Oscar Pistorius will be referred for psychiatric evaluation due to anxiety next week, probably on an outpatient basis. This was announced by Judge Thokozile Masipa this morning in the North Gauteng High Court in Pretoria, after she had agreed to an application by the State in terms of South Africa’s Criminal Procedure Act. She said she would hand down the full order in court next Tuesday (May 20) and hoped it would be possible for him to be evaluated as an outpatient. The State and defense legal teams have undertaken to work together to ensure the application is prepared and agreed to by both parties before Tuesday.
Yesterday State Advocate Gerrie Nel brought the application after a forensic psychiatrist, Dr. Merryl Voster had given evidence that Pistorius was suffering from a psychiatric condition known as general anxiety disorder (GAD) which she said might have affected his actions in the early hours of February 13 last year when he shot and killed his girlfriend, Reeva Steenkamp.
Pistorius has pleaded not guilty to first degree murder as well as three additional charges that relate to firearms. The trial, which began on March 3, has captured the attention of the world, with hundreds of local and foreign journalists, as well as members of the public, flocking to court each day. However, there have been numerous adjournments, and today was only the 32nd day of court proceedings in nearly three months.
Judge Masipa outlined the application, stating that she found various cases the State had referred to “very useful.” One of these was a case that involved Nel, who in that instance had argued that the accused should not be sent for observation. In the event the Appeal Court ruled that the accused must be referred to a mental institution for psychiatric observation. The outcome is irrelevant, only the fact that South African law requires this to be done in certain circumstances. Judge Masipa said that the keywords from the Criminal Procedure Act were that “if it is alleged at criminal proceedings that the accused is by reason of mental illness or mental defect or for any other reason not criminally responsible for the offence charged, or if it appears to the court at criminal proceedings that the accused might for such a reason not be so responsible,” a referral “is in order.”
Counsel for the State, she said, had made it clear that the court had no discretion when either of these two requirements (an allegation or an appearance) were met, and must therefore follow through with referral of Oscar Pistorius for psychiatric evaluation. Dr. Voster had compiled a comprehensive report and this showed that Pistorius suffered from GAD, and she had made it clear that he may have acted the way he did (shooting into a closed toilet door) due to his excessive anxiety. Further, the judge said, the psychiatrist had indicated that his GAD would have been “compounded by his physical vulnerability.”
Judge Masipa repeated that in terms of Dr. Voster’s “co-morbid diagnosis of GAD,” there were two aspects that would have been “operating at the time of the offence.”
- The vulnerability of the accused. His capacity would have been compromised and he would not have been able to get around easily.
- GAM. This was pervasive and present for many years and would have been present on the day of the offence.
Judge Masipa said that to “debate about what it (GAD) is or where it will fit into the Act would be a fruitless exercise,” because there is no definition in the Act (legislation) that defines either “mental defect” or “mental illness.” But in the circumstances she could not ignore what had been brought to court as evidence.
“Morbid disorders” could not be diagnosed by a “lay court,” she said. Furthermore, doubt had been created that the accused might have another defense, namely one of “diminished criminal responsibility.” While Dr. Voster’s “inclusive” report gave a good indication of the state of mind of the accused, this could not take the place of a proper professional evaluation.
Proper enquiry will ensure that the accused will get a fair trial. Judge Thokozile Masipa
Irrespective of the circumstances of the case, the judge said, there was the “required substance” in the forensic pyschiatrist’s report, and it “cannot be ignored.” The question was whether there was a reasonable possibility that referral (for psychiatric evaluation) would reveal whether or not the accused was criminally responsible for his act when the crime (the shooting that Oscar Pistorius admits to) was committed.
While a referral would inevitably mean “more delays in finalizing this matter,” Judge Masipa said that it was about justice, rather than convenience.
This is not about anyone’s convenience but about whether justice has been served. Judge Thokozile Masipa
Ultimately she said that she was convinced that by agreeing to the application made by the State she was doing everything she could to ensure that Pistorius gets a fair trial. For this reason he will be referred for psychiatric evaluation due to the anxiety disorder identified by Dr. Voster. However, since there are a number of administrative matters that must be dealt with, including where Pistorius will be sent for evaluation, she said that while she has granted the order, she would formally hand it down on Tuesday next week. Since the “aim of referral” was “not to punish the accused twice,” she said she hoped it would be possible to ensure that he was able to be an outpatient. Whether Oscar Pistorius is an outpatient or admitted as an inpatient, his 30-day observation period will take place at a South African State psychiatric hospital.
By Penny Swift