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All Bark and No Bite? ‘The Pitbull’ Gerrie Nel

About The Author

Joseph Switalski (Guest Contributor)

Joe graduated from Durham University in 2013 with a 2:1 in Law, and subsequently undertook the Bar Professional Training Course at Nottingham Trent Law School. Joe is to start his pupillage with a leading London family law set in 2015. Outside of the profession, he endures the bittersweet existence of supporting both Leeds United and Arsenal.

There was a period at the start of the Bar Professional Training Course (BPTC) where I failed to see the merits of the rules underpinning criminal advocacy. It all seemed unnecessarily structured. My attitude reflected what many laypersons must think when they come into contact with the justice system. Why can you not ask what you want? Why do you have to take care in how you phrase questions? Why can you not comment on answers as they are given? Why must it not become a back-and-forth argument? 

Less insightful teachers would resort to a limp sense of self-fulfilling logic: ‘those are the rules so you must follow them’. Good advocates delve deeper into the rationale supporting the rules to make two observations. Firstly, the rules protect both the accused and witnesses from having their ability to give evidence manipulated. Secondly, the rules guide advocates towards their primary purpose: eliciting evidence for the tribunal of fact.

In hindsight, it is unsurprising that many prospective barristers challenge the rules of advocacy at first blush. One only needs to watch fifteen minutes of ‘Silk’ to see Martha Costello giving her opinion to a witness without asking a question. With time, I came to the conclusion that advocates that disregard the rules do not make it into practice because disregarding the rules leads to bad advocacy. 

This was until April 7th 2014. Sky News was providing a summary of the Oscar Pistorius murder trial. The Defence had just opened its case and Gerrie Nel, the prosecutor they call ‘the Pitbull’, had begun his cross-examination of witnesses. The contrast between what I expected and what I saw could not have been starker; Mr Nel was not just pushing the boundaries of cross-examination, he was ignoring them altogether.  

Commenting, asking rhetorical questions, interruptions, sarcasm, shifting the burden of proof, misquoting and arguing were all frequent traits of Mr Nel’s advocacy. The media, predictably, lapped it up. Mr Nel is about as box-office as a state prosecutor could be in a case of this stature. There is no doubt that he is an accomplished orator. His demeanour lends itself well to media sound bites. ‘Tough’, ‘dogged’ and ‘brutal’ are just some of the adjectives that have accompanied every mention of the case since his cross-examination began.

What I assumed to be a fictional style preserved only in television dramas was being beamed across the world as a ‘how to’ in cross-examination. Cursory searches of public opinion revealed an interesting divide. Esteemed advocates were dismayed at Mr Nel’s approach whilst the man in the street found his tenacity refreshing. Mukul Chawla, head of chambers at 9-12 Bell Yard and head of advocacy training at Gray’s Inn, tweeted that aspiring advocates would ‘lose the trust of the court’ if they imitated Mr Nel’s cross-examination.

What follows is not intended to be criticism for the sake of criticism, nor is it intended to be an advocacy guide. For those looking for such a resource, I suggest beginning with the work of Iain Morley QC (The Devil’s Advocate, (2009) Sweet & Maxwell). My aim is to analyse the effect of Mr Nel’s approach by looking at a snapshot of the trial and comparing this to how an orthodox advocate might proceed. In doing so, we can form our own opinions of whether or not the rules are there for reasons that go beyond pure procedure.

The Pistorius Case

Before analysing the trial, it is worth getting a basic understanding of the jurisdiction. South African law draws a great deal from UK common law. However, one fundamental difference with regards to criminal law proceedings is that South Africa abolished trial by jury in 1969.

As a general point, it is important we remember that the test for criminal liability in murder and manslaughter cases has two elements: actus reus and mens rea. Respectively, these refer to the act of doing something (actus reus) and the mental intention that accompanies it (mens rea). The charge of murder is universal in most jurisdictions: killing another with intention. In South Africa, the lesser charge Mr Pistorius may be found guilty of, if not murder, is culpable homicide. In that case, the killing remains unlawful but only on the basis of an objective standard of negligence.

The facts of the Pistorius Case have been well documented; there is no dispute that Mr Pistorius shot Ms Steenkamp and that the shots he fired caused her death. The actus reus of killing is made out. The case hinges on the question of intent; Judge Thokozile Masipa has to determine what Mr Pistorius perceived to be happening at the time and whether or not his actions in the circumstances were reasonable.

That brings us neatly to the first of Mr Nel’s indiscretions: labouring matters not in issue. Early on in the cross-examination of Mr Pistorius the following exchange took place. (The full trial is accessible via YouTube, with this exchange at 1:04:50 in the following video

GN – ‘You made a mistake?

OP – ‘That’s correct.’

GN – ‘You killed a person, that’s what you did isn’t it?

OP – ‘I made a mistake my lady.’

GN – ‘You killed Reeva Steenkamp, that’s what you did.

OP – ‘I made a mistake my lady.

GN – ‘You’re repeating it three times. What was your mistake?

OP – ‘My mistake was that I took Reeva’s life, my lady.

GN – ‘You killed her. You shot and killed her. Won’t you take responsibility for that?

OP – ‘I did my lady.

GN – ‘Now say it then. Say, ‘yes, I shot and killed Reeva Steenkamp.’’

OP – ‘I did my lady.’

GN – ‘Okay. You have a responsibility to now tell the truth. Let us get to the truth.

Mr Pistorius, as a matter of fact, killed Reeva Steenkamp; Mr Nel knows this and counsel for the defence accept this.Though he may be somewhat dramatic, there is sense to be found in Mr Nel’s approach. The aim of this line of questioning is to unequivocally emphasise that Oscar Pistorius killed Reeva Steenkamp.

