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The Oscar Pistorius Case. A Practice of Questionable Ethics.
While we are awaiting the date for the States appeal in the Oscar Pistorius case, the key people involved in the case are once again in the media spotlight. This time it is Nel who seems to have fallen foul of the law if the allegations made against him are true. There are calls of his suspension as a result of allegations of illegal bugging of government offices. There are similar allegations made against Andrew Leask also a member of the States team in the Oscar Pistorius case.
While I have no idea of the merits of the call for his suspension or the validity of the allegations against him, what does seem clear is that he was co-responsible for the murder charges against Schultz being dropped. What is also of interest is the assertions Mark Bachelor made, with regard to himself and Schultz ‘helping the state with witnesses’, a rather unnerving prospect considering Schultz is a self confessed murderer. What I do feel certain of however, is that Nel does not seem to be a person who likes losing. It would seem that this approach is one that was practiced during his handling of the Oscar Pistorius case, to the extent that he failed to call key witnesses, supported police practice which involved a failure to investigate Oscar’s account and is most certainly evident in his appeal of the case. It is also worth noting that Nel called for a 15 year sentence for possession of ammunition, despite failing to produce any statements, evidence with regard to this charge. He failed to obtain a statement from the owner of the ammunition then accordingly blamed Oscar for this omission.
Nel is appealing the verdict asking the SCA to consider whether the Court - the Judge and her two assessors correctly conceived and applied the legal principles pertaining to circumstantial evidence. The legal principle is relatively simply in this respect, the inference relied upon must be to the exclusion of other inferences. What this means is that the inference that the State wants to be accepted must be stronger, more probable, than other inferences that could be applied. It is not necessary to ensure that every aspect of circumstantial evidence must be proved beyond reasonable doubt but the inferences as a whole should be as such that alternative inferences are by far the least probable and therefore rejected by the Court.
However the circumstantial evidence the State wants to be considered by the SCA is by far the least probable either taking each individual aspects of it or considering it as a whole. It suggests a scenario where Oscar and Reeva ate at about 1.00am while arguing, this argument moved to the bedroom, the quilt was lying on the floor, the fan was blocking the door to the balcony, Reeva screamed after being shot in the bathroom and her voice was heard by neighbours furtherest away from Oscar’s house. The inference - there was an argument that was heard by one neighbour, Reeva was shot and killed in the bathroom as a result of the argument.
However this scenario makes little sense when considered with other evidence. Firstly why would someone who gets up at 5.00am eat a meal so late? If they were arguing why would there be no sign of them eating so late, why were there no plates, dirty dishes etc? I’m sure the State would argue that they were very tidy. Why would a witness who heard the argument only hear a woman’s voice? If the quilt was on the floor why did Botha’s statement claim it was on the bed? Why did the State then refuse to call Botha as a witness when this was in dispute? If Nel, as the lead prosecutor’s primary motive was establishing the truth, promoting justice and not winning, surely Botha should have been called as a witness! The most probable inference from the States actions would suggest that Botha’s evidence would not support the States case, if it would, there would be no reason for the State not to call him and without doubt, the State would have.
The State relied on the ear witnesses who claimed they heard bangs, followed by screams. This was approximately 2 – 3 minutes prior to Oscar phoning for help. These witnesses testified to hearing a woman scream and the screams faded after the last bang. Reeva’s voice could not have been heard after the last shot. Much debate occurred as to whether Oscar screamed like a woman, whether he did or not was irrelevant. How could those witnesses who heard what they thought was a woman’s voice hear a dying woman scream from within a closed toiled cubicle, but somehow fail to hear the multiple bangs of a cricked bat break down a solid wood door. A noise that was considerably louder.
