Oscar Trial – Day 31, May 14 REFERRAL

Judge Masipa:

“The State has launched an application for a referral of the accused for observation in terms of Section 79 of the Criminal Procedure Act. The application is brought in terms of Section 78, subsection 2 of the act.

Counsel for the state referred to this court a number of cases which I found very useful. Strangely, the application is opposed on behalf of the accused.”

She then reads subsection 2 of the act:

If it is alleged at criminal proceedings that the accused is by reason of mental illness or mental defect or for any other reason not criminally responsible for the offense charged, or if it appears to the court at criminal proceedings that the accused might for such a reason not be so responsible, the court shall in the case of an allegation or appearance of mental illness or mental defect, and may, in any other case, direct that the matter be enquired into and be reported on in accordance with the provisions of section 79.

She points out that it is clear from the wording of that section that the key points are:

•If it is alleged… or…
•If it appears that due to mental illness or mental defect the accused might not be criminally responsible, then a referral is in order

She then references the case law used to help guide her decision.

She then states:

“It is clear that counsel for the State was correct when he submitted that the court has no discretion once either of the two requirements has been met. The trigger to the application was Dr. Merryll Vorster, a forensic psychiatrist, called on behalf of the accused.

Counsel for the State submitted that it was clear that the evidence of Dr. Vorster was that the accused suffered from a generalized anxiety disorder and at this stage of the proceedings, was calculated to make up for the accused’s bad performance as a witness. He submitted that the facts of the evidence of Dr. Vorster may become important should the court reject the evidence of the accused, hence the application for referral.

In opposing the application, counsel for the Defense submitted that there was no allegation as envisaged in the act, or if there was, it was not substantiated. He submitted further that it did not appear that at the time of the incident, the accused was not criminally responsible. For these reasons he argued to the application could not succeed.

It is so, as counsel for the Defense argued, that the court does not act on a mere allegation of criminal incapacity without some indication of the reasons therefore.”

The Judge says that she does not agree that there are no allegations. She says: “The accused may not have raised the issue that he was not criminally responsible at the time of the incident in so many words, but evidence led on his behalf clearly raises the issue and therefore cannot be ignored. Not only that, but the allegations have been properly substantiated by the evidence of Dr. Vorster.”

The Judge mentions all of the various sections of Dr. Vorster’s report, such as his developmental history, his previous medical history and psychiatric history, and states that the report focused on the diagnosis of an anxiety disorder which may have affected his conduct on February 14, 2013. She repeated that fact under oath. To fully understand the significance of the doctor’s evidence, it’s necessary to focus on the following which the Judge believes are of some relevance:

•The accused, amongst other things, was hyper-vigilant. The doctor went on to explain that hyper-vigilance is somebody who is constantly looking around scanning their surroundings for any kind of threat.

•When dealing with the history of the incident, the doctor’s opening remarks were “Mr. Pistorius relates that he believed he heard an intruder. He became scared and he describes having had escalating levels of anxiety.”

•The Defense then asked the doctor “any relevance in the physical vulnerability in relation to his anxiety?” The doctor’s response was “I think they go hand in hand, my Lady. His physical vulnerability makes him more anxious. His anxiety makes him want to conceal his physical vulnerability.”

•The doctor stated more than once that the accused has a long history of GAD that appears to have been increasing with time. She set out a number of factors which were responsible for his increased level of anxiety and then stated the following: “These factors were all operating at the time of the offense under discussion, and would have been compounded by Mr. Pistorius’ physical vulnerability and the additional pressure of perceiving his environment as hostile and unsafe. When exposed to a threat, Mr. Pistorius is more likely to respond with a fight response rather than a flight response as his physical capacity for flight is limited.”

