Exactly Jeremy what we should we ask ourself is... and that’s the question the Bench should ask... Why? Why all this necessity to go into each and every SMS? There are almost 2,000 of them if you want really to get into the detail
Remember the moment you start going through SMS and the contents of those SMS you open your client, in this case, Oscar Pistorius, you open him up for cross examination on each and every one of those SMS that you’ve tendered into evidence, so especially with an emotional kind of personal... personality like Oscar Pistorius currently in his emotional fragile state of mind, one would like to get him in and out of the witness box as soon as possible, but that is not from the perspective obviously of the of the Defence but that is my (?) …..on issue
Jeremy Thomson Sky News:
Do you... I mean... I suppose one thing the Defence Counsel would be doing, in this leading his client through, is trying to sort of tick off some of the areas the Prosecution might want to sort of surgically strike at later, sort of come up with resolutions to some of the questions.
Curlewis:
What you are suggesting is putting it in front of your client asking him to respond in advance to take the sting out of the Prosecutors cross examination so to speak, an excellent tactic. We use it every day in Court, so that will be a clever move from Barry Roux if he tries that one.
Thomson:
But really in end this whole case revolves around a few hours on night of 13th and 14th February last year and they haven’t even got to that yet. That's the key isn’t it?
Curlewis:
We are now in day two of Oscar Pistorius evidence in witness stand, and at the slow pace we are going currently it seems to me that we are going to be longer listening to his evidence in 'lead' not even talking about the cross examination section of it in all evidence up to now, and that’s a concern because its unnecessary! Why not put a statement out there to Oscar Pistorius, and tell him - 'listen there are 2000 messages beside the 4 that were raised by the Prosecution, the rest suggest there wasn’t trouble in paradise between the two lovers, end of story.' Then ask him to respond. If Harry (sic) Nel wants to elaborate on that ….
END
Court resumed with Pistorius giving detail of what happened the night he killed Miss Steenkamp. His evidence, in my humble opinion, even less convincing hearing it than it was reading of it.
They are now on lunch break.
Jeremy Thomson:
A pretty packed morning of evidence from Oscar Pistorius including not seen on camera but certainly seen by all Judge and all those in Court. A graphic illustration of what its like for Pistorius when he takes his prosthetic legs off. He was asked to put on shorts by his lead Counsell then asked to walk across to that toilet door in the Court to show his height when he's on his stumps and actually how unstable he is .. Llewelyn Curlewis is here with us to throw a legal eye across this at last getting to the nitty gritty the night of the...
Curlewis:
Yes this is what everybody was waiting for because at least now we can get the version of Oscar Pistorius himself and obviously he will have to stand and fall with his version. So yes this was what it was all about.
Thomson:
And the idea, clearly Barry Roux his Counsel's idea to get him in Court in shorts to show very graphically to the Judge what he's like when he hasn't got his prosthetic legs on. A good move?
Curlewis:
Yah I think it was a wonderful move that is great tactics from Barry Nel ...
Thomson:
Barry Roux?
Curlewis:
Barry Roux, sorry. Ultimately you must remember that the Court must put him or herself in the position of Oscar Pistorius that specific night because that will determine the test to be applied for either the question regarding guilt intent or negligence the subject or the object of test, and that is the reason for that move. I think that was a wonderful move.
Thomson:
We've heard now erm, his side of the story at the moment, not...we've broken for lunch just before we get to the moment he pulls the trigger, but erm certainly how he locked himself in as he said he did every night,his fear of security issues, the balconly windows were open he closes them, and then he hears something and he fears an intruder, and he talks time and time again about fear this is the heart of his case isn't it his lifelong fear of security issues.
Curlewis:
Well obviously, and he must set the scene there to rely on a defence, what we call self- defence and in order to rely on such a defence he must obviously be in state to rely on that defence and that is what he is kind of recreating before Court a scene to say but listen I had no alternative but to go the ultimate route, pointing the firearm, shooting it at the door and so on..so yah correct
Thomson
And emphasised again by the sight of him in Court just a few feet away from the Judge and her assessors of him on his stumps which will I assume will re emphasise their point, his point the Defence point of his vulnerability his feeling that he's not like other men and therefore its more vulnerable.
