Ruling on Pistorius mental referral tomorrow

An application was brought by state prosecutor Gerrie Nel to have Oscar Pistorius evaluated.

Oscar Pistorius arriving at the High Court in Pretoria on 13 May 2014. Picture: Christa Eybers/EWN.

PRETORIA - The Oscar Pistorius murder trial has adjourned until Wednesday morning when Judge Thokozile Masipa will rule on the state's application to have Pistorius referred for mental observation.

Counsel for the state and defence today made their arguments for and against the application which was brought by prosecutor Gerrie Nel following testimony by forensic psychiatrist Dr Merryll Vorster.

Yesterday Vorster revealed that she had diagnosed the athlete with generalised anxiety disorder (GAD).

"We now have evidence that GAD may have played a role. It is in the interest of justice that he be referred. The risk the defence took to call Vorster at this stage indicates a psychological disorder may have played a role," argued Nel.

"If the court asked me whether I thought GAD played a role, I'd say no. But the court needs to explore this.

"Vorster said the GAD would affect the accused's ability to act in accordance of what is right or wrong. We are mindful of the implications of this application, and it may cause a delay."

He went on to say that he will refer to case law to support his application for referral.

"There was no evidence before Vorster testified of a psychiatric matter being relevant in this case. We had three of the accused former friends testify. There was no indication of psychological problems.

Nel confirmed his argument by saying, "The accused has appeared fully in control throughout this trial, yet the defence has only now brought evidence of a disorder and it has to be dealt with properly."

The prosecutor stressed "The fact that there is now a psychiatric diagnosis matters. That's why we've brought this application. It only happened now."

Nel suggested that the defence was laying grounds for an appeal.

Picture: Pool.

He suggested they were hoping the court ignored the diagnosis so that they could appeal this in the case of a guilty verdict.

"The accused has testified. Subsequent to his evidence, a psychiatrist drafted a report, conceding that his diagnosis is relevant to his actions on the day of the incident. The timing of this should be taken into account by the court. The consultation happened after the evidence of the accused. There must be a reason why that consultation would take place at that time. Can it not be seen as a fall-back position?"

During his argument, he said the court should err on the side of caution on the possibility that there may suddenly be new a defence at play.


Picture: Pool.

While trying to win his argument, Nel warned that the accused was not the most impressive witness.

"We will argue that his evidence be rejected. Isn't that why a psychiatrist was brought in? We argue strongly that the timing of the witness being called and the timing of the consultations is important."

He again warned Judge Masipa that if she did not agree with his application, she would be opening the door for an appeal.

In an application filled with solid research, Nel quoted from a Supreme Court of Appeal finding which noted that a mental defect was something a court could not diagnose without the assistance of a medical health professional.

"Certainly the court is entitled to know what the accused's defence is. We know Roux was at pains in re-examination to show that their defence has not changed to one of mental incapacity. But the psychiatrist brought evidence to suggest that the accused's actions may have been influenced by GAD."

Nel said the mere fact that Vorster had indicated that the accused, suffering from GAD, was a danger when in possession of a firearm, was very significant.

He went on supplying more case law to support his argument.


In his opening statement in response to state's application, defence advocate Barry Roux said,"My lady, Mr Nel's reading of the law is quite unfortunate."

After some soft laughter from the gallery, he continued reading from case law.

"A mere making of the allegation [psychological problem] doesn't mean it must be referred. The allegation must be supported by grounds."

Video: Nel questions Pistorius's mental health.

Roux made reference to the same case law Nel referred to.

"It was screaming out that this was a mental case. Then the state argues that the court wants a second opinion. The state wants the second opinion through strange procedure."

The defence advocate argued that it was wrong for the state to use this case law because these cases had a history which cried out for referral.

"The factual basis does not support the state. It's a ruse to get a second opinion."

The high pitch in Roux's voice showed his anger over the state's application.

Despite his frequent use of the term, "with respect" when he referred to the state's "incorrect reading of the law", he was clearly annoyed.

While fighting the application, it became apparent that Roux's team had also been hard at work in preparing to fight this application.

Picture: Pool.

He seemed to know what precedent Nel would refer to and disputed it immediately.

"This is a premature application. The state is welcome to repeat the application after the next witness. But there is no merit."

He confirmed that another witness would be called.

"We are calling another witness to talk about fight and flight and vulnerability of disability."

The judge will announce her ruling at 9:30am on Wednesday.