the police had tampered with the crime scene, but he reiterated that he did not think this was a conspiracy against the athlete. He said the State could not argue the scene was undisturbed.
Roux also argued that the State did not call all of its listed witnesses, and this was wrong because the State is in possession of affidavits by some of these witnesses that contradicted those who testified. He noted that initial investigating officer, Hilton Botha had specifically not been called because his testimony would have negatively affected the State's case.
Warrant officer Bennie van Staden had testified he and Van Rensburg had been alone during their initial sweep of the crime scene, but Roux said there was clear evidence from the affidavit of another police officer who was upstairs at the same time.
He then moved onto Pistorius's intention to kill the person behind the bathroom door on the night of the shooting. He said the test for intention was subjective, in other words, based on Pistorius's own perception of danger.
He said that the athlete's actions may have been negligent, which is not murder and closer to culpable homicide.
Roux also defended Professor Wayne Derman, who had testified that Pistorius's circumstances as a disabled athlete had moulded him into an anxious, security conscious person. Derman also believed it was a series of startling noises in Pistorius's bathroom that led to the shooting.
While Nel had declared Derman a “self-proclaimed” and biased expert, Roux said as a professor with numerous qualifications, he was a solid witness.
Nel also argued that the bullet holes on the toilet cubicle door showed a close group of shots, meaning Pistorius aimed with intention. But Roux insisted that even he could have made such a grouping as Pistorius fired from just two metres away from the door.
He questioned the State's allegations that Steenkamp and Pistorius had a rift in their relationship based on a series of argumentative WhatsApp messages shortly before Steenkamp's death. Roux argued that there was no basis for such a theory, and that even if they had argued, their relationship could have improved. He said there were other messages that clearly showed they had made up.
On Thursday, Nel argued that Pistorius had two separate defences, that he fired at a perceived threat and that he fired “automatically”.
However, on Friday Roux was insistent that when moving towards the bathroom, Pistorius had time to arm himself, and foresaw he might have to fire, leading to anxiety. It was upon hearing a noise inside the toilet that, in his vulnerable state, Pistorius fired reflexively “out of primal instinct”. He said Derman's testimony had explained the brain functions that occur in such situations.
If he fired reflexively, Roux said his client lacked criminal capacity, meaning no intent.
However, if the court decided Pistorius had a reflex together with congition, then the court had to consider a putative self-defence, that he believed he was in danger because of the supposed intruder and needed to shoot.
He said that a “slow burn” of years of psychological trauma of being disabled had turned Pistorius into an anxious person, comparing this to a victim of domestic abuse. This comparison was questioned by Judge Thokozile Masipa, and Roux said that the constant reminder of “not having legs” or “not being able to run away” had a deep psychological impact on the athlete, similar to the persistent suffering of those who are subject to abuse. The slow burn in Pistorius’s case related to the fight or flight reflex - and over time he would lost the flight reflex.
Roux also asked the court to understand why Pistorius was not a good witness during his evidence in chief. He said his client was only argumentative because he was being asked questions by a man who had called him a murderer. The allegedly “manipulated” pre-meditated murder accusations had made Pistorius anxious, according to Roux.
He then said the State had ignored many key events on the night of the shooting, from the alleged first set of shots, the sounds of Pistorius breaking down the door with the cricket bat, as well as the screams supposedly heard by neighbours.
Roux then moved on to the other charges Pistorius faces, regarding shooting incidents in 2012 and 2013. He said that one of the witnesses during the incident where Pistorius allegedly fired a gun though a car sunroof, and the 2013 incident where Pistorius allegedly accidentally discharged a firearm in a crowded restaurant, Darren Fresco, was “all over the place”.
He said Fresco was a poor witness with an agenda, but admitted Pistorius was negligent in handling the firearm underneath the restaurant table. He said Fresco was an accomplice in this incident, which was why he would try to shift blame. He said the gun could have been malfunctioning when handed to Pistorius.
Fresco was also present, along with Pistorius ex-girlfriend Samantha Taylor, during an incident where Pistorius allegedly fired through an open car sunroof in anger after being pulled over by metro police. Roux said Taylor also had a motive while giving evidence regarding this incident, implying she was bitter from her break-up with the athlete.
He returned to the murder charge. “There were four shots fired. Four holes in the door and four empty shells,” said Roux.
He said it was common cause that Pistorius broke through the door with the cricket bat after the shots.
And, Roux said, it was common cause that Steenkamp could not have screamed after being shot.
He posited that the shots were fired before 3.15am, and the second set of sounds supposedly heard by neighbours after 3.17am was the sound of the cricket bat on the toilet door. The State believes that the shots were actually fired at 3.17am, but Roux said that phone records of the witnesses who tried to call for help backed up his theory.
Claims by Nel hat Pistorius and Steenkamp were arguing before the shooting were contradicted, Roux said, because around 2.20am a security guard at Pistorius's estate, Pieter Baba, had told the court “everything was normal”.
“This is fatal to the State's case,” he said.
He then said that if Dr Stipp - from his balcony - saw Pistorius at the bathroom window at 3.15am, this meant he would have had to be wearing his prosthetics. Roux said because of the State's argument that Pistorius had shot through the door while on his stumps, this meant the shooting had to have occurred earlier.