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Oscar’s responses normal - for him

Paralympic sprinter Oscar Pistorius's tie is adjusted by his uncle Arnold during his trial in the North Gauteng High Court in Pretoria. Photo: Reuters

Paralympic sprinter Oscar Pistorius's tie is adjusted by his uncle Arnold during his trial in the North Gauteng High Court in Pretoria. Photo: Reuters

Published Jul 6, 2014


Johannesburg - Three months after the start of Oscar Pistorius’s murder trial, his defence team this week used its final witness to reveal what appears to be a definitive strategy.

Dr Wayne Derman, a sports scientist who has years of experience working with disabled athletes, has suggested Pistorius’s actions on the night he shot and killed Reeva Steenkamp were totally normal – at least for someone in his position.

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Derman has essentially said Pistorius’s hyper-vigilance and overreaction to dangerous situations has been bred into him from a lifetime of dealing with his disability, a childhood of being exposed to crime directly and indirectly, and years of athletic training.

Derman told the North Gauteng High Court in Pretoria that the fight or flight response of a disabled person is significantly more pronounced than that of an able-bodied person, and used a World Health Organisation report to substantiate his claims that the disabled are significantly more likely to be victims of violent crime.

He also said Pistorius’s vulnerability and lack of mobility without his prosthetic legs exacerbated his fear of crime that had been present since childhood.

And even Pistorius’s years of athletic training had conditioned him to physically respond to loud noises, such as the gunshot indicating the start of a race.

According to the expert, it was a series of three noises in Pistorius’s home the night of the shooting that pushed him into an extreme “fight or flight” response, ultimately leading to Steenkamp’s tragic death.

It is this testimony that may just get Pistorius off the hook on a murder conviction, with such an argument bolstering a putative self-defence claim.

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Putative self-defence refers to the idea that Pistorius was convinced he was being attacked, and only fired with the intention to protect himself.

This means he lacked the requisite intention to kill to qualify as guilty of murder.

According to Wits Law Clinic professor, Stephen Tuson, Pistorius’s state of mind will be analysed by the courts and Derman’s testimony could alter how Judge Thokozile Masipa sees the athlete’s behaviour on the night of the shooting.

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He said that if Derman’s testimony is accepted, the athlete’s behaviour would be compared more to that of a disabled person in the same situation, rather than an able-bodied person.

Tuson also added that even though Derman does not have a psychiatric degree, his analysis could still hold if the court finds his other qualifications and experience impressive enough.

However, Tuson did say Pistorius has indicated in his own testimony that he had no control over his actions, and this autonomy defence could clash with his putative self-defence claims.

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And even if Pistorius escapes the murder charge, his mental state – at least in the law as it currently stands in South Africa – will not necessarily help him in avoiding a culpable homicide conviction.

Tuson said the court would examine if Pistorius acted reasonably on the night of the shooting, but the test of reasonability was determined by whether a “reasonable man” would behave in the same way if faced with the same circumstances.

He said that subjective experience, like Pistorius’s disability and hyper-vigilance, could not be applied in this test as the law currently stood.

However, Derman’s testimony being upheld by the court is also not certain, with prosecutor Gerrie Nel clawing at the expert’s credibility and objectivity.

On Thursday, the prosecutor tried to argue that because of Derman’s lengthy friendship and treatment of the athlete, his evidence had slipped into character testimony rather than expert analysis.

Derman insisted he would never come to court with a biased agenda, as the truth came before his client’s welfare.

But Nel was adamant in questioning the expert for hours on Derman’s two interviews with Pistorius about the night the athlete killed Steenkamp.

These meetings and the court record were how Derman constructed the version of events in his reports on the shooting.

However, he admitted after serious prodding from Nel he had not taken notes when discussing the incident with Pistorius.

Nel attacked Derman’s status as an expert again, saying he was unsure on key aspects of his testimony and didn’t have important notes.

The prosecutor asked what the first “startle response” was for Pistorius on the night of the shooting that triggered the fight or flight response.

Derman said it was most likely the sound of the bathroom window opening, and Pistorius’s first response was to freeze.

Nel asked if after Pistorius froze, had he already entered “fight mode”.

Derman said Pistorius was not in such a state yet, as he was still able to retrieve his firearm.

“That all implies cognitive function... in order to fulfil the fight or flight response,” said Derman.

But when asked whether the single startle response could have accounted for the whole incident, Derman said he could not hypothesise over such a scenario.

Nel shot back that as an expert, this was his job, and to not be so concerned with only the concrete facts of the case.

He asked whether if Pistorius had a gun at hand, it meant he intended to shoot. Derman agreed with this version, but Pistorius shot only for the purpose of protection.

“If he came across a stranger or intruder, I suppose he would shoot,” he said.

Derman believed a second startle sound – what Pistorius said was the closing of the toilet door – further sent the athlete into a fight response.

The third startling noise for Pistorius was the sound of wood moving, which the athlete said in his own testimony was most likely the sound of the magazine rack moving in the toilet cubicle.

This allegedly led to the petrified athlete pulling the trigger.

Nel put it to the court that Pistorius fired at the person inside with the intention to kill, and Derman said it was possible this was the case to ensure the threat was neutralised.

However, Derman’s gruelling cross-examination seems far from over, as Nel asked for a postponement to Monday to consult with a psychiatrist over the expert’s testimony.

Another defence witness was also called early in the week in an attempt to disparage one key point of the State’s version of the night of the shooting.

Some of Pistorius’s neighbours claimed they heard female screaming on the night of the shooting coming from the athlete’s home, completely contradicting his account of what happened.

Pistorius’s defence has previously argued that the screams the neighbours heard were actually the athlete himself in a state of extreme agitation.

Yet electrical engineer and acoustic expert, Ivan Lin, was called to the stand to testify that the neighbours living furthest from Pistorius probably wouldn’t have been able to hear Pistorius at all.

After conducting a series of tests at the property, Lin said that if the neighbours had heard anything at all, it would have been unintelligible, and any understanding of the voice’s gender would have been impossible.

However, Nel was able to argue that if Steenkamp had had the opportunity to scream for her life, it would have been louder than the sound levels proposed by Lin.

The engineer conceded that if she was able to hit 120 decibels, it was possible that even the neighbours furthest away would have heard her cries.

The trial continues on Monday.

Sunday Independent

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