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#OscarTrial: Masipa dismisses WhatsApp messages

The State relied heavily on the Whatsapp messages between Oscar Pistorius and Reeva Steenkamp.

Oscar Pistorius in the dock during judgment in his murder trial in Pretoria on 11 September 2014. Picture: Pool.

PRETORIA - Judge Thokozile Masipa is reading her judgment in the murder trial of Oscar Pistorius at the High Court in Pretoria.

Masipa has begun delivering judgment on Pistorius's credibility as a witness after the tea break.

She said Pistorius took a conscious decision as he knew where he kept his firearm and knew where the bathroom was.

"This court is satisfied that at the relevant time the accused could distinguish between right and wrong and could act."

She went into the reflex action of the accused, the 'startle' as explained by Dr Merryl Vorster, a forensic psychiatrist contracted to evaluate Pistorius and sports medical professor and paralympian team doctor Dr Wayne Derman.

She looked at the question; 'did Pistorius have criminal capacity at the time of the incident?'

Masipa says although it wasn't said explicitly, defence had hallmarks of temporary pathological incapacity.

She explained the referral for observation, when Pistorius was sent to Weskoppies for 30 days and the findings of that panel.

"Vorster's diagnosis of GAD made it necessary for this court to refer the accused for psychiatric observation."

She said the panel of experts found that at the time of the alleged offence the accused did not suffer from mental disorder.

"That affected his appreciation of wrongfulness or ability to distinguish right from wrong."

Masipa quoted from the psychological report from when he was under evaluation.

It found he had criminal capacity.

The defence submitted that the accused lacked criminal capacity because of his increased startle response.

Masipa disagreed with the defence team's contention that Pistorius has 'increased startle response'.

Masipa then focused on defence of 'Putative Private Defence' or mistaken self defence.

"Did Pistorius believe he was under attack?"

Masipa said the accused took conscious steps and he froze before arming himself.

"This is inconsistent with a lack of criminal capacity."

Commentators have been highly critical of defence's reliance on two separate defences.

Masipa has now dismissed one of these.

She then dealt with the defence of putative self-defence.

She again quoted from Pistoirus's testimony and said, "The accused's own evidence was that he never intended to shoot the robbers."

Masipa said she agreed that someone with a disability could feel vulnerable in such a situation, but hastened to add that Pistorius is not unique.

"Women and children also fall into this category of vulnerability."

"The accused clearly wanted to use the firearm and the only way to use it is to shoot. Was there intention? On the basis of all the evidence, is there a reasonable doubt concerning his guilt?,"she asked.

WHATSAPP EVIDENCE DISMISSED

Before the tea break, she said Pistorius's intention wasn't clear from his version of events as she tore into his 'multiple version of events and defences'.

Intention is crucial to the charge of murder and Masipa will now have to decide on dolus eventualis and Pistorius's 'intention'.

With regards to Pistorius's version, Masipa said, "After realising that the deceased could be in the toilet, the accused ran to the balcony and called for help."

She continued, "After calling for help he fetched the cricket bat and struck it against the door."

Crucially, Masipa believed there could be a number of reasons why Reeva Steenkamp would have taken her phone to the bathroom, such as for example, lighting purposes.

Masipa then dismissed the Whatsapp messages between Oscar Pistorius and Reeva Steenkamp presented to the court.

"None of the evidence by the state or defence in relation to messages proves anything. Relationships are unpredictable."

The State relied heavily on the Whatsapp messages to show the relationship was on the rocks, only for Masipa to dismiss this evidence.

'SECURITY DID NOT HEAR ANYTHING'

Masipa then referred to the evidence related to the food in Steenkamp's stomach.

"The deceased may have left the room to eat while the accused was asleep."

She also said she doesn't believe pathologist Professor Gert Saayman's belief that the only possible inference is that Steenkamp was up two hours before.

