Oscar Pistorius Trial: Tuesday 13 May 2014, Session 1 - YouTube
Oscar Pistorius Trial: Tuesday 13 May 2014, Session 2 - YouTube
Nel used the word "indication" and the phrase "reasonably possibly" interchangeably about section 78 to which the judge said
"When you say indication you said two things you said indication and you said reasonably possibility it can’t be one and the same thing"
Nel conceded to “indication” and went on to make an admission that it would “
suffice to have an indication.”
Roux’s reading of the actual approach from the case that Nel brought to the table “
But in my view nothing turns on that for section 78.2 does not mean that the mere making of such an allegation, per say, obliges the court to direct the inquiry, that would be manifestly absurd, although the conjunction or is used in the subsections to link the two requisites I think that it’s also used conjunctively, in this sense if such an allegation is made it must also appear to the court before it can direct the inquiry that the accused might not be criminally responsible for the offenses charged, ie there is some substance in the allegation”… at which point Roux begins to surmise.
And then Roux went on to site three SA cases where it is stated that the allegation “
must be supported by grounds it’s not a mere indication."
Then Roux points out the legal differences in the cases in which Nel is comparing to the Pistorius case, which I also find “interesting”. Roux also pinpoints that Vorster indicates that at no time was Oscar’s inability to distinguish between right and wrong affected by his GAD. She repeated this many times. Nel only confused hera couple of times but the defense agrees with the state that Oscar is not delusional, paranoid or incapable of knowing right from wrong, nor was he on Feb 14th.
The subsection of section 78 which makes Nels argument for referral a bit of a bizarre request is this bit
“which makes him or her incapable of appreciating the rightful or wrongfulness of his or her actions.”
Roux is not arguing a new defense, he is not arguing that GAD caused Oscar to have a mental break so that he was unaware of right and wrong, the defense position is that Oscar’s GAD coupled with his deformity caused him to overreact to a noise he heard in the bathroom which sent the horrific events of that morning into motion, it is being presented as a mitigating factor as to lend credence to the truth of Oscar’s version of events, nothing more or less.
Roux has left it up to the court how it uses the GAD diagnosis.
Neither Roux nor Vorster indicated automatism or incapacity. Roux is much cleverer than many are giving him credit for.
I did notice that Nel finally said the court was
cautioned to do as Nel says rather than it had "
no discernment in the matter". Hmm....
I personally can't see how the judge can ignore the "incapacity" hurdle.
And on a side note Roux, Nel and Voster all used the DSM V for their definitions of the mental health matters