Pretoria - The fact that Oscar Pistorius did not suffer from a mental illness and could appreciate the wrongfulness of his actions when he shot his girlfriend Reeva Steenkamp did not seem to come as a surprise to the athlete.
Two reports submitted by a panel of four experts were handed to the defence and prosecution at the weekend, and it is likely Pistorius knew what the reports contained.
North Gauteng High Court Judge Thokozile Masipa was handed the reports on Monday, before the day’s proceedings started, and she said she had not yet read them.
Reading out the findings in the two reports – one from the psychologist and one from the panel of three psychiatrists – prosecutor Gerrie Nel said the conclusion was Pis-torius did not suffer from a mental illness.
“He did not suffer from a mental illness or defect that would have rendered him criminally not responsible for his actions. He was capable of appreciating the wrongfulness of his actions and act accordingly,” Nel said.
He told the judge that the prosecution and defence accepted the unanimous findings of the panel.
However, Nel added the experts might later be called to clarify some of their other findings.
Nel did not go into detail about what the other findings on Pistorius’s mental health entailed – including whether it was confirmed that he suffered from general anxiety disorder – as said earlier by Dr Merryl Vorster, a defence witness.
But the panel of psychiatrists that studied Pistorius could be wrong about his criminal responsibility… or they could be right.
No one can really tell.
This is according to Professor James Grant of the Wits School of Law. Because there was no definition of mental illness in South African law, it boiled down to a guessing game, he said. And the game was affecting people’s lives.
“Because it’s fundamentally arbitrary, it means people are being either sent to prison or to mental institutions because of their bad luck based on what a psychologist, a psychiatrist and judge guess the law means by mental illness or defect.”
Grant said in this regard South African law was a mess. And although psychologists or psychiatrists might have training in their fields, they could not effectively answer a legal question that was not properly defined.
“There are people in prison right now who shouldn’t be there and people in mental institutions who should be in prison, and there are people in both who shouldn’t be in either,” he said.
Pistorius has just spent a 30-day period as an outpatient for psychiatric observation at Weskoppies.
Kelly Phelps, senior lecturer in the public law department at the University of Cape Town, said she agreed there was an issue, but this was not limited to combining the law and psychiatry or psychology, but could be seen in many areas of expert evidence.
The standards of a particular discipline frequently were not a perfect match with legal requirements, and aspects could be lost in translation, she said.
“I think it is a pragmatic reality… but I’m not convinced it is a problem for which there is a complete solution.”
For Pistorius, being found criminally responsible was not a knock to his case, and aspects of defence psychiatrist Vorster’s evidence might still be useful to his defence.
Phelps said Pistorius’s team could still go ahead with the defence of putative self defence, which would mean Pistorius acted thinking Steenkamp was a burglar.
The report “doesn’t really substantially change the defence’s position”, she said.
If the report had not found general anxiety disorder, it was likely the defence would not argue this and rather follow the State’s report.
But this did not mean Vorster’s testimony on Pistorius’s history and previous trauma wouldn’t hold true, she said.
“You’re simply saying a person with this kind of life history, with this kind of disability… is likely to have the mistaken beliefs that Pistorius claims to have had,” she said.
Phelps said it would still help the judge to decide if a reasonable man would have acted the way Pistorius claimed to have acted.
Vorster’s evidence caused Nel to ask the court to refer Pistorius for 30 days’ observation (as an outpatient) at Weskoppies Hospital. He was subjected to tests for the past month and evaluated by the expert panel.
His advocate, Barry Roux SC, said on Monday that the defence accepted the panel’s conclusion, but still had to go over the report, which runs to more than 30 pages.
Although the reports have been handed up as exhibits, they are not yet in the public domain. The judge’s registrar said she could not release the reports to the media at this stage, as the prosecution and the defence indicated they might later take up issues in the reports.