Exactly and remember that this is a very strange case so to speak there is no precedent out there that we can compare his situation to that of others in the past. Obviously what Barry Roux is trying to create here is also to set the scene to suggest to the Court, 'but listen these were other kind of special circumstances you have to apply your mind for this specific scenario so Judge be mindful of the fact that he did not have his prosthetic legs on and
he was more vulnerable than somebody else.'
Thomson
The earlier evidence which Barry Roux went through in great forensic detail all the messages between the couple, 1700 messages they had sent backward and forward over the three months of their relationship. Contrast that with what we're now hearing about the night itself. What does that seem, sort of less relevant, less significant, was that perhaps sort of clouding the issue or trying to get some things out of the way before he got to the heart of the matter.
We discussed it this morning and from the outset I mentioned to you I don't think, I don't see the necessity to go through all those SMS' to put all those evidence in front of the Court because you are opening up your client for possible cross examination, and contradiction by the State ultimately during cross examination and that still stands and that remains to be seen what will Harry (sic) Nel but now that we are with the nitty gritty I think we will have a better understanding of his defence by this time tomorrow, and depending on the rest of the afternoon depending what comes out we might expect a different approach from Harry (sic) Nel. I can see that he will confront Oscar Pistorius with certain of the issues. I do think that from now onwards we will get to what is actually relevant before Court. And this is what we have been asking ourselves from the outset Why cant we get to the stage we can have these facts before Court and we can determine his guilt or his innocence because that is the only question before Court.
Thomson:
So those messages showing how much they loved each other or not, or whether they had arguments and so in in a way you are saying is a bit of a digression, a diversion, and really the key thing now is what was going through his mind when he picked up that gun.
Curlewis:
That is the only question before Court from a legal perspective interesting as all the others might be, like I said without taking the matter further.
Thomson
What must the State prove to the Judge what is the fundamental thing they have to prove in the case about the use of the the firearm?
Curlewis
Let's first of all once again distinguish between the main 'count' and the other counts. Taking the other counts out of the equation for now and concentrating on the murder charge. We have two scenarios here, either murder or possible cupable homicide. For the murder charge we want the State must secure beyond reasonable doubt intent as the required form of guilt. For the culpable homicide charge the State must prove beyond reasonable doubt negligence in some form. Minutest negligence sufficient, 1% or more. Fine.
So those are the two that the State must prove beyond reasonable doubt.
Getting back to the evidence now, only one person can tell us what happened there, Oscar Pistorius and he now has the opportunity to do so. When cross examination takes place Harry (sic) Nel will confront him with the Law. Some other aspects as well, but the Law. He is going to ask him 'so you are relying on your defence, Self defence in order to secure an acquittal from the perspective of the Defence side. We must determine whether you have transgressed the limitations set by the SA Law with regards that specific defence. One of which, and we have mentioned that before, is whether there was alternatives. Alternative measures that you could have taken in order to secure safety for you and Reeva Steenkamp, if that is your version.' And only he will then tell us why did he choose,despite that other alternative that might have been available to him, why he did not choose to go for them.
Thomson
One of the unusual aspects of this whole case there is no doubt, and in fact he admits he fired those shots and somebody died as a result. So the question is what happened. how do you tie those two things together and whats going on to create that moment.
Curlewis:
Exactl! And Harry (sic) Nel should not take up weeks on end, to cross examine. He should look at the issues in dispute distinguish that from those things that were introduced for the benefit of character and interest sake, background, and look at the Law. The Law is exact. It's clear as far as I am concerned. There are a couple of issues. The only issues before Court which would determine the guilt or innocence of Oscar Pistorius is the question regarding guilt, and test that against the limitations set by our law with regards the special defence which was raised by him. It can take up, maybe a day, and we should have an answer to that.
Thomson:
We shall see if that works out that way.
l-azzeri-lies-in-sun.com
8th April 2014