The judge placed more credence on the security guard's story that all was fine outside Pistoirus's house, rather than neighbours hearing an argument.

PISTORIUS'S MULTIPLE DEFENCES

Before the tea break, Masipa was dealing with Pistorius's different version of events.

"The accused offered several defences. From his version it was not clear whether he intended to shoot or not."

She spoke on how confusing Pistorius's version of events was, with it vacillating from 'accident' to 'never intended'.

The judge quoted from Pistorius's evidence that the the shooting was an accident and he had no time to think.

Pistorius gave various explanations while under cross-examination and Masipa quoted from these which speaks to his 'changing defence'.

"Oscar Pistorius stated that he was at no stage ready to fire, but his firearm was on ready mode with the safety off."

When the case resumes, Masipa will make a finding on Pistorius's credibility as a witness.

'NEIGHBOURS MISTAKEN'

Masipa said it became clear that some of the sounds the neighbours thought were gunshots were the bat striking the door.

"Some of the witnesses missed some of the sounds either because they were asleep or their focus was elsewhere."

She said, neigbours, Michelle Burger and Charl Johnson, were unfairly criticised for the way their statements were written as the Investigating Officer had his own style.

"I do not think Burger or Johnson were dishonest. They recounted what they remember, but were genuinely mistaken.

"It's easy to see why they were mistaken as their distance from the scene puts them at a disadvantage."

She said the witnesses had ever heard the accused scream, so they had no prior knowledge or model to compare to.

"The acoustics expert cast serious doubt whether the witnesses could differentiate between a male or female scream."

SHOTS

Masipa describing the wounds and said that the hip wound would have caused immediate instability.

"The deceased suffered a devastating wound to her arm. The head wound was immediately incapacitating."

State prosecutor Gerrie Nel brought up a photograph of one of Steenkamp's wounds.

The judge said the shots were fired in quick succession which meant the deceased would not have been able to scream.

"The only other person who could have screamed was the accused."

She said other reasons why 'most witnesses got their facts wrong' was because of media exposure following the incident.

"The defence correctly submitted that Stipp's evidence related to times was unreliable. I do not agree with the defence's contention that Johan Stipp tailored his evidence."

She said it was unwise to rely on evidence of witnesses without testing it against objective facts.

"Thankfully this court can rely on objective evidence in the form of technology like the phone records."

"The phone records can be used as a base to establish when the shots were fired, screams heard and bat hitting door."

She then dealt with the chronology of events, starting at 2:20am when the guard track was activated and then the shots after 3am.

"After the shots, screams were heard, then neighbours started phoning security, then the bat strikes the door…

"…after the bat was heard striking the door, the accused made three calls."

Masipa set out 23 points linked to times and events, ending with the police arriving on the scene.

She said this chronology will prove useful in establishing whether the accused showed intent and premeditation.

BEGINNING OF JUDGMENT

Earlier, Masipa entered the courtroom and told the accused he could be seated.

She added that she would indicate when he must rise again.

Masipa dove straight into her judgment by laying the foundation with the details of Pistorius's house, it's layout which includes the bedroom, en suite facilities and small cubicle toilet.

"On 13 February, the accused spent the night at home with his girlfriend Reeva Steenkamp. On the 14th he shot and killed her.

"The deceased was locked inside the locked toilet cubicle when she was shot."

Masipa read through the charges as they were put to the accused, starting with the firearm-related charges.

Pistorius stares ahead at Masipa from his seat as she reads out the charges against him with his face giving very little away.

Masipa appears to have a small book stand on her desk, holding up her judgment at an angle so she can read from it.

The judge read out each count:

Count 1 is the charge of murder

Count 2 is the shooting from the sunroof.

Count 3 involves the shooting incident at Tashas.

Count 4 is the illegal possession of ammunition charge.

Pistoirus pleaded not guilty to all the charges.

For more on the trial, click here, or visit the live Oscar Pistorius blog, click here.

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