One Tragic Night (90 page)

The same night Fourie issued his Twitter statement, Samantha Taylor made contact with the prosecution team. She told them that Fourie had asked to be moved because Oscar had been arguing with her on the phone. She confirmed the same to us: ‘There was a lot of screaming and shouting and crying and making up. I know Arnu Fourie said in a statement that he moved out because he
had a race and he needed to concentrate on it, but … I mean I think he also feels like he didn't want to put himself in the position to “out” Oscar in a way.'

Taylor also produced an email that Oscar sent to her on 18 July 2012 that appeared to show that Reeva wasn't the only girlfriend he planned to take overseas to competitions.

In court, Nel also referred to an email Oscar sent to his agent on 12 September 2012 that included copies of Taylor's passport:

Van Zyl was adamant Reeva was the first girlfriend Oscar asked to accompany him to a competition, and after studying the email with the passport presented in court he said he could not remember receiving it.

Van Zyl said he kept Taylor's passport on file as it was later used to make travel arrangements for the Seychelles trip the couple were featured on for local TV magazine show
Top Billing,
but reiterated no knowledge of Taylor ever being invited to the London Olympic Games. Nel argued that if Van Zyl has no recollection of this significant request – to take a girlfriend to the Olympic Games – then it must be a lie by the accused. The prosecutor believed it was an example of the agent protecting his client, that he wanted to testify that Reeva was the only girlfriend he ever invited overseas.

It was hard to see what value Van Zyl's evidence had brought for the defence team; it was anecdotal at best.

The defence team saved a big gun for last with sports scientist Professor Wayne Derman, who rounded off Oscar's defence. He brought together the elements of the heightened anxiety, Oscar's fear of crime and his training as an athlete, and attempted to explain what triggered Oscar's reaction on that Valentine's morning. Derman submitted a 53-page report that started off with a disclaimer that he was giving evidence in his personal, private and professional capacity and not as a representative of any institution or organisation. He wanted to make it clear he wasn't speaking for the University of Cape Town, where he's employed, or as the chief medical officer for the South African Paralympic Team that went to London in 2012.

The professor had known Oscar for six years, conducting periodic health assessments of the athlete and making direct observations during medical consultations. Derman said he got to know Oscar better by spending time with him during the 2008 Beijing and 2012 London games, but he has also remained his treating physician outside of his role as team doctor.

Derman said Oscar's most significant medical issue over the years has been his stumps, which were chronically problematic, particularly the left one. This meant he was unable to bear full weight on that stump, had poor balance and walking was difficult – in other words, Derman was echoing the observations of Oscar's orthopaedic surgeon Dr Gerald Versfeld.

In terms of his patient's psychological well-being, the professor noted:

Derman referred to a study that looked at markers of psychological stress, particularly anxiety and depression, which found these indicators higher in athletes with disabilities as opposed to a control group of able-bodied athletes. He said Oscar's results for this same test were higher than the average for the group, which meant he exhibited higher levels of anxiety and depression in relation to this test:

Derman pulled these threads together by concluding that, in his experience, the levels of anxiety and fear as well as the startle response, and fight-or-flight response, is increased in certain people with a disability.

He explained this response as how the body prepares itself for strenuous physical activity in the face of an emergency or stressful situation. To add to this, he found that the fight-or-flight response featured more prominently with people with disabilities, particularly those with mobility impairment. The professor further differentiated between these responses: the startle is the stimulus, usually auditory or visual, that triggers the fight-or-flight response.

Derman then produced academic literature that further showed that the startle response, which triggers the fight-or-flight response, was also exaggerated in individuals with high anxiety. It was becoming clear where the defence was going with this witness: the court would have to place Oscar in the bathroom, consider all the factors related to his psychology and then trigger this response.

Derman explained the anomaly that Nel had identified, that despite Oscar's
claim that he felt vulnerable, he went towards the danger. ‘Well, in this context, M'Lady, fleeing is not an option. The individual has no lower legs, so to flee is not an option and if one finds oneself without the ability to flee, the other option is to fight. So to approach the danger is an understandable physiological phenomenon,' he said.

Under cross-examination, when questioned about those seconds before he pulled the trigger, Nel had challenged Oscar on his evidence that ‘I was not thinking'. Derman referred back to his explanation about how the unconscious part of the brain comes into play in such a situation, and how that part of the brain has even greater control over the conscious part of the brain in individuals who present with higher anxiety. He argued that this accounted for Oscar's apparent inability to think in that moment.

Applying this to Oscar's version, Derman identified three auditory events that constituted the triggers for the startle that led to the fight-or-flight response.

Derman believed the court should consider Oscar's significant disability when passing judgment on his reaction on the morning of the shooting. Without his prosthetic legs fitted he did not have the option to take flight when presented with a threat; he has a lifetime of real and learnt vulnerability; a profound fear of crime; added to that his hyper-vigilance that results in an exaggerated startle response, and heightened anxiety that results in a significant fight-or-flight response; and his training as an athlete to be primed to react to the auditory stimulus of the starter's gun:

The prosecution's first problem with Derman was whether he could in fact be seen as an expert witness – he conceded he had never testified in a criminal matter. The prosecutor's second issue was whether the professor could be considered unbiased, with a duty towards the court, when the accused was also his patient. Nel argued there was a conflict of interest, in that as a medical practitioner the witness would have an obligation towards his patient. The cross-examination was thus characterised by several tense exchanges between the prosecutor and the witness, with the judge having to step in on several occasions. The questions were not about the science of the responses Derman described, but rather about their application in this particular scenario.

Derman consulted with Oscar first before the trial started and for a second time before he was referred for psychiatric observation. Nel questioned the witness on the information Oscar had provided to him about the incident, and tested him on his thoroughness.

Nel argued that an expert witness, expected to give evidence in a criminal trial in a High Court, would have taken notes of the meetings he had with the accused. He also wanted details of the original version of events given by Oscar to Derman. Oscar had only given the explanation of the magazine rack noise triggering his reaction under cross-examination and Nel implied it was a new invention.

Derman said Oscar told him about the magazine rack at their first meeting.

When Nel questioned the time period during which a person would be less in control of the conscious part of their brain, Derman explained that on the first startle – the window opening – Oscar froze.

‘Ja, so now he froze,' said Nel. ‘So whatever he done after that, that was him being in control of himself, thinking what he is doing?'

‘Well, I know that the … his next response is, he told me was to go and get the gun next to his bed,' said Derman.

Nel's issue with this version was the apparent contradiction of the startle response being a freeze, and then the accused fetching his firearm. ‘You cannot now freeze and then fight,' he argued. The prosecutor was attacking the defence that Oscar was not consciously thinking about his actions when he fetched his firearm and stormed the perceived threat in the bathroom. ‘Okay but, what you will … what you are able … what you will concede is, there is an element of thinking,' said Nel.

‘There is indeed,' answered Derman. ‘Because he realised he has to get a gun.'

The prosecutor zeroed in on the effect that time has on this type of response: