Pistorius’s legal team may be laying basis for appeal
Oscar Pistorius’s defence team closed its case this week, but not before advocate Barry Roux dropped a potential bombshell, saying some of their witnesses did not want to testify, supposedly because of the massive media interest in the trial. What does th
IT appears as if Oscar Pistorius’s defence team placed the fact that some witnesses did not want to testify on record in an attempt — should there be a conviction — to lay the basis for a possible appeal on constitutional grounds that his right to a fair trial was infringed.
There is no other reason why this would have been brought to Judge Thokozile Masipa’s attention unless a formal application is made to the court in terms of article 186 of the Criminal Procedure Act to have the witnesses subpoenaed to testify as witnesses called by the court.
To have succeeded with such an application, the defence would be required to prove to the court that the specific witnesses who were to be subpoenaed would have been essential for a just ver- dict in the case.
In such an instance, both the state and the defence would be entitled to cross-examine the witnesses.
There is, of course, a degree of uncertainty for the state and the defence in regard to what a witness will testify to when forced to place evidence before the court, because the witness had neither come forward to testify out of their own free will, nor after having been requested to do so by either of the parties.
This is, however, a calculated risk that the parties have to take should they be of the opinion that the specific witness’s testimony will be essential to the just decision of the case.
In terms of the decision in S vs Teixeira, a 1980 case heard in the Supreme Court of Appeal in Bloemfontein, Judge John Wessels found that a negative inference should be drawn by the court if available witnesses are not called to testify about events that relate to the charges faced and could lead to the conviction or acquittal of the accused.
Pistorius’s defence team should thus carefully consider whether they require the court’s assistance to bring any witnesses before the court, because the only inference to be drawn by an appeal court is that those witnesses, if called to testify, would not have cor- roborated the athlete’s defence, but instead would have contradicted it.
Witnesses who do not wish to testify during trials is a common occurrence in our criminal courts and an obstacle that defence teams need to overcome on a daily basis.
Many high-profile cases in our courts are reported on by the media, and the press regularly publishes articles on the cross-examination of witnesses and how they crumble while testifying in open court.
Should potential witnesses read such articles, it can have an adverse effect on their willingness to testify in a case.
Should this be a ground of appeal raised at a later stage, the judges hearing the case will need to consider whether a witness’s voice being broadcast around the world is any different to it being reported on in the media.
The witnesses in the Pistorius case who have elected not to have their faces broadcast on international television have, in fact, benefited more from Judge Dunstan Mlambo’s order, because the media is also not allowed to publish photographs of their faces in newspapers.
Witnesses in everyday trials certainly do not enjoy this protection and the media is free to publish their faces should they capture a photograph of the specific witness outside the courtroom.