'Uphill battle' ahead for Oscar Pistorius

2013-06-03 12:47

Pretoria - Oscar Pistorius will be back in the glare of public scrutiny for the first time in months when he appears at a court hearing on Tuesday ahead of his murder trial, the next chapter of a sensational case that transformed the double-amputee Olympian from a smiling global inspiration to a sobbing suspect facing a life sentence in prison if convicted.

There have been just two reported sightings of Pistorius since he was granted bail on 22 February. Millions were stunned by the defining images of him leaving a police station on Valentine's Day - his head hooded and bowed, hands thrust deep into his jacket pockets and guarded by officers - after he had been arrested and charged for shooting dead his girlfriend, Reeva Steenkamp.

Forced out of his self-imposed isolation, Pistorius will emerge briefly for an appearance Tuesday at the same Pretoria Magistrate's Court where he was granted bail, the first step toward the trial that will eventually decide if the 26-year-old Pistorius spends a minimum of 25 years in jail.

Putative self defence

Pistorius will defend himself against a charge of premeditated murder by arguing he believed he was acting lawfully and in self defence when he fired four shots through a bathroom door in his home with his licensed 9mm handgun, criminal and firearm law experts say.

The Olympic athlete insists that he made a deadly error when he fired into the closed toilet stall, thinking an intruder was behind the door when it was really Steenkamp.

Pistorius also will be expected to explain his justification for those tragic actions in minute detail by taking the stand and testifying at his trial, which has no start date yet. A judge will pronounce him guilty or innocent.

The Olympian is claiming "putative self defence," lawyers who are knowledgeable about the case but are not representing Pistorius said.

The lawyers, drawing from the unusually detailed affidavit Pistorius's presented in his bail hearing, said Pistorius will maintain that in a darkened room in the pre-dawn hours of 14 February, and in a calculation that was gravely mistaken, he decided to fire the shots that killed the 29-year-old model and law graduate because he was certain she was an intruder and both their lives were in danger.

Prima facie case

It's a difficult defence for any accused, legal experts say.

"The fact that he has admitted that he has killed her by pulling the trigger means the state has a prima facie case and it is expected of the accused to come and convince the court otherwise," Marius du Toit, a former prosecutor, magistrate and now defence attorney with over 20 years' experience in the local justice system said. "His version is going to be exposed and scrutinised in the finest, finest detail."

While the news-dominating nature of Pistorius's case echoes that of former NFL superstar OJ Simpson, experts point out the crucially different legal implication. Simpson denied any involvement in the killings of Nicole Brown Simpson and Ronald Goldman, for which he was acquitted, leaving the prosecution to prove its case.

Even with the principle of innocent until proven guilty, for any defendant in Pistorius's circumstances, "it's on you to come and show to the court that what [you] did was not so unreasonable," Du Toit said.

If the Paralympic champion is to be acquitted of murder - and also culpable homicide or negligent killing, which carries a mandatory five-year prison sentence in South Africa when a firearm is used - a judge must find Pistorius had no intention to kill Steenkamp and believed he was following the law to protect himself and others. The judge also must find that any other reasonable person in his situation would have done the same.

'Uphill battle' for Pistorius

Putative self defence is "extremely difficult" to show, said leading firearm lawyer Martin Hood, predicting an "uphill battle" for Pistorius at trial.

"I do not see how Oscar Pistorius could have concluded that a closed door constitutes danger to such an extent that his life is in danger, bearing in mind that he had gone into that situation," Hood said.

"So, it begs the question why did he go looking for trouble?"

Why didn't he check where Steenkamp was, or just leave the room and the perceived danger? Simply, "what he should have done is ... got out the bedroom," Hood said.

There are clues to Pistorius's planned defence in his affidavit. References to his fear of South Africa's high rate of violent crime. "A sense of terror" rushing over him, he testified to in the document, when he realised someone was in the bathroom. Pistorius says he shouted for any intruders to get out of his house and for Steenkamp to call the police before he shot. Actions, his defence may argue, of a reasonable man who believed he was following the law.

"[We] Believe that Oscar's account of what happened on that terrible night in February will be borne out by the evidence that the defence team will lead in court," his family said Sunday.

But records from cellphones found in the bloodied bathroom will be scoured and neighbours will be questioned over a loud argument between Pistorius and Steenkamp that the prosecution says took place that night for indications of a possible motive.

SA justice system also on trial

The case also will be closely scrutinised by legal commentators, who say almost unanimously that South Africa's often criticised criminal process will be on trial alongside the country's one-time sporting hero.

