Expect the unexpected as evidence is scrutinised

Murder accused Oscar Pistorius will be sent for psychiatric evaluation after an expert witness testified that he suffered from an anxiety disorder. More evidence about his mental health is likely to be presented when the trial resumes, writes lawyer and t

THIS trial was always going to be about Oscar Pistorius’s testimony and how he performed in the witness box. No one could have predicted how he would fare under cross-examination and what the implications would be.

Why did psychiatrist Dr Merryll Vorster consult with Pistorius only after he finished his testimony? Because, when defending a person, you are always faced with new challenges as the trial unfolds and evidence is placed before the court.

This could have led the defence team to reconsider their strategy and possibly call witnesses who they were not planning to call initially.

Vorster succeeded in placing evidence before the court that supports Pistorius’s version that he has always been concerned about violence and crime, that he has led his life accordingly and that this had an influence on his behaviour on that fateful night.

Her evidence will, of course, either be supported or contradicted by the findings of the panel of psychiatrists evaluating Pistorius during his assessment.

I thought Vorster provided excellent testimony regarding Pistorius’s upbringing and the circumstances surrounding it. She also explained the environment in which he grew up, the development of his generalised anxiety disorder and how it could have played a part in his behaviour on the evening of the incident.

But, should the assessment of Pistorius contradict any of Vorster’s testimony, the decision to call her could blow up in the defence’s face.

Judge Thokozile Masipa was correct in referring Pistorius for evaluation, because section 78 of the Criminal Procedure Act states that when evidence is led in which an allegation is made that a person lacked or might have lacked criminal liability as a result of a mental illness or disorder, the accused will be referred for assessment at a state psychiatric institution.

Prosecutor Gerrie Nel is bound by this provision and there was a duty on him to bring the application for Pistorius to be assessed, because a person cannot be convicted of a crime if he lacked criminal liability.

Should there be a conviction in this matter and evidence is led during mitigation of sentence that there was no criminal liability, this could lead to the conviction being set aside and the accused being discharged.

This was a risk that Nel did not want to take and he chose to deal with the issue of criminal liability now. Should the matter later be taken on appeal, judges could ask why the accused was not referred — again, a risk Nel could not take.

Masipa on Tuesday will hand down a detailed order that will contain all the administrative and logistical arrangements for his pending evaluation.

Much has been made of the defence’s version that Pistorius sounds like a woman when he screams. A certain amount of doubt has been created by the witnesses for the state and defence about whether they heard only a man’s screams, or those of a woman too.

Should the trial continue after Pistorius has been assessed, the defence might call an expert to testify about the difference between a man and a woman’s screams.

But the manner in which Nel has been cross-examining the defence witnesses will also make them think twice.

I predict that the defence might call additional witnesses to testify about his psychological wellbeing.

The report furnished after the assessment will also guide them in terms of what they need to do and who they need to call to support Pistorius’s version.

Roux is a lawyer and director at BDK Attorneys