This open reply is in response to the posts on your blog aimed at discrediting us and our book Oscar vs the Truth. It also seems that you took a swipe at our book Bloody Lies.
We grant that the position of certain objects in our sketches may not be 100% accurate. The idea was simply to give an general overview of the crime scene and approximate positions in order to provide some context. We are not easily fooled and we can see that you are using an old defence tactic – to draw attention away from the real issues to irrelevant and unintentional inconsistencies – and then to try and blow them out of proportion. Smoke and mirrors. It worked with Oscar Pistorius and it worked with Fred van der Vyver. But it’s not going to work forever.
Some of your criticisms are simply laughable, such as the reference to the printed quality of the bail application in OVTT. We tried to publish the original paper version and actually went through a lot of digital trouble to get it into the best printable quality – but what is your issue here, really? Surely you can read it, so what is the problem, or are you simply scraping the bottom of the barrel? Then you go on to show various other things on the scene, all which is hardly relevant to the arguments in our book. Thank you for kindly pointing them out, but we really don’t care where all the fragments were scattered. Desperation is a funny thing, you know, Mr Wolmarans. Please keep your eye on the ball.
Let us look at your illustration below:
Are you serious that this is an accurate overlay? As a seasoned forensic “expert” you should know that the first rule of overlaying images is that they must be to the same scale. So if you are an honest objective expert then one can reasonably expect the scale of the vest in the image above to be about the same as the image representing Reeva’s body. Agree?
Why don’t we start with the dimensions of the vest? We know you had the photo below at your disposal – Photo 15 in your report. You would easily be able to determine the length of the vest using the scale ruler in the photo. The distance from the top of the shoulder strap to the bottom of the vest is about 66 cm. If we allow about 5 cm for the rounding of the bust then the bottom of the vest should extend to at least 61 cm below Reeva’s shoulders.
Now let us consider Reeva’s dimensions. According to the autopsy report Reeva was 175 cm tall. And also according to the autopsy report the bullet hit Reeva at distance of 92 cm from the base of the right heel. Therefore, from the top of Reeva’s head to the hip wound the distance is 83 cm. The autopsy report does not provide the distance from the top of the head to the shoulders. Fortunately, there are plenty of anthropometric data that the distance is consistently between 28 cm to 31 cm. Therefore, the distance between the shoulders and the hip wound is between 52 cm and 55 cm. Therefore, the vest should extend to about 6 to 9 cm below the hip wound – if it is superimposed correctly onto the body image.
Why is it then that in your image the vest stops a good distance above the hip wound? Did you have to do this to explain why there is no bullet hole in the vest that corresponds with the hip wound?
Even on your “overlay” above the wounds and holes do not align. The wounds are too far to the right in relation to the holes in the vest. But let’s forget about the alignment for now and look at the number of “holes” in the vest and the size of these holes vs. the number and sizes of the wounds on her chest.
(BTW: When you look at the photos of Reeva as she is lying downstairs, it is clear that the black vest was sitting quite loosely on her and not nearly as tightly as your overlay suggests.)
So, Mr Wolmarans, time for homework. Please take a pen and paper and take notes.
This is the so called fragment wound on Reeva’s chest. Please work out the size of this wound. Using the included ruler, it is easy to see the wound is mostly about 10 mm in diameter, with a slight elongation to 15 mm to the one side. So let’s make it 10 mm x 15 mm oval. There are two little secondary wounds to the top right of this wound (about 7 mm x 2 mm each), but we will primarily look a the main wound (the “primary wound” for further reference). So do you have the size of the primary wound? Please write it down.
Now let’s look at the size of the holes in the vest. Again, using the included ruler, we see that the two most prominent and larger holes are:
B – has a top tear and then a tear downwards, but in general it is about 20 mm x 25 mm.
A – as we will see on the image below this one, is more of a tear than a hole and is at least 20 mm long.
How big is the chest wound, Mr Wolmarans? Go check your notes. But wait, we’ll get back to this.
Should not be to difficult, Mr Wolmarans; how many holes do you see? How many wounds are there on her chest? If you are desperate you can count every single one but let’s keep it to the primary wound. There is one big wound and we see at least two big holes in the vest (both much bigger than the primary wound). So how did the fragment that made the primary wound make two holes in the vest – both holes being much bigger than the primary wound?
By now you probably get it that there are too many holes for the wounds and that the holes are also too big for the wound/s. Below is an ON-SCALE comparison of the wound vs the holes in vest. [If you do not know want an on-scale (1:1 comparison) is, we will gladly explain and teach it to you.]
So, Mr Wolmarans, how do you think the same fragment or even fragments that made the wounds, made those holes in the vest? (Same-alignment applies above and below.)
Are you still saying the holes in the vest fit the wounds?
The wounds are utterly incompatible and not reconcilable with the holes in the vest and they were most certainly not made in one and the same event and by the same object.
Look at the hole indicated by the yellow arrow and say again that that was made by an fragment. Look at the fringes. This is not the result of a fragment that cut through fabric.
It is abundantly clear that these are not holes made by a projectile but that they are tears (“skeure”) as a result of pulling on the material (i.e. stretching it after e.g. grabbing onto the material).
You say that these holes were made when the fragment exited the arm. You have the photo of that huge gaping arm wound. As the bullet exited the arm from this wound, it must have sprayed a substantial amount of blood, bone and tissue onto the vest before and while making the hole/s in the vest. And yet the areas immediately surrounding the large holes where the bullet supposedly entered, are clean?
Show us the blood and tissue, Mr Wolmarans, show us the blood and tissue!
(We are not saying there is absolutely no blood on the vest but given the scenario of the fragment going through the arm and then through the vest, one would expect much more blood on the vest, especially around the holes. Look at the clean fringes.)
(When looking at the photo straight above imagine the primary wound being about 10 mm in diameter and place it in this “hole”. The wound would simply be way too small.)
Reeva did not wear the vest at the time of the shooting. Period.
So, you say one of the circled little edges made wound on Reeva’s back? Below is a photo from your blog.
Below is an approximate scaled comparison.
There are many problems here. Unless the rack stood right against the wall when she fell on it, it would have moved on impact and would have alleviated/dissipated impact significantly. But more importantly, the back would likely first (or at least also) make contact with the green circled part – not only lessening impact in your red circle but bumping the rack away on impact. And then you would also get bruising or a mark where the green circled area hit the back.
As you will see below, it is highly improbable to make contact only at B without the body also touching A and C. Except for a smaller wound only about 2 cm below the bigger wound, there are no marks or bruises above or below the bigger wound. You can also imagine that if she fell downward onto the rack there would be a longer abrasion upward as her buttocks were still travelling to the floor. Or do you think the back would make impact and then suddenly move away from the rack? Or what? The back would maintain contact as the direction of impact is to the back wall and downward, this would lead to more significant bruising and wounding upward. If she made impact while her buttock were on the floor already, the impact of the red circled areas would be to high relative to the back (considering where the wounds were made).
We are not arguing a straight line as in a straight fixed object touching the rack in this area, but simply that when your back hits B it will hit at least A too (and first and probably harder, as it is the first point of impact considering a fall backward and downward from the door’s side). Point being, you can’t look at the red circled areas in isolation. Falling against this part of the rack will likely result in a longer linear abrasion and not as concentrated.
But there is one very simple thing that blows your rack theory out of the water.
You can go check the autopsy photos, which you surely have. On various photos it is abundantly clear that the skin is pressed downward. Also, the bruising is below the striations (clearly the point of impact). This tells you that whatever made the wound made impact from TOP TO BOTTOM. It pressed the skin downward and caused bruising as the object moved from top to bottom on the skin. Can you agree with this? If you can’t, sorry, then we can’t help you.
Above: Bruising below the striations and skin pressed downwards
Now, get your notepad again and answer this question for yourself. It is not a trick question and should be able to figure it out yourself. When you fall against anything, a chair, a magazine rack, a toilet seat, anything, in which direction would the skin be pressed? Answer it for yourself and make the sums. We really do not want to think for you.
Do you deny that a cricket bat can also be classified as a blunt object?
Next we would like to talk to you about the following statements in your testimony. You must know that any opinion produced by an expert must be based on facts and not on assumptions, conjecture and speculation.
“The breaking of the toilet door by the cricket bat. I agree with Colonel Vermeulen that the cricket bat was used to strike the upper door panel of the toilet door in order to break the door open. I also agree with Colonel Vermeulen that the door was first damaged by the four shots that perforated the door and thereafter by the cricket bat.
This is illustrated in photo 29 below, showing what the damage to the door would look like if the door was first damaged by the cricket bat and thereafter by a bullet.”
M'Lady, that is on the next page, page 29 and you can see it is in a straight line, everything with the bullet hole in the middle.
That is the shot that you fired at the meranti door? --- That is correct, M'Lady.
When the door was first cracked and then you fired the shot. --- The door was first cracked and then the shots was fired
How could you agree with Vermeulen? As an “expert” you must have known that Vermeulen made a mistake and that he rendered an opinion that he did not and could not back up with any evidence whatsoever. Please read more here. Other than agreeing with Vermeulen, what other facts did you base your opinion on that all the bat strikes came after the gunshots? Your “shooting into a meranti door” experiment? All that this useless experiment could possibly prove is that the crack developed after the gunshots – and at most it proves that the panel was broken out after the gunshots. How does it prove that all the bat strikes came after the gun shots? If this is so please point us to the cracks that run into holes A, B, and C – or bat marks on top of these holes?
If you cannot provide this evidence are you ready to admit that you misled the court?
You also seem to think that our book Bloody Lies is fiction and full of lies. Did you read the book? Yes it is full of lies – the lies told by the experts that testified in the defence of Fred van der Vyver who stood accused of murdering his girlfriend. Would you like to sit down with forensic pathologists Wagner, Liebenberg, Knobel and Martin and explain them why they are wrong in supporting the Molletts? Or with Prof Visser from the University of Stellenbosch and Prof Theron from the University of Pretoria whose independent analyses support our findings? Or even better can you reproduce Pat Wertheim’s test lifts without trickery? Or perhaps you can ask your beer buddy Roger Dixon why he committed perjury when he told the court he met with Const Swartz – whilst he never did? Or why don’t you ask the judge why he accepted Roger Dixon Section 212 affidavit as prima facie evidence why independent legal opinion has it that the affidavit should have been inadmissible because it did comply with Section 212 of the Criminal Procedure Act?
You didn’t testify to assist the court – you testified only to assist your paying client, Oscar Pistorius. You failed in your duty as an expert witness.
You know, Mr Wolmarans, they say that even if a person has 50 years experience, if he does not move with the times, then he’s just having his first year 50 times over and over again. It is time for you to move on.
The fact that you visited the scene means nothing. As a minimum you should first and foremost apply some basic common sense.
One request Mr Wolmarans, what do you say about all the damage to the bedroom door? This is now since you have been on the scene yourself. Or is it just convenient for you to ignore this? And just a last thing, you say you tested the light conditions in the room; that it would have been PITCH DARK in the room. We are not going to argue with you about the length of the curtains and the balcony light, but just one question: where is your evidence, or must we simply take your word? You’re an expert not providing reports, it seems. How convenient.
I hope you don’t mind, but we are about to exercise our constitutional right to free speech.
You accepted the timeline that Barry Roux et al. so carefully crafted and presented to you in court. You accepted it as gospel. Did you know, however, that the defence’s timeline is based on an assumption that cannot be supported by any objective evidence? This unsubstantiated assumption is that the “first sounds” were the gunshots, and the “second sounds” the bat strikes. Like we did in our open letter to Barry Roux we invite you to point us to the evidence that proves this conclusively. Please first read our post where we explain this in detail and also present a plausible alternative that fits in very well with the acoustic evidence delivered in this case.
It is quite evident that your acceptance of the sequence – gunshots first and bat strikes second – determined the outcome of the case on the dolus directus charge. It misled you to reject the police’s testimony that they didn’t alter the crime scene (e.g. moving the fans, duvet, etc.) and most importantly, the testimonies of neighbours that said they heard a woman scream.
As an example:
Significantly Ms Burger refused to concede that she could have missed hearing the first sounds – that is the shots – as she might have been asleep at the time and that what she heard was a cricket bat striking against the toilet door. The evidence of this witness as well as that of her husband, Mr Johnson, is sought to corroborate her evidence, was correctly criticised in my view as unreliable (Record 3291, Lines 16–21).
What if Ms Burger missed the first sounds because they were actually the softer cricket bat strikes? You were so firm in your conviction that all the bat strikes came after the gunshots that you didn’t hesitate to paint a state witness as unreliable.
Your whole judgment is in essence based on a false assumption that started with an error in logic by Vermeulen which then got exploited by Roux and his paid witnesses Dixon and Wolmarans.
Here is Vermeulen:
M’Lady I would say the door was hit after the shots. When he ... some part of it broke after the shots. Because if you look at the crack down here, it enters this bullet hole on the one side and it exits on the other side. Well it enters on the one side and exits on this side. So what this tells me is that there had to be a hole in the door before this piece broke off, otherwise the crack would have gone straight through (Record 657, Lines 8–20).
Vermeulen had absolutely no basis to render an opinion that the door was hit after the shots. All that he could say with certainty is that a piece of the door was broken out after the shots – from this one cannot assume that ALL the bat strikes came after the gun shots. It is a well established legal principle that an expert’s opinion evidence should be supported by facts. In this case neither Vermeulen, Dixon or Wolmarans placed any facts to the court to support their opinion that ALL the bat strikes came after the gunshots.
The object in calling an expert is usually to express an opinion. In part, that opinion will be based on facts ascertained by him or put before him as a basis for his opinion. Normally, he will disclose those facts before being permitted to express his opinion. Those facts must be proved by the party who calls him by admissible evidence. Otherwise, the opinion must be excluded or rejected, unless the variance between posited facts and the facts ultimately proved does not deprive the opinion of its basis, or does no more than weaken the force or weight of the opinion.
The opinion will also, in all probability, be based upon the application of principles or data tables which are commonly used in the relevant field of expertise.
Respectfully, if you think that the crack through the one bullet hole is fact enough to provide a basis for their opinions then you are wrong. All that this can prove is that the mechanism that made the crack occurred after the shot that made that particular hole. If we for the sake of the argument assume that the mechanism was the final bat strike, then all this means is that one bat strike came after the last shot. There is absolutely nothing on that door that proves that the other two bat strikes came after the gun shots. It is quite feasible that two strikes to the door and one to the metal plate occurred before the gunshots – and then one last strike after the gunshots. This last strike caused a crack which then propagated to the bullet hole as Oscar pried the piece out.
Let’s continue. From your judgment:
It is common cause that on the morning of 14 February 2013, shortly after 3 o’clock various people heard gunshots, screams and other noises that sounded like gunshots emanating from the house of the accused (Record 3290, Lines 16–10).
The statement above should rather have read as follows:
It is common cause that on the morning of 14 February 2013, shortly after 3 o’clock various people heard noises that sounds like gunshots, screams and other noises that sounded like gunshots emanating from the house of the accused.
The defence admitted that there were shots fired that morning, but added that there were also sounds of a cricket bat striking hard against the toilet door, and that the noises sounded similar and could easily have been mistaken for shots. This was not contradicted. During the course of the trial it became clear that some of the sounds that witnesses interpreted as gunshots were actually not gunshots, but sounds of a cricket bat striking against the toilet door. It was also not contradicted that the shots were fired first and that the striking of the door, using a cricket bat, followed thereafter (Record 3290, Lines 23–25 & Record 3291, Lines 1–5).
Firstly, you accepted that bat strikes and gunshots can sound the same. So what made you accept that the Stipps who heard three bangs actually heard four gunshots and not the three bat strikes Oscar said he delivered to the door? And what made you accept that Johnson and Burger who heard more than three bangs actually heard three bat strikes and not the four gunshots that Oscar said he fired?
The screams were heard just after four shots were fired and before the three sounds from a cricket bat were heard.
Who exactly testified that they heard the start of the screaming after hearing four shots fired? Motsuane? The Nhlengethwas? The Stipps? Burger? Johnson? The answer is – none of them. That leaves only Van der Merwe – the person in the worst position acoustically relative to the bathroom windows.
And what made you think that the four “thuds” Mrs van der Merwe heard were the “first sounds” and not the “second sounds”. Surely a learned judge like yourself would not have fallen for Roux’s argument that “round about 3 o’clock” can clearly only refer to a time of 03:14 and not 03:17. Is it inconceivable that Oscar screamed and shouted after he shot Reeva?
Do you really think that the average person will not be able to tell the difference between a man screaming and a woman screaming? We have four witnesses that adamantly testified and never wavered under brutal cross-examination that a heard a woman scream. Not one – but four people. It is true that there were some inconsistences in their testimonies – however the State in their Heads of Argument reminded you on how to apply the law in cases like these:
Nicholas J, Credibility of Witnesses SALJ (1985) at 102 stated:
“The question is not whether a witness is wholly truthful in all that he says, but whether the court can be satisfied, beyond a reasonable doubt in a criminal case ... that the story which the witness tells is a true one in its essential features.”