Already stung by former lead detective Hilton Botha's bungled testimony in Pistorius's bail hearing, and his admission of amateurish errors in the initial stages of the investigation, police have declined to comment on details of the investigation. Brigadier Phuti Setati, a senior police spokesperson, only said the evidence-gathering was ongoing and the investigation was "progressing very very well."

Pistorius's character and his actions around guns could become circumstantial evidence, Hood said, with unconfirmed reports of moments of aggression and a careless attitude with firearms.

Yet, the prosecution's decision to press a premeditated murder charge, because they say Pistorius took the time to put on his prosthetic legs before the shooting, is flawed, Du Toit said.

"I honestly felt there wasn't any justification for [a] premeditated murder [charge]," Du Toit said, "unless something came out in their forensics that we don't know of. And we won't know until trial."

Pistorius says that he did not have his prosthetic legs on and was walking only on his stumps and felt "vulnerable", the most stark and possibly pivotal difference in the prosecution and defence versions and where forensics relating to the height or angle of the bullet holes in perhaps the most crucial piece of evidence - the toilet door - could be definitive.

Two pictures

It all could paint a picture of Oscar Pistorius as a cold-blooded killer, furious and intent on murder following an argument, as the prosecution alleges, who took the time to put on his prosthetic legs before striding to the bathroom and killing his cowering girlfriend.

Or as a terrified disabled man, standing on the stumps of his amputated legs and shooting to protect himself and the woman he loved from what he thought was a dangerous criminal.

The trial is likely to swing between these vastly different preconceptions of Pistorius.

  • Daardie Wetter - 2013-06-03 12:55

    Cue the circus music...

      Riad Mahomed - 2013-06-03 14:49

      Now this is where I have a problem and would question the integrity of his affidavit since my concerns are as follows; - If he was so conscious about safety, that he actually take a gun with him to bed, has he not got and alarm system that’s linked to an armed reaction service? - If he does possess an alarm system, why did he not arm this system cause surely all opening windows would have contacts and by so doing he would have realized that the window in the bathroom was opened at the time he went to bed. - Why would he go to bed with the sliding door open cause if his that conscious about safety, he would have brought the fan inside prior to going to bed since that would have been the hotter part of the night compared to the earlier hours of the morning cause presumably this is the reason why he brought the fan inside his room? - For argument sake, why would an intruder want to gain entry through a window, if on the same floor there is a sliding door that’s open? Based on the above, I am prone to believe that he is not telling the truth.

      Janicemcmaster - 2013-06-03 14:57

      Shut up to the above individuals - there is nothing funny about this!!!

      Don Master - 2013-06-03 15:29

      I certainly agree with you Riad Mahomed, this Swart Gevaar - crime in SA story is has too many holes, and so does the rest of his affidavit. But, yet again, last week when my girlfriend slept over at my place and during the wee hours of the morning, I also heard noises coming from my bathroom. Initially I did not think it was her. I thought it was Santa Clause, but soon realized it was the 1st of June, and that i had not sent him my Christmas list yet, so i eventually realized it was my girlfriend taking a dump and I went back to sleep with a sense of disappointment.

      Mowela's Arc - 2013-06-03 17:27

      Forgot to mention the mistrial-seeking-leaking-of-crime-scence-photos-missile that was launched by the defence conveniently a week before proceedings resume... No doubt that will come as card to be played by the defence sooner or later... Classic deviation tactics... better to shock people now than during the heat of the proceedings...

      Mowela's Arc - 2013-06-03 17:45

      Riad, valid questions... I wanted the commentators of the article to tell us moreabout the implications of the affidavit.... For me it would be an epic error should the defence allow Oscar to take the stand for cross examination if they want their man to be set free.... they should just stick to the affidavit as testimony...

      Geoff O'Connell - 2013-06-04 08:37

      @Riad.... Good questions Mate. So he claims that he is so terrified of crime.... Let's rewind. Why would any sane person get up out of bed, especially if you don't have major moveability without prosthetics to bring a fan in from the balcony. One fan from Dions = R299-00. Why would you risk your own safety if you are so scared of crime (in an extremely secure security estate) to fetch a R299 fan???? After which led to events with dire consequences. Hell it was not even raining that night. A normal person would not take that risk, and you have even less of a chance dragging my @ss out of bed at 2am get a fan... Unless the fan was called Pamela or Stephanie. His story just doesn't add up to any normal rational answer

  • John Smith - 2013-06-03 13:09

    My prediction: Oscar is found guilty of culpable homicide with extenuating circumstances. Sentenced to five years imprisonment supended for five years and a fine of one million rand. Remember this and laugh at me if I am proved wrong.