•When explaining what a fight or flight response is, the doctor said “this is a response that protects us and helps to keep us safe. So when exposed to a threat, we can either fight or flight depending on our own personal circumstances. In Mr. Pistorius’ instance, he would have been more likely to fight as his capacity to flight was compromised. In my opinion, Mr. Pistorius’ reaction to the perceived threat during the incident of February 14, 3013, should be considered in the light of his physical vulnerability and his co-morbid diagnosis of generalized anxiety disorder.”

•Dr. Vorster mentioned two aspects that would have been operating at the time of the offense: 1) The accused’s physical vulnerability, amputation, which prevents him from moving around easily. 2) The generalized anxiety disorder which was pervasive and had been present for many years which would also have been present on the day of the offense.

Although Dr. Vorster stated that she did not think that a generalized anxiety disorder was a mental illness, for purposes of the act, she stated the following: “I think it is clear that Mr. Pistorius has a psychiatric illness. He certainly was able to appreciate the difference between right and wrong but it may be that his ability to act in accordance with such appreciation was affected by this generalized anxiety disorder.”

The Judge says, in consideration of the statement above, a debate about what the generalized anxiety disorder really is or where it may fit in within the act, would be a fruitless exercise. Nowhere in the act is there a definition of mental illness. There is however an indication from case law that it would be unwise for the court to attempt a diagnosis without assistance from the relevant experts. Mental illness and mental defect are morbid disorders that are not capable of being diagnosed by a lay court without the guidance of expert psychiatric evidence.

The Judge also says that Dr. Vorster’s evidence was placed before the court by the Defense. The fact of the evidence is that a doubt has been created that the accused may possibly have another defense relating to his criminal responsibility. There is also a possibility that there may be diminished criminal responsibility. Dr. Vorster’s evidence has not and cannot be contradicted in the absence of other psychiatric evidence. This lay court is ill-equipped to deal with the issue raised in Dr. Vorster’s evidence at this stage.

The allegations in the report of Dr. Vorster and the views expressed by her have substance and what is more, they are in line with the accused’s evidence. That in itself is significant. Dr. Vorster’s report, however inclusive it may be, cannot replace a proper inquiry made in terms of the act. Among other things, Dr. Vorster had only two interviews. The duration of the interviews is not stated in the report. It appears she may have had very little time to compile her report. A proper inquiry which would be more comprehensive would ensure that the accused gets a fair trial.

Counsel for the Defense submitted that the application for referral was premature as he intended to call another witness who would give evidence on the fight or flight response. This witness would explain the concept in detail, Defense argued, and if the State still wanted to make the application afterward then they could do so. In the Judge’s view, the question is whether the applicant (the State) has made out a case for the relief that is sought at this stage. If it has, she fails to see how this additional witness’s evidence will assist the court to determine whether a referral is sought by the State.

The question is whether there is a reasonable possibility that the referral of the accused would reveal that AT THE TIME OF THE OFFENSE, the accused suffered from a mental disorder which could have resulted in his not being criminally responsible for his act. In regard to this case, “she is convinced that the requirement of a reasonable possibility has been met.”

(Do not misunderstand this statement from her. She is saying that the REQUIREMENT of a reasonable possibility has been met because of what Dr. Vorster is alleging… NOT that she believes there is a reasonable possibility that he is not criminally responsible.)

It is so, as counsel for the State submitted during argument, that a referral inevitably means more delays in finalizing this matter. This is not about anyone’s convenience but rather about whether justice has been served and it is not taken lightly.

The Judge is satisfied that a case has been made out for the application sought by the State. The order is granted, however the specific order will be handed down next Tuesday, May 20.

Nel says that he and Roux have agreed that they will assist the court with the order. They will have it ready by Tuesday morning and will make sure that they are both in agreement. Roux then mentions the possibility of outpatient referral, as well as a psychologist on the panel (in addition to the psychiatrists). They will be making recommendations for the court to consider.

The Judge wants to place on record that she’s glad that counsel agreed on this. The Judge says that the aim of the referral is not to punish the accused twice. So if there is a possibility of making sure that he’s an outpatient that would be preferable. Nel says that it will be investigated.

