‘There is certainly a case to answer ’

The prosecution in the Oscar Pistorius murder trial is expected to close its case this week. We asked legal expert Professor Stephen Tuson and forensic scientist David Klatzow five key questions about evidence so far

What are the most important aspects to have emerged?

TUSON: Michelle Burger’s testimony was critical to the state’s case. Any testimony of screams or argument before the shooting is crucial. The state’s case on a charge of murder depends on proof of criminal intention, in which the accused not only intends to kill his victim, but also knew that what he was doing was wrong.

In principle, if the court accepts the defence version that he thought he was acting lawfully when he shot at what he thought was an intruder, he should be acquitted of murder. Culpable homicide would still be a possibility, because all the state has to prove is that the accused was negligent.

Has the forensic evidence established murderous intent? I think not. This is demonstrated by the short cross-examination of the forensic witnesses. The only evidence to support murderous intent was that of witnesses who heard screams and arguing.

KLATZOW: This has been an education for the public on just how different reality is from the average CSI- type rubbish on our television. It is also noteworthy that the public should understand the consequences of the reckless use of a firearm. A bullet, once fired, will never come back and the tragedy is that, whatever happens to Oscar Pistorius, a young and vibrant life is gone forever. The defence has questioned how the crime scene was managed. Did it succeed?

TUSON: The defence has clearly established that mistakes were made in securing the crime scene and ensuring that the forensic evidence could not be tampered with. That does not mean that it was tampered with, but it could have been. Therefore, this evidence is unreliable and any conclusions or inferences that one seeks to draw from it are compromised.

However, it appears at this stage that a lot of the forensic evidence is common cause.

KLATZOW: The crime scene was managed appallingly. The first thing to be done on the crime scene is to secure it and then to set up a joint operations command to make sure that you do not have a buffoon walking over the scene, that you do not have the police looting watches and that you do not damage the scene any more than is absolutely necessary.

It was never a good idea to

The evidentiary mountain he has to climb will put Barry Roux to the test

remove the door at the stage that they did. The real question is: Did the police damage the scene to the extent of harming the evidence beyond repair and beyond usefulness? My view is that they did not, despite some blunders. A scene-of-crime officer would be a good idea to keep out those whose presence on the scene is not absolutely necessary.

Sadly, the mess in this case is similar to other high-profile cases in the not too distant past. How did the police expert witnesses hold up?

TUSON: The police expert witnesses held up fairly well in the circumstances. After the evidence got to the lab and was examined, the witnesses’ testimony was fairly orthodox and logical. The issue is: Was the

forensic evidence spoilt before it was analysed? The analysis is only as good as the evidence that is produced from the scene, and if that was spoilt, the conclusions drawn from it will be flawed.

KLATZOW: The experts held up well generally. It would have been better to see more reasoning and less reliance on experience from the ballistics expert, but, having said that, his evidence was good and he was supported by the blood pattern analysis, which went unchallenged. It is not enough to damage parts of the evidence — the court must not be in a position to use any of it. That has not happened here. Oscar admitted that he fired the shots. How important are elements such as which bullet hit her first and the sequence in which the police photographs were taken?

TUSON: Usually, this kind of evidence is very important. It could be used to corroborate or discredit either the defence version or prosecution version. I do not believe that, in this case, much turns on the photos or which shot hit first. However, that being said, if the first shot was not fatal, the victim could possibly have screamed before the final debilitating shots, which would contradict the

The real question is: Did the police damage the crime scene?

defence version that there were no screams from the victim. It appears that there is no real certainty which shots were fired first, and so no concrete conclusions can be drawn that could contradict the defence version.

KLATZOW: The sequence of shots hitting Reeva Steenkamp is crucial. If the hip or the arm was first, she would have made a noise, and this begs the question: Why then did Pistorius keep shooting? If the head shot was first, then I am afraid it was all over. Steenkamp would have dropped immediately. The issues around the photographs are not, in my view, that crucial. The content of the photograph tells its own story, regardless of the sequence in which it was taken. Has the state painted a convincing argument for premeditated murder yet?

TUSON: I do not want to prejudge this case. It is unwise to attempt to reach a verdict without having heard all the evidence. A lot will turn on the evidence of the accused and how he fares under cross-examination. His credibility is critical to the outcome of the case. The question to be asked is: Has the state shown that the accused must have known that he was not permitted to shoot at his victim that night? Proof of an argument would demonstrate this.

KLATZOW: There is certainly a case for Pistorius to answer. I would expect that he will have to testify and will have to convince the court that his version is reasonably, possibly true. On the facts, as set out in the bail application and the explanation of his plea, I am of the view that the evidentiary mountain that he has to climb will put advocate Barry Roux very much to the test. Ultimately, it is for the judge to decide on the totality of evidence before the court and we must not forget that Pistorius is innocent until the court has spoken.