The State claimed that Oscar broke the door down without his prosthesis on. One has to question why the State would make such an assertion. It is highly doubtful anyone with Oscar’s disability could have broken down a door in a couple of minutes without prothesis on. The State also failed to examine a mark higher up in the door, one that could only have been made if Oscar had his prothesis on. It therefore seems that this assertion was made to bolster the States case. It would have made far more sense for the State to claim Oscar broke the down down with his prothesis on, he clearly had the strength to do so and it would also provide an explanation for the unexplained mark on the door. The State was aware of the time Oscar made his first phone call for help at 3.19. The State claimed that Reeva was killed at 3.17. For the same reason that the State failed to provide a time line, they also attempted to prove that Oscar was on his stumps when he broke down the door. The timing between the bangs testified to by the States witnesses and claimed to be gunshots and the timing of the phone calls were too close together to allow time for Oscar to put on his prothesis and break down the door. Nel accused Oscar of tailoring his evidence, yet a failure to call witnesses, a failure to investigate forensic evidence, ignoring the first set of bangs is not the practice of an organisation who has a duty to both the accused and the victim and whose primary role is to ensure that Justice is central to their practice. Yet Nel had all this evidence at his disposable. He knew there were marks on the door that no one investigated, he knew there were two sets of bangs witnesses testified to and knew that he would have to ignore one set. Nel knew the time of the phone calls and still with all that knowledge maintained this was premeditated murder. Nel went so far as to state “On the objective facts and circumstantial evidence, I am putting it as strong as this, the court will….”Nel goes on to state the evidence in relation to Reeva eating, the argument one witness heard that according to Nel was Reeva, the blood curling screams etc would show that Oscar intentionally killed Reeva following an argument.
Nel is not an amateur he is a highly trained, highly respected prosecutor, yet he was presenting circumstantial evidence that was so flawed it could never be seen as probable either in it's individual parts or as a whole and telling the Court, they should accept it and make a finding of murder on it. Yet the State feel that the Judge somehow wasn't correct in how she and her accessors applied the legal principle in relation to this circumstantial evidence. Nel believes that the States evidence, evidence that is not only improbable but defies logic should have been accepted. He may as well say that the use of the criminal justice system, the cost of hearing a case in Court is an unnecessary expense that should simply be dispensed with. If the State say someone is guilty they are, anything to the contrary should be ignored.
Why then is Nel continuing to insist that Oscar intentionally killed Reeva? Nel would certainly not ask the SCA to consider the circumstantial evidence if that was not his position. It however also begs the question as to how Nel thinks that phrasing a question about circumstantial evidence the way he did is a point of law. The SCA could never find that Oscar was guilty of intentionally killing Reeva because there was no evidence to support this at the trial, no further evidence can be submitted and the SCA can only consider points of law. What Nel’s assertions regarding the circumstantial evidence and the States practice of failing to call witnesses, ignoring forensic evidence, failing to produce a time line depicts a degree of desperation to obtain a guilty verdict. This appeal is a further display of this desperation. Nel is claiming that Oscar was acquitted of Reeva’s murder and therefore they should be allowed appeal the case, despite the fact that CH is a competent verdict and he was found guilty by a learned Judge. Nel also claimed that she erred in her understanding of Dolus Eventualis, if his knowledge of the law is so superior to know she erred, why did he need to enlist the services of a former university professor to assist him achieving his aim.
As the time approaches for Oscar to be considered for house arrest Reeva’s mother has been reported in interviews and media sources that she does not feel that Oscar should be released. However, she has also stated numerous times in interviews and in her book her belief that Oscar intentionally killed her daughter. She is repeating what the State appears to continue to claim despite both the lack of evidence and any indication from the psychological assessment that Oscar had a propensity for violence. A relative of Reeva’s claimed that Nel had told the family he believed Oscar knew it was Reeva. In continuing to question the evidence in Court and continue to maintain this was VAW, Nel in fact is doing her family a disservice. He is not representing Reeva, he is supporting and maintaining a myth and that is both sad and unprofessional. No one and nothing can make up for the loss of a daughter, but Nel has robbed Reeva’s family of the thought that her daughter was loved and killed mistaken for an intruder and replaced it with the horrible belief that their daughter was brutally murdered. He is encouraging her family to believe in something that did not happen. That is cruel.
I would also question whether it should be a requirement before someone’s opinion is considered by a parole board that they first accept the verdict of the Court. Otherwise there is a danger that people will continue to be punished for a crime they did not commit.
The State in the desire to win, are wanting the law changed, they want facts to become points of law, a competent verdict to be viewed as an acquittal and essentially the State are continuing to maintain this was VAW and an intimate partner killing despite no evidence of this was found.
There was no reliable evidence that Oscar intentionally killed Reeva. Nel in his desire to win, has ignored the lack of evidence to back his case. It would seem that evidence is irrelevant, that the law is there to serve him and can be changed at his whim. This is not the practice of a Justice System that should be viewed as acceptable let alone commendable. It is more about the practice of arrogance and a desire to win no matter what.
