Defence paves way for Pistorius appeal

THE move by Oscar Pistorius's defence team to close its case because certain witnesses refused to testify due to the intense media scrutiny may be a critical part of an appeal or a review strategy in the case of a conviction.

Yesterday the Blade Runner's advocate Barry Roux told Judge Thokozile Masipa in the Pretoria High Court that the defence was closing its case after "certain witnesses" had informed him that they would not testify.

Pistorius is on trial for the alleged murder of his girlfriend, former Port Elizabeth model Reeva Steenkamp, whom he shot on Valentine's Day last year, claiming he mistook her for an intruder.

From the onset of the trial, his lawyers objected to the application by media houses to televise proceedings.

In February, just weeks before the trial began, Roux, arguing against the application, said it would be unfair to broadcast the trial as his client would be prejudiced.

"Why can this not be like any other trial? Why is he different?" Roux argued at the time. "Does it mean if you are well known your rights can be infringed and violated?"

Yesterday Roux told Masipa that a "number" of witnesses did not want the worldwide scrutiny that came with testifying.

"With this in mind, we close our case."

Criminal law experts believe the move is critical to keeping Pistorius out of prison if he is convicted, by showing he has been prejudiced from the beginning of proceedings and prevented from getting a fair trial.

Professor Anthony Minnaar, of Unisa's school of criminology, said it was a clear and "transparent" strategy.

"It is to keep all options open for appeal. [An] appeal could well succeed as Pistorius's defence team can show that not all evidence has been heard as certain witnesses were 'afraid' to testify.

"If they are successful in applying for an appeal, a whole new case will have to be made out as the entire case will have to be taken up on review," he said.

Wits University criminal law expert Stephen Tuson said it was possible that the defence, should it appeal or take the matter on review, was laying the basis for the grounds for doing so.

"[It] could be on a review of procedure, on the basis that the media scrutiny around the trial made it impossible for Pistorius to get a fair trial," he said.

Masipa, in granting a postponement for the defence and state to prepare for closing arguments, ordered that neither party's heads of argument may be publicised before arguments began.

"Whoever leaks these documents to the media does a disservice to justice and is a thief," she said.

The trial was postponed to August 7 for two days of closing arguments. The state must file its heads of argument by July 30, while the defence must file by August 4. - Graeme Hosken