Johannesburg - They say no one was meant to see it. A video of Oscar Pistorius at his most vulnerable. On his imperfect stumps, re-enacting the moments that diverted the course of his life.
But as countless online sex tapes have shown, film the “money shot” of you at your most defenceless, and you risk being exposed.
The timing of the release is apt.
The video links well with sports physician Professor Wayne Derman’s testimony about how Pistorius moves on his stumps.
While Derman has been telling the court about Pistorius’s instability without his prosthesis, this video could potentially show what his words can only tell.
“(The video) would allow us a glimpse of Oscar on his stumps, which the court never really gets to see,” said Professor James Grant, of the Wits School of Law.
“It would allow for a comparison of that with what Derman is saying.”
The defence has rejected the leak of the video, which points to a breakdown in their relationship with those hired to help them win.
The president of The Evidence Room, which created the tape, is interviewed on the Australian TV broadcast.
“(The leak) is highly unprofessional of (The Evidence Room) and it could be very prejudicial to Oscar’s defence, particularly if the judge gets hold of it,” forensic expert Dr David Klatzow said.
The video had been privileged, but as it is now in the public domain, the court could potentially allow it as evidence – if it’s important enough.
“(Judge Thokozile Masipa) would have to be convinced of how much merit it has,” litigation attorney David Dadic said.
Dadic said if there was evidence that the footage went directly against what the defence had presented, there might be grounds for the State to reopen its case.
Klatzow said an interesting question was why, having indicated from the beginning that the defence had employed The Evidence Room, the team hadn’t presented the video in court.
“Was there something negative in the evidence that they decided not to use it?” Klatzow asked.
“Why create it and then not use it in the trial?” Dadic asked.
The defence team have indicated they never planned to use the video and it was only for pre-trial purposes.
“I would have advised them not to do the video,” Klatzow added.
“You can never reconstruct anything completely. It opens all sorts of avenues for cross-examination.”
But should the judge not admit the video as evidence, it may be inconsequential legally.
The defence has done nothing wrong by not presenting it in court. They have every right to choose what evidence is their strongest, just as the State never called former cop Hilton Botha to the stand after his disastrous performance at the bail application.
If during an appeal it was argued that the media leak had resulted in an unfair trial, it would be a defence own-goal.