In State versus Mafaladiso and Another 2003(1) SACR 583 (SCA) at 585 A–C the court held as follows on the issue of inconsistencies in the evidence of a witness:
“Secondly, it must be kept in mind that not every error by a witness and not every contradiction or deviation affects the credibility of a witness. Non–material deviations are not necessarily relevant. Thirdly, the contradictory versions must be considered and evaluated on a holistic basis. The circumstances under which the versions were made, the proven reasons for the contradictions, the actual effect of the contradictions with regards to the reliability and credibility of the witness ...”
The testimonies of Dr Stipp, Ms Stipp, Burger and Johnson all share one very important essential feature – they heard a woman scream – interspersed with a male voice. Why did you make non-material deviations related to their ability to remember times, durations, sequences, etc., relevant in your decision to reject this essential feature that all four witnesses testified to?
Was it because they have never heard Oscar scream – especially when he is anxious? This seems to indicate that you accept that there is a reasonable scientific likelihood that four different people got it wrong at the same time. Who testified to inform you of this likelihood? Every day people go about their daily lives correctly telling the difference between male and female voices – talking, laughing, shouting, crying, screaming – 100 % of the time. The probability of misidentification is small. And the probability of four people simultaneously making the same mistake is even smaller.
Was it because you thought that it would have been impossible for the witnesses to hear Reeva’s screams with sufficient levels of audibility and intelligibility to identify the gender of the screamer? But didn’t Ivan Lin, the defence’s acoustic expert, testify that Reeva screaming from a closed toilet with a closed window would have been audible and intelligible to the Stipps? And then the screams must also have been audible and intelligible to Burger and Johnson because they corroborated the Stipp’s testimony almost perfectly.
Was it because you thought that the witnesses like Mrs van der Merwe, Mrs Motshuane and the Nhlengethwas who said they heard a man scream introduced sufficient reasonable doubt to completely disregard the essence of the testimonies of the Stipps, Burger and Johnson?
As Mrs Motshuane didn’t hear the “first” or the “second” sounds, it is pure speculation that she heard the same screaming the state witnesses heard. That Mrs van der Merwe heard the “first” sounds and not the “second” sounds – are also just speculation – as we do not know the precise time that she heard the four thuds. Did you know that the Nhlengethwas, in spite of being physically closer to the bathroom/toilet, would not have heard the any screaming emanating from the bathroom and toilet as loudly and as clearly as the Stipps – in fact the Stipps would have heard any screams more than three times louder than the Nhlengethwas. Sound had to travel through two windows to reach the Nhlengethwas and only through one window to Stipps on their balcony.
The fact of the matter is that you had no idea whatsoever how poorly informed you were on acoustical issues in this case. You really believe that Ivan Lin, a paid defence expert, made an honest effort to assist the court? The fact of the matter is that his report was designed to assist Oscar – to support Oscar’s version – and to sow the seeds of reasonable doubt. After telling you how well, or not, the state witnesses would have heard scrams – did you ever wonder what a similar study for the other neighbours would have revealed? Or did you simply speculate that they would have heard better simply because they were physically closer?
About speculation case law says:
In Sauls (supra) the court endorsed the passage in State versus Mlambo 1957(4) SA 727 (A) at 738 A–D:
“In my opinion there is no obligation on the Crown to close every avenue of escape which may be said to be open to an accused. It is sufficient for the Crown to produce evidence by means of which such a high degree of probability is raised that the ordinary man after mature consideration, comes to the conclusion that there exists no reasonable doubt that an accused has committed the crime charged. He must, in other words, be morally certain of the guilt of the accused. An accused’s claim to the benefit of a doubt when it may be said to exist must not be derived from speculation but must rest upon a reasonable and solid foundation created either by positive evidence or gathered from reasonable inferences which are not in conflict with, or outweighed by, the proved facts of the case."
Didn’t you think it was a bit absurd that Adv. Barry Roux got two women to scream, in order to show that Oscar, a man, can scream like a woman? This while they had recordings of Oscar screaming, supposedly in his high pitch voice, but refused to let you hear it? Ever wondered why?
You took quite a liking to Barry Roux didn’t you? Are you aware how he manipulated you – fed you nonsense and you swallowed it hook line and sinker? The issue surrounding the extension cord is a classical example of this. You believed that the extension cord went missing from the house just because Barry Roux said so. He presented no evidence that it went missing from the house under the police’s watch. Just because it wasn’t in a photo on the 15th – doesn’t mean that it was removed from the house – it could simply have been in another room – serving another purpose. Every reasonable attempt by Gerrie Nel to explain that the police didn’t have the cord – that the they never collected the cord – and that it unreasonable for them to know where the cord was 16 months later, fell on deaf ears, it seems. Several times you expressed your unhappiness. You even went a far as to order the police to make an affidavit related to the extension cord. Why didn’t you demand the same of Mr Stander and the defence team who took over the house and its contents 3 days after the murder of Reeva? You were more outraged about the extension cord than when Barry Roux revealed Mr Johnson’s personal phone number in court – a terrible breach of privacy – and one that caused a lot of inconvenience to Mr Johnson.
Without any evidence Roux told you Mrs van der Merwe heard the “first sounds” at 03:14 – and you believed him.
Without any evidence Roux told you that Oscar can scream like a woman – and you believed him.
Without any evidence you were told that Photo 55 was a manipulated/contaminated crime scene – that the police moved the fans, the duvet, switched on the lights and opened the curtains – and you believed him. Remember that Oscar said that if Photo 55 actually depicts how the police found the crime scene then his version is false? Since you accepted his version – it stands to reason that you also believe that the police disturbed the crime scene, against all protocol and procedure, prior to the taking of Photo 55 – and that they then came to court to commit perjury. You can’t have the one and not the other. Any ideas why the police would have done that prior to knowing Oscar’s version?
You said during the sentencing hearing that there wasn’t a shred of evidence of domestic violence prior to Reeva’s murder. I take that “not a shred” means ZERO? Let us see if there was no evidence or whether you perhaps simply chose to ignore the evidence.
1. Mrs Van der Merwe heard an argument. Did it occur to you that a year later when the defence team did tests inside the house – Mrs Van der Merwe initially looked in the same direction she did on the night of the murder – in the direction of Farms Inn. What does that tell you? Did it occur to you that the security guard patrol was in the vicinity of Oscar’s house for only 5 minutes – whereas Mrs Van de Merwe heard the argument on and off for an hour?
2. There were physical signs of an argument in the house. Oscar version doesn’t provide for a duvet ending up on the floor. Surely you must think that his explanation about how the bedroom door got damaged is bizarre – that in spite of his vulnerabilities he chose to rather break the door down instead of simply unlocking it? Were you ever curious as to why only half of the door was closed as per the crime scene photographs. Or do you think the police, against all protocol and procedure, closed the door before taking a photo of it?
3. Ever wondered where the fresh abrasion on Reeva’s nipple came from? Or how a ricochet bullet coming in from right to left – made striations and skin compressions in the back wounds that runs from top left to right down – without leaving any damage to the vest (if she was wearing it as per this premise)? Or how a downward fall against a magazine rack can push the skin down and not up? Ever wondered where in the vest is the hole of the bullet that hit Reeva in the hip?
4. And then we have the screams – the blood curdling screams of woman in great distress – heard by four neighbours. They were genuinely mistaken? I guess we can’t blame you – you had no-one with an honest intention to assist you to understand the acoustics in this case. Like that sound attenuation through a window, and diffraction (the “bending” of sound waves around corners and objects) would rather make a woman’s scream sound more manly, than a manly scream sound more like a woman’s. You were left alone to swim in the sea of scientific knowledge. Sadly you drowned.
The issue is not that no shreds of evidence of domestic abuse was put to you – the issue is that you chose to ignore and to reject this evidence that was put to you – because it was inconvenient to the timeline you accepted – which it turns out is not based on any solid evidence after all. So, you were not truthful.
How could the accused reasonably have foreseen that the shots he fired would kill the deceased? Clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door, let alone the deceased, as he thought she was in the bedroom at the time.
To find otherwise would be tantamount to saying that the accused’s reaction after he realised that he had shot the deceased was faked; that he was play acting merely to delude the onlookers at the time.
Doctor Stipp, an independent witness who was at the accused’s house minutes after the incident had occurred, stated that the accused looked genuinely distraught, as he prayed to God and as he pleaded with him to help save the deceased.
There was nothing to gainsay that observation and this court has not been given any reason to reject it and we accept it as true and reliable.
It is very disconcerting that you simply ignored Gerrie Nel’s very valid argument about the movement of the fans – in that, if Oscar did not move the fans, his version cannot be true. You simply did not get it and got sucked into a silly argument about the missing extension cord. Fact is, there was no place to plug the small fan in and the cord was too short to make Oscar’s version true. Period. Same with the duvet on the floor. You did not get that argument and without any meaningful argument from the defence simply accepted Oscar’s word that it was on the bed and that the police must have thrown it on the floor after moving the fans around. Only on Oscar’s word and on nothing more. Just like you took his word that he can scream like a woman after ignoring the evidence of four witnesses who heard a woman and not a man scream.
You seem to think that because Oscar was in such an emotional and remorseful state after the shooting that he cannot possibly be guilty of dolus directus. The common sense fact is that it is possible for someone to show real remorse after he/she has done something wrong, especially if the act was committed in a moment of extreme of anger or emotional agitation. Consumed by real feelings of guilt a person can feel genuinely distraught about the terrible thing he/she has done – and may even resort to prayer to get divine help for the victim, and/or to escape the consequences that are bound to follow. You erred when you took Oscar’s distraught emotional state as evidence that it was not dolus directus. Wouldn’t you feel distraught if you killed in loved one after loosing your temper in the heat of an argument?
You said that Oscar could not have foreseen that spraying four Black Talon bullets in a horizontal line through the door of a small toilet cubicle would kill the person inside. Are you serious – do you really believe that?
Recently in the ITV interview, Oscar again explained his version of events of what happened after he got out of bed at about 03:00 to move the fans. In spite of ZERO objective and direct evidence to support his version, many accept his version as gospel – claiming that he has never changed his version right from the bail hearing to the ITV interview and that this must be some sign that his version is true.
The only reason the court accepted his version, in spite of admitting that Oscar wasn’t candid and honest with the court, is because it ultimately accepted Oscar’s version a reasonably possibly true – and not that it was true beyond a reasonable doubt.
So let’s look at Oscar’s version in more detail. We are going to point to some objective evidence that Oscar lied, significant inconsistencies and several instances where his behaviour did not conform to what a reasonable person would have done in similar circumstances.
Oscar said he woke at about 03:00 in the morning. It seems that Reeva was already awake as she asked him whether he also couldn’t sleep. He noticed that the balcony door was open and that Reeva didn’t bring in the fans as he asked her to do when he went to sleep earlier in the evening. The balcony light was on – and at this time he would likely have been able to see things in the room.
In spite of it being extremely warm in the room he got out of bed and while holding onto the side of the bed for balance he walked to the fans and moved them into the room and closed the balcony door.
From his Bail Statement – signed 19 February 2014 – 5 days after the incident:
16.7 During the early morning hours of 14 February 2013, I woke up, went onto the balcony to bring the fan in and closed the sliding doors, the blinds and the curtains. I heard a noise in the bathroom and realized that someone was in the bathroom.
I few observations – and Oscar was grilled about this in court as well: he went onto the balcony – i.e he went through the door out onto the balcony to bring in “the fan” – a single fan – not two. He heard a noise in the bathroom that made him think that the intruder was inside the bathroom. When an intruder slides a window open – he/she is still outside – in this case standing on a ladder – about to climb in.
Let’s compare this with what Oscar said during the trial:
I woke up, M'Lady in the early hours of the 14th February. It was extremely warm in my room. I sat up in bed. I noticed that the fans were still running and that the door was still open. Although the lights had been switched off, Reeva was still awake or she was obviously not sleeping, she rolled over to me and she said: Can you not sleep my baba? And I said no, I cannot and I got out on my side of the bed. I walked around the bed, the foot of the bed. I was holding onto the foot of the bed with my left hand. I got to the fans, where the fans were. I took the small fan, the floor fan, I placed it pretty much just inside the room and I took the bigger tripod fan and I took it by the part just underneath the fan and I placed it in the bedroom. The fans were still running. they were still running at the time and I then proceeded to close the sliding doors and lock them. I then drew the curtains.
Now there are two fans that he moved. The same Oscar who said in the ITV interview that while on his stumps he can hardly lift up a cricket bat without losing his balance moved both the big and small fans while on his stumps. He said he held onto the balcony door as he moved the fans – but considering where he moved the fans to he had to let go of the door at some point.
Under cross-examination, Oscar explained that he didn’t actually go out onto the balcony – only that the big fan was partly on the balcony. The reason why he only referred to one fan was because only the big fan was partly outside. He didn’t mention the small fan as it was already inside.
MR NEL: Do you have page 64, sir? --- I do My Lady.
Now if you look at line 20, let us start at 19. I will read it and if you just follow:
“During the early morning of 14 February 2013, I woke up, went onto the balcony to bring the fan in.” --- That is correct, My Lady.
Now there are two problems there, is it not so? --- It see that it says: "I went onto the balcony to bring the fan in.” I agree with Mr Nel, My Lady that the fan was partly on the balcony, but I did not go onto the balcony to bring the fan in. I do not know where the second problem would be?
The fans. In your whole of your bail statement there is only reference to one fan. Am I right? --- If we are talking in reference with the sentence that was read to me, My Lady, it says: I went onto the balcony to bring the fan in. As I have said earlier, the one fan’s leg was on the balcony and the other fan was between the two legs of the tripod fan and it was on the carpet. So that not outside. I brought the fan that was on the balcony, inside (Record 1524, Lines 15–25 and Record 1225, Lines 1–8).
So we are to believe that when he said “I went onto the balcony to bring the fan in” – he actually meant that he brought the fan in whose one leg was standing on the balcony. And because the small fan had no part of it on the balcony it was somehow not worth mentioning in the the bail statement.
When Nel pressed further about this inconsistency Oscar said:
What I can say here, is that this talks about bringing in the fan. There was one fan that was not inside the house (Record 1225, Lines 13–15).
We don’t want to make too much of this, but is “not inside the house” an accurate description of a fan that had two legs standing inside the house and with only one leg on the balcony?
It is clear from Oscar’s testimony that the small fan was working. The problem is that, on Oscar’s version, the small fan could not have worked that night. There was simply no place to plug it into – the extension cord was already full with two other plugs and had no space for the small fan. This Oscar admitted. Furthermore, the cord of the small fan was too short to reach any of the wall plugs. This Oscar admitted too – hence why he had an extension cord. In spite of these two admissions, Oscar still refused to admit that the small fan wasn’t working – and even repeated this lie in the ITV interview. Please read more about the small fan here. (One also gets the idea Judge Masipa simply did not understand and comprehend the moving of the fans issues as a deciding factor w.r.t. the validity of Oscar’s version.)
Look at the photo below and imagine you move the fan to the “little mountain” in the middle of the duvet. Would the cord of the fan not have pulled the white bar of the extension cord to the corner of the bed? It is clear that the position of the white power bar is very unusual within the context of Oscar’ version. Nel grilled Oscar about this inconsistency, and Oscar could never give a satisfactory explanation. Please read more about it here.
Place yourself in Oscar’s shoes for a moment – it is a hot night – you want to cool the room down with the big fan. Isn’t the position of the fan in front of the open door a fairly natural position to achieve this? There is certainly nothing unusual about the position of the big fan and the open door. And to assist with the movement of air through the room you probably would have opened the bathroom window as well.
Regarding the moving of the fans. There is no objective evidence that Oscar even as much as touched the fans that morning (and also not the curtains, as we fully explain in Oscar vs the Truth). We only have his word for it. In contrast, there are some significant inconsistencies and contradictions that put the truthfulness of his version into question.
Regarding the noise he heard – this is what Oscar said during his testimony:
It was at this point that I heard a window open in the bathroom. It sounded like the window sliding open and then I could hear the window hit the frame as if it had slipped to a point where it cannot slide anymore.
Is it a wooden frame window? --- It is wood, all the frames in my house and doors are wooden frames, M'Lady.
That is the window referred to in the evidence of the photographer? --- That is correct, M'Lady.
What did you think at the time Mr Pistorius? --- M'Lady, that is the moment that everything changed. I thought that there was a burglar gaining entry into my home. I was ... I was on the side of the room where you first have to cross the passage which leads to the ... which leads to the bathroom. I think initially I just froze. I did not really know what to do. I had heard this noise, I interpreted it as being somebody who was climbing into the bathroom (Record 1470, Lines 7–21).
This is a photo of the window from outside. What would have caused the sound of a frame hitting a frame – at the point where it can’t slide anymore? These are overlapping sliding windows – the frames don’t ‘bump’ into each other when a window is opened. Furthermore, it also doesn’t appear as if the window was opened to its maximum extent – it is unlikely that the window bumped into a stopper of some kind. It appears that it possible to slide all the panes completely to the right. We explain this more visually in Oscar vs the Truth.