      ClassWar Cynic - 2013-06-03 13:27

      Sounds like an accurate prediction. A guilty verdict (even on a lesser charge) to show there is no special treatment for 'celebs', and an affordable fine (for him) and no prison time which will show that there is.

      Sarah Stanton - 2013-06-03 13:31

      Not sure about that. It is my understanding of the law, that the charge is murder. So, it is an all or nothing charge - the state can't suddenly mid-trial change the charge to culp-homicide. So, (if) they can't make the murder charge stick, he will walk that charge. The firearms related charges might stick.

      Nurse Helenk - 2013-06-03 13:45

      Sarah the Court is capable of changing the charge from murder to culpable homicide if it deems necessary.

      Nettie Potgieter - 2013-06-03 14:42

      I will not laugh at you.

      Sarah Stanton - 2013-06-03 15:01

      Nope, I am wrong. As pointed out by other commentors, in criminal proceedings charges can be reduced/changed to a lessor charge (in this case culp. homicide) but not increased/changed to a greater charge. Judge's discretion.

      Sandra Rennie - 2013-06-03 16:02

      John Smith you will not be proved wrong ! Money talks and he has a defence Team second to none ! He just has to sob all the time in Court !

  • Karen Dee W - 2013-06-03 13:17

    Whether Oscar goes to jail or not, he will still have to live with himself. Tough either way

  • Gary Doyle - 2013-06-03 13:18

    One of the more informative articles with regards to the actual oscar case. In my opinion he deserves maximum punishment but it's pleasing for now to assume that he'll more than likely get some jail time regardless of the outcome when this finally ends.

  • Democrazy - 2013-06-03 13:18

    Regret. always uphill!

  • Livhuwani Lybon Tshihatu - 2013-06-03 13:22

    judging by their record and miscues so far....the headline should read....IT WOULD BE AN UPHILL CLIMB FOR THE NPA TO PUT OSCAR BEHIND BARS

      Mowela's Arc - 2013-06-03 18:39

      Indeed..! it will be an uphill battle for the prosecution to even get a 24 hour community conviction in this case ..

  • Kutloano Nene - 2013-06-03 13:30

    My prediction, Oscar wil be found guilty and be sentenced 2 to 5yrs underhouse arrest cause he fully cooperated, D unapproved scene statement/report by d resigned detective wil also serve to hs advantage.

      John Smith - 2013-06-03 13:33

      That's a good prediction!

  • Carling Blacklabel - 2013-06-03 13:38

    popcorn time again

  • Chris Clark - 2013-06-03 13:46

    what did I miss , did he shoot the Brazilian , after his spoil sport rant

  • Andrea Thompson - 2013-06-03 13:55

    Let's see how good his team of litigators are.

  • Paul Thabane - 2013-06-03 13:59

    I see no comments about how there should be stricter gun control in SA. Clearly you need to give guns only to people who think before they shoot and don't shoot out of panic. How do you shoot someone behind a door without even knowing whether the person is armed even. Forget that he is an intruder, burglar, robber...everything. The man knew that he had a girlfriend sleeping over.

  • Samantha Luck - 2013-06-03 14:11

    Good Luck Oscar. I will be thinking of you tomorrow. Everything of the best. My thoughts and prayers are with you. Xxx

      Nurse Helenk - 2013-06-03 14:48

      Are your thoughts and prayers also with the Steenkamp family? She did't deserve to die like this.

      Farzana Rahiman - 2013-06-03 14:55

      sadly, because of his fame- people overlook the reality that Reeva was murdered. wonder if he was common joe soap... would he still get ur luck and sympathy for a life loss at his hands... strange the effect money, fame n fortune has on people- then you wonder why the president gets away with murder....

      Desmond Drake - 2013-06-03 16:10

      Come sleep over at my house. I also have a gun and if I do not mistake you for a burglar you will survive the night.

      Andrea Thompson - 2013-06-03 16:18

      @Samantha Luck Are you being sarcastic?

      Daardie Wetter - 2013-06-03 16:35

      No, she's being brain-dead.

      Louise Barnard - 2013-06-03 16:43

      Same here Oscar!!! Hope all goes well!!!

      Louise Barnard - 2013-06-03 16:44

      If Oscar was such a terrible boyfriend,she should have ended it immediately!!!!

      Candy Ervin - 2013-06-03 22:53

      Guys, Louise is obsessed with Oscar. She does this allllllll the time. She is brain dead. Louise, you also have no right to speak about Reeva this way and to imply that SHE is the one at fault. She is DEAD remember??? You need to see a therapist and work through your very obvious obsession with Oscar, you're starting to bore me. Or you could just find your way to me. I'll gladly slap some sense into you.

