Lying in the Sun

Pistorius Startles & Def

Pistorius - Startles and Defences

Closing Arguments

Gerrie Nel is first up.

He begins by pointing out that the Defence had stated they would produce witnesses to prove that Oscar Pistorius his screams can sound like those of a girl, that the Defence failed to call those witnesses.   Therefore they made a statement, with nothing to support it.

He then tackled the Defence claim that the sound of a cricket bat hitting a door could be mistaken for gun shots.

The Defence did call witnesses on this count, but failed to prove their case.

Nel continued, he next raises the question of the 'Startles/Sounds/ and the Number of Defences Pistorius appears to have.

Gerrie Nel:

May I then M'Lady deal with paragraph 24?

I’m going to deal with the accused’s - 
  • Plea. 
  • The Bail Application Plea
and his
  • Evidence in Chief.

Now before I deal with that M’Lady the State had NO input. 

It was not answers under cross examination or in a statement,

it is: 
  • the accused giving an Affidavit the Bail Court
it is: 

  • the accused giving his Plea Explanation 
And 

  • the accused giving his Evidence in Chief


It cannot be said, that it is because of the State asking ambiguous questions or unfair questions, that we got this version.  This is just coming from the accused.

(Statement by accused (Pistorius) is now displayed on screen in Court. Gerrie Nel has had the parts he is speaking of highlighted.)

'I felt extremely vulnerable.  I knew I had to protect Reeva and myself.  I believed that when the intruder or intruders came out of the toilet we would be in grave danger.  I felt trapped as my bedroom door was locked and I have limited mobility on my stumps.  I fired shots at the toilet door and shouted to Reeva to phone the Police.'

(She did not respond and I moved backwards, out of the bathroom, keeping my eyes on the bathroom entrance.  Everything was pitch dark in the bedroom and I was still too scared to switch on a light.  Reeva was not)

Gerrie Nel:

M'Lady there is no other way of interpreting this sentence, any way but say I deliberately fired shots into that door.  One cannot interpret it any other way.  'I fired shots at the toilet door.'  That’s a positive action of firing.  The only inference M'Lady that one can draw from that, and with the utmost respect, it’s the only inference M'Lady that he fired with the intention to fire at the door.

Then M'Lady we deal with his statement in terms of Section 1 on file of the Criminal Procedures Act, Plea Explanation.

Gerrie Nel continues by reading the following from the Plea Explanation.

“Whilst I admit that I inflicted the fatal gunshot wounds to Reeva the occurrence was indeed an accident.  In that, I mistakenly believed that an intruder, or intruders had entered y house and posed an imminent threat to Reeva and me.

The discharging of my firearm was precipitated by a noise believed to be the intruders or intruders coming out of the toilet.”

Nel continues:

So M'Lady what is of utmost importance is just that sentence.  'The discharging of my firearm was precipitated by a noise' and the noise is described.  'Believed to be the intruder or intruders coming  out of the toilet to attack me.

My lady, if we deal with the Defence Number 1.

(Nel makes the point that if Defence 1 is 'Startle' that what they have before them by way of the statements by Pistorius is not a jot to do with Startle)

Nel:

For the court to accept that the accused acted to a ‘startle’  It’s a startle that makes him act.  But we have it differently.  We have it put here (is) –

That’s (It;s) not a startle. 
It’s not a sound. 
It’s not -  ‘automatically when I heard a sound’

It’s -

 ‘I discharged my firearm because I believed intruder or intruders coming out of the toilet to attack.'

And then M'Lady we go to his Evidence In Chief.

"And then I heard a noise from inside the toilet what I perceived to be somebody coming out of the toilet, before I knew it I had fired four shots."

Nel:

My lady when I drafted the Heads, and I got here, I thought but ‘that is enough’ we have THREE different versions already by the accused himself.

  • I fired with intention
  • I thought they were coming out and I discharged my firearm precipitated by a noise

And

  • Before I knew it I fired four shots.
Nel:

My Lady we will deal with it, but I think its...(?) to just say now – The accused NEVER said to anyone that got to the scene, that he spoke to that:

  • It was an accident.
  • The shot just went off.

He NEVER said:

  • I didn’t want to shoot.

He NEVER said:

  • I don’t know what happened.