While we are awaiting the date for the States appeal in the Oscar Pistorius case, the key people involved in the case are once again in the media spotlight. This time it is Nel who seems to have fallen foul of the law if the allegations made against him are true. There are calls of his suspension as a result of allegations of illegal bugging of government offices. There are similar allegations made against Andrew Leask also a member of the States team in the Oscar Pistorius case.
While I have no idea of the merits of the call for his suspension or the validity of the allegations against him, what does seem clear is that he was co-responsible for the murder charges against Schultz being dropped. What is also of interest is the assertions Mark Bachelor made, with regard to himself and Schultz ‘helping the state with witnesses’, a rather unnerving prospect considering Schultz is a self confessed murderer. What I do feel certain of however, is that Nel does not seem to be a person who likes losing. It would seem that this approach is one that was practiced during his handling of the Oscar Pistorius case, to the extent that he failed to call key witnesses, supported police practice which involved a failure to investigate Oscar’s account and is most certainly evident in his appeal of the case. It is also worth noting that Nel called for a 15 year sentence for possession of ammunition, despite failing to produce any statements, evidence with regard to this charge. He failed to obtain a statement from the owner of the ammunition then accordingly blamed Oscar for this omission.
Nel is appealing the verdict asking the SCA to consider whether the Court - the Judge and her two assessors correctly conceived and applied the legal principles pertaining to circumstantial evidence. The legal principle is relatively simply in this respect, the inference relied upon must be to the exclusion of other inferences. What this means is that the inference that the State wants to be accepted must be stronger, more probable, than other inferences that could be applied. It is not necessary to ensure that every aspect of circumstantial evidence must be proved beyond reasonable doubt but the inferences as a whole should be as such that alternative inferences are by far the least probable and therefore rejected by the Court.
However the circumstantial evidence the State wants to be considered by the SCA is by far the least probable either taking each individual aspects of it or considering it as a whole. It suggests a scenario where Oscar and Reeva ate at about 1.00am while arguing, this argument moved to the bedroom, the quilt was lying on the floor, the fan was blocking the door to the balcony, Reeva screamed after being shot in the bathroom and her voice was heard by neighbours furtherest away from Oscar’s house. The inference - there was an argument that was heard by one neighbour, Reeva was shot and killed in the bathroom as a result of the argument.
However this scenario makes little sense when considered with other evidence. Firstly why would someone who gets up at 5.00am eat a meal so late? If they were arguing why would there be no sign of them eating so late, why were there no plates, dirty dishes etc? I’m sure the State would argue that they were very tidy. Why would a witness who heard the argument only hear a woman’s voice? If the quilt was on the floor why did Botha’s statement claim it was on the bed? Why did the State then refuse to call Botha as a witness when this was in dispute? If Nel, as the lead prosecutor’s primary motive was establishing the truth, promoting justice and not winning, surely Botha should have been called as a witness! The most probable inference from the States actions would suggest that Botha’s evidence would not support the States case, if it would, there would be no reason for the State not to call him and without doubt, the State would have.
The State relied on the ear witnesses who claimed they heard bangs, followed by screams. This was approximately 2 – 3 minutes prior to Oscar phoning for help. These witnesses testified to hearing a woman scream and the screams faded after the last bang. Reeva’s voice could not have been heard after the last shot. Much debate occurred as to whether Oscar screamed like a woman, whether he did or not was irrelevant. How could those witnesses who heard what they thought was a woman’s voice hear a dying woman scream from within a closed toiled cubicle, but somehow fail to hear the multiple bangs of a cricked bat break down a solid wood door. A noise that was considerably louder.
