In the North Gauteng High Court, on Wednesday the 14th of May 2014, Judge Masipa granted an application by State Advocate Gerrie Nel for Oscar Pistorius to be psychologically evaluated by a panel of experts yet to be formalised. The official order will be made on Tuesday the 20th May 2014 when court resumes for this purpose. The application arose from the testimony of defense witness Prof. Dr. Merryl Vorster, who, on evaluating Pistorius, diagnosed him with Generalised Anxiety Disorder. She testified that Pistorius may have diminished criminal capacity, or legal liability because, although he understood right from wrong, his ability to act in accordance with this understanding may have been compromised by his condition.
A possible “new” defense of temporary non pathological criminal incapacity or sane automatism has also emerged and if accepted by the court could result in an acquittal. This defence emerged when Pistorius testified, “I was afraid when I heard a noise, Before I knew it I fired four shots at the door.” What this effectively means is that a person can be perfectly normal up until something triggers a reaction in them and then for a brief moment may react in a robot like fashion while committing an act. One would be incapable of controlling your actions for a brief moment in which you commit the action and then return to a normal state. It must be said, that this is a very difficult defense and in order to reach a conclusion the court will consider both the evaluation report AND Pistorius testimony.
Initially Pistorius defence was that of putative private defense which requires an intentional act, justified by the erroneous belief of being under threat. Dr Vorster testified that Pistorius was not paranoid or delusional but at times I must confess I have my doubts given his history and even his current rather strange reactions to events. Including telling Andrew Harding of the BBC that Nel’s application was “a joke”.
PISTORIUS, GAD AND FIREARMS
Dr. Vorster pointed out that Pistorius, being in the pre-language stage, would not have understood when what was happening to him when his legs were amputated and possibly experienced the amputation as a traumatic assault. In her opinion this is when the GAD manifested. She pointed out that Pistorius grew up in a home with an anxious mother, who drank alcohol excessively and slept with a firearm under her pillow because she was afraid of intruders. She encouraged Pistorius to be “normal” and to fight for his rights, even if it meant being physically aggressive. She was his primary role model due to his father being absent and irresponsible. He was significantly traumatised by her loss and struggles to form close bonds with family or friends. He views the world primarily as threatening.
Dr. Vorster went on to say that Mr. Pistorius, in her opinion, should not be allowed to possess a firearm. She reasoned that people with GAD because of their generally anxious state are often hyper-vigilant and more sensitive to triggering events which may result in rapid, unpredictable and abnormal responses. This makes a person with GAD, in possession of a firearm, dangerous.
She went on to explain that people generally have one of three responses when they are under threat. Fight, flight or freeze. She explained that Oscar Pistorius because of his disability and resulting inability to flee from danger, would be predisposed to fight. To this end he had armed himself and honed his skills as a marksman. I remembered that he had previously hunted down his washing machine with a gun in “full combat mode” on hearing a noise in his home. Perhaps he reacted similarly on the night he killed Reeva. If untreated one has to ask: How dangerous is he and would releasing him constitute a danger to society if he feels threatened in the future. His condition is according to Dr. Vorster, worsening! A real conundrum for Judge Masipa.
WHAT IS GENERALISED ANXIETY DISORDER? (GAD)
A person can be diagnosed with GAD according to DSM IV if they exhibit excessive anxiety and worry which occurs for a period of six months, and is pervasive extending to many areas in their lives. Additionally people with GAD find it difficult to control the worry they experience. The anxiety and worry is associated with three or more of the following six symptoms; restlessness or feeling keyed up or on edge; being easily fatigued; difficulty concentrating or mind going blank; irritability; muscle tension; sleep disturbance which could include a difficulty falling or staying asleep, or restless unsatisfying sleep.
The focus of the anxiety and worry is not confined to a specific trigger or event. Furthermore the anxiety, worry, or physical symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning of the individual concerned. The final factor to consider is that the disturbance is not due to the direct physiological effects of a substance, for example, alcohol or drugs or a general medical condition like hyperthyroidism and does not occur exclusively during a Mood Disorder, a Psychotic Disorder, or a Pervasive Developmental Disorder.