HE SAID

"I shot Reeva, I thought she was an intruder."

Nel:

We have the exact reports and we will get to that.  But it is important to now know that he NEVER said

  • it was an accident. 
  • Or that the gun, the shots just went off, or I didn’t know what happened.  

He NEVER said that.

My Lady as I said, we drafted these Heads before we received the Head of the Defence, and I think we anticipated it fairly well.

At paragraph 27

We anticipated that the Defence might rely on the evidence of Professor Derman, and therefore we pose to illustrate the GLARING contradiction of the version of the accused with the evidence of Professor Derman about the all important third startle.

Because Derman, viewed the THREE sound startles as important.  Now Professosr Derman:

  • Would not. 
  • Could not
and
  • Did not 
...indicate that the accused explained to him that he thought there was somebody coming out that door.   He... the Defence wants to rely on his evidence…he even went so far M'Lady as to say -

 ‘I never investigated, the accused reaction to the start…or what the, what the sound was.   It wasn’t important.  I just wanted the sound.’

But M'Lady it's important. 

If it’s a sound and there’s an exaggerated 'startle' that means that the argument could be - 'that I acted automatically on the exaggerated startle.'  But if there’s a 'startle' and its (?) the function, and I think, and I realise that that sound is the accused... (Nel corrects, he means intruder, not accused) the intruder, coming out, then its NOTacting on a startle, then it’s a DELIBERATE ACTION of FIREING.

So that is what’s important M'Lady if we deal with the sounds.

Now, it became quite apparent when we deal with the all important startles and sounds M'Lady, that the accused tailored his version. 
 
He tailored his version from:

'I heard MOVEMENT in the toilet.'

(Nel explains to court he wants to get something on the screen)

Nel continues…there we go.

He now reads from statement displayed on screen.

Nel:

"…door was closed I did not see anyone in the bathroom.

I heard movement inside the toilet.   The toilet is inside the bathroom and has a separate door.  It filled me with horror and fear of an intruder or intruders being inside the toilet.  I thought he or they must have entered through the unprotected window.  (As I did not have my prosthetic legs on..)"

That’s all things that he thought when he heard that startle, but M'Lady it became SO clear to the accused that he has to move away from that movement, and thinking about it.  All he wanted the Court to believe in his evidence was that it was a sound.

Now M'Lady I also have now to refer the Court to Page 522 of the Head of…paragraph 522…

Judge – Which Heads?

Nel – It is at Page 155 of Heads.

M’Lady Paragraph 522 reads – 

'He heard a noise emanating from the toilet.'

Now M'Lady I would… 'noise and movement'  in normal circumstances I wouldn’t read it so carefully, but in this instance we have to, because there IS a difference between HEARING movement and HEARING a noise.  So what is in this Heads, I’m sure it’s just wrongly put – 'that he heard a noise emanating from the toilet, and in his vulnerable state believing that the intruders risk of harm (?) …he fired shots at the toilet door, after which he shouted to the deceased (?)'

M'Lady that should NOT read SOUND, he heard MOVEMENT, and he 'THOUGHT' about the movement.

If we get to Defence Number 1– that becomes important.

Now M'Lady, Professor Derman, on the other hand, was SO intent on not prejudicing, his… the accused, that he tied himself in knots in trying to explain that sentence that we have that ‘he heard a third sound which he subsequently believed to have been the magazine rack.   And then he tried to explain what he meant by subsequent, and M'Lady his answer to that was just POOR and would be REJECTED.

But M'Lady it's important because it shows a person that is biased and NOT an expert who would explain to the Court, his findings and what he made of his expertise.

We carry on there at that paragraph M'Lady dealing with this specific issue.

Although the accused version paragraph (32?) is littered with contradictions its apt to refer to a specific version where the accused clearly indicated that he had never deliberately fired shots into the toilet door.

We do so M'Lady as accused continues with his explanation of the murder of the deceased as an accident, but in an attempt M'Lady to tailor his version to support his Plea Explanation he tangled himself into a web.   When asked what was the accident?  

 ‘The accident, was that I discharged my firearm – in the belief – the discharge was accidental M'Lady, I believed that somebody was coming out.’