After hearing the sound he said he “froze”. He didn’t know what to do. Since there wasn’t an intruder there were no sounds of entry as the intruder squeezed and slid into the window opening, perhaps bumping into and rattling the blinds. In spite of hearing none of these signs of entry (also not his dog barking), Oscar was still convinced that a burglar was gaining entry into his house. He didn’t ask Reeva if she heard the sound as well.
It is important to keep in mind that on Oscar’s version – when he heard the sound the burglar was still outside on a ladder – and still had to climb through the window. Oscar had enough time to arm himself – to grab Reeva and to flee from the room through the bedroom door – to the room next door or downstairs to the kitchen and garage. In the ITV interview, Oscar said he couldn’t do this as he had no mobility on his stumps. The Evidence Room video clearly shows otherwise – Oscar actually does have good mobility on his stumps. In addition, he would have had Reeva by his side to give him support. Instead he chose to directly confront the intruder in his vulnerable state (so he could run to the bathroom but not out of the room?) – leaving Reeva behind in the room. If the intruder overpowered Oscar, Reeva would have been trapped in the room. If he wanted to confront the intruder so badly why didn’t he rather tell Reeva to leave the room and go downstairs – instead he told her to get down on the floor as if that would save her from an intruder entering the room. We know it is easy to sit back after the fact and to question someone’s behaviour in what must have been a very scary moment (on his version, of course). That is when instinct kicks in – the instinct to protect your loved one’s and to preserve your own life.
So after he snapped out his state of frozen fear he “ran” to the side of his bed to retrieve his gun (he had mobility to do this but not to flee?). He unholstered it and flung the holster to land on the bedside table. He could do all this “in the dark” but it was too dark to see that Reeva wasn’t on the bed. He told Reeva to get down on the floor and to call the police. Without hearing a response he made his way to the corridor.
The first thing that ran through my mind was that I needed to arm myself, that I needed to protect Reeva and I and that I needed to get my gun. I then ... I was looking down the passage. I was scared that the person was going to come out, or people were going to come out at that point. I rushed as quick as I could. I could not see anything in the room, so I ran with my hand out in front of me, at times touching the floor and then when I got to my bed I made my way along the side of my bed. I grabbed my firearm from underneath the bed and it had a canvas holster on it. I immediately took it out the holster. At that point I wanted just to put myself between ... get back to where the passage was, so that I could put myself between the person that had gained access to my house and Reeva. When I got just before the passage wall, I remember slowing down because I was scared that at that point, this person, during the time that I had got from ... that I had left the ... to where I got my firearm, could have possibly already been in the passage, in the closet passage. So I slowed down and I had my firearm extended in front of me ... [intervened]
If I may ... [intervened] --- Just as I ... just as I left my bed, I whispered for Reeva to get down and phone the police. I ... as I entered where the passa ... passage is, where the closet is to the ... where I entered the passage where the closet is to the bathroom, it was at that point that I was just overcome with fear and I started screaming and shouting for the burglar or the intruders to get out of my house (Record 1471, Lines 2–25).
On Oscar’s version at this time, Reeva was in the dark toilet likely urinating with the toilet door open. After Oscar started screaming and shouting for the intruder to “get the fuck out of his house” he heard the toilet door slam shut.
I shouted for Reeva to get down on the floor. I shouted for her to phone the police. I screamed at the people, the persons to get out. I was ... I slowly made my way down the passage, constantly aware that this threat, these people or persons could come at me at any time. I did not have my legs on and just before I got to the wall of the ... like where the tiles start in the bathroom, I stopped shouting, because I was worried that if I shout, the person would know exactly where I was. If I put my head around the corner, then I could get shot. Just before I got to the ... just before I got to the passage of the bathroom, I heard a door slam which could only been the toilet door. I could not see into the bathroom at this point, but I could hear the door slam and for me it confirmed that there was a person or people inside the toilet or inside the bathroom at that time (Record 1472, Lines 1–13).
Let’s look at this from Reeva’s perspective (on Oscar’s version) – when she entered the bathroom the window was closed – she opened it – there was no intruder in the bathroom – she used the toilet with the door open – she would have noticed if any intruder climbed through the window while she was on the toilet. All of a sudden she heard Oscar screaming at someone to get out of the house – and she heard Oscar shouting at her to get down on the floor and to call the police. Imagine her confusion at this point. On Oscar’s version, we are led to believe that she kept quiet not to give her position away, but slammed the door shut nonetheless.
Just before Oscar reached the entrance he stopped screaming and shouting. He wasn’t sure where the intruders were and didn’t want to give his position away. Slowly he entered the bathroom until he could see the bathroom is empty, window open and the bathroom door closed. At this point, he started screaming again.
--- I got to the entrance of the bathroom, at the end of the passage, where I stopped screaming. At this point I was certain that the intruder or intruders were there in my, in my ... [intervenes]
COURT: I will ask you again to raise up your voice, please. --- I am sorry, M'Lady. At that point that I was entering the bathroom, I was not shouting or screaming, I was ... at that point I thought that the intruder or intruders were going to come out or were around the corner or were in the bathroom at that time.
Then I stood at the point where I have moved back to after I had looked in the basin I had stood back so that just the bathroom door was in line with the wall and I could see the window and I had my firearm still in front of me. Again I screamed for Reeva to phone the police or the security and then I shouted and I kept on shouting (Record 1780, Line 23–25, and Record 1781, Line 1–2).
Let’s continue to put ourselves in Reeva’s shoes. After hearing the shouting from Oscar that she must call the police and get down to the floor – and after hearing Oscar screaming at someone to get the fuck out of the house – it goes quiet for a while. There is no evidence that Reeva attempted to, or actually made an emergency call. If Oscar asked her to do so – in what she must have perceived as an emergency situation – why didn’t she do so?
Then suddenly – from just a few meters on the other side of the toilet door Oscar start shouting again to call the police – not once but several times. You know that Oscar is very anxious and fearful of something and that you calling the police is very important – and yet you decide not to tell him that you have heard him – that you have, or are in the process of calling the police – so that Oscar can focus more on the threat? Whatever the situation was outside the toilet – Oscar wanted you to make a call – it was secure enough for you to use your voice to call the police – not to remain deadly silent. Then why go against Oscar’s instructions and remain standing – remaining silent?
Mrs Stipp was awake in the period leading up to the gunshots (on Oscar’s version). Yet, before the gunshots she did not hear any of the screaming and shouting that went on in Oscar’s bathroom before he fired the shots.
So while shouting and screaming Oscar’s heard a noise and before he knew it he had sprayed four bullets through the door. Mrs Stipp and Dr Stipp heard these shots and moments later looked out of their bedroom window and saw that the light on Oscar’s bathroom was on. Oscar denied this:
No. Both said, immediately after the shots, when they looked, the lights were on. Both. Take it from me. Why? They said the lights were on. Even on your version, excepting what they said, the lights were on? --- That is correct, M'Lady. I think they did ... I think they both did say that, M'Lady.
So, they must be lying? --- They must be, M'Lady. I do not remember the lights being on and I cannot remember when I switched the lights on, as I have said before.
In spite of not remembering when he switched the light on, he accused the Stipps of lying.
After the shots, Oscar slowly walked backwards to the bedroom – still shouting at Reeva to call the police. In the ITV interview he said that when he reach the bed – he felt for Reeva but couldn’t feel her legs – he then turned and looked and saw that Reeva wasn’t there. How could he see that Reeva wasn’t there if the room was pitch black? He started hitting the duvet – confirmed that Reeva wasn’t on the bed. This gave him a sense of calm – that she got down on the floor as he told her to do.
What was missing from this narrative? Firstly – not asking Reeva where she was? “Reeva, where are you!?” The most natural and expected thing to say under the circumstances. Secondly – he did not switch on the bedside lamp (or any other light) – depriving himself one of the most important senses he required in the situation – vision. Is it not natural and instinctive that when you search for something – that you want to see? While searching behind the curtain – he had every opportunity to open the curtain in order to let the balcony light illuminate the room. Thirdly – he never checked if Reeva perhaps left the room through the bedroom door.
So when he reached the foot-end of the bed he decided to give up on the search behind the curtains and he ran on his stumps, in pitch darkness, to the bathroom. In our book Oscar vs the Truth we recreated the scene to show what the room would have looked like on Oscar’s version. It would almost have been impossible to traverse that area in the dark without tripping and falling over fans or suspended power cords.
This is what Oscar said about his mobility on his stumps in darkness:
My balance is better in the light. In the dark I really struggle. At night, if I get out of bed, I hold onto things (Record 2583, Line 25 and Record 2584, Lines 1–2).
From the cross-examination of Dr. Versveld:
Can I ask you, based on your version, and I am not accepting that, I am just saying, running back from the bathroom, in the pitch dark, would you expect the accused to fall, if it is pitch dark, he is running, he cannot really concentrate on how to put his stumps down or things, on your version? --- It would be difficult.
What would be difficult? --- To run in the pitch dark, holding on to a weapon and he would be at high risk for falling.
And in all probability he would fall, if you just look at the probabilities, from where you are standing. --- He would have a high risk of falling, yes.
But if there were light on, the risk of falling would be less, if he could see? --- Correct (Record 2615, Lines 9–20).
On Oscar’s version and according to his expert he cannot balance in the dark and would be a high risk of falling – and yet in such a desperate situation, he did not switch the lights on in order to more effectively deal with the situation?
When Oscar got to the toilet door he tried it and found it was locked. He tried to shoulder it open – a rather impossible task considering the door opens to the outside.
I tried to grab the handle and rip open the door, I pushed the door open and it was locked. I then took ... for the first time I turned around, with my back facing the bathroom I ran back to the room. I opened the curtains. I shouted from the balcony. I opened the doors and I shouted from the balcony for help. I screamed: ‘Help! Help! Help!’ I screamed for somebody to help me and then ... [Pause] ... I ... I put my prosthetic ... I put my prosthetic legs on. I ran as fast as I could back to the bathroom. I ran into the door. It did not move at all. I leant back and I tried to kick the door and nothing happened. I was ... I was ... just panicked at this point, I did not really know what to make or what to do. I ran back to the bedroom where the cricket bat was between the cabinet and the door.
“Push” on a door that opens towards you? Running into a door and kicking a door that opens towards you? And again he ran in the dark past the fans and the cords to the balcony without tripping and falling?
According to Oscar, after the gunshots he shouted and screamed for Reeva to call the police. Once he discovered that Reeva wasn’t in the bedroom, he called out her name. On Oscar’s version the Stipps, Johnson and Burger interpreted these screams as those of a woman in great distress. The witnesses said that the terrified screams of a woman were constant and continued for several minutes. To Dr Stipp it sounded as if the woman was scared out of her mind. Mrs Stipp thought that it was a “family murder”.
The defence did conduct acoustic tests with Oscar screaming, but it is clear that they simply did not want to introduce this evidence in court. Probably because Oscar’s screams sound nowhere near like a woman’s scream. Instead their argument as to why Oscar can scream like a woman is because when he got anxious on the witness stand he spoke with a high pitch. But even with a high pitch he still sounded like a man all the time. There was not not a shred of evidence placed before the court that Oscar can produce the blood curdling screams of a woman. What are the chances that four witnesses misinterpreted Oscar supposed screaming and shouting in the same manner?
Between the woman’s screams the witnesses did hear Oscar shouting for help three times. Johnson testified that to him the shouts lacked conviction and sincerity.
Interestingly, this running to the balcony to shout for help was not part of his ITV version.
Oscar went outside onto the balcony to shout for help, without knowing for sure if Reeva was behind the door – at that time he has still not checked if Reeva perhaps left the bedroom to go hide somewhere else in the house. As a minimum all he had to do was to check if the cricket bat was still in position on the floor between the door and the cabinet.
After shouting from the balcony he supposedly strapped on his prostheses and went back to the bathroom where he tried to kick the door open. In Oscar vs the Truth we explain why we think the mark wasn’t made by Oscar’s prostheses but rather by the cricket bat.
Let’s think about this – you suspect that your loved one was behind the door into which you just fired four shots. You desperately need to know who is behind that door. You need to open that door – quickly – and the best you can do is to try to kick a door open on your prostheses – a door that opens towards you?
So, with the cricket bat he said he hit the door about three times:
I put my prosthetic legs on. I ran as fast as I could back to the bathroom. I ran into the door. It did not move at all. I leant back and I tried to kick the door and nothing happened. I was ... I was ... just panicked at this point, I did not really know what to make or what to do. I ran back to the bedroom where the cricket bat was between the cabinet and the door.
Were you screaming at that stage? --- I was screaming and shouting the whole time and crying out. I was ... I do not think I can ... I do not think I have ever screamed like that or cried like that or screamed or ... I was crying out for the Lord to help me. I was crying out for Reeva. I was screaming. ... [Pause] ... I ... I did not know what to do. I ran back to ... I ran straight back to the bathroom door and I placed my fire ... I do not remember but I must have placed my firearm on the carpet in the bathroom.
Do you know if the light was on or off at that stage in the bathroom --- The light was on at that stage, M'Lady. I do not remember switching it on. I remember it being on when I kicked the door. I ran straight up to the door and I started hitting [no audio 14:16:49] times. The first time [no audio 14:16:56] I remember hitting, I hit the frame of the door [no audio 14:17:04] my hands [no audio 14:17:05] there was a small piece open and at that point all I wanted to do was just look inside to see if it was Reeva. I then ... I then hit the door. I think I hit the door three times and there was a big plank, I grabbed it with my hands and I threw it out into the bathroom. I leant over the middle partition. I tried to open the door from the inside but there was no key in the door and I leant over the middle partition of the door and I saw the key was on the floor. At that point all I wanted to do was just climb into the toilet over the middle part of the door. Whilst I leant over the partition to get in, I saw the key, so I took it and I unlocked the door and I flung the door open and I threw it open and I sat over Reeva and I cried and I do not know, I do not know how long ... I do not know how long I was there for [accused crying]. She was not breathing!
He said he thought he hit the door three times. After the three strikes there was a big plank that came loose – he grabbed it with his hands and and threw it out into the bathroom. To break down a door with a bat you will instinctively position yourself in such a manner so as to hit the door at near optimal angle to impart maximum force and damage to the door – it is not something we have to think about – it just comes naturally. Also instinctively you will aim for the thinnest and weakest part of the door.
Oscar said that the first strike was against the frame – see #1 in the photos below. He clearly aimed for the weakest part the door – the beveled joint where the panel meets the frame, but missed it by a few centimetres. The defence argued that the top mark (#2) was also made by a bat strike. We have to assume that this was the 2nd strike. Then Oscar broke through the door with a 3rd well aimed strike right into the weak spot adjacent to the first strike – #3 in the photos. Forensic expert Vermeulen was of the opinion that only the 1st and 3rd marks were made by the cricket bat – he could do a physical match to prove this. On Oscar’s version the three bat strikes were rapidly delivered one after another.
Let’s look at this. Remember Oscar was in a panic – he was anxious – he had to break down the door fast – Reeva’s life could have depended on it. But we are to believe that right between these well aimed strikes he delivered a useless strike way up high – not at a weak spot, and not at a location where he would have been able to impart maximum force on the door (even if he was on his stumps).
In the ITV interview Oscar used the top mark as a reason why he could not have been on his stumps when he hit the door – because he would not have been able to reach that high. This is a not true – by standing closer to the door Oscar could have reached the top mark with a cricket bat with ease. Even if we for the sake of the argument accept that the top mark was made by a bat strike – there is no evidence that this strike was part of the set of three thuds/bangs heard by the neighbours – the so called “second sounds”. It could very well have been made when Reeva was screaming for her life.
Vermeulen demonstrated that in order for him to comfortably make the two strikes he had to bend his knees. It was an unnatural position for him – he could only get into a natural position by standing on his knees – in which case his shoulder height was about the same as Oscar’s shoulder height when he is on his stumps. Using physics and geometry one can show that if he was on his prostheses and he hit the door at #1 and #3 – he would have hit the door at a “uneconomical” angle that would not have given him maximum impact on the door.
The greatest evidence that Oscar lied about being on his prostheses when he broke the door open and when he pulled Reeva out of the toilet can be found in the blood marks on the toilet and bathroom floors. There are no foot prints. Instead there are swipe/drag marks that appear to have been made by Oscar’s stumps. In Oscar vs the Truth we conducted an extensive analyses of several marks to show that they are reconcilable with Oscar’s stumps. Photos of Oscar’s prostheses show socks that are remarkably clean considering Oscar pulled Reeva’s bloodied body out of the toilet in a manner which caused so much blood to spread all over the bathroom floor.
From the onset we just want to make it clear that we understand and support the concept that any accused is entitled to a rigorous, but honest, defence. We understand that the lawyer has a duty to the client – “to fearlessly uphold the interests of his client without regard to any unpleasant consequences either to himself or to any other person” and “defending the client’s rights and of protecting his liberty or life by the free and unfettered statement of every fact, and the use of every argument and observation, that can legitimately, according to the principles and practice of law, conduce to this end. We also understand that a lawyer has duty to the court – “Counsel’s duty to divulge to the court material facts of which he has knowledge is governed on the one hand by his overriding duty not to mislead the court, and on the other by his duty not to disclose to any person including in a proper case the court itself, information confided to him as counsel.
