Sowing the seeds of reasonable doubt

2014-03-04 12:42
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Oscar Pistorius in court - day 2

See pictures from inside courtroom GD in the North Gauteng High Court where Oscar Pistorius is standing trial for the murder of Reeva Steenkamp.

You simply never know with Barry Roux SC. He is as wily as he is smart, and can turn from gentle and friendly to pugnacious in seconds. He questions from multiple angles, and like a terrier with a toy, will not let go of a vital point until he is ready to.

Trying to second-guess his tactics is a mug’s game. He is always far, far ahead of you and I with his thinking. Facing him from the witness stand must be its own special flavour of terrifying.

Roux’s reputation precedes him. Perhaps his most famous case before this one was his high profile defence of Dave King, the former Rangers Football Club director who was pursued by the South African Revenue Service for owing R2.3bn - the biggest ever tax bill in the country - and managed to avoid jail time and only have to pay R700m of the owed amount.

In 2007, he briefly represented the former JCI chairperson Roger Kebble in a tax evasion case, before the state dropped charges.

A tough two days on the stand

The public reaction to Roux’s tough line of questioning to the first witness Michelle Burger has been of shock, judging from commentary on social media.

She is a university lecturer who lives close to Pistorius’s home and reports hearing gunshots and screams on the night that Reeva Steenkamp was shot and killed last year.

And it has been a tough couple of days for her, with the advocate challenging her recollection of events and the apparent influence that media reports may have had on her.

Burger testified that on that night, she was woken by the sound of a woman screaming, and then heard gunshots and more screams. Thinking it was a house break-in, she got her husband to call the estate security to report the noise.

It was only later, when talking to other people, that she was told that Oscar Pistorius had accidentally shot and killed his girlfriend. She then decided to approach the court when she heard the defendant’s testimony in the bail hearing, which did not corroborate her version of events.
Roux has pounced on the weaknesses in her testimony.

But Burger has proven to be smart, and tough in her own right. Perhaps her years as a lecturer, and the process of receiving a PhD (in which she would have had to present and defend a thesis) prepared her well for her time on the witness stand.

Adamant she was woken by gunshots

She has refused to give ground on the point that she heard a woman screaming that night, in spite of Roux’s challenge that it could have been a high-pitched cry from Pistorius, and is also adamant that she was woken by gunshots, and not the sound of a cricket bat bashing at a door.

On Tuesday morning, Roux reached a point in his line of questioning: he contends that Burger, who thought she had overheard a violent robbery, modified her testimony after the fact due to other influences.

“You’ve watched Sky News and other news channels, and have retrospective knowledge and present it in court as if it is what you heard that night,” Roux said.

It was fascinating to note that Roux said that Burger could have heard a cricket bat bashing a door (or as he put it, English willow wood striking against meranti wood 177m away), but could be mistaken about hearing shots and screaming because the toilet door and window were closed.

At the heart of Roux’s strategy is sowing enough doubt in the witness’ version of events to convince the court that it is unable to make a pronouncement against Pistorius beyond a reasonable doubt.

‘A skilful lawyer’

He put it again and again that Burger heard the sound of wood against wood and Pistorius’ screams, and then placed a certain interpretation after hearing from others what had actually happened, and came to court with the purpose of discrediting the defendant.

“Advocate Roux is showing himself to be the skilful experienced lawyer that he is,” said Kelly Phelps, a senior lecturer in public law at the University of Cape Town.

“Ms Burger's evidence is circumstantial and a good defence lawyer needs to scrutinise it thoroughly.

He has not been unduly aggressive, you will see the same conduct from [the prosecutor] Advocate [Gerrie] Nel when the State cross-examines defence witnesses.”

Roux has not only managed to test Burger’s version, but has in his line of questioning, introduced the possibility that something else happened that night. So even if the witness believes she is telling the truth, the advocate might convince the court that she is mistaken.

But the fate of Pistorius does not hang on Burger’s testimony alone, and the State will have its opportunity to challenge the witnesses brought by the defence.

Phelps said: “One has to remember the State gets the chance to re-examine this witness so it may be able to gain back some ground that has been lost in cross-examination.”
Read more on:    reeva steenkamp  |  oscar pistorius  |  barry roux  |  pistorius trial

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