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The Oscar Pistorius Case: Motive and IntentionAt the commencement of a trial what is uncertain is a person’s innocence or guilt. The purpose of the trial is to determine this. What is a certainty however, is the practice of the State should be beyond reproach. To find an innocent person guilty of a crime they did not commit can rob them, not only their freedom, but put their life in danger. To find an innocent person guilty because the State manipulated the case is beyond reproachable. Demanding a harsher verdict or a guilty verdict to a crime that the accused did not commit has more to do with the pursuit of egos rather than the pursuit of Justice. Prior to, during and post trial, many people on social media made death threats against Oscar including a call for a public beheading. One man went so far as to bring a hangman’s noose to Court. In many countries this man would be arrested for inciting violence, but there was no indication this was the case.
The State conducted the case to look like domestic violence despite no credible evidence of that nature. It would seem that due to the lack of material evidence, the State relied on the public outcry to promote their case. The State continue to do so by virtue of this appeal. The circumstantial evidence did not support a finding that Oscar knew Reeva was in the bathroom. It therefore needs to be questioned as to why the State are requesting the SCA consider whether the Court ‘correctly applied the principles pertaining to circumstantial evidence. Nel in his final moments of cross examination of Oscar told him that the Court would make a finding that -:Oscar shot through the door with the sole purpose of shooting Reeva based on the evidence of their witness who heard an argument, and witnesses who heard a dying woman scream but interestingly all failed to hear a cricket door break down a door which was by far the louder sound. The inferences the State want accepted are the least likely, most improbable.
The prosecution team represents the State, their performance, their integrity, their practice is a reflection of the State. Their role is to establish the truth therefore this should mean that the manipulation of evidence, testimony, a refusal to call key witnesses, a reliance on the media to incite public opinion against any accused person, misleading the Court should be so far removed from their practice to render it impossible. However, if the States motivation is to seek a conviction at any cost then there is a likelihood that the States practice may well include these factors.
Following the successful appeal by the accused in the Humphrey case. It was reported that a spokesperson for the Western Cape NPA announced that the NPA would no longer be charging people with murder unless they could prove a ‘direct intention to do so’. Applying this to the Oscar Pistorius case, what the NPA initially should have considered is the intent behind Oscar’s actions. If they failed to consider this at the pre-trial stage, if they failed to address it during the trial, they certainly should have considered it prior to the launching of their appeal. The issue of intent in relation to the death of Reeva and a perceived intruder is significantly different. Yet the State merged them and has provided no insight as to Oscar’s state of mind to determine his intent in respect to shooting a perceived intruder.
The layout of the room is of crucial importance for the States case. It has relied on photographs regarding the position of the fans, duvet, and the layout of the bedroom.
Botha in his initial statement said Die beddegoed was op die een kant van die bed.’ Meaning the bedding was on the one side of the bed.The photographs showed the duvet on the floor.Considering both could not be correct, if the State had the interests of Justice and not securing a conviction as their primary consideration, Botha would have been called as a witness. It does not take a great deal of intelligence to work out that the most probable inference that can be drawn from the States failure to call Botha is that his testimony could inadvertently damage the States case. This does not equate with an organisation who has a duty to the accused as well as the victim. It is not the Defences role to call the lead investigator as their witness. In the absence of Botha’s evidence and the creation of doubt as to the position of the duvet, all evidence regarding the duvet should therefore be considered with suspicion as it is not possible to determine where it was.
Von Stratten claimed he was first on the scene and testified that the room was as it was shown in the photograph but later conceded that he was not able to recall exactly the position of objects in the room. Therefore, the States assertion as to the position of the fans and duvet is not the certainty that was expressed in the trial. The State needed to cast doubt on Oscar’s testimony about the duvet and fans. They needed to show that the position of the fans and duvet would prevent him getting to the balcony to call for help. It therefore served their purpose not to call any witness which may have created uncertainty in this regard. The absence of the cord also afforded them the luxury of them being unable to produce the physical evidence to determine the length of the cord. One has to seriously question the States motivation for such actions. Had this been the open and shut case they claimed, if they were as confident of a conviction for murder as they asserted, there is absolutely no reason that can be justified for their witness selection in this regard. What is even more unfathomable is the State are now appealing with regard to this circumstantial evidence despite such unprofessional practice.
