AN UNIQUE EXPERIENCE OF JUSTICE; A MOSAIC OF ARROGANCE AND INCONSISTENCIES.
The State in appealing the Oscar Pistorius case claims the Judge was incorrect in her interpretation of the legal principles pertaining to circumstantial evidence and had the Judge adopted a holistic approach to considering this mosaic, she could have come to no other verdict other than guilty to murder. However if you consider carefully the States case, the circumstantial evidence, the testimony of the witnesses it called and the failure to call lead police investigators, what emerged is that the States mosaic is a bundle of inconsistencies and improbabilities based essentially on the premise that they want a guilty to murder verdict and therefore the Court should accommodate their wish.
In considering the appeal the word desperation seems far more applicable than than the phrase holistic mosaic. I use the word desperation because it is not as if Oscar was acquitted although the State would claim that a guilty to CH verdict is an acquittal. He got a custodial sentence while many in similar cases did not, he did not receive a get out of jail free card and he remains in Jail despite the provisions of his sentence which allow for conversion to house arrest once 1/6 of his sentence was served and he was recommended for release at his parole hearing. The end goal for the State was a murder conviction. In order to achieve this it needed to create a scene where the pieces of their mosaic would fit together to show that this was murder and not a tragic accident. The prelude in the original trial was the part played by the blood curling screams, the timeline subsequently established this could only be Oscar and not Reeva. In their appeal the State changes this prelude but argue that changing the emphasis is not an attempt at a retrial but an appeal.
The State is of the belief that the failure to convict Oscar of murder was not their fault, it was not the fault of the lack of evidence, it was not the fault of the truth as to what happened, but was entirely the Judges fault. The Judge paid too much attention to the States claim that the blood curling screams were Reeva. Therefore in their appeal the blood curdling screams are quietened and are pushed to the sideline in the States mosaic, which now presents a different picture with different emphasis but the same inferences sought. The factual findings of the original trial somehow become a point of law. In this rearranged mosaic the argument and fans emerge to take centre stage. The State in its desperation to convict Oscar of murder needed to provide some prelude as to why he would for no apparent reason kill a person he claimed to love. They simply ignored the psychological evaluation which concluded he had no propensity to violence and effectively invented an argument. This argument was heard 177 meters away by a single witness. The State in making such claims have failed to recall the evidence of the sound expert who testified that for sound to travel that far Reeva would have had to have spoken at the same volume as a jet engine, the security guard when outside the house or in the vicinity heard nothing, no argument, no woman's voice talking as loud as a jet engine.
The State in its attempt to give credence to this argument presents two different versions of the circumstances of this argument. The couple had a violent argument during a meal and this was over heard by the witness. “That whilst awake eating, that is the argument that Ms Van der Merwe heard.”This would imply the argument occurred in the kitchen. It was this ‘argument’ that the state alleges resulted in Reeva fleeing into the toilet with her mobile phone. Why she didn't flee out the door instead or up the stairs is of no real consequence to the State. Why in the heat of such a ‘loud’ argument they would tidy up is also conveniently unexplained. The State however also place the scene of this argument in the bedroom, the argument that began down stairs while eating which included Reeva talking as loud as a jet engine so she could be heard by Mrs Van Der Merwe, which lasted the duration of the meal, during which they tidied up, moved up to the bedroom where Reeva would conveniently remove her under wear to become fully dressed. This scene conveniently provided a scenario for the other prop in the States appeal the position of the fan. Nel makes the assertion claiming “I will bold my case to say that when you got up, you had an argument, that is why she ran away screaming.” And again” That door was open when you and the deceased got in an argument. That door was open. The fan was just there. The duvet was there. The curtains in the exact same position.” I can't help but wonder why would a couple engaged in such a loud argument opened the balcony doors. The argument began in the kitchen, it is unlikely the bedroom doors would be open when the room wasn't occupied and equally unlikely to be opened when having such a violent argument. Furthermore at what point did they go to bed so that they could later get up to have an argument. The States case in relation to this argument is simply farcical. The couple argued while eating, the couple argued after going to bed and getting up, Reeva talked as loud as a jet engine. Not only was Mrs Van Der Merwe incapable of hearing an argument at that distance but the States version the argument heard lasted far longer than was testified to, to allow for all the activities the couple apparently engaged in during the argument. In the time line of events the State presents, when did Reeva remove her underwear only to fully dress herself in what to many resembled night wear so she could be fully upright, fully dressed behind the door. When also did Oscar acquire X-ray vision to know Reeva’s position behind the door.
The two very different scenarios presented is an attempt to bolster other evidence the State wants the Court to accept. The couple arguing during a meal to bolster the evidence of the coroner and the couple getting up and arguing to bolster the evidence in relation to the position of the fans and the duvet. . The position of the duvet is disputed by the initial police statement from Botha, yet the State refused to call him. The State simply chose to ignore that police statements were taken that contradicted the testimony presented in Court. Yet the State claim not only is that acceptable but of no consequence. Van Rensburg who did give evidence admits he didn't concentrate on the ‘nitty gritty’ and he may have ‘missed smaller and bigger things.’ Yet in the HOA for the appeal, the State claims the defense was unable to ‘contest the veracity of Van Rensburg’s evidence’. What the State also conveniently forgot was while Van Rensburg was veraciously examining the crime scene, ensuring nothing was moved, a watch mysteriously disappeared. Perhaps this was the nitty gritty Van Rensburg missed.
