If you are to believe TV shows, criminal trials are incredibly exciting, filled with courtroom drama. Unfortunately (depending on your view), trials are rarely so dramatic, and much of criminal defence happens in a negotiation room, not on trial. The Oscar Pistorius trial, which has been unfolding over the last few months, seems to be a very real exception to this rule, playing out as though on an episode of Law & Order
or Criminal Intent
With dramatic evidence from Pistorius himself, as well as cross examination from Chief Prosecutor Gerrie Nel, the last few days before they took a three-week break in particular captured the attention of the entire world, with many even watching the trial through live streams online. Now that the defence has resumed calling witnesses, it is once again top of mind for many around the world.
While watching and reading some of the footage surrounding the case, I’ve been struck by the fact that Oscar Pistorius was called to give evidence at all. In South Africa, as in New Zealand, a defendant has the right to remain silent. While the onus is on the prosecution to prove their case beyond reasonable doubt, the defence only has to weaken the Crown’s case sufficiently to ensure a verdict of not guilty. In a trial with no jury, as this one is, garnering sympathy is not a priority, so having a defendant personally testify seems less important.
I do wonder whether I would have called on Mr Pistorius to give defence or not, as it has provided the prosecution with a prime opportunity to grill him and break down his defences. After the defence did a good job of undermining the forensic evidence, allowing Mr Pistorius to give evidence almost seemed like they were throwing the prosecution a bone – a bone that Gerrie Nel has chewed into with relish.
Yet as an excellent article in the New Zealand Herald pointed out recently, memory can often be reconstructive. Most people find it difficult to recall exact details and thus there are several challenges faced when dealing with how people usually remember their past in contrast with the kind of memory-based evidence that is needed in cases such as this one. I will often advise a client not to give evidence, as many are very nervous and struggle dealing with the pressure of being cross-examined.
Of course, consideration would have to have been given to whether a credible narrative of what happened according to Mr Pistorius is before the court for considering when deciding the verdict. However, it is noted that a full and detailed affidavit from Oscar Pistorius setting out the circumstances of the shooting was already before the court when the defence chose to let Mr Pistorius take the stand.
It does make you wonder whether allowing Mr Pistorius to give evidence has something to do with this being the first South African case to ever be broadcast and tweeted live – after all, what would a courtroom drama be without the main attraction? While people all over the world are asking themselves whether he killed girlfriend Reeva Steenkamp or not, the question that comes to my mind is more about why this needs to be broadcast in quite such a public way. While I value the importance of a free press and letting the public know what’s happening, the media attention around the trial has turned into far more of a circus than it needs to be.
I suppose the answer to that lies in the very nature of celebrity – a murder case regarding an unknown South African couple would never see the light of day in New Zealand media. It makes me wonder if the same would ever occur with a New Zealand case. Based on the media’s approach with cases with lesser known people, I would imagine it definitely could, although perhaps not on the global scale of this case. I only hope that people remember that the case isn’t there for their entertainment, and that drama shouldn’t come at the expense of justice.
*John Munro is a criminal defence lawyer operating his own practice in Auckland central.