by Dario Milo and Stuart Scott

On Sunday night, Australia’s Channel 7 broadcast a video showing Oscar Pistorius apparently re-enacting various moments from the night he killed Reeva Steenkamp.

The footage was reportedly filmed in October 2013 by a US company, The Evidence Room, and reports say that it was commissioned by the defence team to assist with trial preparation in order to reconstruct Oscar’s version of events.

Since the broadcast, there has been a cloudburst of media attention dedicated to the issue and what it means for the trial.  Indeed, various reports around the world have used buzz words like “mistrial” quite liberally.

But could the publication of the video down under amount to a mistrial?

We submit not.

Significantly, the footage has not been relied upon by the state or the defence and thus it has no bearing on Pistorius’s murder trial whatsoever.  It follows that there is simply no basis for the view that Oscar’s or the state’s right to a fair trial has been infringed by the mere publication of the footage.

Accordingly, there is with respect no basis for the view that the broadcast creates what the Americans call a “mistrial”.

The legal reason is that our Supreme Court of Appeal made it clear in the Baby Jordan case that the test for whether a publication during a pending or on-going criminal trial is unlawful is whether there is a real risk of demonstrable and substantial prejudice to the administration of justice. And “[e]ven then publication will not be unlawful unless a court is satisfied that the disadvantage of curtailing the free flow of information outweighs its advantage.”  This rule against publication which could prejudice the administration of justice is known as the sub judice rule.

Importantly, the panel deciding Oscar’s legal fate is not a jury comprised of lay people who might be erroneously influenced by evidence which is not before the court, but a Judge and two legally-trained assessors.  Our courts have emphasised the importance of this distinction.

A helpful example in this regard is the case of Joseph Arthur Walter Brown v the NDPP and Others in which the former chief executive of Fidentia, who had been charged with numerous counts of fraud and theft, applied for a permanent stay of the prosecution against him on the basis that pre-trial media coverage infringed his right to a fair trial.

The court agreed that there was indeed adverse media coverage in relation to his case but found that Brown had failed to show any link between the publicity and the effect that it would have on his trial.

In the Brown case, Judge Robert Henney found that while a jury “might be influenced by the media in some way or another” the same risk is not present in the South African legal system.  That was said to be so because “the presiding officer is a trained official who knows the justice system and who is impartial”.  In summary, judges will not be swayed by extraneous material that is published in the media.

Thus the calls for a mistrial seem to us to be wholly unfounded. Nor, in our view, if Pistorius were to be found guilty, would the broadcast constitute a ground of review or appeal.

There are, however, four potential legal issues which arise from the footage being broadcast.

The first question is whether there has been any breach of legal professional privilege.  Legal professional privilege is a general rule according to which communications between a legal advisor and his or her client are protected from disclosure, provided that certain requirements are met.  A central requirement is that the communications must have been communications between a legal advisor and the client.

The key question in thus whether the video was commissioned by Oscar’s legal team or, for example, by a member of Oscar’s family.  If the footage was commissioned by Arnold Pistorius for instance, as some reports seem to suggest, then it is unlikely to be protected by legal privilege.  But if the footage was commissioned by Brian Webber then it may well be.

The media statement given by the defence is not very clear on precisely who commissioned the footage.  The statement was that:

Its usage constitutes a breach of privilege as the material was produced for trial purposes on the instructions of a commissioner and the ownership of the copyright vest in the commissioner.”

The question of copyright is, however, a separate one from whether the footage is protected by legal professional privilege.

The second legal question is who owns the copyright to the footage?  This will largely depend on the particular agreement in terms of which the footage was commissioned.  But if there was no agreement then the default position under the South African Copyright Act is that whoever commissions and pays for footage to be produced owns the copyright.  Thus, the broadcast may have involved infringement of copyright.

A third legal issue is the defence team’s claim that the information was “obtained illegally and is in breach of the non-disclosure agreement with The Evidence Room”.  That may well be a basis for whoever commissioned the footage to sue The Evidence Room for breach of contract in a civil lawsuit. But while it may be a breach of contract, and possibly even some kind of invasion of Oscar’s privacy, the breach of a non-disclosure agreement is not a basis for a mistrial. And the agreement, of course, does not bind third parties such as Channel 7.

The final issue is whether Channel 7 may be in contempt of court by broadcasting the footage.  The media may be in contempt of court if there has been a breach of the sub judice rule (discussed above).  In our view there is no difficulty in relation to contempt of court in relation to broadcasting the footage; it does not pose a real risk of substantial prejudice to the administration of justice.

So while the broadcast of the footage raises certain legal issues, it certainly does not prejudice the state’s or Oscar’s right to a fair trial.