Now M'Lady than in itself is Defence Number 2 - Putative Self Defence!   If I believe somebody, is coming out, and I believe my life is in danger, and I take action, that could be Defence Number 2.

But M'Lady, he, the accused himself, was confused between which defence he must now pick during his evidence. 

If that is true, if what he’s saying…if the Court accepts just that sentence M'Lady without misrespect – ‘the discharge was accidental'  M'Lady I believed somebody was coming out.'

then Defence Number 1 is NOT possible - that he 'acted automatically, and that.. that he acted because of a startle – because he DID NOT!

And M'LADY these two quotes in paragraph 32 excludes the accused's answers -.

‘Before I knew it I had fired four shots.’

It excludes them M'Lady it cannot read the accused's answers into those two quotes.

M'Lady we are now back at paragraph 34.    I have dealt with it, except to say M'lady, that it is perhaps important to notice that NOWHERE in the Head of the Defence was there any indication to say that the accused was a good witness.   NOWHERE!  

There is in fact paragraphs and paragraphs of argument why the accused was NOT a good witness.  But nowhere does it say the accused was a good witness, and that the Court should accept his version his evidence.

M'Lady.  They go so far as to say:

'the accused ability in the witness box has been compromised (that is page 164 paragraph 552) ‘ the bare facts (?) can leave no doubt that the ability of the accused in the witness box must have been compromised.'

That’s an admission that the accused was not a good witness.

And then M'Lady, the Defence then carries on, in their Heads, and they blame Nel for various things.  Now one thing they blame Nel for, is that, Nel called….at 166 M'Lady,  Page 166 paragraph 554.5

‘Mr Nel repeatedly called the accused a liar’

M’Lady I checked the record, and I…I would… I can’t challenge anybody, but, it would be good if we can find where in the record  I repeatedly called the accused a liar.  It happened once M'Lady I did a search.  It happened once, the Court reprimanded me.

What happened is, I put to the accused –If the denim was found on the duvet, then your version, 'cannot be' and THEN you are lying.

Shortly after that I was reprimanded, and I never used the word, lie, liar again.  What I did use, is, I said to the accused at the later stage that it is untrue, that your version is untrue but we are listing all the untruths.

M’Lady if I could put in a Head, you know Heads, as a reason why the accused was not a good witness –

'That Nel repeatedly called the accused a liar'
 

In fact M'Lady we did a search, I NEVER once called him a liar.

I said said he was lying ‘IF' this is so -  THEN he was lying.

I am not saying I was right M'Lady in doing that.  The Court reprimanded me I accepted it and I moved away from it.

But now we find M'Lady AS AN EXCUSE - that Nel did that!

But M'Lady, Paragraph 36 is one of the more important paragraphs in our Heads.

'The Court will have to reject his evidence.'

A Court, the Court cannot, M'Lady, with the utmost respect, even evaluate if there is a reasonable possibility that the accused meets a criteria of a defence whatever that defence is, if there is NO credible version to do it. 

M'Lady the Court MUST have a credible version from the accused. 

Credible even to the low sense of ‘reasonably, possibly true.’

But if there’s no reasonably possibly true version that the Court can  accept, a defence will not come into it,  because the defence needs to be based on something. 

And when I get to discussing E.D. and (?) cases later in my Heads, that is what the Supreme Court of Appeal said –
To Evaluate the Defence you need a version that is at least 'reasonably, possibly true'

Without that there is just NO defence!

M'Lady if the accused's version is rejected it leaves the Court with the objective facts, and circumstantial evidence.  We list those in paragraph 38


(will continue later)

IMPORTANT TO NOTE THAT GERRIE NEL MAKES IT CLEAR THAT HE DID NOT AT ANY TIME CALL OSCAR PISTORIUS A LIAR (unless as he said, someone can go over the records and find where he repeatedly did this)

What he did say to Pistorius was IF a particular item was correct, THEN, Oscar Pistorius would be lying in his statement.

There is a difference.  He makes it clear he NEVER at any time used the word LIAR.

Below, the tweets by Alex Crawford, Sky, of today.  I guess, she tweeted these BEFORE hearing ALL that Gerrie Nel said in this regard?


TWEETS TODAY BY ALEX CRAWFORD.











l-azzeri-lies-in-the-sun.com
7th August 2014





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