The State claimed that Oscar broke the door down without his prosthesis on. One has to question why the State would make such an assertion. It is highly doubtful anyone with Oscar’s disability could have broken down a door in a couple of minutes without prothesis on. The State also failed to examine a mark higher up in the door, one that could only have been made if Oscar had his prothesis on. It therefore seems that this assertion was made to bolster the States case. It would have made far more sense for the State to claim Oscar broke the down down with his prothesis on, he clearly had the strength to do so and it would also provide an explanation for the unexplained mark on the door. The State was aware of the time Oscar made his first phone call for help at 3.19. The State claimed that Reeva was killed at 3.17. For the same reason that the State failed to provide a time line, they also attempted to prove that Oscar was on his stumps when he broke down the door. The timing between the bangs testified to by the States witnesses and claimed to be gunshots and the timing of the phone calls were too close together to allow time for Oscar to put on his prothesis and break down the door. Nel accused Oscar of tailoring his evidence, yet a failure to call witnesses, a failure to investigate forensic evidence, ignoring the first set of bangs is not the practice of an organisation who has a duty to both the accused and the victim and whose primary role is to ensure that Justice is central to their practice. Yet Nel had all this evidence at his disposable. He knew there were marks on the door that no one investigated, he knew there were two sets of bangs witnesses testified to and knew that he would have to ignore one set. Nel knew the time of the phone calls and still with all that knowledge maintained this was premeditated murder. Nel went so far as to state “On the objective facts and circumstantial evidence, I am putting it as strong as this, the court will….”Nel goes on to state the evidence in relation to Reeva eating, the argument one witness heard that according to Nel was Reeva, the blood curling screams etc would show that Oscar intentionally killed Reeva following an argument.
Nel is not an amateur he is a highly trained, highly respected prosecutor, yet he was presenting circumstantial evidence that was so flawed it could never be seen as probable either in it's individual parts or as a whole and telling the Court, they should accept it and make a finding of murder on it. Yet the State feel that the Judge somehow wasn't correct in how she and her accessors applied the legal principle in relation to this circumstantial evidence. Nel believes that the States evidence, evidence that is not only improbable but defies logic should have been accepted. He may as well say that the use of the criminal justice system, the cost of hearing a case in Court is an unnecessary expense that should simply be dispensed with. If the State say someone is guilty they are, anything to the contrary should be ignored.
Why then is Nel continuing to insist that Oscar intentionally killed Reeva? Nel would certainly not ask the SCA to consider the circumstantial evidence if that was not his position. It however also begs the question as to how Nel thinks that phrasing a question about circumstantial evidence the way he did is a point of law. The SCA could never find that Oscar was guilty of intentionally killing Reeva because there was no evidence to support this at the trial, no further evidence can be submitted and the SCA can only consider points of law. What Nel’s assertions regarding the circumstantial evidence and the States practice of failing to call witnesses, ignoring forensic evidence, failing to produce a time line depicts a degree of desperation to obtain a guilty verdict. This appeal is a further display of this desperation. Nel is claiming that Oscar was acquitted of Reeva’s murder and therefore they should be allowed appeal the case, despite the fact that CH is a competent verdict and he was found guilty by a learned Judge. Nel also claimed that she erred in her understanding of Dolus Eventualis, if his knowledge of the law is so superior to know she erred, why did he need to enlist the services of a former university professor to assist him achieving his aim.
As the time approaches for Oscar to be considered for house arrest Reeva’s mother has been reported in interviews and media sources that she does not feel that Oscar should be released. However, she has also stated numerous times in interviews and in her book her belief that Oscar intentionally killed her daughter. She is repeating what the State appears to continue to claim despite both the lack of evidence and any indication from the psychological assessment that Oscar had a propensity for violence. A relative of Reeva’s claimed that Nel had told the family he believed Oscar knew it was Reeva. In continuing to question the evidence in Court and continue to maintain this was VAW, Nel in fact is doing her family a disservice. He is not representing Reeva, he is supporting and maintaining a myth and that is both sad and unprofessional. No one and nothing can make up for the loss of a daughter, but Nel has robbed Reeva’s family of the thought that her daughter was loved and killed mistaken for an intruder and replaced it with the horrible belief that their daughter was brutally murdered. He is encouraging her family to believe in something that did not happen. That is cruel.
I would also question whether it should be a requirement before someone’s opinion is considered by a parole board that they first accept the verdict of the Court. Otherwise there is a danger that people will continue to be punished for a crime they did not commit.
The State in the desire to win, are wanting the law changed, they want facts to become points of law, a competent verdict to be viewed as an acquittal and essentially the State are continuing to maintain this was VAW and an intimate partner killing despite no evidence of this was found.
There was no reliable evidence that Oscar intentionally killed Reeva. Nel in his desire to win, has ignored the lack of evidence to back his case. It would seem that evidence is irrelevant, that the law is there to serve him and can be changed at his whim. This is not the practice of a Justice System that should be viewed as acceptable let alone commendable. It is more about the practice of arrogance and a desire to win no matter what.