Thus on top of the list, even before the client’s interest, is the overriding duty not to mislead the court.
Before proceeding, let’s also remind ourselves of what a “fact” is. According to Mirriam Webster the definition of the word “fact” is:
something that truly exists or happens : something that has actual existence
a true piece of information
Recently during the sentencing hearing you got your client, Oscar Pistorius, to take off his prostheses and to walk around “unsteadily” in the court room as if it is difficult for him to walk on his stumps. Is it a FACT that he is as unsteady as displayed in court? Before answering you may want to watch the video made by the Evidence Room showing exactly the opposite – that Oscar is able to quite confidently move forward and backwards on his stumps. Even on his own version, he moved fans while on his stumps. He also had not problem moving swiftly to the bathroom in pitch darkness on his stumps after hearing the sound that terrified him so badly. And, of course, Oscar could fire four shots with as high calibre gun without problems while being on his stumps, without spraying the bullets all over the door.
In your closing arguments during the sentencing hearing you made indirect reference to our book – and you claim that the evidence that the bat strikes came after the gunshots is “irrefutable”. We challenge you to provide the objective evidence that ALL the bat strikes came after the gunshots – three of the bullet holes have no cracks running into them – and the bat strikes are not superimposed on top of the bullet holes. So what evidence is there that all the bat strikes came after the gunshots? Please read this post and before you answer this question. Can you state it as a irrefutable FACT that all the bat strikes came after the gunshots? If you say yes, then please provide the direct evidence of such – and you will have to better than the errors made by Vermeulen, Wolmarans and Dixon.
Other than any of these “experts” we have done tests on a similar door and bat and found that the crack could have been made by a single blow after the shots or when the panel was ripped by hand when he tried to open the door. There is simply no evidence that the crack was made during the main volley of blows by the bat and/or that it was made after the shots. Or even that it was the direct result of a blow.
To state the “crack that ran into the hole” as “objective evidence” is simply an unfounded cheap shot.
Now regarding the extension cord. Please read the post called “Defence Trickery” first. It is a fact that Adv Nel never argued about the length of the extension cord – only that if the multi-plug didn’t move then Oscar would not have been able to move the big fan to the location he said he moved it to – the “little mountain” in the duvet. Seems that the issue was actually the length of the big fan’s cord and not the length of the extension cord. Adv Nel never argued that the multi-plug couldn’t move. So why did you misrepresent to the court what transpired between Adv Nel and Oscar when you said?
What happened M'Lady, that during the adjournment we saw that a number of questions were asked by Mr Nel in cross-examination of the accused about the electrical cord and if it could move or not. If it could to longer or shorter.
So, on the 15th the extension cord wasn’t in exactly in the same place it was on the 14th when the first crime scene photos of the undisturbed crime scene were taken. How is it a fact that the extension court went “missing”? Did it not cross your mind that the cord could have been somewhere else in the house and that it was handed over to Oscar with all the other belongings in the house? It is not like Mr Stander and other members of your defence team took an inventory of the house and realized that the cord was missing. In the 16 month period before you requested the police to hand over the extension cord nobody actually searched for the extension cord and couldn’t find it – you told the judge that the reason you thought the cord was missing is based on the photographs! Please tell how the photographs provide factual evidence that the police removed the cord from the house? You must have known it doesn’t, which leaves the question – why did you make such a concerted effort to influence the court into believing that the police caused the cord to go missing from the house?
In your Heads of Argument you stated:
287. When the Accused deposed to his bail affidavit, he was neither privy to the statements in the police docket nor to the evidence to be led at the bail application. He could not have known that Dr Stipp and Mrs Stipp would testify about the first sounds and the second sounds. This underlines his credibility in this regard.
We know that Mr Stander testified that while he and Dr Stipp were talking that evening outside Oscar’s house, he asked him what he had heard. Stipp supposedly told him that he heard four shots, silence, screams and again four shots. Before Stipp left the scene Stander asked him for his phone number in case the police may want to speak to him later.
[Stander] Mr Stipp was with me outside then. Sorry M'Lady, Doctor Stipp. I asked him what happened. If he heard anything, because he was staying ... he said he was staying just behind Oscar. He said to me: He heard four shots, silence, screams and four shots again and then he mentioned to me that he cannot do anything. He is going to leave. I asked him his telephone number to give it to the police if they asked for it (Record 2144, Lines 19–26).
We also know that Adv Kenny Oldwage arrived on the scene that night. We also know that Stander and Oldwage talked at some point that morning and that Stipp came up in discussion. At 04:30 Stander called Stipp to inform him that he had passed his phone number to the defence lawyer (i.e. Adv Kenny Oldwage) who would be contacting him.
There is just one other small detail, but you phoned Doctor Stipp later. --- That is correct, M'Lady.
And indicated to him that the defence might be in contact with him? --- That is correct.
You just wanted to check his number. --- That is correct, M'Lady.
Why did you do that? --- In my mind, it is the right thing to do. If M'Lady, you give your number to me, and I give it to Mr X, then it is good manners and the right thing to do, to inform you saying I gave your number to this person, he will probably phone you. That is only [intervene].
So when you phone him, you already gave his number to the defence? ---That is correct, yes.
Who did you give the number to? --- I gave it to Advocate Oldwage.
Okay. So when you phoned Mr Stipp earlier that morning, you already gave his number to Mr Oldwage? --- That is correct, yes (Record 2166, Lines 4–19).
We also know that Oscar didn’t do his own bail affidavit:
M'Lady ... when my bail was done, it was done by my legal team. It was read to me in a holding cell. I was on medication. I was traumatised. I read it and it was the truth and I signed it, M'Lady (Record 1825, Lines 1–4).
Can you state it as a fact that Adv Oldwage, who had prior knowledge of what Dr Stipp heard, wasn’t involved in the drafting of the bail affidavit and/or that he didn’t tell you, or Oscar what Stander told him? Therefore is the statement “He could not have known that Dr Stipp and Mrs Stipp would testify about the first sounds and the second sounds” honest and truthful?
Regarding the testimony of Mrs van der Merwe you said in the Heads of Argument:
21. Mrs Van der Merwe’s evidence makes it clear that the first sounds were the gunshots. Mrs Van der Merwe’s evidence is that she heard a female voice far away, which was not constant, thereafter she heard four gunshots and then the screaming.
Your reasoning as to why Mrs van der Merwe’s testimony “makes it clear” is explained in Par 206 of the Heads of Argument:
206.2 At approximately 03:00 she heard four gunshots (Record 159, lines 19–20), which was confirmed by her husband to have been gunshots (Record 161, Lines 9–10). The shots occurred one shortly after the other (Record 161, lines 1–3).
206.3 After the four shots, she heard somebody crying out loud. It appeared to her to be a woman’s voice but her husband told her it was the Accused (Record 161, Lines 24–25 and 162, Line 1).
206.4 What is clear from Mrs van der Merwe’s evidence is that the crying out loud, which sounded like a woman, was after the first shots.
Forgetting about Oscar version, or anybody else’s testimony – on its own merits, what precisely about Mrs van der Merwe’s testimony makes it “clear” that she heard the “first sounds”?
206.5 We will demonstrate hereunder that the crying out loud (or screaming) occurred between approximately 03:12 and 03:17.
206.6 It is thus clear that the four shots heard by Mrs van der Merwe occurred prior to 03:12 which is consistent with her statement of “round about 03:00”.
What about the statement “round about 03:00” puts the sounds conclusively before 03:12 and not after at 03:17? “Round about 03:00” is an expression of uncertainty – how can it factually support a statement like “it is thus clear”?
Hypothetically, how would it go down if a witness testifies – “the accused looks more or less like the person I saw committing the murder?” And the prosecutor argues – “It is thus clear that the accused is the murderer because he looks more or less like the person the witness saw.” And this is precisely what you did when you argued that “about three o’clock” could only refer to an event that took place at 03:12 and not at 03:17.
The following conversation occurred during the cross-examination of Dr Stipp:
Roux: What we do know is that she was in the toilet – and the toilet windows were closed – on the State’s version.
Stipp: That’s correct
Roux: And the accused was outside the toilet where we say to you the window was open.
Stipp: That’s correct.
Roux: I can understand he screams, but what I will put to you in the Defence’s case – when someone is in that toilet it is a closed confined space with a closed window and a closed door you would not hear a woman screaming and in any event not so distinct that you will make out emotion ... if she was inside the toilet (Record 374, Lines 14–19).
Were the above statements factual? Before answering please consider that your own defence’s expert, Ivan Lin, contradicted you:
At plus minus 80 metres away, if the sound emanated from the toilet, sub-point: if the listener was on the balcony a scream emanating from the toilet at source, can range from 46 dBA to 48 dBA. Based on the ambient noise levels there at the listener’s location of between 20 dBA and 45 dBA. The sound is in the range of audible and intelligible (Record 2654, Lines 2–7).
And, by the way, what is the relevance of a “confined” space here with regards to the propagation of sound? Would it somehow make the sound softer? Think about it again, or call a friend.
We know that Oscar conducted screaming tests. He admitted as much:
So, they heard a woman. But it was you? --- That is correct, M'Lady.
Now, have you had your voice tested? --- I have, M'Lady.
And could you listen to your voice? --- Yes, I could ... I have not listened to my voice, but I have watched interviews where I have been on fields playing football with people and I shouted out and screamed out and I have told ... I have not watched, or listened to the recording. But form the recording that was done, my voice can be of a high pitch.
So, you have a recording where your voice is of high pitch? --- I do not have a recording like that, M'Lady. I know that there were tests ... [intervenes]
Do your team have? --- I am not sure, M'Lady. I know ... [intervenes]
No, you have to be sure. Are you telling me, that you do not know if your legal team is in possession of a recording, where you screaming high pitch, with a high pitch voice? --- Yes, they do have a recording like that, M'Lady. I do not have it though (Record 1868, Lines 13–25, Record 1869, Lines 1–4).
On several occasions during your cross-examination of certain state witnesses you stated as fact that Oscar can scream like a woman. You also alluded to “decibel” tests that were done, and that a witness will testify to prove this.
For example, during your cross-examination of Ms Burger:
You know what, if Mr Pistorius is really anxious and he screams, when he pitches his voice, and we will call a witness in that respect, if I put it to you it sounds like a woman, what would you say? That it is not true?
If I tell you that his voice when he is really anxious, when it pitches it sounds like a woman. Can you say it is not so, or do you simply say: I do not know? --- M'Lady, I am sure what I heard was a woman. So I am quite convinced it was not Mr Pistorius.
I know you believe you heard a woman. --- Ja.
All I say is, when he is anxious his voice when it pitches, it sounds like a woman screaming and what I put to you, that is what would explain why you hear like a woman screaming, and you also hear a man screaming. Not only a woman. --- M'Lady, why I am definitely certain it was two different people, is because I can compare the ‘help’s’ of the first person and the second person, and the first person was definitely a female and the shouting was with that voice. I could hear it was her voice shouting and screaming, fearfully (Record 82, Lines 18–25 and Record 83, Lines 1–5).
And from the cross-examination of Mr Johnson:
Can his voice resemble a woman’s screaming? --- I do not know. Can it?
I put to you that it does decibel test were done but more than that, we will call an expert who will come and tell the court the surprise of him screaming and it sounds just like a woman. --- It would be, curious though, because I heard like recall, I said a woman screaming but also intermingled also the man. So, am I to believe that he was screaming in two voices or two tones?
And from the cross-examination of Samantha Taylor:
Now it is the accused's case that at the night he was anxious and he screamed and it is his case, of the incident, the night of the incident, and it is his case, and he had it tested, according to him, that if he screams and he is really anxious, he sounds like a woman. --- That is not true. He sounds like a man (Record 392, Line 25 and Record 393, Lines 1–4).
Why did you not follow through on your promise to produce the expert that can prove that Oscar can scream like a woman? Or did you just make it up to “trick” the witnesses? Why did you not play these recordings of Oscar screaming in court? That would indeed have been very strong direct evidence in favour of your client – and yet you instead chose to rely on the second rate evidence on how Oscar’s voice pitched when he got anxious on the witness stand.
395. The crying out loud heard by the immediate neighbours occurred at the same time as the screaming and was described as a male crying out in a high pitched voice. The voice of the Accused pitches when he gets anxious. This was clear from his evidence as per an extract that will be played in Court.
603. He attached his prostheses, returned to the bathroom and attempted to open the door by kicking it. He returned to the bedroom and fetched the cricket bat whilst screaming, shouting and crying out (Record 1477, Lines 7–8). The Accused stated that his voice could be of a high pitch when shouting, or screaming out loud (Record 1868, Lines 16–20). It was patent in his evidence that his voice pitches when he is anxious.
Can you tell us how the occasional high pitch voice of a man when anxious on the witness stand proves that Oscar can produce the sustained blood curdling, fearful screams of a woman in great distress? How do we know Oscar wasn’t coached to respond in a high pitched tone from time to time?
Could you please clarify this curious inconsistency between your own statement in court and the testimony of defence witness Mike Nhlegenthwa?
We know that Mr Nhlegenthwa, the immediate neighbour to the right, claimed that he heard Oscar’s high pitch crying prior to his phone call to security at 03:16:15 when he spoke to Mr Pieter Baba to report the loud crying he heard.
This is from your cross-examination of Pieter Baba:
There was also a call from Mr Nhlengethwa, that is the neighbour of Mr Pistorius and we know that was at three sixteen thirteen and again at three sixteen thirty six. The first one did not go through, but at three sixteen thirty six, it was 44 seconds. --- That is correct, M'Lady.
And that is the call where he also spoke about the gunshots? --- That is correct, M'Lady (Record 434, Lines 18–25).
So, here we have you asking Mr Baba about the call where Mr Nhlegenthwa told him about the gunshots. No mention of Oscar crying.
This is from Nhlegenthwa’s evidence in chief – questioned by you:
Then after that, at 03:16:36, there was again a call and that lasted, the duration was 44 seconds. Could you tell the court about that? Who did you ... and we know it is a phone, it is a call to security? --- That is correct, M'Lady. At that moment when my call went through, M'Lady, I spoke to the gentleman there at the security gate, of which I informed him that I am staying at number 287. I first told him that I am Michael, I am staying at number 287, can you quickly come up towards my house because I hear there is a man who is crying and I think he is desperate for help, so something might have happened to him. So, but I said to him, I am not sure, but quickly check the neighbours around me. That is what I said to him (Record 2211, Lines 24–26 & Record 2212, Lines 1–8).
As you can see there is no mention whatsoever of telling Mr Baba about gunshots.
Baba’s testimony was on Day 5 (7 March 2014) and Nhlegenthwa’s testimony was two months later on Day 26 (6 May 2014). What happened in these two months between March when you stated that Nhlegenthwa spoke about gunshots and May when Mike Nhlegenthwa supposedly didn’t hear any gunshots but only a male person crying?
In your Head of Argument you said:
346. There is a further problem. Mrs Stipp testified that shortly before 03:17 her husband had told her he had seen someone moving from right to left in the bathroom.
347. It was the Accused walking in the bathroom. We have demonstrated above that he was on his prosthesis otherwise Dr Stipp would not have been able to observe his fair complexion and he would definitely not have seen him at all through the top half of the bathroom windows to the right.
Could you please provide us with the Record and Line numbers of where Dr Stipp said he saw Oscar only through the top half of the bathroom windows? Didn’t he testify?:
So those two panes [referring the closed panes on the right] I could see the top half and then the left sided pane, I could see the top and the bottom. So I could see the whole pane from the top to bottom (Record 371, Lines 17–19). [ added for clarity]
Isn’t it a fact that Dr Stipp had the opportunity to look into the bathroom through the bottom half of the first pane?
Let’s continue with your Heads of Argument:
348. To be able to see him through the top half of the right side of the bathroom window the Accused must have been on his prostheses. (See the measurements of Dixon at Record 1957, Lines 2–5). To be able to see a fair complexion through the open window, the Accused must have been on his prosthesis (Versfeld Record 2588, Lines 1–6). The Accused, when he walks on his stumps is 144 cm in height due to the displacement of his left heel pad and 156 cm when he is standing). In this case, the Accused was seen walking. His “walking” height of 144 cm would only allow Dr Stipp to see his head through the left bathroom window, and certainly not a person, or silhouette, even less so through the top half of the bathroom windows on the right (Dixon, Photos 2.4–2.7) (Record 1955, Lines 6–25; 1956, Lines 1–25; 1957, Lines 1–5).
Again where did Dr Stipp explicitly say that he saw Oscar through the top half of the right side of the bathroom window?
This is what he said:
Well, I saw the movement in the right hand side, or the right window, the window that consists of three smaller windows. I saw the movement in that part of the window. I gathered it is the bathroom window. So the movement I saw, was in the bathroom window going from right to left (Record 370, Lines 19–23).
It is clear that he did not say in which pane/s of the bathroom window he saw the movement. You do acknowledge that he would have been able to see Oscar’s head through the open window. Can you say that it is a fact that it is impossible to tell someone’s complexion from the colour of the face and neck? Also is it impossible to tell the direction of movement from looking through that open window only?