During the States cross examination of Oscar, Nel raised the issue of the length of an electrical extension cord and whether it was possible to move the cord or if it was at it's maximum length. Oscar stated the cord was long enough, the State in cross examination maintained it was not. It then seemed very strange that Nel would tell the Judge that he never made an issue of the length of the cord. Yet, a review of his cross examination shows in one session Nel makes reference to the length of the cord about 8 times, Oscar refers to the length in reply 12 times. There was much questioning and disagreement regarding the length of the extension cord. Nel tells Oscar
I put it to you now, if you moved that fan to the fold in the duvet, the plug will not stay in.
Later Nel says
If the multi-plug remained in the position where it is now, you cannotmove that fan to the position that you said you put it in.
the court will make a finding, but I put it to you that if that multi-plug does not move, that fan cannot move all the way to that point and face the bed. eventually concludes stating that Oscars account ‘is so improbable that nobody would ever think it is reasonably possibly true.’
The State failed to produce the cord, it was conveniently lost. A pattern that emerged during the trial - missing witnesses, missing evidence, missing watches.The State were unable to offer a conclusive evidence to either prove or disprove the length of the cord. It seems very strange behaviour for a prosecutor to then appear to mislead the court. Either Nel forgot he had questioned Oscar at length, which seems unlikely for a prosecutor with his reputation and experience, considering the number of questions regarding the length of the cord or he deliberately withheld this information from the Court, thus misleading the Court.
There were however examples in his cross examination where Nel apparently failed to record accurately what was said and accused Oscar of effectively lying.
Nel questioned Oscar if he remembered firing at the door. When Oscar replied in the affirmative, Nel asked Oscar why he had said the previous day that he hadn’t. Nel insisted that Oscar had said he had not remembered firing at the door.Nel asked ‘Why did you.. yesterday when we ended, you said you do not. You cannot remember.’Oscar replies That is incorrect, M'Lady.
Nel insists Yesterday You did!
Oscar clarified That is incorrect, M'Lady. Yesterday, when put to me if I fired at the door, if I remember firing at the door, I said yes, I do. I remember firing at the door Nel concluded saying it was just as well there was a record and it would be checked over lunch. Nel however made no reference to the record on return from lunch. In fact the record would have showed that Oscar was correct in what he said, he had said the previous day he remembered firing. What Nel seems to be doing is attempting to show the Court and the worlds media that Oscar was lying. How ethical is it for a prosecutor representing the State in its pursuit for the truth to tell the accused that they are lying yet knowing they are not.
On another occasion Nel asks Oscar what the accident was. Oscar replied that ‘The accident was that I discharged my firearm in the belief that an intruder was coming out to attack me,
Nel asked him whether it was deliberate or accidental. Oscar replies the discharge was accidental. What in fact Oscar was saying was ‘the accident’ was his belief that there was an intruder coming out of the bathroom and that is why he fired. One cannot extract a part of that sentence and suggest that is it's meaning in its entirety. Yet that is exactly what Nel did. He took the words accidental and discharge to imply that that Oscar was saying he was not in control of shooting the gun. Thus Nel introduces the concept of involuntariness which Nel later claims is one of a plethora of defences. What Oscar says in fact does not relate to involuntariness, he does not say the firearm went off by itself. He says
‘ It is not just a firing of a firearm and the firearm went off by accident. What I am saying is that at that time I did not know what to think. I fired into the toilet door which was... I believed somebody coming out to attack me.
Nel however says ‘The record will be... “I discharged my firearm accidentally”. It went off by accident. But that is not what Oscar said.When Roux challenged Nel to this effect saying ‘He (referring to Oscar) never said that he discharged it accidentally.
Judge Masipa intervened saying that she had written it down. She read out what she had written ‘I discharged my firearm accidentally.’ What in fact Masipa had noted was what Nel had said and not what Oscar had said.
In a trial the State are required to disclose all evidence to the defence prior to the commencement of the trial. There was much discussion as to whether the inclusion of the watermelon/driving range video should be allowed. Nel claimed he wanted to ask Oscar a question about it but in fact he used the video both as a prelude to showing the world the picture of Reeva’s skull. Nel asserted what Oscar did to the watermelon in the video what he did to Reevas skull and secondly to attempt to suggest that in effect what Oscar did to the water melon was practice for what happened to Reeva. Prior to Roux’s objection Nel said ‘‘It is the same thing as the watermelon ! You had it now in practice.’
Yet shooting a watermelon bore no relation to what happened. It is like suggesting that enjoying crashing dodgem or bumper cars at a fairground is a contributory factor to later being responsible for a head on collision.