      Geoff O'Connell - 2013-06-04 09:05

      @Louis...... She didn't have time to end it.... He did.... With not ONE! not TWO! not THREE! but FOUR BULLETS!!!!!

  • Dianne Connolly - 2013-06-03 14:24

    I think for me, I'm truly hoping the South African Justice system will "set" aside the fact that Oscar is an Olympian & celebrity. That he will be tried just like the "ordinary" man in the "street" & that unbaised justice will prevail.

      Annelene Meterki Minnie - 2013-06-03 15:51

      I agree, like the Hummer driver case....killed 2 people and left a 3rd disabled, but he only got 6 years total... just because he's a normal guy.

      Andile Ntabeni - 2013-06-03 16:00

      He is not an "ordinary man in the street" therefore he will not be tried as one, but this is as far as the media and peoples interest is concerned. However when it comes to the justice system he "MUST" be tried as an ordinary man, but during his bail application he was not treated as an ordinary accused. So we will se how the trial unfolds. Good luck to the state and to his team of experts. I hope the truth will prevail at the end of the trial.

  • Black Grimreaper - 2013-06-03 15:16

    One must really be brain dead not to see that this was a deliberate murder. They argued. She fled. He shot her dead. Guilty as charged! Common sense is the key word here, not some fancy law degree that will try and turn a turd into a donut.

      Louise Barnard - 2013-06-03 16:42

      I guess I am brain dead then, because I see a man who made a mistake!!!!!!!!!

      Bobby Boon - 2013-06-03 17:50

      Clearly you are! Louise

      Annelene Meterki Minnie - 2013-06-04 14:38

      please tell me something, because during the bail hearing it didn't make sense to can you hear someone argue 300 - 600 m away, inside their house? please don't attack me, just a normal question!

  • Mashavha - 2013-06-03 15:27

    It is not going to be easy for both the defence and NPA,Let the game begin

  • Bobby Boon - 2013-06-03 15:42

    I don't understand this Country at all its Poor Oscar here and Poor Oscar there!!!!! Did he Pull the Trigger or not Is Reeva Dead or not? Did she die by His hands and actions YES so why Poor Oscar I would rather say poor Reeva and Her Family such skewed perceptions!!!

  • Don Master - 2013-06-03 15:57

    He is praying and reading the Bible. Then i hope he gets to the verse that says atone and speak the truth.

      Geoff O'Connell - 2013-06-04 10:49

      @Don, he should read"An eye for an eye"

  • Desmond Drake - 2013-06-03 15:59

    It should be downhill, straight to jail.

  • West Rob - 2013-06-03 16:19

    I don`t believe Oscar has learned anything from this other than to avoid responsibility at all costs. When he so called "cries" it is for himself out of self pity, not for remorse over the deceased. The lighter the sentence he gets the more likely he will be in trouble with the law again the the foreseeable future.

      Louise Barnard - 2013-06-03 16:41

      And you have to all these conclusions HOW?

      Candy Ervin - 2013-06-03 22:56

      Ag, Louise, shut up. You're not his spokesperson, you're a brain dead fan with a creepy obsession.

  • Louise Barnard - 2013-06-03 16:41

    And you have come to all these conclusions how?

  • Mowela's Arc - 2013-06-03 17:27

    Forgot to mention the mistrial-seeking-leaking-of-crime-scence-photos-missile that was launched by the defence conveniently a week before proceedings resume... No doubt that will come as card to be played by the defence sooner or later... Classic deviation tactics... better to shock people now than during the heat of the proceedings...

  • Emson Mkhabela - 2013-06-04 02:49

    Oscar Pistorius a good storyteller,no need to believe it.

  • Ross Urquhart - 2013-06-04 09:11

    This is the outcome that I predict ........" negligent killing, which carries a mandatory five-year prison sentence in South Africa when a firearm is used "

  • Rozanne Le Grange - 2013-06-04 12:45


  • Karen Schnugh - 2013-06-06 11:28

    The law is scary. Pistorius' case aside: if I were to row with someone, and then accidentally run that person over later that day, and I admitted to running them over, I would be accused of murder? Clearly in this case honesty doesn't pay. If I were to lie and say I didn't run them over, I would stand a better chance? I may not understand this law very well, but surely honesty counts for something? No wonder we see that people decline to talk to police until lawyer present in the American documentaries - I always assumed that was because people WERE guilty. I didn't realise the law was the same in SA.

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