349. Whether the person (model) used in the photos was shorter than the Accused, makes no difference as according to Dr Versfeld the Accused was about 10 to 12 cms “shorter” when he walked due to the effect of his left heel displacement. Furthermore, the height would make no difference to Dr Stipp’s observations through the right top half of the bathroom window, as the top half of the window is substantially higher than the Accused on his stumps. The Accused would not have been visible through the top half of the window if he was on his stumps.
Why harping on about the top half of the windows when you just admitted that Oscar’s head would have been visible through the open window? Why are you ignoring the pane with the open window and the fact that this pane was completely visible to Dr Stipp from top to bottom?
350. It must be borne in mind that Dr Stipp identified the person through the top half of the bathroom window as someone with a fair complexion. The Accused did not have a shirt on and his fair complexion would only have been visible through the top half of the right bathroom if he was on his prosthetic legs.
Is it a fact that Dr Stipp identified the person through the top half of the bathroom window? Please indicate where in the court record we can find confirmation of this fact. Considering that the windows were frosted, that the top half were covered with blinds, and that the middle pane in essence had a double layer of frosted glass it is seems unlikely that Dr Stipp would have been able to tell the person’s complexion by looking through the top half of the bathroom windows even if he was on his prostheses.
In Oscar vs The Truth we look at the rather funny way Dixon “tested” whether Stipp would have seen Oscar in the bathroom or not.
Thank you for your time. There are more questions, but we will leave them for another time. Looking forward to your answers.
We have seen it in the Inge Lotz case and we have seen it in the Oscar Pistorius case – blatant and dishonest attempts to discredit the police in order to draw the focus away from the real and incriminating evidence. In the Inge Lotz case a defence expert went as far as to fabricate evidence and then very publicly used such evidence to instead accuse the police of fabricating evidence. In the Oscar Pistorius case all kinds of tricks were used “to throw pepper in the judge’s eyes”. We saw this trickery in action recently during the sentencing hearing when Advocate Roux asked Oscar to remove his stumps in order to waddle unsteadily around the courtroom. In the meantime there is a video of Oscar on the internet where he runs and walks on his stumps without problems.
In this post we look at how Adv Roux tricked the judge to take a very negative view of the police – over something that is really of no significance whatsoever. Take something insignificant and make an issue of it, blow it out of proportion. The insignificant issue that we’ll be looking at here is about the so called “missing” extension cord.
Let’s first look at exactly what Adv Nel asked Oscar about the extension cord.
When I went out on to the balcony I pulled both doors open. When the balcony, when the fan was on the balcony it was between the two doors. It was not that I had opened one door and then put the fan in. The doors were opened and [Indistinct 14:52:03]. So the fan was ... where the curtains are drawn all the way closed now, the fan was in that place, when I brought it in. When I brought it in, I placed it [Indistinct 14:52:13] a case of picking up the small fan, placing it on the floor, just enough space so that I could move the bigger fan in and place it on the floor as well. I then turned back and closed the doors. The whole time my back ... where I was ... where I placed the fan my back was facing the bed.
I just want us to My Lady, the point that was indicated with a circle, I have marked it on my exhibit. It is where there is a fold, it looks like a little mountain in the duvet. That is the best I can describe it. So that we have it for the record purposes, My Lady.
COURT: Yes. Mr Roux, would you agree with that? Would you agree with that description?
MR ROUX: I can also see it. It is a fold in a duvet then.
MR NEL: It is a fold in a duvet. Good. So the bigger fan would have been there and it would have faced the bed? --- That is correct, My Lady.
Okay. You see the most amazing thing is, yesterday when we showed you these photographs, you did not say that. Why not? --- [Indistinct 14:53:51]No, you must be sure. You cannot tell this court you are not sure. Tell me why not? --- I do not remember seeing photo 55 yesterday, My Lady.
Let us look at 56. --- We are talking about photo 55 now My Lady, and I do not remember seeing [intervenes]
Go to 56. Why did you not say that fan is totally wrong, it should not have been there? --- I am not sure it came up in question, My Lady.
No, no. Remember I asked you if there is anything wrong with that photograph? But there is one other aspect. I put it to you now, if you moved that fan to the fold in the duvet, the plug will not stay in. --- My Lady, if you look at photo 56 the extension cord is not ... has not been stretched. If anything it goes behind the big cabinet. If you look at photo 55, the cord of the fan is not stretched either. It could very easily be placed where I said it was placed.
On Oscar’s version it would have been possible to move the big fan to where the little “mountain” in the duvet is because the extension cord could have stretched. This would therefore imply that the police not only moved the big fan but also the multi-plug.
One thing ... let us just agree on one thing, if the multi-plug, the white multi-plug that one can see on 56, if it remained in that position where it is now, have a look at the photograph, I do not want you to say that you did not look. If the multi-plug remained in the position where it is now, you cannot move that fan to the position that you said you put it in. --- I would not, I do not know how long the cord is for the fan, My Lady.
This is very important to remember, Adv Nel accepts Oscar’s argument that the extension cord could have stretched. The argument that Adv Nel made had nothing at all to do with the length of the extension cord – what he argued was that if the multi-plug remained in the position shown the cord of the big fan would have been too short.
Look at it. Look at it. --- If I look at photo 55, the cord would easily without the plug being moved, the fan would easily be able to be placed there.
No. It is not true. Look at it, Mr Pistorius. I put it to you it is not so. Because you have to pull it, you have to ... remember the multi-plug has to stay where it is at the photograph. The multi-plug is not supposed to move, that is my question. If it does not move, can you move the fan to that fold? --- I do not know, My Lady.
You cannot. Show the court ... we can see, the court can see the photograph, everybody can see the photograph, can see the length of that cable. It cannot go to there. --- My Lady, that is not what I see.
Ja, well, the court will make up ... the court will make a finding, but I put it to you that if that multi-plug does not move, that fan cannot move all the way to that point and face the bed. --- My Lady, that is on assumption that the multi-plug did not move. If you look at the photo [intervenes]
Yes. --- There is lots of space for the multi-plug to move. Even if the multi-plug did not move My Lady, in this photo that is being displayed here, photo 55, the cord is more than long enough to ... for the fan to move. We are not talking about five metres. We are talking about the fan moving just under a metre. The cord in the photo shows that there is room for the fan to be moved. The fan is not at its ... it is not at its point that it is being reeled out or pulled straight.
Oscar evades the question – that if the multiplug does not move then the fan cannot move to the end of te bed. He was the one that started talking about the length of the extension cord. And not once did Adv Nel argue that the extension cord was too short to move.
You are trying, Mr Pistorius. It is not working. Your version is ... I say it with ... let me rather look at a word ... your version is so improbable that nobody would ever think it is reasonably possibly true. It is so improbable. Nobody ... you would not convince people that that what you said now about the multi-plug not moving and the fan moving, is reasonably possibly true. It is impossible. Do you want to respond to that? --- Sorry, My Lady, I thought that was a statement, not a question.
So do you want to ... if you want to say something about that, say something. Otherwise, shall we move on? --- Yes, I think we should move on, My Lady.
Now that we know what actually transpired between Nel and Oscar regarding the extension cord and multi-plug let’s see what Roux said when he introduced the issue of the missing extension cord.
What happened M'Lady, that during the adjournment we saw that a number of questions were asked by Mr Nel in cross-examination of the accused about the electrical cord and if it could move or not. If it could to longer or shorter.
As you can see for yourself, this is blatantly false. Adv Nel did not argue whether the cord were long enough, and certainly didn’t make the argument that the multi-plug couldn’t move because the cord was too short.
Why did Adv Roux do this? It was all part a calculated strategy to paint the police as incompetent, negligent and crooked. As you will see later Judge Masipa fell for this one hook line and sinker.
Adv Roux continued:
So we wanted that cord on account of information that we have, so the first document SSS, was a letter then addressed to Captain van Aardt, saying that:
“Please can you make available to us for inspection as soon as possible the electrical extension cord that was removed from the main bedroom.” (Record 2624, Lines 11–20)
The crime scene photos taken in early hours of 14 Feb show the white extension cord on the right side of the bed. There are photos taken on the 15th in which the white extension cord in no longer next to bed where it was on the 14th.
Read now how Adv Roux skillfully exploits this discrepancy between the photos to successfully poison the court against the police.
... the response came back that the police did not have the extension and the letter came back to say, but it cannot be and that you will see it is a letter dated 6 June 2014 where we refer to image 0184, at 05:58 on 14th February and you will see that photo if you page on, M'Lady.
There is a copy just to make it convenient to the court. You will see the extension cord there.
The Defence requested the extension cord from the police 16 months later, on 6 June 2014! The house was sold in July 2014, after it has been standing empty for over a year. (Source)
MR ROUX: And we say that is there, but if you go the next day and we give the time there was an image 0856 at 06:34 PM on the 15th, there is no extension cord. So we say, you had sealed the house. Where is that cord, because we need that cord.
Then, Captain van Aardt then came back and say, well I hear what you say and that is what the letter is saying. We do not have the cord and we again say but it cannot be, we need the cord and the letter comes back, but we do not have the cord. So we say it cannot be and we ask the court to consider making ... ordering the state to make the cord available, because that is important in the accused case to get the length.
We say it is five meters long and we need that to show that to the court as an answer to the cross-examination and the difficulty of course, is that the state tells us that they do not have it. They took possession of the house so to speak and it is not good enough, we say to say we do not have it. Someone must then explain at least, what happened to it. They secured the house, they sealed the house. Where is that cord and that is the difficulty for us, because we really feel that we are prejudiced, M'Lady.
Now consider Roux’s argument against the following background of facts:
Just because the cord was not in the same place on the 15th doesn’t mean that it went “missing” or that the police removed it with some sort of sinister “intent”. Why would they? On the 15th the police did not know anything about Oscar’s version (neither did Oscar likely). It was just another object in the house, in the same vein as the hair clipper, the magazines, the books, the fans, the television, the toothbrushes, the mugs, etc. After the documentation and photographing of the crime scene during the morning of the 14th the police started with the investigation of the crime scene. Naturally, during the investigation objects can be moved around; drawers are opened, things are moved out of the way. The extension cord could have been removed to another room in the house. Adv Nel made it quite clear that the cord was not taken in as evidence. They had no reason to so; the cord was not an object of interest.
The police completed their investigation of the house within three days. The keys of the house were then given by the police to Mr Stander. It was then that the defence took over the house and send in their own investigators. You will remember it was at this time that one of the defence investigators found a bullet fragment in the toilet bowl which the State investigators missed. The police did not make an inventory of the objects left in the house when they handed the house over to Mr Stander; they only made an inventory of the objects they seized into evidence. There is therefore no objective evidence that the cord wasn’t inside the house when they handed it over.
Let’s now look at Adv Nel response and how Judge Masipa took the bait that Adv Roux dangled in front of her.
MR NEL ADDRESSES COURT: May it pleases the court, M'Lady. With the utmost respect, if I may refer to the short answers. I do not have it. The state ... we do not have it. I know that Mr Roux would refer to photographs, but M'Lady, the court cannot order the state to make something available that I am informed the state, we never seized. In my consultation with the investigation officer, we never seized the cord and we do not have it. So therefore we cannot make it available.
COURT: Where is the inventory? Was there no inventory?
MR NEL: Of seized items, yes M'Lady. It is not on that inventory.
COURT: It is not on that inventory.
MR NEL: Of seized items M'Lady, no. M'Lady, the defence now approaches the court now to make an order to order the state to make it available. But it is an impossible order. Where I am standing at the moment M'Lady, the state cannot comply with such an order.
COURT: If it is not on the inventory, it means it was not seized by the police.
MR NEL: Yes.
COURT: But it was in the house.
MR NEL: Yes, M'Lady.
COURT: That is common cause.
MR NEL: M'Lady, if I look at the photographs that was indicated, yes it was in the house on the 14th. That is true and the defence has now indicated on the photograph on the 15th, it is not in the same position as it was on the 14th. But M'Lady, well it is not in the same position, M'Lady. Because there is a photograph of the position where the cord was. It is not there where it was on the 14th, that is the most anybody can say.
But M'Lady, where it is, was it moved somewhere else, was it left in the house, did somebody take it? I cannot answer those questions, M'Lady.
COURT: Well may be the police can.
MR NEL: M'Lady, I am answering on their behalf. They cannot M'Lady, because it was not seized by them. They will be able to say if it was seized by them.
COURT: Ja, it is very strange, because I mean they locked the doors every day. It was under their control and it cannot walk.
Hook, line and sinker!
MR NEL: M'Lady, that is all true and I am not saying that I have an explanation. What I am saying, M'Lady is that the position that the state is in, or that the defence is putting the court in, is to order something which ... [intervened].
COURT: I am not about to order something. I cannot even read this. But I am very concerned. What could have happened to it?
Roux 1 : Nel 0
The judge automatically assumed, without substantiation, that the cord went missing from the house and that the police had something to do with it. What if Stander removed it, or one of the defence investigators? What if it was never removed and Oscar disposed of it along with all his other belongings in the house?
Let’s continue. Now Judge Masipa wants the know why the State and police didn’t look for the cord. Adv Nel rightfully asked the question: where to look? They can’t look at the police station as they never took it in as evidence, and it was no use looking at the house as the defence took it over three days later and by the time of the trial Oacar had already emptied the house of its contents and sold it.
MR NEL: Indeed, M'Lady. M'Lady, I cannot even advance ... [intervened].
COURT: No, no, no. But the state has to know what could have happened to it.
How was the State suppose to know what could have happened to the cord that was left in the house and then passed over to the defence team?
MR NEL: Well, M'Lady I say it was left in the house somewhere.
COURT: It was left in the house.
MR NEL: M'Lady, the court will ask me to come up with excused and/or explanations. There are lots of those, M'Lady. That it was moved from that point and it was left in the house when the accused ... when the house was handed over, in all probabilities it was still in the house. Not in the same spot, because lots of things moved. Even one can see it on this photographs.
COURT: Yes, but there must be a chain. It was ... at the time the police handed it over to whoever, was it still there or was it not there.
Does Judge Masipa expects the police to keep a chain of every object in the house, from the toilet paper rolls to the kitchen forks and everything in between?
MR NEL: M'Lady, there was not a formal handover of what was in the house and what was not in the house. That did not happen. There was not a ... what happened is, the key was handed over to Mr Stander and Mr Stander handed the key over to the defence team. The police did not make an inventory of everything they left in the house. That never happened.
COURT: Yes, so ... [intervened].
MR NEL: M'Lady, I wish I did not have to try and explain it, but I am [indistinct] position that I just cannot and I do not have it.
COURT: Well, I am not happy. But at the same time, I do not know how I could order the state to produce something that they say is lost. But how it was lost, that is my concern. How did it get lost.
Clear bias in favour of the defence.
MR NEL: It is a concern, M'Lady and I say it with the utmost respect, I cannot blame anybody to be concerned about it. But it ... the reality is M'Lady, that I am standing next to the investigating officer and I do not have it. Well M'Lady, let me rather say, it was not handed in or seized, formally seized on the scene in terms of inventory and handed in into the polices exhibit facility.
COURT: But did someone look for it since these correspondence happened? Did someone tried to look for it?
MR NEL: M'Lady, in terms of look for it, that would mean at the police station exhibits and those kind of things because ...[intervened].
COURT: Well if you say everything that was seized was in the inventory, and it is not in the inventory, I would not expect the police to search for it at the police station.
MR NEL: I perhaps did not hear correctly. You would expect the police to go search.
COURT: I would not expect them to search for it at the police station, since according to the inventory, they did not take it.
MR NEL: Yes. So ... [intervened].
COURT: But since the request was made by the defence, did someone tried to find it?
MR NEL: Well what happened M'Lady, is that at page ... in the document that the court has ... [intervened].
COURT: I cannot read most of it. It is just impossible.
MR NEL: Yes, M'Lord. May I ... second page I cannot read but maybe counter pages, page 1, 2, 3, 4 is a photograph M'Lady, 5 is photograph. Then on the next page M'Lady, there is a response by the investigating officer, at the bottom of the page where it indicated by Captain van Aardt:
“Again checked all relevant entries pertaining to exhibits seized. I also consulted with Warrant Officer van Staden about the seizure of exhibit. The extension cord is not in the possession of the SAPS nor was it seized from the scene.”
And that was ... the defence was informed of that on 9th June.
This is about 16 months later!
COURT: That means no one to try to look for it. Because the police did not seize it.
MR NEL: Well M'Lady, to try and look for it, with the utmost respect M'Lady, we looked for it in our records. We looked for it by consulting the person that seized all the exhibits. That is Van Staden. M'Lady, we will gladly look if the court say the court instructs or indicates that the court would want us to look somewhere, M'Lady. We will go and look but as I am standing here M'Lady, I cannot think of somewhere to go and look.
COURT: And it is not possible to go to the house anymore and look for it.
MR NEL: Indeed, M'Lady. I think it was sold ... the accused took that house over three days after the scene. So it would serve no purpose to go back there, M'Lady. So M'Lady, I just do not know where to look. If the court would ask me if I look.
COURT: Alright, anything else?
MR NEL: No, M'Lady. That is the only way of responding to this.
Now back to Roux.