The State has a duty to be seen to uphold the principles of Justice and also has a duty to protect both the accused person and the victim. Yet the practice of the State, their failure to address in any way the media portrayal of Oscar both prior to and during the case, the insistence on appealing a competent verdict raises serious questions about the States motivation and true intentions. This would then lead me to question whether the wrong side are actually doing the appealing.
The State conducted the case to look like domestic violence despite no credible evidence of that nature. It would seem that due to the lack of material evidence, the State relied on the public outcry to promote their case. The State continue to do so by virtue of this appeal. The circumstantial evidence did not support a finding that Oscar knew Reeva was in the bathroom. It therefore needs to be questioned as to why the State are requesting the SCA consider whether the Court ‘correctly applied the principles pertaining to circumstantial evidence. Nel in his final moments of cross examination of Oscar told him that the Court would make a finding that -:Oscar shot through the door with the sole purpose of shooting Reeva based on the evidence of their witness who heard an argument, and witnesses who heard a dying woman scream but interestingly all failed to hear a cricket door break down a door which was by far the louder sound. The inferences the State want accepted are the least likely, most improbable.
The prosecution team represents the State, their performance, their integrity, their practice is a reflection of the State. Their role is to establish the truth therefore this should mean that the manipulation of evidence, testimony, a refusal to call key witnesses, a reliance on the media to incite public opinion against any accused person, misleading the Court should be so far removed from their practice to render it impossible. However, if the States motivation is to seek a conviction at any cost then there is a likelihood that the States practice may well include these factors.
Following the successful appeal by the accused in the Humphrey case. It was reported that a spokesperson for the Western Cape NPA announced that the NPA would no longer be charging people with murder unless they could prove a ‘direct intention to do so’. Applying this to the Oscar Pistorius case, what the NPA initially should have considered is the intent behind Oscar’s actions. If they failed to consider this at the pre-trial stage, if they failed to address it during the trial, they certainly should have considered it prior to the launching of their appeal. The issue of intent in relation to the death of Reeva and a perceived intruder is significantly different. Yet the State merged them and has provided no insight as to Oscar’s state of mind to determine his intent in respect to shooting a perceived intruder.
The layout of the room is of crucial importance for the States case. It has relied on photographs regarding the position of the fans, duvet, and the layout of the bedroom.
Botha in his initial statement said Die beddegoed was op die een kant van die bed.’ Meaning the bedding was on the one side of the bed.The photographs showed the duvet on the floor.Considering both could not be correct, if the State had the interests of Justice and not securing a conviction as their primary consideration, Botha would have been called as a witness. It does not take a great deal of intelligence to work out that the most probable inference that can be drawn from the States failure to call Botha is that his testimony could inadvertently damage the States case. This does not equate with an organisation who has a duty to the accused as well as the victim. It is not the Defences role to call the lead investigator as their witness. In the absence of Botha’s evidence and the creation of doubt as to the position of the duvet, all evidence regarding the duvet should therefore be considered with suspicion as it is not possible to determine where it was.
Von Stratten claimed he was first on the scene and testified that the room was as it was shown in the photograph but later conceded that he was not able to recall exactly the position of objects in the room. Therefore, the States assertion as to the position of the fans and duvet is not the certainty that was expressed in the trial. The State needed to cast doubt on Oscar’s testimony about the duvet and fans. They needed to show that the position of the fans and duvet would prevent him getting to the balcony to call for help. It therefore served their purpose not to call any witness which may have created uncertainty in this regard. The absence of the cord also afforded them the luxury of them being unable to produce the physical evidence to determine the length of the cord. One has to seriously question the States motivation for such actions. Had this been the open and shut case they claimed, if they were as confident of a conviction for murder as they asserted, there is absolutely no reason that can be justified for their witness selection in this regard. What is even more unfathomable is the State are now appealing with regard to this circumstantial evidence despite such unprofessional practice.
During the States cross examination of Oscar, Nel raised the issue of the length of an electrical extension cord and whether it was possible to move the cord or if it was at it's maximum length. Oscar stated the cord was long enough, the State in cross examination maintained it was not. It then seemed very strange that Nel would tell the Judge that he never made an issue of the length of the cord. Yet, a review of his cross examination shows in one session Nel makes reference to the length of the cord about 8 times, Oscar refers to the length in reply 12 times. There was much questioning and disagreement regarding the length of the extension cord. Nel tells Oscar
I put it to you now, if you moved that fan to the fold in the duvet, the plug will not stay in.
