Oscar's 4 big hurdles to beating the murder rap

2014-07-06 15:00

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1. The Stipps

Anette Stipp, who lives 72m away from Oscar Pistorius’ toilet window, tells the court: “The thing that I remember the most and the thing that I’ll never forget was the screaming.”

Stipp and her husband, Johan, reported hearing the “terrified, terrified” screams of a woman mingled with the distinct shouting of a man.

This was before what the state is calling the 3.17am bangs, or shots, that killed Steenkamp.

It means that Steenkamp was screaming before the fatal shots that killed her.

The Stipps corroborate the evidence of Michelle Burger and Charl Johnson, who also said they heard a woman screaming 177m away from their home.

But a key part of the defence’s case has been that their audio expert will testify that Pistorius could sound like a woman when he screamed and, even then, that the witnesses were too far away to hear a woman screaming with the toilet window closed.

The Stipps’ testimony represents a significant hurdle for the defence. Pistorius’ acoustic expert, Ivan Lin, told the court it was “very unlikely” that the screams could be heard 180m away, the distance to Burger and Johnson’s house.

At that range, the volume of the screams would only be half as loud as in the courtroom, with everyone keeping quiet.

However, Lin confirms that, to the Stipps, the screaming would have been “audible and intelligible”.

This means at least two witnesses who heard screaming before shots were well within earshot.

2. Reeva's last meal

This has been another hotly contested area with state pathologist Gert Saayman testifying that although gastric, or stomach, emptying was an inexact science, he believed Steenkamp had eaten two hours before her death because he found 200ml of food in her stomach.

He said that, in most cases, the human stomach would be empty six hours after a meal.

This is in stark contrast to what Pistorius said had happened the night Steenkamp was killed. He said they had eaten just after 7pm.

But when Steenkamp died at about 3am, her stomach should have been empty when she was killed, with eight hours having passed since her last meal.

The defence went as far as calling an anaesthetist, Professor Christina Lundgren, to testify about the variety of factors that could delay gastric emptying, including exercise, sleep and insoluble fibres in the chicken stir-fry meal the couple had eaten.

But state prosecutor Gerrie Nel was doubtful saying there was a reason anaesthetists always advised patients not to eat six hours before anaesthesia, which could have mortal consequences.

“I’m sure you haven’t warned your patients not to have stir-fry [before an operation],” said Nel.

3. The bedroom conspiracy

For the court to buy Pistorius’ version of events, it will have to accept that police officers moved various objects around his bedroom and substantially altered the crime scene.

All these items could not have been positioned the way they were in the photographs because they would either be in Pistorius’ way or prevent him from leaving the scene as he said he had done.

Nel said: “So a policeman must have, let’s start, opened the curtains wider, moved the fans, switched the light on and ensured that the denims were on top of the duvet because that is important, if the police put it next to the duvet, that is not important.”

“Correct, My Lady,” responded Pistorius.

“Why would the police do that?” asked Nel.

“I don’t know,” he said.

The state has tried to paint a picture of Pistorius and Steenkamp having a fight, that her bag was packed and she was on her way out.

But the defence’s argument that police interfered wantonly at the crime scene was this week boosted when it emerged that an extension cord seen in a police photo appears to have gone missing.

4. Pistorius?–?was he mortally afraid ?

For Pistorius to get off the murder charge, his testimony about his state of mind at the time of the shooting will be imperative?–?a putative self-defence plea has failed in the past purely because the accused has refused to testify.

Putative self-defence means that, even though a person had not yet been attacked, they believed that their life was in danger.

The test that our courts apply is whether a reasonable person, under the same circumstances, would have acted in the same way.

If a reasonable person in Pistorius’ position would have done the same thing, it means that the most the Paralympian can be found guilty of is culpable homicide.

All the experts agree, Pistorius fared very poorly under cross-examination. Under cross-examination, Nel has accused him of “lying”, of “adapting” his story and becoming emotional to avoid difficult questions.

Many witnesses called by the defence in the weeks after the athlete testified were contacted only after his cross-examination, giving rise to speculation that they were brought in to help shore up Pistorius’ testimony.

Perhaps the most important of these is Professor Wayne Derman, the defence’s star witness, who was called on Wednesday.

He has known Pistorius for six years.

Derman testified about the fight-or-flight response, an automatic, reflex reaction that causes people to fight or try and escape in the face of a perceived harmful event, attack or threat to survival.

His testimony has shown that Pistorius, as a disabled person with a more pronounced and severe fight-or- flight reflex, is incredibly vulnerable and anxious.

Derman’s evidence has to be accepted because it provides the only explanation as to why Pistorius would approach the danger if he was in mortal fear of his life.

Pistorius’ lawyers will argue that all these factors must be taken into account when applying the test of whether Pistorius acted reasonably under the circumstances.

But Nel has already made it clear what he will be arguing.

“You’re trying, Mr Pistorius, it’s not working. Your version is so improbable that nobody would ever think it’s reasonably possibly true, it’s impossible,” he told the athlete under cross-examination.

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