MR ROUX: M'Lady, I understand the difficulty but I think it is a bit too easy, if I may say it is not at the house. That is the first source that we tried to find it.
COURT: It is not at the house.
MR ROUX: It is not at the house.
MR ROUX: And the fact is, these are the cold facts. The police took possession of the house. The keys were only given 18th, 19th February. Later on when we were given access. We talk about the 14th and the 15th. The police sealed the house, the cord was there. The next photo, the cord is not there at the place where it was. It is gone.
COURT: When did ... when was the first time when it was realized that the extension was missing?
MR ROUX: We saw on the photo. Because we saw a number of changes on the photo that we referred to previously and we saw on the photo there is no cord. But of course, in cross-examination the relevance of the cord became apparent. That is when it became relevant. Not before, you see a cord that is not there and you assume that the police had removed it as part of their exhibits.
Unbelievable! The defence claim that the cord went missing rest solely on the fact that it was not in the same position as on the 14th. It is NOT based on an inventory the defence team did when they took over the house; nobody on the defence team actually looked for the cord and couldn’t find it!
But the relevance came whether that cord could extend or not extend and that is why we gave them the length of that cord, because that is absolutely relevant and what I would have thought the state should do, is at least ... and I know you cannot order them to give what they tell you they do not have, but at least order them to investigate.
Again Roux false misrepresent what actually transpired during Nel initial questioning. It is incomprehensible why an advocate of Nel’s calibrate would not have objected to this!
To say who was in control of the house. Who is the person that controlled the house, that sealed the house. What does he say, why was the cord there on the 14th and why is it not there on the 15th whilst the police was in possession. I think at the very least, we are entitled to an explanation and that the court can do, and if it is then a cul de sac, then it is a cul de sac with its consequences on the evidence.
Again, without substantiation Roux insinuates that the cord “left” the sealed house.
But if it not, at least the court is there and can assist us. So in the alternative, that is what we would ask in view of the response by Mr Nel. That you order them at least to provide you with an affidavit by the person responsible or the person who was in control of the house, to explain that. Because we have the photos to show you, one day it is there. The next day it is not there, they had the house. Thank you, M'Lady.
COURT: Yes, Mr Nel.
MR NEL: M'Lady.
COURT: Yes, what are you saying to the suggestion by Mr Roux? Is that not a fair request?MR NEL: For the state to investigate it now?
MR NEL: May I ... If I understand it correctly, Mr Roux would want the court to order that we provide an explanation by the person that sealed the house.
COURT: Well, person or persons?
MR NEL: Do ... ja that sealed the house to say that ... well to explain if they know anything about the cord. Because there is lots of things in the house, M'Lady.
COURT: I know that.
MR NEL: So ... [intervened].
COURT: This one happens to be relevant.
MR NEL: For now, yes M'Lady. The issue is, just ... we will do that. But I just do not see how that would assist. Because it is as asking a person if ... [intervened].
COURT: Well it will definitely assist. It may not assist Mr Roux, but it will definitely assist me. Because I am very unhappy about this.
MR NEL: Yes, M'Lady.
MR NEL: We have taken steps, we have to take it a step further to find out from the person that sealed the house, if he can shed any light on it. M'Lady, when I first learned of it, my first impression, if it is not on the inventory, it was left in the house. Now that might be a possibility. But if we file an affidavit from a person in charge that said, I sealed and it was ... [intervened].
COURT: Do we know who that person is?MR NEL: Yes M'Lady, we know. It was Colonel van Rensburg and Warrant Officer van Staden. The evidence was led, Colonel van Rensburg said that he was ... remained at the scene up until the time they sealed it. M'Lady, we will do that if it assist the court, but M'Lady I just think that we are talking about lots of things that happened.
COURT: Well it does not assist to go on and on about that.
MR NEL: Ja, no, no, it is fine.
COURT: Because I think it is very important that we should know what happened because what we have so far, is that the house was locked and there was no burglary during that time.
MR NEL: And we would say, it was still there. It is not at that specific spot, but ja.COURT: Yes. I order that that person, whoever he is, who was in charge of the house on the 15th ... is it the 14th and 15th of February. Are those the relevant dates.
MR ROUX: Those are the two relevant 14th and 15th because on the 14th if was there and on the 15th ... [intervened].
COURT: Depose an affidavit to explain exactly what happened during those days while the house was under his control.
MR NEL: That will happen, M'Lady.
COURT: Yes, thank you.
So at the end of the day the Roux succeeded in making the Judge “unhappy” with the police, and got the judge to force the police to submit an affidavit, as if they did something wrong? Why didn’t Nel ask the Judge that she likewise order Stander and members of the defence team to submit similar affidavits? Why didn’t Roux ask the State to produce the big fan instead? Nel did argue about the length of the big fan’s cord. The reason is simple: the big fan didn’t go “missing”.
This is what Judge Masipa said in her Judgment:
I may add that there were a number of issues which arose during the course of the trial. These issues took a lot of the court’s time and correctly so, as at the time such issues were important to the parties. The issues concerned were inter alia whether or not the police contaminated the scene, the length of the extension cord that went missing from the accused’s bedroom and the authenticity of photographs of items depicted in various exhibits. Having regard to the evidence as a whole this court is of the view that these issues have now paled into significance when one has regard to the rest of the evidence. (Record 3289, Lines 13 –20)
Note that now Judge Masipa only says the cord went missing from the bedroom (not from the sealed house). She says that these issues pale into significance with regards to the rest of the evidence. Remember that Oscar admitted that if Photo 55 is how the police found the room then his version is false. Since the judge accepted Oscar’s version (based on an unsubstantiated timeline) she in the same stroke implied that the police committed perjury and that they placed the duvet on the floor, unplugged the small fan from a plug it couldn’t reach, and also moved the big fan prior to taking the first photographs of the crime scene. This decision was based on her negative and suspicious view of the police, fueled by the antics of Advocate Roux.
We must just add that we do not excuse the police completely here. One more photo of that cord from closer or from another angle could have shown that it was not 5 metres. Now we only have one photo. Saying that, even on this one photo we can see that the cord is not 5 metres as there is no excess of the cord to be seen anywhere; the cord as we see it in the photos is stretched out and we see only about 2 metres, where is the other 3 metres of it? Had there been 3 metres excess, we would have seen the excess heaped up closer to the wall and under the right side of the headboard behind which the cord would have been plugged in; we see nothing of that. The defence took a chance here to “ask” for the cord; they were pretty sure that the chances were very small that the cord would be produced and one can be sure that had a cord been produced and it was not 5 metres, they would have said it was not that cord and that there was no chain of custody on it. While the police could have taken more care with all items in the room at least (and to take more scaled photos) while the house was still under their control, what we see here is an attempt by the defence to paint the police as dishonest and they actually successfully planted this seed in the judge’s head.
We go into much detail regarding the fans and the extension cord in Oscar vs the Truth and show why the cord was not 5 metres and that Oscar’s version of moving the fans is simply not true.
Above: Look at the white cord, if you take the surrounding context into account (i.e. the length of the bed) it is clear that we see a 2 metre cord here. If was 5 metres, where is the other 3 metres of the cord? We look at this in more detail in OVTT.
Of course the real question remains, where did Oscar plug the small fan in? Whether the extension cord was 5 metres or 20 metres long, its power bar did not have space for the small fan. And the plug behind the sound cabinet was too far away for the small fan to have stood at the balcony door while being plugged in behind the cabinet. So where did he plug the small fan in, or did he simply lie about it altogether? Read more about the small fan here.
Oscar Pistorius has many fans. Some of them are very dedicated and loyal – some even calling him “perfect” and “divine”. But there is one fan that for sure tells us that Oscar lied during his testimony – and that would be the small fan – one of the two fans that Oscar supposedly was in the process of moving when Reeva supposedly got up from bed and slipped to the toilet without him seeing or hearing her.
Let’s start with the Bail Affidavit – in which there was no mention of the small fan. He only talked about one fan, the big fan, and it was outside on the balcony. In his plea statement and testimony this all suddenly changed to two fans, both being inside the room.
From Page 64 of the Bail Affidavit:
During the early morning hours of 14 February 2013, I woke up and went onto the balcony to bring the fan in and closed the sliding doors, the blinds and the curtains. I heard a noise in the bathroom and realised that somebody was in the bathroom. (our emphasis added throughout)
Oscar during his Evidence-in-Chief:
--- I open the doors of the balcony. From my main room there is a small balcony. I opened the sliding doors onto the balcony. I placed ... there is two fans. There is a steel tripod stand fan and there is a small plastic fan. A floor fan. I placed the tripod fan a bit further back with one of the legs on the balcony and the other two legs inside the sliding door. I placed the small fan pretty much between the legs of the larger fan, the tripod standing fan. I then closed the doors till they more or less in line with the fans because at night, there is a light on the balcony that attracts insects and they come into my room. So I was trying to get most of the humid warm air out of the room, by having the fans there, they pulled the cool air from outside into the room. I drew the blinds and the curtains so that no bugs could come in from the outside and I had them more or less draped around the side of the standing fan. (Record 1461, Lines 20–26 & Record 1462 Lines 1–7)
A more detailed explanation of how he placed the fan:
--- My Lady, the fans are different. They are not the same. The one is a tripod standing fan, has got three legs, tripod. It is a stainless steel fan. It is about waist height. I put the one leg out onto the tiles of the balcony and I put two of the legs on ... inside the room. So the fan was more or less in the ... more or less in the middle of the doors. The floor fan I put in between the two legs of the standing fan, so it would have been slightly forward, so it would have been on the carpet in the bedroom. (Record 1521, Lines 7–14)
That both fans were running was confirmed a short while later:
--- I woke up, M'Lady in the early hours of the 14th February. It was extremely warm in my room. I sat up in bed. I noticed that the fans were still running and that the door was still open. (Record 1469, Lines 13–15).
I took the small fan, the floor fan, I placed it pretty much just inside the room and I took the bigger tripod fan and I took it by the part just underneath the fan and I placed it in the bedroom. The fans were still running. they were still running at the time and I then proceeded to close the sliding doors and lock them. (Record 1469, Lines 19–25)
There next to your vest, if we could perhaps zoom in, in there. No ... My Lady, may I just point out to ... higher up. May I just ... there we go. What is that? I mean ... not the iPad, next to it on the stand? --- It is a hair clipper, My Lady.
So you have that hair clipper next to your bed? You had it there? --- I am not sure if it was there, My Lady. In another photo it was ... the hair clipper was on the floor but not on the stand. It is possible that it could have been there. I plug it in to that extension cord to charge. So it is possible that it could have been.
Okay. So you plug that in to charge and that extension cord is also where you plugged in the fan? --- That is correct, My Lady.
And you are convinced of that? --- The fans are plugged into the extension cord that is ... behind the bed on the right hand side of the bed there is a plug. I am not sure what is plugged in there. I am not sure if it is a double plug. I know that the extension cord is ... that is where the power source was for the extension cord.
Ja, no, that is, but [intervenes] --- I think [intervenes]
We can see it there, that white cable there, that is the extension cord’s cable? --- That is correct, My Lady.
So and you plug the fans into that extension cord? --- I plugged the fans into that extension cord, My Lady. I am not sure if the clipper was plugged into that extension cord, or if it was plugged into the two prong plug which is behind the headboard, but that was usually where I plugged it in, next to my bed.
At this point it seems that Oscar remembers quite vividly and clearly that he plugged both fans into the extension cord. He is less certain about the hair clipper – but is quite clear that the extension cord was the place where he normally plugs in the hair clipper.
Oscar was also clear that he didn’t unplug any of the fans that evening.
... --- I never unplugged any fan on my version, My Lady. (Record 1550, Line 20)
To recap to this point – on Oscar’s (changed) version there were two fans – by the open balcony door – both were working and both were plugged in at the extension cord. After moving the fans he did not unplug any of them. Of all these things up to this point he is fairly certain of.
The power bar has space for 2 two-prong plugs and for 2 three-prong plugs. Unlike many North American and European countries in South Africa a two pin plug cannot be used on a three-hole socket.
What we see above is the power bar as the police found it at about 06:00 – with the hairclipper and big fan plugged into it. There is NO SPACE for the small fan’s plug.
Read what happens when Advocate Gerrie Nel confronted Oscar about this:
So and you plug the fans into that extension cord? --- I plugged the fans into that extension cord, My Lady. I am not sure if the clipper was plugged into that extension cord, or if it was plugged into the two prong plug which is behind the headboard, but that was usually where I plugged it in, next to my bed.
No, you are right. Can we just go down and just show Mr Pistorius that he is ... you see there the clipper is plugged in and the fan? Do you see that? --- I see that, My Lady.
There is only one problem with that, Mr Pistorius, do you see the problem? --- I do not, My Lady.
There is no other place for the other fan. --- The other fan, My Lady, if you look at the police photos was on the side of the room where the TV cabinet is. There is a plug behind the TV cabinet where the fan could have been plugged in. I do not recall [intervenes]
In our book Oscar vs The Truth we use a scale plan of the bedroom to show that if the small fan stood where Oscar said he placed it, the cord would have been too short to reach the plug behind the TV cabinet. We work with actual measurements and are not guessing.
Could have been? --- If I may just finish please. I do not remember which fan which plugged in at which power point.
Now he all of a sudden can’t remember where he plugged in the fans while just a minute or two before he was quite certain he plugged them both into the extension cord.
We continue with Oscar gasping for air as he tries to diffuse the situation by trying his hand at some classic misdirection:
My Lady, I had three fans. I had two floor fans and I had one standing fan. A friend of mine came to visit me in January. I lent him one of the fans for his room downstairs. So there were two fans in my room. I cannot be certain as to this plug was ... if this fan was plugged in here and the other fan was plugged in where ever. But as far as I remembered it both the fans were plugged into this power source. I am not sure if it had been ... if I had tripped over the cord on the way to open the balcony door, or if the fan was plugged in the other side. I do not have an independent recollection of where the fan was plugged in.
So maybe he tripped over the small fan’s cord and pulled it out? From where? Not from the extension cord – there were no space – or from behind the TV cabinet which were too far away? From where?
One thing we know is, you said before I showed you the specific plug, you said “both fans were plugged in there”. That is what you said? Am I right, today? --- I do not recall it, My Lady, but if Mr Nel says that that is so, then I believe him.
Why can you not recall it? It happened two minutes ago. When we started you said, “both fans were plugged into the extension cord.” Now you want to say that you cannot remember. Why? --- My Lady, my memory is not very good at the moment. I am under a lot of pressure sitting here. It is not easy. I am defending for my life and I have ... if I tell the truth and you ask me five minutes later again what I asked ... what you asked me, I will probably tell you the same thing because I am not trying to lie. If I say I do not have an independent recollection of where the fan was plugged in, for something so insignificant as to where the fan was plugged in, all I can say is that the fans were both on.
It is not so insignificant, Mr Pistorius. It will show that you are lying and it is very significant. --- I understand the point that it is significant, My Lady. It is a significant thing, but the act of plugging in a fan and putting a fan on, a year and a half ago, I cannot remember.
But one thing we can agree on you and me, is that that fan was not plugged into that extension? --- I do not know if I can agree with that, My Lady.
Is it possible that it was? --- It is possible that it was, My Lady. I am not sure if [intervenes]
Is it probable that it was? In all probability you would have plugged it in there? --- I am not sure where I would have plugged it in. I know that both the fans were running, My Lady.
Are you telling the court that your other fan’s cord is long enough to go in between the legs of that one from the power source in the corner of the room? --- My Lady, I do not ... I have not thought about where I plugged in what fan. I know that both the fans were working. So they were ... if the fan’s length of the one cord is not long enough to fit in a power source, then it is obvious that both of them were in the extension cord.
The “other fan” here is the small fan. Also note only the length of the small fan’s power cord is under discussion here – NOT the length of the extension cord. It is a fact that the small fan’s cord was too short to reach any wall plug – so according to Oscar it must have been plugged into the extension chord. But it wasn’t!
Yes. Yes. Let us do that. Now can we just go to the other photograph please. This My Lady, will be 187 and 56. I apologise My Lady, it is 61.
MR NEL: Yes, My Lady. Now can you see that power ... the plug of that fan? --- I can see the plug of the fan, My Lady.
It is a two point plug? --- That is correct, My Lady.
That was not plugged into the extension, because there is no place to put it in. --- I see it has got a very long cord, My Lady, but as I said I do not remember which power source it was plugged into.
As anyone can see for themselves – it is not a very long cord – not long enough to reach any wall plug, and this is/was actually provable.
No, but no, no. That is not the answer, Mr ... that is not an answer to my question. The question is, do you agree that was not plugged into the extension? --- My Lady, I have said I do not remember which plug was ... which fan was plugged in which power source. I remember them both being plugged in at the extension.
Let us [intervenes] --- That was the reason for having the extension was because the cords were not long enough to reach the wall. So I had an extension for that reason. So as far as I can remember and what would make logical sense to me, is that the fans were plugged in. This is not where I moved the fan that evening. I do not walk and put the fan in the corner of the room with the plug out. So I cannot say if the plug was plugged in at an extension power source, or at the wall behind this cabinet.