Later Nel says
If the multi-plug remained in the position where it is now, you cannotmove that fan to the position that you said you put it in.
the court will make a finding, but I put it to you that if that multi-plug does not move, that fan cannot move all the way to that point and face the bed. eventually concludes stating that Oscars account ‘is so improbable that nobody would ever think it is reasonably possibly true.’
The State failed to produce the cord, it was conveniently lost. A pattern that emerged during the trial - missing witnesses, missing evidence, missing watches.The State were unable to offer a conclusive evidence to either prove or disprove the length of the cord. It seems very strange behaviour for a prosecutor to then appear to mislead the court. Either Nel forgot he had questioned Oscar at length, which seems unlikely for a prosecutor with his reputation and experience, considering the number of questions regarding the length of the cord or he deliberately withheld this information from the Court, thus misleading the Court.
There were however examples in his cross examination where Nel apparently failed to record accurately what was said and accused Oscar of effectively lying.
Nel questioned Oscar if he remembered firing at the door. When Oscar replied in the affirmative, Nel asked Oscar why he had said the previous day that he hadn’t. Nel insisted that Oscar had said he had not remembered firing at the door.Nel asked ‘Why did you.. yesterday when we ended, you said you do not. You cannot remember.’Oscar replies That is incorrect, M'Lady.
Nel insists Yesterday You did!
Oscar clarified That is incorrect, M'Lady. Yesterday, when put to me if I fired at the door, if I remember firing at the door, I said yes, I do. I remember firing at the door Nel concluded saying it was just as well there was a record and it would be checked over lunch. Nel however made no reference to the record on return from lunch. In fact the record would have showed that Oscar was correct in what he said, he had said the previous day he remembered firing. What Nel seems to be doing is attempting to show the Court and the worlds media that Oscar was lying. How ethical is it for a prosecutor representing the State in its pursuit for the truth to tell the accused that they are lying yet knowing they are not.
On another occasion Nel asks Oscar what the accident was. Oscar replied that ‘The accident was that I discharged my firearm in the belief that an intruder was coming out to attack me,
Nel asked him whether it was deliberate or accidental. Oscar replies the discharge was accidental. What in fact Oscar was saying was ‘the accident’ was his belief that there was an intruder coming out of the bathroom and that is why he fired. One cannot extract a part of that sentence and suggest that is it's meaning in its entirety. Yet that is exactly what Nel did. He took the words accidental and discharge to imply that that Oscar was saying he was not in control of shooting the gun. Thus Nel introduces the concept of involuntariness which Nel later claims is one of a plethora of defences. What Oscar says in fact does not relate to involuntariness, he does not say the firearm went off by itself. He says
‘ It is not just a firing of a firearm and the firearm went off by accident. What I am saying is that at that time I did not know what to think. I fired into the toilet door which was... I believed somebody coming out to attack me.
Nel however says ‘The record will be... “I discharged my firearm accidentally”. It went off by accident. But that is not what Oscar said.When Roux challenged Nel to this effect saying ‘He (referring to Oscar) never said that he discharged it accidentally.
Judge Masipa intervened saying that she had written it down. She read out what she had written ‘I discharged my firearm accidentally.’ What in fact Masipa had noted was what Nel had said and not what Oscar had said.
In a trial the State are required to disclose all evidence to the defence prior to the commencement of the trial. There was much discussion as to whether the inclusion of the watermelon/driving range video should be allowed. Nel claimed he wanted to ask Oscar a question about it but in fact he used the video both as a prelude to showing the world the picture of Reeva’s skull. Nel asserted what Oscar did to the watermelon in the video what he did to Reevas skull and secondly to attempt to suggest that in effect what Oscar did to the water melon was practice for what happened to Reeva. Prior to Roux’s objection Nel said ‘‘It is the same thing as the watermelon ! You had it now in practice.’
Yet shooting a watermelon bore no relation to what happened. It is like suggesting that enjoying crashing dodgem or bumper cars at a fairground is a contributory factor to later being responsible for a head on collision.
The State has a duty to be seen to uphold the principles of Justice and also has a duty to protect both the accused person and the victim. Yet the practice of the State, their failure to address in any way the media portrayal of Oscar both prior to and during the case, the insistence on appealing a competent verdict raises serious questions about the States motivation and true intentions. This would then lead me to question whether the wrong side are actually doing the appealing.