Masipa listened to the evidence and found Oscar guilty of Culpable Homicide and not murder. Yet the State feel their circumstantial evidence was so strong the Judge had no option but to find Oscar guilty beyond reasonable doubt. Yet there is nothing reasonable in the States assertion that the evidence they presented before the Court was the only inference that could be drawn excluding all others. Furthermore in every other case where a person killed a family member having mistook them for an intruder, the State accepted a verdict of Culpable Homicide. One has to wonder exactly what is the motive for the State’s appeal. Nel is viewed as the most experienced prosecutor in the country. He has never appealed a case in his career. His criticism of the Judge is scathing and he still maintains Oscar is guilty of murder despite him being unable to submit tangible reliable evidence both in the trial and now in the appeal. One also has to question since he is so convinced Masipa got it horribly wrong and Oscar knew it was Reeva in the toilet, why is he arguing for a conviction on the grounds of Dolus Eventualis. The latter has nothing to do with knowing it was Reeva. If Oscar believed it was Reeva then it is murder, there is no fall back position. If he didn't know and I believe the Judge was right on this account, then this was a tragic tragic accident, no different from Visagie, except Oscar believed his life was at risk and no different from the other cases of family members tragically killed mistaken for intruders. If Oscar shot once and that shot proved fatal would the State be claiming this was a tragic mistake. Of course not, their case has always been this was an incident of Domestic Violence, shooting once twice or four times therefore is less relevant. What is pertinent is who Oscar believed was behind the door and his thoughts and feeling at the moment he fired those shots. The Defence summed up the States pursuit of DE perfectly in the phrase “consolation prize” some media sources summed it up better referring to the case as a mess. In many ways it would be farcical if it wasn't such a tragedy that one person lost their life and the State are determined to destroy totally the other person. It's surprising they simply haven't declared they lost the key to his cell and consequently he is unable to be released as this seems the goal they wish to pursue. However recent events in relation to release to house arrest would suggest that the State wish him to remain in jail regardless of the verdict of the Court or the established practice in relation to the release of prisoners sentenced under the same provision as Oscar.
In order to prove DE – the fall back position, the State has to demonstrate that Oscar reconciled himself to the consequences of his actions. By presenting two different scenarios, Oscar knowing it was Reeva and Oscar believing it was an intruder, what is certain that each scenario would involve Oscar feeling, thinking completely different things. What one is thinking when one is angry, filled with rage is totally different from what one is thinking when one is scared, panicked, believing one’s home is being attacked, one’s life is at imminent risk. That fear can only be intensified significantly when one considers Oscar's disability. If the State do not know whether Oscar was feeling angry or fearful then what is clear is that the State have no idea what Oscar was thinking when he fired the shots. If they can't determine what he was thinking, how can they claim he reconciled himself to the consequence of his actions. Without them proving the latter how can they claim this is DE? The State has accepted CH verdicts and suspended sentences in cases where family members were killed mistaken for intruders. Oscar's case is therefore unique in that the State are appealing it. What takes this uniqueness to a higher level and what makes the States pursuit of a DE conviction more questionable is in all other cases the person who shot did not have a disability, they did not struggle with balance, they may have been able to escape, defend themselves. How would any of us feel in a country where home invasions is the most feared crime according to police statistics and of the 50 home invasions occurring daily, 1 will end in the death of the occupant, 4 in rape, how more intensified would those fears be, if our legs were broken, or amputated, if we couldn't defend ourself or escape. I am not attempting to defend his actions merely to demonstrate the level of fear he must have felt, a fear that the State in their HOA in one sentence simply denies.- ‘no perceived attack’ . In moments of extreme fear can anyone really claim they thought of anything other than the all encompassing fear and panic. How then can the reconciliation to the consequences of ones actions be achieved let alone proved beyond reasonable doubt.
The States actions however seem to indicate that they want Oscar imprisoned for a very long time. They seem prepared to manipulate a trial by failing to call witnesses, lose vital evidence, introduce hear say and use unsubstantiated media reports to back their case, the truth and justice seem to take a back seat to achieving this aim. They are now crying like a petulant child claiming the trial wasn't fair, the Judge got it wrong, adopting an attitude of ‘lets do it again so we can win this time’. The first trial was a media circus, if a retrial was directed by the SCA are they going to stream You Tube videos into the witness box while the witness simply mime the words from the original trial.
The police by their own admission never acknowledged Oscar’s version. Why would they investigate something they claim they were unaware of. The police announced to the worlds media they had no knowledge that Oscar thought there was an intruder at the same time setting the scene that this was an incident of domestic violence. How then can the police say they made a thorough investigation of the crime scene when their initial investigation either excluded any knowledge of Oscar’s account of events or dismissed it without further investigation. The issue of VAW in the case was one the State created, pursued and allowed the media to sensationalise and fabricate. It did nothing to stop such inaccurate, bias and prejudicial reporting, and it did so using the phrase ‘in the pursuit of Justice’
.Just as in the trial Nel pontificated to the mass media like an actor on the Stage; In their HOA the State also shows a preference for the theatrical world making reference to Hamlet yet I feel if this case wasn't so tragic it would indeed be a comedy of errors and perhaps the most apt Quote: from Hamlet the State could have used would be ‘There is something rotten in the State’