They adjourn until Tuesday.

I’ve seen this hotly contested on both sides whether this is good for the State or good for the Defense. In reality, we are all just guessing until the report comes back. But of course, we can pontificate. When the Judge started out by saying that “strangely” the Defense opposed this application, I believe she was directly taking a dig at the Defense for this game they appear to be playing. They brought this witness very late in the game, and they raised the question about Oscar’s state of mind on the night in question, but they are seemingly very opposed to any additional psychiatric evaluation. It doesn’t make sense (if his condition is sincere), so the Judge is very correct in observing that it’s “strange.”

And Nel is 100% on the mark when he says that the court must take in to consideration the timing of the psychiatrist’s evidence. How could they not? Oscar has been talking about the phantom intruder since the day of the shooting, so why in the world would they not use this right from the very beginning of the charges to shed some light on a very bizarre story. They knew the world was scrutinizing his story and a GAD diagnosis, if sincere, could have potentially helped them.

The only thing you can infer from them waiting until May 2, 2014, is that this is their Hail Mary moment, and this Judge is too wise not to fully appreciate that. The fact that their expert mentioned on the stand that her evidence could go towards the merits for conviction OR towards sentencing, is a clear indication that they are just covering all of their bases. To do this at the very last moment indicates that it was not planned from the start.

As the Judge says, Dr. Vorster’s evidence can’t be tested or contradicted in the absence of other psychiatric evidence, so the court is ill-equipped to deal with her evidence. They had no choice but to have him evaluated. The Defense can’t have it both ways. They can’t just lay this evidence on the court as a factor for consideration and then turn around and say it has nothing to do with his competency.

Some people are worried that Oscar will go through 30 days of evaluation, and the doctors will agree that he does indeed have GAD, and he will walk free. From all I have read, that is not at all how this works. Having GAD, does not automatically mean that they deem you free of criminal responsibility. Not even close.

The Judge specifically pointed out that the panel needs to determine if at the time of the offense, the accused suffered from a mental disorder which could have resulted in his not being criminally responsible for his act. That is usually a pretty hefty thing to prove.

•If he did not, and is deemed mentally competent at the time of the offense, then the GAD is simply a part of the story. If the court does not believe Oscar’s version, then the GAD is useless. They will not give it any weight in verdict or in sentencing.

•If he is deemed mentally competent at the time of the offense, and the court does believe Oscar’s version, then the GAD could potentially help him in both verdict and sentencing (if applicable).

•If the panel comes back and says that Oscar was NOT mentally competent at the time of the offense, well then, the case is over. Oscar will go straight to a mental institution for an undetermined length of time, quite possibly a very long time. I really, really do not see this happening. And I really do not believe that Oscar wants that to happen. Again, from all I’ve read, you cannot fake mental insanity in these types of evaluations.

I believe that when Oscar is done in 30 days, the case will resume. I really have no clue if they will deem the GAD diagnosis valid or not. But even if they do, I believe strongly that the State has been successful in discrediting Oscar’s evidence. I don’t think the GAD will matter. And he won’t be able to bring it up on appeal, nor can he weasel his way in to a lighter sentence. This could be a huge win for the State. That is my opinion.

I welcome any and all comments to my thoughts above as I am not a mental health professional, nor am I a South African citizen. I am just relaying the information that I have read from various sources and applying it to my interpretation of the case.

One final thought… the Judge’s statement “the aim of the referral is not to punish the accused twice” was pretty shocking. I have listened to it quite a few times now to see if I can put it in to any other context, and I can’t. It really seems to me that she is foreshadowing some type of punishment in this case. Would love to hear everybody’s thoughts about that so please do share.

See the YouTube video below for Arnold Pistorius’ response to today’s judgement. NOTE: This response makes no sense, considering the Defense strongly contested this referral.