The contradictions continue. Immediately after admitting that the cords were not long enough to reach the wall – he said that the small fan could have been plugged in at the wall behind the cabinet. How?
I see. --- But what I can say is that this was not where I left the fan.
Let us just go back to the previous photograph and just zoom into the plug on the extension cord. You see? There is no way that another double plug can be plugged in there. It is two, three-point plug that is available, nothing else. Do you agree with me? --- I agree that … [No audio 14:41:14] ... My Lady, the time of this photo it would be impossible to put another two prong plug into that adaptor, because ... or the two spots that there seem to be available, are both taken. I agree with that.
Oscar just agreed that there was no space in the extension cord for the small fan.
But then you are lying. Then that other fan was never plugged in there or on, or used that day. --- My Lady, I can simply say I remember [No audio 14:41:41] both of the plugs being plugged in there, if I am not [indistinct] the one plug is [indistinct] another [indistinct] that [indistinct]
But you see unfortunately I have to just deal with this a little further. The other fan, if you never unplugged the other fan on your version ... --- I never unplugged any fan on my version, My Lady. It is possible that when I ran to the balcony to call for help, that I tripped over a fan cord. It is possible that I pushed the fan aside. I do not have a memory of moving the fans.
Note that not once did Oscar accuse the police of unplugging the small fan, or changing and moving plugs around. This line of questioning about the small fan must have caught Oscar by surprise – therefore he did not have prepared answers to give – like blaming the police for anything that contradicts his version. It is clear that Oscar was treading a lot of water here and it is such pity that Judge Masipa did not get what Nel was trying do show here – the significance being that even Oscar admitted that if he did not move the fans, then his whole version is not true.
In Oscar vs The Truth we are going into much more detail and show how Oscar’s version of moving the fans simply cannot be true, based on hard measurable evidence. We also look at the extension cord and show why it was most certainly not 5 m long and why it is not really of much significance. We digitally reconstruct the room to show how the room would have looked like if he somehow plugged the fans in where he said he did, and show how difficult if not impossible it would have been for him to move around in the “pitch dark” room without tripping over the cords and/or without bumping the fans over. We also show (considering his version) that the room would not have been pitch dark, as the balcony light was on and there were gaps under and on the sides of the curtains, where some light would have entered the room.
During the cross-examination of Oscar state prosecutor Gerrie Nel got Oscar to admit the following:
Now let us take it one step further, if that photograph that we see there, photograph 55, if that is the way it was that morning, your version cannot be true. --- That is correct, M'Lady. (Record 1741, Lines 23–25)
Photograph 55 from Police Photo Album 1 – taken by WO Van Staden at 5:58 am on February 14, 2013.
Now let’s look at the events leading up to the taking of this photo.
Colonel Schoombie van Rensburg was the fist police officer on the scene arriving there at about 03:45 accompanied by a Constable Prinsloo. He found a very emotional Oscar in the kitchen and asked him what happened. Oscar wasn’t able to answer Van Rensburg. It was Ms Carice Stander who told Van Rensburg that Oscar told them that he thought Reeva was an intruder.
Van Rensburg instructed Constable Prinsloo to secure the scene and to control all people entering and exiting the scene.
Warrant Officer Hilton Botha then arrived.
Up to this point the only people that have been upstairs after the shooting incident was Oscar Pistorius and Carice Stander. Ms Stander went upstairs to fetch towels and plastic bags – as well as to check up on Oscar when he went to fetch Reeva’s handbag.
Together Van Rensburg and Botha followed the blood trail upstairs and made their way to Oscar’s bedroom.
When presented with Photograph 55 in court Van Rensburg testified that it shows how he found the bedroom:
MR NEL: Now that view of the bedroom, can you still remember that as the view you got the day you entered? --- Dit is korrek, U Edele. Translation: That is correct, M'Lady. --- Dit is soos hy was. Translation: That is as it was. (Record 774, Lines 2–5)
On Oscar’s version Colonel van Rensburg committed perjury here.
Van Rensburg and Botha completed their preliminary observations and went downstairs to wait for the police photographer to arrive. When the photographer WO van Staden arrived he went upstairs with Van Rensburg and Botha.
From Van Rensburg’s testimony:
--- M'Lady, we then took the photographer to the upper level, to the bathroom. If you say ‘we took him up’, who are you referring to? --- It was myself and Mr Botha, Warrant Officer Botha. Were you only three? --- It was just the three of us, M'Lady. And what did you do upstairs? --- We first pointed out the global points of the scene to him, as well as several points we wanted him to concentrate on at the scene. I then gave him the order to photograph the scene. (Record 798, Lines 14–21)
Van Staden then proceeded to take the photos alone:
And whilst Warrant Officer van Staden was busy taking photographs upstairs, did anybody else have access to the (interpreter intervenes) --- No, M'Lady, he was busy taking photo’s alone and at some stage Botha and I did proceed to the upper level.
TOLK: Om wat te doen? (to do what?) --- Just to make sure that we also have all the evidence that was needed to be guarded.
W/O van Staden started taking photographs of Oscar and the from the front of the house he slowly worked his way upstairs to take Photo 55 at 5:58 am.
After securing the crime scene one of the first steps of processing a crime scene is to conduct an assessment of the crime scene – in order to determine, for example, the type of crime scene and the resources that may be required to conduct the crime scene investigation. Part of this assessment is a careful crime scene “walk through”. This is what Van Rensburg and Botha did – they walked through the crime scene and did a preliminary investigation before passing the scene over to Van Staden in order to document the crime scene by taking photographs. They were following a standard crime scene investigation process. A very important rule is that during these early crime scene walks, preliminary investigations and initial photography that investigators do not contaminate or disturb the crime scene.
The question that Oscar and the defence had not been able to answer is – why would Van Rensburg, Botha and/or Van Staden all risk their careers to against all rules and basic protocol move things around the crime scene before documentation? Then have it photographed – and then lie about it? For what reason? Remember that at the time when Photo 55 was taken the police did not yet know Oscar’s version – and Oscar admitted as much. All that they knew was that Oscar thought that Reeva was an intruder. The police did not know what important role the position of the fans would play in Oscar’s version. Where did the police get the foresight from to move the fans around to mess with Oscar’s version?
We are not talking here about a careless bumping and a minor shift in an object position – we are talking about picking things up – moving them, dropping them – even going as far as unplugging a fan.
In our book Oscar vs The Truth we analyze the state of Oscar’s bedroom in detail. We look at the blood marks on the duvet, the position of the jeans, the fans and their cables – where Oscar said he moved them to and where the police said they found the fans etc. and we can only conclude that Oscar’s version is impossible – a lie. There is simply no evidence that the police manipulated the scene in the way Oscar said they did.
And if the police did not manipulate the scene – then by his own admission his version is false.
In Oscar vs The Truth we digitally reconstructed the room back to as Oscar said it was (i.e. as it would have been according to him, e.g. the duvet on the bed, the fans in the positions he moved them to, etc.) and then compared that image with the police photos in order to show what the police “must have done” to change the crime scene: i.e. unplug the small fan, move both fans, throw the duvet on the floor where the big fan was, open the curtains widely, etc. This visual comparison shows how bizarre this accusation by Oscar is.
In this post we are going to take you step by step through an analytic process to confirm one of our key findings – that the black vest that Reeva wore when shewas found downstairs, had she worn it in the toilet, would have hanged down to below where the bullet hit her in the hip. That then leads to the very legitimate question that demands an answer – where is the corresponding hole in the vest? It is not there – why not?
Afterwards please decide for yourself if a person requires a qualification in “forensic science” to follow the steps outlined below.
Let’s start by looking at official police photos of the black vest.
There are clearly no holes towards the bottom of the vest.
The next logical question is whether the vest would have been long enough to hang over where Reeva was hit with a bullet – point 4.5 in the figure below from the official autopsy report?
The fist step here is to determine the length of the vest. From the photo on the right using the scale it is a simple matter in a graphics package like InDesign to determine the distance from the top of the shoulder strap to the bottom of the vest to be about 66 cm.
The next step is to look at Reeva’s height and where the bullet hit her.
According to the autopsy report Reeva was 175 cm tall. And also according to the autopsy report the bullet hit Reeva at distance of 92 cm from the base of the right heel.
The next parameter we need is the distance between the top of Reeva’s head to her shoulders. We don’t know the precise distance as it was never measured. So that leave two different approaches – measure the distance from a person as tall as Reeva, and/or look at anthropometric data.
What is Anthropometric Data?
Anthropometry is a branch of anthropology concerned with comparative measurements of the human body and its parts as well as the variables which impact these measurements. Anthropometric data consists of collections of measurements, often presented in tabular format or annotated diagrams of human figures. The primary dimensions measured are of bone, muscle, and adipose tissue. This data is used in human factors/ergonomics applications in order to ensure that designs and standards are realistic.
The distance that we are looking for is the difference between between A and C for a woman about 1.75 m tall. That would be last column in the table. A – C = 1.724 – 1.441 = 0.283 m ~ 28 cm. This distance is fairly constant across the board – for male and females – irrespective of their height – ranging from 28 cm to 31 cm.
Now it is simple mathematics to calculate the distance between the shoulder to the bullet wound = 175 – 92 – 28 = 55 cm.
Therefore one doesn’t have to be a forensic expert to come to the conclusion that the vest being 66 cm long – would have hanged quite a bit lower than the bullet wound – by about 11 cm. Even if we subtract 5 cm for the rounding of the bust – we still have have the vest hanging below by about 6 cm.
In our book we also show other reasons why Reeva did not wear the vest during the shooting incident, such as the shrapnel wounds on her chest that is not compatible with the holes/rents in the vest. The rents/holes are too big and too many and their position is not compatible with the position of the wounds. There are also too little blood on the vest to suggest that she had it on her body when she sustained the open wounds. This would suggest that the rents were made before Reeva entered the toilet. In our book we look at a possible reason, that may also explain the severely abraded right nipple.
Just a thought on the concept “forensic expert”. It is an overdramatized term, born from people watching too much CSI.
This link explains very well what we have always said. You can be an expert in your own field and then APPLY your own qualifications, experience, knowledge and skills in the forensic field.
"A true forensic scientist does not really exist in South Africa.
Our approach in the University is based on the definition of a forensic scientist who is 'a scientist in one of the disciplines of science who applies his or her knowledge to ‘forensic cases'. This means that you are FIRST a chemist, anthropologist, pathologist, engineer, psychiatrist (with an appropriate post-graduate degree) and only after that do you use your knowledge in forensic cases. In our view, such people are primarily researchers rather than applied forensic technicians."
Most of us, at the beginning of the trial, when so many witnesses testified that they heard the frantic screams of a woman that went silent after a volley of gunshots, thought that is was a slam-dunk case for the State. How could they possibly lose this one? And yet the State did lose on the dolus directus charges. How did this happen?
One of the main reasons why the Judge found in Oscar’s favour was because she believed that the defence put forward the most convincing time line of events.
The timelines as set out in the chronology of events tip the scales in favour of the accused’s version in general. (Record 3322 Line 10)
The chronology of events that the Court accepted and based its judgment on is as follows:
I now proceed to set out the chronology of events:
1. At 02:20 security activated guard track next to the house of the accused.
2. Approximately between 03:12 and 03:14 first sounds were heard. These were shots.
3. Approximately 03:14-15 accused was heard shouting for help.
4. Approximately between 03:12 and 03:17 screams were heard or screaming was heard.
5. Approximately 03:15 accused was seen walking in the bathroom.
6. 03:15:51, the duration was 16 seconds, Dr Stipp telephoned the Silver Lakes security.
7. 03:16, the duration was 58 seconds, Mr Johnson called and spoke to Strubenkop security.
8. 03:16:13 Mr Michael Nhlengethwa made his first call to security. This call did not go through.
9. 03:16:36, the duration was 44 seconds, Mr Michael Nhlengethwa made his second call to security.
10. 03:17 Dr Stipp attempted to make a call to 10111.
11. 03:17 second sounds were heard. These were cricket bat striking against the door.
12. 03:19:03, the duration was 24 seconds, the accused called Johan
(Record 3299, Line 7 to 26 and Record 3300, Line 1 to 3)
There are two pillars on which this chronology rest – that the “first sounds” were all gun shots (Point #2), and that the “second sounds” were all cricket bat strikes (Point #11). This sequence was Oscar’s version – and it was so accepted by the police, the State, the defence and ultimately the court. The State could never provide a satisfactory explanation for the “first sounds” while believing that the “second sounds” were the gunshots.
In this post we will convincingly show that there is actually no evidence that ALL the bat strikes came after the gun shots – it is only an assumption – one that is actually not supported by the acoustic evidence. You may argue that there is solid evidence that he broke down the door after the gunshots. That is true – BUT – and think carefully about this – after the last strike the door panels were only slightly damaged, still intact and in place. The door was not “broken down” by the bat strikes – it only caused the damage that allowed Oscar at some point to pull/push/pry the panel out.
How did this notion that all the bat strikes came after the gunshots start?
Let’s look at the cross-examination of state witness and forensic expert Colonel Vermeulen (who worked for the Scientific Analysis Section of the Forensic Science Laboratory in Pretoria):
Roux: Now, if we look at this door, it is consistent and I think it is conclusive in fact. If you disagree we can go through it, that when the shots were fired the door was intact. It was not broken.
Vermeulen: That is true M'Lady.
Roux : What is your view? When was the door hit? When was the door hit? Hit with the bat, before or after the shots?
Vermeulen : M'Lady I would say the door was hit after the shots. When he ... some part of it broke after the shots. Because if you look at the crack down here, it enters this bullet hole on the one side and it exits on the other side. Well it enters on the one side and exits on this side. So what this tells me is that there had to be a hole in the door before this piece broke off, otherwise the crack would have gone straight through. (Record 657 Lines 8–20)
Now before we analyze Vermeulen’s testimony – imagine for a moment that you have never heard of Oscar and Reeva and of the events of that night. Your mind is a clean slate and all you know is that we have a door that got hit three times with a cricket bat, got shot at 4 times and whose panels then got broken out.
First look at this blue square with two dots:
Which dot did I make first? The red or the yellow? It is impossible to say. With the next square the situation is different. Here the yellow dot is clearly on top of the red one and one can thus confidently say that the red dot came before the yellow one.
What we have on the door is like the first square – the bat marks and the bullet holes do not intersect – they are on completely different areas of the door – it thus IMPOSSIBLE to say what came first and what came second.
The photo above shows the four bullet holes. The three bat strikes Oscar delivered to the door were all well above the door handle by about 300–400 mm. There is thus a clear physical separation between the bat strike locations and the bullet holes.
One therefore doesn’t have to be a forensic expert to understand and agree that, based purely on the physical evidence, it is impossible to tell the exact sequence of marks and holes on the door. In the same way that it is impossible to look at these four bullet holes on the door and to determine the exact sequence of the shots. For that one has to look at other evidence inside the toilet and on Reeva’s body.
There is a crack that runs from the location where the bat penetrated the door directly into hole D. This seems to indicate with a fair degree of certainty that that the panel was broken out after the bat strikes and the gunshots. An this is also what Vermeulen says:
When he ... some part of it broke after the shots. Because if you look at the crack down here, it enters this bullet hole on the one side and it exits on the other side. Well it enters on the one side and exits on this side. So what this tells me is that there had to be a hole in the door before this piece broke off, otherwise the crack would have gone straight through.
However, where Vermeulen goes horribly wrong – and in essence saved Oscar from dolus directus – is when he said that this proves that the bat strikes came after the gunshots – while it is only proof that the panels were pried/pushed/pulled out after the last gunshot!
If we dispute the notion that all the bat strikes came after the gun shots – what then happened?
Consider this scenario: After Reeva locked herself in the toilet, Oscar hit the door twice with the cricket bat, a third strike was to the metal plate. These strikes were made to scare and to intimidate Reeva. Cornered and afraid Reeva screamed for help. Oscar then fetched his gun and fired four shots through the door. Immediately afterwards Oscar regretted his actions – now he wanted to save Reeva – in a panic he grabs the bat and gives the door one more hefty strike – this penetrated the door – allowing him to pry the panel loose and out.
The animation below illustrates the above sequence of events – two strikes with the bat – then the four gunshots – then one last bat strike. Then the crack, that was initiated by the last bat strike, propagates towards the bullet hole as the panel is pried/pushed/pulled out. With further pushing/pulling a new crack develops from the bottom of the hole.
Based purely on the evidence on the door this scenario is as plausible as Oscar’s version and will in the end produce an identical outcome as Oscar’s version. Before Oscar broke the panel out – on both versions there were 3 strikes and 4 gun shots to the door.
To determine which version is more plausible we will later look at which one is supported by other evidence presented to court.
So after Vermeulen’s flawed analysis all that the defence had to do was to pay a few experts of their own to agree with Vermeulen and the Judge would have had no option but to accept Oscar’s version.
343. A further difficulty for the State is that Vermeulen’s evidence, confirmed by Dixon and Wolmarans, is that the door was damaged by the cricket bat, after the shots had been fired. (Record, Vermeulen 657, lines 14–15), (Record, Wolmarans 2378,, lines 9–15), (Record, Dixon 1962, lines 11–14).
