One Tragic Night (63 page)

Professor James Grant largely agrees. ‘These are clearly legitimate charges in themselves and it is perfectly legitimate for the prosecution to have coupled them with the murder charge. However, a more critical view would be to recognise that coupling these charges was more strategic than coincidence. The firearm charges relate to the reckless or negligent use of firearms. These charges will draw attention to the character of Pistorius, and the evidence led to prove the charges will invariably tend to show that Pistorius has a “bad character”.'

As a general rule in South African courts, evidence about someone's character or their general reputation is only admissible in exceptional circumstances.

‘By bringing the firearm charges at the same time as the murder charge, both “similar fact” evidence (evidence of prior bad acts), and bad character evidence will be admitted, albeit, on different charges. The effect of this is that, although and unless similar fact evidence and character evidence is deemed admissible in respect of the murder charge, it may, at least, operate at a subconscious level on the court,' explains Grant. ‘Beyond this, evidence of the reckless use of a firearm may be argued to show something about Pistorius – in the sense that would make the character evidence and similar fact evidence admissible in its own right.'

The runner's lawyers made representation to the National Prosecuting Authority in September 2013 arguing why the charges should not be added, stating that they would unfairly prejudice their client:

The North Gauteng Director of Public Prosecutions, Advocate Sibongile Mzinyathi, disagreed, stating that it is ‘to the advantage of the state and relevant to the murder charge to expose the accused's reckless nature regarding firearms'.

In his plea explanation, Oscar denied both the firearm charges as well as the fourth charge for possession of the .38 calibre ammunition found in his safe. Many commentators believed this decision to plead not guilty was a major error, arguing that had Oscar taken the hit and pleaded guilty, he would have avoided character evidence being introduced. However, it was clear that Oscar maintained his innocence and thought the gamble was one worth taking.

The Knock-Out Kid, Kevin Lerena, was the first witness in the box to testify on the gun-related charges. He had updated his Facebook page days earlier, responding to questions about whose side he was on. ‘There are no sides. Two lives and families have been affected by this,' said Lerena. ‘So I'm on no side. I have been called to court, not to slate Oscar or the state, but to answer simple questions.'

Lerena consented to having his face shown in the live broadcast feed of the trial. He was the first witness in the trial to do so, which meant that he inadvertently made history as the first witness in a criminal trial to be broadcast live in South Africa.

In days past, the budding boxer had looked up to Oscar, regarding him as a sporting icon. The pair met at a Daytona Group track day at Kyalami Race Track in Midrand. Lerena used to date Gina Myers and was familiar with the circle of friends. Amongst the group at the event was Daytona owner Justin Divaris and Darren Fresco.

Lerena grew up in an athletic family and is no stranger to professional sport. His two cousins, Gavin and Brandon Lerena, are top jockeys in South Africa, and his parents were involved in horse racing. As a young boy, he was headed on the same equine career path, but in high school he started playing rugby
and went on to represent the Lions in the Under-19 Currie Cup. Lerena's single mother couldn't support that career, so he started bouncing at nightclubs to earn an income, and this is where he was spotted by boxing promoters.

In Oscar, Lerena found a potential mentor. He was looking to someone he admired to help him advance in his sporting career. ‘He is an icon and a legend in sport and athletics, you know, for me as a young sportsman to get help from a guy like him was very important,' Lerena testified in court. ‘So I was rubbing shoulders with him and he was going to help me with a diet and a little bit of running.'

Lerena was preparing for a fight on 16 February and wanted to meet Oscar to discuss a plan to reduce his body weight. ‘I fight in the cruiserweight division and Oscar knew how to, you know …' he said, briefly pausing before clarifying in his flat Joburg accent why he'd seek the athlete's guidance. ‘… obviously being an athlete, how to like get in tip-top shape.'

During lunch at Tashas on 11 January 2013, the boxer ordered a pasta, while the three others at the table had soft drinks. Lerena testified that he was sitting opposite Oscar and next to Fresco, and told the court he heard Fresco warn the athlete that there was a bullet in the chamber:

Lerena testified that when he looked down he saw a hole in the floor. He also noticed there were ‘grains' on his toe and he wondered whether it was from the marble tiles or the shrapnel. He was scratched from the shrapnel and there was blood on his toe. The boxer got up from the table and went to the bathroom to wipe it.

He was in shock from the incident. ‘I have never been in a confined area, where a gunshot has gone off by accident, you know. There could have been a fatality, so for me, I was very shocked. I do not think it sunk in until three, four days after that, because when it happened I was not … I was shocked but it happens you know. I did not expect it. I did not understand it.'

During his testimony, Lerena was insistent that Oscar took responsibility for the incident, but asked his friend Fresco to take the blame:

According to Lerena, the men paid the bill, left and never spoke of the event again. Just over a month later, on the Sunday after Reeva was killed, the incident at Tashas resurfaced:

As Advocate Roux stepped out of his corner for cross-examination, he ventured a joke with the judge. ‘I may ask Mr Oldwadge to do the cross-examination, because I do not know if I want to cross-examine a boxer, My Lady,' he quipped.

Roux pressed home three points with Lerena, giving an indication of what Oscar's version of events might be. He said that Oscar was firstly angry with Fresco for giving him a weapon that was ‘one-up' with a bullet in the chamber; secondly, he was concerned that someone could have been hurt; and, thirdly, that Oscar had asked Fresco if he understood what would happen if this incident reached the media.

There was no denial that Oscar had requested to see the firearm, nor that he had handled the firearm inside the restaurant – which would emerge in his own testimony as an inadmissible defence. Rather, the approach of the defence was an attempt to show that he did not hear the warning that the firearm had a bullet in the chamber. Roux told the court that his client would testify that it was in the process of opening the firearm breech that the shot accidentally went off.

The defence counsel stressed that his client was very apologetic and had checked to see whether any one had been hurt. Lerena countered that he could not definitively say what emotion Oscar was feeling and couldn't recall if he had been angry or not.

Roux had lined up the next section of his cross-examination – to put it on the record that Oscar never asked anyone to take the blame for the incident. Instead, Roux said, it was Fresco of his own volition who said he would take responsibility for the incident.

The advocate read excerpts from the statement made by Martyn Rooney, the British athlete who was the fourth man at the table. Rooney supported Oscar's version of events. ‘Darren kept on telling Oscar not to talk because he was apologetic all the time and apologising and I said to him: “Just keep quiet, do not talk.”'

Roux said Oscar also apologised to the owners and offered to pay for damages – another claim Lerena could not confirm. Lerena could not recall the verbatim exchange between Rooney, Fresco and Oscar, but could remember Fresco taking responsibility. Fresco would have to come and tell the court himself what went down that day.

Darren Fresco met Oscar on a breakfast run – a bunch of friends, fast cars and the open road. They shared a passion for speed and Fresco spent considerable time helping out at mutual friend Justin Divaris's Daytona car showroom. In addition to their enthusiasm for fast cars, Oscar and Fresco liked handguns and would on occasion meet up at the shooting range to fire off a few rounds together.

Fresco had known Reeva much longer than Oscar, having met her when she moved to Joburg about seven years earlier. Once Reeva had died, there was no question as to where Fresco's loyalty lay. He appeared as a state witness in the second week of the trial to testify against his former friend on the two gun-related charges.