Shortly after, Mr Nel successfully introduced a video clip showing Mr Pistorius shooting melons at a firing range. There is a clearly audible comment from Mr Pistorius comparing the melons to brain tissue, with a further reference to how the bullet would be able to stop a ‘zombie’. The evidence is relevant in that it demonstrates Mr Pistorius’ prowess with and appetite for firearms. This is a significant point when assessing whether or not shots were fired with intent to kill. An inexperienced gunman would be less likely to assure a fatal shot. However, Mr Nel’s line of questioning goes beyond this desired outcome and, in my opinion, goes too far (which can be found in this video at 8:17): 

GN – ‘Can you now recall what happened there, Mr Pistorius?

OP – ‘I was shooting at a watermelon with a handgun. That wasn’t me laughing in the background but that was my voice saying those words. I think in hindsight my lady it makes me very upset to hear myself say something like that. But to compare a zombie, which is a fictional, animated character to a human being… the relevance… I can’t put two and two together…I didn’t at any point compare it to a human or shooting at a human.’

GN – ‘No you did, you did. ‘It’s softer than brains.’ Who else has got brains?

OP – ‘My lady in that whole sentence I was referring to a zombie.’

GN – ‘What we can see there is the effect the ammunition had on a watermelon. It exploded. Am I right?

OP – ‘That’s correct my lady.’

GN – ‘You know that the same happened to Reeva’s head. It exploded. Have a look.’

Mr Nel then produced a picture of Ms Steenkamp’s head injury. The image was so graphic that it was blurred in news bulletins. Up to a point, one can see how this could be portrayed as compelling evidence. There are a number of potential approaches: Mr Pistorius is aware of the destructive force of a firearm; Mr Pistorius realises how fragile material is in the face of ammunition; and, if Mr Pistorius was aiming for a person’s head, he knew what the consequences would be. Mr Nel’s eventual angle on the evidence, however, lacked the relevance of these perspectives. He continued:

GN – ‘I’m going to show you Mr Pistorius, it had the exact same effect the bullet that went into her head.’

OP – ‘My lady, I was there that night…

GN – ‘That’s it. Have a look, Mr Pistorius. I know you don’t want to because you don’t want to take responsibility but it’s time that you look at it. Take responsibility for what you’ve done, Mr Pistorius.’

OP – ‘My lady, I’ve taken responsibility by me waiting and not wanting to live my life but waiting for my time on this stand to tell my story for the respect of Reeva and for myself. But I will not look at a picture where I’m tormented by what I saw and felt that night. As I picked Reeva up my fingers touched her head. I remember. I don’t have to look at a picture, I was there.’

It is advocacy such as this that the rules exist to guard against. Not a single question. Not even an inference as to what this says about the circumstances of the shooting. Rather, a condemnation of the accused, designed to vilify his character.This was nothing more than a shock tactic that left Ms Steenkamp’s family distressed and Mr Pistorius reliving the events of that night.

At the end of this exchange, I felt Mr Nel had done damage to the prosecution’s case. Mr Nel allowed Mr Pistorius to show his humanity. This was not the evidence of a cold-blooded killer but a man remorseful and in shock. Admittedly, that does not necessarily mean he is innocent. It does however cast doubt on the prosecution’s attempt at showing a ‘gun-nut’ with intent to kill and an indifference to human life.

Aside from the unnecessary antagonising of witnesses, it is in this exchange we see the fundamental principle of cross-examination broken. Mr Nel has lost control. He has invited Mr Pistorius to ‘take responsibility’ as though it were an invitation to confess. This is a gross misunderstanding. Mr Pistorius emerges from the exchange having maintained his innocence in relation to the charge of murder, but having shown recognition for the consequences of his action. Mr Nel’s mistake was to confuse the two as one and the same. Mr Pistorius can be remorseful, admitting he made a mistake, but still walk free provided that the mistake was a reasonable one to make in the circumstances.

Preserving Principles

By preserving the orthodox approach of asking leading questions, eliciting evidence, targeting matters in issue and making points firmly but curtly, Mr Nel could have provided effective cross examination for the prosecution’s case. If Mr Nel had simply embraced the principles of advocacy, he could have presented three compelling points addressing matters in issue:

  1. Mr Pistorius’ claim that he was panic-stricken must be weighed against his firearms experience;
  2. Mr Pistorius knew the ammunition could have devastating, fatal effect;
  3. Mr Pistorius’ experience demands greater focus on how he shot the gun and whether or not he considered the consequences that might have on any target.

All Mr Nel needed to do was to present the video and the picture with short, sharp questions to then reflect on the following in closing: 

  1. Your prowess with firearms must have eased your sense of panic, that’s right isn’t it, Mr Pistorius?
  2. This video shows you have prior experience of how devastating firearms ammunition can be, doesn’t it, Mr Pistorius?
  3. You know, don’t you, Mr Pistorius that the risk of fatal injury varies enormously depending on where a person is shot?

Even if the answers to this line of questioning were resounding disagreements, the prosecution would have begun to advance its own case and denied the defendant the chance to mask over those points with his sense of remorse. More importantly, the mind of the tribunal of fact would be focused; legally irrelevant notions such as ‘taking responsibility’ are eliminated from the equation. What remains is what matters: did Oscar Pistorius know what he was doing when he fired that gun?

I do not doubt that Gerrie Nel is impressive in many ways. Moreover, I do wonder whether the absence of a jury affords criminal advocates in South Africa more leeway given the probability of misleading a judge is less likely than a jury. That being said, the point made by Mr Chawla QC is essential. Most courtrooms, particularly in the UK, will be far from impressed with an approach that deviates from the central pillars of advocacy. In my view, the rules are there to help advocates, not constrain them. 

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Tagged: Courts, Criminal Law, Justice, Rule of Law

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