Murder accused Oscar Pistorius has no option but to give evidence about the night he shot his girlfriend dead when the trial resumes on Monday, due to the strength of the state's case against him, according to a leading South African criminal lawyer.
In the days leading up to the trial's adjournment postponementon March 28th, speculation was rife about whether the Paralympic athlete would take the stand to give his version of the events of February 14th, 2013 – the night Reeva Steenkamp died.
The state claims it was a case of cold-blooded murder. Prosecutors have produced witnesses who say they heard arguing and "blood-curdling screams" coming from Pistorius's home in the hours leading up to the shooting, as well as forensic evidence they claim proves their case beyond reasonable doubt.
Pistorius, however, insists he mistook Steenkamp for an intruder, and that the shooting was a tragic accident because he thought he was actually protecting both of them.
Criminal trial lawyer William Booth told The Irish Time s that Pistorius would more than likely give evidence because he was the only direct witness to the incident and the state had presented a compelling case to date. The strength of the case, he added, was partially built on Pistorius's decision to give his version of events during his bail hearing over a year ago.
“He has no option [but to give evidence], he disclosed his defence at the time of the bail hearing, which was unusual. Most people would rather say too little than too much [at that time]. Maybe he panicked, but you don’t have to say anything about the events to get bail. He was not a flight risk.
“If he said: ‘I am pleading not guilty, I don’t want to say anything now as I have not got all the evidence, and I don’t feel emotionally well enough to disclose exactly what happened, but I am not guilty of any crime’, he would have gotten bail,” maintained Booth.
Once the state had Pistorius's version of events on record, they could check it off against the evidence they uncovered during their investigations, which gave them a significant advantage during the trial.
For instance, Pistorius said in his affidavit to the bail hearing that he and Steenkamp had not fought on the evening of the shooting, and that they both went to bed around 10pm. The shooting occurred about 3am the following morning.
However, four neighbours from the area were secured as witnesses who said they heard heated arguments and screaming coming from the Pistorius household before gun shots rang out.
In addition, the state pathologist testified that the state of digestion of the contents of Steenkamp’s stomach showed she had eaten about two hours before she died, a time Pistorius claimed they were asleep.
“There is no reason for them [the witnesses] to lie, they don’t know him,” said Booth. “They stood up well under cross-examination. There may well have been differences [in their versions of events] but that is to be expected when people are woken in the middle of the night by gunshots and shouting.”
“The whole idea as to why the state is calling these witnesses is to establish that there was an argument.”
The ballistics evidence is also damning, says Booth, as it shows the second shot was the fatal one, which meant Steenkamp could have screamed after the first shot to her arm, which matches what witness Michelle Burger said she heard – a shot, a scream and then more shots.
When the defence begins to present its case on Monday, lead counsel Barry Roux will use sound tests carried out at the estate where Pistorius lives to undermine the witnesses' evidence relating to what they believe they heard coming from his house.
Roux will also contend the sportsman screams like a woman when he is stressed and fearful, and that what the witnesses actually heard was Pistorius scream rather than the deceased. But aside from the long list of expert witnesses the defence will call, the outcome of this trial will likely hinge on Pistorius’s testimony, and his ability to personally counter the state’s evidence against him, believes Booth.
"If he doesn't [give evidence] it would be a real problem for him. I think the defence team will have to really prepare Oscar, as it is going to be very traumatic for him to testify. Prosecutor Gerrie Nel is good, very experienced, and most certainly he will be looking forward to examining Oscar.
“Maybe the judge accepts his version of the events around firing four shots into a small confined area, and that he believed it was an intruder. But the problem with this defence is that, hang on, you’ve actually exceeded what you are entitled to do by law,” says Booth.
The fact that Pistorius fired repeatedly at someone behind a closed door, into a small area, makes it hard to argue a defence that there was potentially a significant threat to his life that night, maintained Booth.
"The court could say 'I accept your version, that you didn't know it was Reeva, and that you generally thought it was an intruder, but I am saying you went too far'," Booth said in relation to how presiding judge Thokozile Masipa could view Pistorius's right to protect himself under the circumstances.
The trial is due to run until May 17th, after which time judge the is expected to give her verdict. If she hands down a custodial sentence, Pistorius can apply for leave to appeal. The court must then decide if there is a reasonable chance another court may come to a different conclusion. If it says there is not, then Pistorius can petition the Supreme Court of Appeal for leave to appeal the verdict and sentence.