Dr. Vorster pointed out that the disorder is fairly common and, “that many people sitting here in the court today may have the disorder”. She went on to point out that in Mr. Pistorius case the disorder may have been intensified by his disability which increased his need for control. In her opinion, he did this by heightening his security in an attempt to insulate himself from perceived threats. He perceived the world as threatening, feeling as if his celebrity status made him a target for criminals.
THE TIMING AND RESULT OF THE EVIDENCE
It was suggested by Prosecutor Gerrie Nel that Oscar Pistorius was not a credible witness and furthermore, that his explanation of the events that unfolded on the morning that he shot Reeva Steenkamp was contradictory and unreliable. Nel indicated that Pistorius was a problematic witness for the defense and that they had called Dr Voster to support Pistorius version of being fearful and anxious, spurring him to react as he did that fateful day. It emerged that Dr. Vorster had first consulted with Pistorius on the 2nd of May 2014 after he had completed his testimony and that she had had limited time available to compile her report. So why was she called so late is the question being asked in the halls of court.
When any defense team is initially consulted by an accused, they are usually faced with two questions; who did it and why did they do it? In this case we all know the answer to the first question but the second in seriously in need of investigation. Why the defense team, given their experience, did not have Pistorius evaluated at the time of the offence, immediately after his arrest is a mystery to me. It would have been so much easier to assess Pistorius state of mind at the time of the shooting had it been done timeously.
It emerged that the defense had not seriously considered, referral as a possible outcome of calling Dr. Vorster to the stand. They were visibly surprised and appeared angered, by direction in which Nel steered the witness during cross examination and the resulting application in terms of Section 78 Sub Section 2 of the Criminal Procedure Act. All too late the application was vehemently apposed by Advocate Roux without success.
In my opinion a proper assessment of Pistorius is long overdue. It is the court’s best chance of knowing and understanding the reasons Pistorius acted as he did. How could someone who appears perfectly normal and in even a hero in this case, have the deep seated psychological problems alleged and furthermore how could he conceal his anxiety so effectively from the world, his family and his friends for so long. His defense team was possibly lax in not having his state of mind assessed and obtaining at least an interim report from a professional on which to base their legal strategy.
SO WHERE TO FROM HERE
In the next few days the prosecution, in consultation with the defense, need to draft an order for Judge Masipa. If she is in agreement with the contents thereof she will make the order on Tuesday. This order should cover the selection of the panel who will conduct the evaluation, which will probably include a psychiatrist for the state, one representing the defense and the Superintendent of the hospital where the evaluation will this take place. In addition the facility where the evaluation will take place must be selected, in this case Weskoppies in Pretoria or Sterkfontein in Johannesburg would be the probable considerations. The length of the evaluation must be agreed on. The reasons for the referral need to be detailed as well as exactly what needs to be assessed for example sane automatism, is there a mental illness of just a disorder, if there are disorders how did they affect his behaviour on the night.
It is also important to note, on the order being made, that Pistorius effectively goes into the of the institution selected. Once referred, Pistorius should be taken custody with no freedom of movement. Beds are at present oversubscribed and there is a waiting list of up to two years, with many of these accused currently in custody and not out on bail. The option of being an outpatient was raised, but, there is no provision for this in the Criminal Procedure Act which details the procedures that must be followed on referral. Even though Judge Masipa may dearly want to assist Pistorius her hands may be bound by law. The possibility of outpatient assessment again raised the question of possible preferential treatment for Pistorius should the court extend his bail.
Additionally according to Advocate Witz there is no precedent, in cases of Involuntary committal, for the option of being evaluated as an outpatient. He believes judicial discretion may not extend to extending Pistorius bail and that he may just find, that he has to wait his turn for evaluation, in custody like everyone else. Judge Masipa was at pains to point out that even though this may be a lengthy procedure and will cause a delay, the interests of justice cannot be prejudiced due to time pressures.
Either way Pistorius will learn his fate on Tuesday morning at 09h30 and in the interim South Africa indeed the world wait with baited breath to learn if the Para-Olympian star will receive special treatment and consideration from the court and be treated as an out-patient or be taken into custody and have to wait his turn for evaluation like everyone else in the South African criminal justice system facing involuntary referral. Perhaps his team should not have opposed the States application quite to vehemently.
