When closing his case for the defence in July 2014, Barry Roux SC indicated that witnesses had indeed been intimidated from coming forward to testify:
“We put on record, not that the court can do anything about it but just so it’s on the record, that we were unable to call a number of witnesses who simply refused to testify because they said they didn’t want their voices all over the world.”
The Guardian reported that five witnesses were in this category.
The subtext to Roux’s submission was: “If my client is found guilty, get ready for the appeal”.
Now, Oscar Pistorius has indeed been found guilty of culpable homicide (although not of murder). He is on bail pending sentencing.
Might the unprecedented media coverage prove a successful appeal point? Or has Judge Thokozile Masipa closed the gates?
Understanding why permission was granted to the media in the first place may help us answer this question.
Original media application for live broadcast of trial
On 25 February 2014, after a number of media outlets applied to the Court for access, the High Court of Pretoria ruled that live coverage of the Oscar Pistorius trial should be permitted. A copy of the ruling can be found here.
Oscar Pistorius’ legal team opposed the application. His counsel Barry Roux SC (then unknown globally but now a household name thanks to the very application he opposed) suggested:
“…there’s a very good reason why witnesses are not allowed to sit in court… The risk is very real that hearing the evidence will influence their own evidence.”
Roux also foreshadowed, it was reported, a very real risk that such coverage would inhibit or intimidate witnesses to testify freely or to admit that they had made mistakes.
High Court Judge President Dunstan Mlambo (he was not the ultimate trial judge) acknowledged “the collision course” between the two competing principles of freedom of expression and the right to a fair trial when it came to permitting media coverage. Later in his judgment, he described the concept of the right to a fair trial as “the elephant in the room”.
However, the judge was prepared to make the order for reasons including:
- Practically, the international and domestic media contingent was so huge they could not fit into the court house.
- The impact of Twitter in providing real time reports should be recognized.
- The public nature of court proceedings called for open access to justice, with the judge adding: “I cannot countenance a stance that seeks to entrench the workings of the justice system away from the public domain”.
- The proceedings involved a local and international icon.
The last point might sound curious but the judge provided a compelling explanation specific to South Africa’s culture and developing confidence in its legal system. He noted that “in a country like ours” where “democracy is still somewhat young” there was “a perception that the justice system is still perceived as treating the rich and famous with kid gloves whilst being harsh on the poor and vulnerable”.
The judge added:
“Enabling a larger South African society to follow first-hand the criminal proceedings which involve a celebrity, so to speak, will go a long way into dispelling these negative and unfounded perceptions about the justice system, and will inform and educate society regarding the conduct of criminal proceedings.”
The decision was regarded as groundbreaking at the time. It was reported to be the first decision by which the court would allow full audio of witnesses in a criminal trial and some television, subject to certain safeguards and requirements.
Impact of ruling
The rest is history. Some court trials help define a generation. The Oscar Pistorius trial is one of them. This was not just South Africa’s “O.J.Simpson trial”. Thanks to social media and live streaming, this trial belonged to the world.
For an analysis of which countries scrutinized the trial most closely, refer to The South African, which explained that back in April 2014, Australia was second only to the United States in following the trial, with the United Kingdom in third place and Germany taking fourth spot. Interestingly, despite South Africa being the home country for the trial, it came in fifth place. The survey was conducted across 6.2 million social media platforms, as well as more traditional media.
Is the media coverage a good appeal point?
It is possible Judge Thokozile Masipa had this very issue in mind when preparing her judgment. In her summing up, she appeared to shut the gates on almost all evidence capable of being described as speculative or subjective.
In finding the accused guilty of culpable homicide, the judge was at pains to rely on objective, forensic evidence to conclude that the accused’s conduct when shooting at the toilet door was negligent and unreasonable.
Some might be disappointed that she found the accused not guilty for murder. Some might feel let down that she gave no weight to the testimony of neighbours who had heard screams on the night Reeva Steenkamp was killed.
The judge explained that memory was far less reliable than objective scientific evidence, and that some of the neighbor accounts were inconsistent with the forensic timeline.
This approach also served to diminish the impact of any further witnesses who could have testified in the accused’s favour but chose not to do so.
It follows that, of the five alleged witnesses who refused to testify, the prospect any of them might have disproved such objective, forensic evidence seems remote indeed.
In seeking to resist the media application back in February 2014, Barry Roux submitted that a live broadcast would “open up a winning recipe for an unfair trial”. In light of her carefully crafted judgment, however, Judge Thokozile Masipa might feel entitled to respond: “Perhaps not”.