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The Oscar Pistorius Trial - defining roles

24 March 2014, 08:19
There is much understandable speculation, supposition and imagination on the part of many of us about the roles played by the Presiding Judge, State and Defense Counsel. 

Visualize the trial as a race. In this case it is not a sprint, but a long race. So we should see it as a ocean yacht race.
There are two (2) yachts in the race, skippered by Advocate Gerri Nel, for the State,(for us) and Advocate Barry Roux SC for the Oscar, respectively.
State Counsel has a strategy as to how he is going to win the race by proving Oscar Guilty. Defense Counsel also has a strategy as to how he is going to prevent this. The race is won by whoever of these two eventually succeeds.

The first important point to note is that it is a handicap race, i.e., one of the contestants enjoys an advantage from the start.
This is because Oscar is presumed to be innocent. So Oscar’s yacht, skippered by Roux, has a head start.
The trial can then be seen as the race between these two yachts. Both may experience good or bad seas, squalls, doldrums … as the evidence unfolds … just as would be the case in a real ocean race.

Obviously each skipper strives to have the best sail possible throughout, by making the best decisions at every stage, and adopting the best strategy and tactics.
For Nel, he has to hope that his sail goes according to plan and that he never hits rocks, sinks and or becomes de-masted, i.e. having the State case actually collapse. 

For Roux it is a matter of ensuring that the other yacht is not ahead of him at the finish, i.e., that he maintains the presumption that Oscar is innocent. 
It is very important to note that the yacht belongs to Oscar, NOT Roux.
By this is meant that, at no stage, does Roux make up a case for Oscar, on the facts,  or tell him what should be, or not be part of his case (yacht).
Roux only skippers Oscar's yacht to the best of his ability.

The trial is actually in two halfs. In the first half Roux is allowed to criss-cross the bows of Nel's yacht so as to ensure that it does not overtake, i.e cross examination. Within certain limits Roux is even allowed to take pot shots ("I put it to you") at Nel's yacht in the hope of shredding the sails and doing other damage.

In the second half Nel will also be allowed to criss-cross the bows of Oscar's yacht and take pot shots at it. 

The Presiding Judge does not participate in the race. 
Her role is to ensure that race rules are observed at all times. 
No cheating. No unfair advantage by either side. 
We have also seen that it is the Judge that decides which part of the race can be televised and to what extent. Her two assessors are not involved in this part of her function.
Her critical function is to decide, at the end, who has won the race. She is assisted in making this decision by her two assessors. 
That decision depends, not only on which yacht crosses the finish line first, but the state and condition the yachts are in.

Hopefully that result will be also clear to all of us. 
It might, however, be a photo finish requiring the specialist skills of the Judge, as assisted by her Assessors, in resolution and explanation.
If Oscar is convicted she may well decide that this yacht be sent away for major rehabilitation.

May justice not only be done but seen to be done.
This will have been achieved, if at the end we can all visualize something else, i.e, Oscar and Reeva in perfect balance in the scales held in one hand by Lady Justice, whether or not she has brought her sword down.

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