This is what Roger Dixon said:
This would be … the hole there, which you see is split by a crack on either side, a top and bottom, is the bullet hole that was referred to as bullet hole D. It is on the side of the door panel, that has got a taper or a bevel to it, where it goes into the frame.
What does that indicate to you? What was first? The shooting or the hitting with the bat?
--- Okay the crack on the left hand side, going up, which terminates on the left side of the bullet hole and the crack coming down from the right, which terminates on the right side of the bullet hole, show that when the crack, the damage to the door was inflicted with the cricket bat, the bullet hole was already in position. Because if the bullet hole came afterwards and there was a pre-existing crack, the bullet hole would cut a chunk out and the termination of the crack, would be continuous, the top and the bottom.
Would line up?
--- Would line up. Here your weakness in the grain of the door, stops where you have got a hollow. It cannot propagate and that was coming down by the sides. I do not think that is in dispute. That was also the evidence of, Colonel Vermeulen.
This is what forensic expert Wolmarans said:
The breaking of the toilet door by the cricket bat. I agree with Colonel Vermeulen that the cricket bat was used to strike the upper door panel of the toilet door in order to break the door open. I also agree with Colonel Vermeulen that the door was first damaged by the four shots that perforated the door and thereafter by the cricket bat. M'Lady, that is on the next page, page 29 and you can see it is in a straight line, everything with the bullet hole in the middle.
That is the shot that you fired at the meranti door?
--- That is correct, M'Lady.
When the door was first cracked and then you fired the shot.
--- The door was first cracked and then the shots was fired.
Record 2378 Lines 9–26
Wolmarans actually cracked a meranti door and then shot a hole through the crack – to prove that bullet hole came before the crack. In what way does this experiment prove that ALL the bat strikes came after the gunshots?
Where Vermeulen claimed that the crack was made when the panel was broken out – Dixon and Wolmarans claimed that the last bat strike caused a crack that travelled more than 400 mm down to Hole D. Now even if Dixon and Wolmarans are correct – ALL this proves is that ONE bat strike came after the gunshots – there are no cracks running into the other three bullet holes.
Which version is more plausible? Let’s look at the acoustic evidence.
NOBODY testified that the “first sounds” consisted of 4 bangs, while we have the testimony of Burger and Johnson that the “second sounds” consisted of at least 4 bangs.
Read here for our reasoning why the four thuds that Mrs Estelle van der Merwe heard were actually the “second sounds” and not the “first sounds” (as argued by the defence).
If the first sounds were 140 dBA gunshots why did only the Stipps hear it? (Mrs Nhlengethwa only heard one bang)
Between the first and second sounds the Stipps, Burger and Johnson heard a woman scream. This would not have been possible if the “first sounds” were gunshots.
Read here for our reasoning as to why it is much more likely that the Nhlengethwas (the immediate neighbours who said that they heard Oscar scream soon after the “first sounds”) were the ones that made a mistake in identification.
If we accept Oscar version then we have to accept that the state witnesses Burger, Johnson and the Stipps were wrong, and if we accept that our version is correct then we have to accept that the Nhlengethwas were wrong. And we have shown in our book Oscar vs The Truth how the state witnesses would have heard any screaming louder and clearer than the Nhlengethwas.
The other neighbours – the Motshuanes – who also testified that they heard Oscar scream – didn’t hear the first or the second sounds – so it is not possible to reliably “place” what they heard within the time line. However, if one looks at the acoustics it seems highly unlikely that they would have heard very loud screams emanating from the bathroom or the toilet – so it is more likely that what they heard occurred after the “second sounds” as Oscar ran through elsewhere in the house wailing and crying.
If the third bat strike came after the four gunshots, then why didn’t anyone hear it? The Stipps were so distracted trying to get dressed and making phone calls calling that they only heard 3 of the 4 gunshots – not hard to imagine that they might have missed the much softer bat strike. Burger and Johnson were simply too far away to hear the much softer bat strike in the aftermath of the 4 gunshots. The Nhlengethwas did even hear the 4 gunshots.
To conclude: The defence’s timeline – which played such a significant part in the outcome of this case – was based on nothing but a seriously flawed and unsubstantiated assumption.
Lately, there has been extensive media coverage on our book Oscar vs The Truth (OVTT). What started as an article in the Daily Maverick quickly went viral and reached newspapers and media websites from countries all across the globe. These reports and articles primarily focused on two areas of evidence we cover in the book – that the wounds on Reeva’s back were likely inflicted by the cricket bat before she fled to the toilet – and secondly, that Reeva likely wasn’t wearing the black vest when she was shot. However, if you read our book you will quickly realize that these are not the only evidence we present that there was an argument between Oscar and Reeva. In this post we will put all the evidence before you – it is important not to look at areas of evidence in isolation – one has to consider the whole picture.
Let’s paint that picture:
The State’s argument was that Oscar and Reeva had an argument and that this argument escalated to Oscar intentionally shooting Reeva after she fled and locked herself in a toilet. The defence in turn argued that the evidence presented by the State in favour of an argument did not meet the burden of proof. In the end the court sided with the defence.
Mrs Estelle van der Merwe testified that from about 02:00 she heard the voice of a woman as if she was arguing with someone.
M'Lady I woke up around 01:56 in the morning. I heard sounds, it seems like somebody was involved in a fight and this people were talking in loud voices M'Lady. It lasted for about an hour. I could not hear what this person was saying. I also could not understand in what language this person was talking. (Page 159, lines 1–4)
These sounds caused her to:
Feel concern about lack of sleep
To bury her head under a pillow
To get up to see if could see where the sound came from.
Nel: Madam let us carry on. You said it lasted for about an hour, that is what you said. Before you go on, how did you experience it? What did you do? --- M'Lady I was irritated by that because I was supposed to sleep, seeing that my boy was supposed to sit for his exams shortly.
Yes. So you say you were irritated by it and what did you do? --- At some stage I placed a pillow on top of my head, either hope of falling asleep once more, or again M'Lady. At some stage I woke up, being under the impression that I want to see if there is something that I could see. I looked out to the other side of Farm Inn. I still could not see anything M'Lady. I then went back to bed again. Around about 03:00 in the morning I heard four gunshots M'Lady. (Page 159, lines 8–20)
The defence argued that Mrs van der Merwe evidence is not sufficient evidence that there was an argument between Oscar and Reeva.
165. The State alleges that there was an argument between the Accused and the Deceased, which preceded and resulted in the shooting. The State contends that the “argument” was overheard by Mrs van der Merwe (Record 1941, lines 19–20). 166. Mrs Van der Merwe’s evidence does not prove the existence of an argument, still less does her evidence justify the inference, as the only reasonable inference, excluding all other reasonable inferences, that there was an argument between the Accused and the Deceased, which preceded and gave rise to the shooting.
Judge Masipa found in favour of the defence:
2. That Mrs van der Merwe had no idea where the voice came from, what language was being spoken or what was being said. Accordingly, there is nothing in the evidence of Mrs van der Merwe that links what sounded like an argument to her to the incident at the house of the accused. What is of significance, however, is that Mr Peter Baba, the security guard, was near the house of the accused at 02:20 on patrol. There is no evidence that Mr Baba heard or saw anything untoward at the accused’s house at the time. (Record 3305 lines 24–26, and Record 3305 lines 1–6)
Analysis of the defence’s arguments
Let’s look at the defence’s argument with a critical eye:
172 However, Mrs van der Merwe’s evidence, relevant to the alleged argument, is inconsistent with the Further Particulars. Her evidence was as follows: 172.1 She woke up at around 01:56 (Record 159, line 1); 172.2 She heard the voice of a woman, but it was far away. (Record 168, lines 10–17; 170, lines 21–24) She could not hear words or language. She had no idea where the voice was coming from but it was far from their house (Record 170, lines 13–15).
Mrs van der Merwe perceived the sound to be far away from her – likely because it wasn’t very loud. However, perception is not always reality. Without the benefit of knowing how sound levels diminish as sound waves propagate across distances and through barriers such as windows, etc., it would have been impossible for her to reliably testify how far or close the sound source was from her house. Without supporting context, concepts such as “far” and “near” are relative. Thus “far from her house” does not exclude Oscar’s house.
172.3 The woman’s voice was quiet for periods, which could be intervals of 5 minutes or 20 minutes (Record 168, lines 24–25).
There are parts of Oscar’s house where Mrs van der Merwe would not have heard the argument – these include the toilet, bathroom and bedroom (even with the balcony door open), the TV-room and the upstairs passage between the bedroom and the staircase had windows facing towards the Van der Merwe house. Similarly downstairs in the kitchen the windows would also have had a direct line sight to the bedroom windows of the Van der Merwes. The fact that the woman’s voice was intermittent could simply mean that Oscar and Reeva moved around inside the house. Why wasn’t a man’s voice heard? There could be several reasons for this. The most likely reason is that Oscar initially assumed a softer and perhaps a more placating tone (i.e. he was on the receiving end of Reeva’s scorn). Another reason is that his voice was just softer than Reeva’s voice and therefore not audible to Mrs van der Merwe.
172.4 She wanted to find out where the voice was coming from. She looked out towards the Farm Inn (which is in the opposite direction from the house of the Accused), to try and find out where the voice was coming from. (Record 159, line 18)
When Mrs van der Merwe heard the woman’s voice – she was in her bedroom (very likely behind closed windows). She did not go out on the balcony. Irrespective of where the sound came from – it could only enter the bedroom through the same window. In addition the sound waves that she received could have been a mix of direct sound and deflected sounds. It is quite possible that sound waves bounced against other buildings before entering the bedroom. Like looking in a mirror, deflected sounds would actually create the illusion that the sound originate from a position that is vastly different from the actual position (see diagram below). In addition once the sound waves enter the room they deflect around between the walls – making it more difficult to pinpoint the precise direction.
Mrs van der Merwe’s inability to pinpoint the direction from which the sounds came was to be expected and therefore actually reinforces her reliability and the strength of her evidence.
172.5 What is interesting is that during her re-examination, when asked in which direction she had looked during the early morning of 14 February 2013, after hearing a woman’s voice, she testified, “Farm Inn's direction”. She was then asked which direction she had looked in on 21 February 2014 (the night the defence team conducted sound tests at the house of the Accused) she responded, “Farm Inns direction and Oscar’s house” (Record, 175, Van der Merwe, lines 1–5). This in itself is an indication that on 14 February 2013 she did not believe that the female’s voice emanated from the direction of the Accused’s house because at no stage at that time did she (also) look in the direction of the Accused’s house. (Emphasis added)
At the time that she heard the woman’s voice on 14 February 2013 Mrs van der Merwe did not yet know what was about to happen in Oscar’s house. On 21 February 2014, a little more than a year later, she obviously knew what happened. On 21 February 2014 she heard people argue – she looked in the direction of the Farm Inn – like she did on 14 February 2013. So, if an argument in Oscar’s house on 21 February 2014 compelled her to look in the Farm Inn’s direction one can therefore reliably assume that an argument in Oscar’s house on 14 February 2013 would have caused her to look in the Farm Inn’s direction as well. It seems that the defence’s experiment backfired somewhat. The fact that Mrs van der Merwe also looked at Oscar’s house on 21 February 2014 is connected to her prior experience that the sounds that she had previously heard, which she thought came from the Farm Inn’s direction, actually came from Oscar ‘s house.
Without knowing the layout of the Van der Merwe bedroom, the precise geometry of surrounding buildings, and the height of the security wall that separate the Silver Woods estate from the Farm Inn reserve it is difficult to provide a reliable explanation as to why it would have sounded to Mrs van der Merwe as if the sounds came from the Farm Inn direction. However, the defence’s own experiment has proven that on this basis Oscar’s house cannot be excluded.
172.6 At about 03:00 she heard four gunshots (Record 159, lines 19–20), which were confirmed by her husband to be gunshots (Record 161, lines 9–10). The shots were shortly one after the other (Record 161, lines 1–3).
Record 159, lines 19–20 reads as follows:
I then went back to bed again. Around about 03:00 in the morning I heard four gunshots M'Lady.
Mrs van der Merwe, testifying in Afrikaans, said that she heard four thuds (“plof geluide”). The interpreter mistranslated “plof geluide” as “gunshots”. To this translation Advocate Roux made an objection:
Roux: M'Lady that is not the interpretation, plof is thud sounds, not gunshots. She said plof geluide, it is interpreted gunshots. It is really not.
Thus paragraph 172.6 should actually read: At about 03:00 she heard four thuds, (Record 159, lines 19–20), which were confirmed by her husband to be gunshots (Record 161, lines 9–10).
172.7 Contrary to the Further Particulars.
172.7.1 She could not say she heard the female voice shortly before the gunshots.
Mrs van der Merwe could not possibly say that she heard a female voice shortly before the gunshots as it would have been impossible for her to hear Reeva screaming from the bathroom or the toilet.
The figures above were generated using the dmap sound modelling application at masenv.co.uk/dbmap and they show the approximate sound fields that Reeva’s and Oscar’s screams would have generated. Keep in mind that the sound levels indicated in these figures are outside the windows of the receivers. Inside a bedroom with a closed window one has to apply a further reduction of at least 25 dBA. One also have to take into account ambient sound levels in the order of 35 dBA to 40 dBA. The Van der Merwe house is the one at the very bottom left.
Neither Oscar’s nor Reeva’s screams from the bathroom or toilet respectively would not have been audible to Mrs van der Merwe.
172.7.2 She could not say if there was a long period of silence before the shots (Record 169, lines 8–9).
Mrs van der Merwe said that she could not remember.
172.7.3 She did not hear a woman screaming before the shots. (Record 169, lines 24–25)
As already discussed, Mrs van der Merwe could not possibly say that she heard a female voice shortly before the gunshots as it would have been impossible for her to hear Reeva screaming from the bathroom or the toilet.
172.7.4 She could not say it was “talking like fighting”.
172.7.5 She could not say that she had “formed the impression that the woman was arguing”.
172.7.6 She could not say that it was a woman “constantly talking”.
Let’s measure these statements by the defence against Mrs van der Merwe’s actual testimony:
--- M'Lady I woke up around 01:56 in the morning. I heard sounds, it seems like somebody was involved in a fight and this people were talking in loud voices M'Lady. It lasted for about an hour. (Record 158 line 25, Record 159 lines 1–3)
Can you explain to the court what you heard? Was it talk and a stop, talk and a stop or how did you experience it? --- This person was talking, stopping, talking and it was not continuously. To me from where I was sleeping M'Lady it seems like two people were involved in an argument but I could not hear the other person’s voice. (Record 165, lines 14–18)
“it seems like somebody was involved in a fight and this people were talking in loud voices” – isn’t that “talking like fighting”? Why then 172.7.4? “it seems like two people were involved in an argument but I could not hear the other person’s voice.” – seems like the woman’s voice she heard was arguing. Why then 172.7.5? “Constantly talking” was a term used by the State in their Further Particulars. Here the defence is arguing semantics – it is clear that the talking that Mrs van der Merwe heard was intermittent and went on constantly for an hour.
172.7.7 She could not say the voice was continuing up to the gunshots and then stopped.
172.7.8 She could not say the voice came from the Accused’s house.
This is true, there is no direct objective evidence that what Mrs van der Merwe heard was from Oscar’s house. But there is nothing that excludes Oscar’s house as the source of the argument. No other source has ever been identified. The Judge had no reason to completely reject Mrs Van der Merwe’s testimony – at least she should have considered it as a possibility – to be placed on the same canvas with all other circumstantial evidence to see what overall picture emerges.
In an attempt to justify her decision about Mrs Van der Merwe Judge Masipa referred to the fact security guard Pieter Baba didn’t hear anything when he passed by Oscar’s house while on security patrol. The Defence presented evidence that Pieter Baba was adjacent to Oscar’s house between 02:18 and 02:22 on patrol duty.
177. The State’s reliance on an argument is further refuted by the evidence of Peter Baba, the security guard.
178. According to his evidence, which is supported by the information on the guard track (Exhibit “TTT”), he was positioned at the following stands in relation to the Accused’s house:
178.1 At 02:18 at stand 287, which is the property of Mr Nhlengethwa, which is right next to the house of the Accused.
178.2 He passed the house of the Accused to go to stands 162 and 153. He was at stand 162 at 02:20 and at stand 153 at 02:22.
179. When he was in the immediate vicinity of the Accused’s house or having passed his house he did not hear any arguing. According to him everything was normal. (Record 432, line 22-23, 433, line 17–19)
180. If the lights were on at the house of the Accused or if they were arguing to the extent that Mrs van der Merwe could hear a female voice, Pieter Baba would have told the Court about it and not that “everything was normal”.
(Record 432, lines 19–20)
The defence argued that the periods of silence that Mrs van der Merwe heard could have ranged between 5 and 20 minutes. The security guard was in the vicinity of Oscar’s house for a total of less than 5 minutes (from 02:18 to 02:22). It is not inconceivable therefore that their presence in the vicinity of Oscar’s house coincided with one of these 5 – 20 minute silent periods!
Pieter Baba could not recall that the balcony light was on. It is quite conceivable that he simply could not remember the state of Oscar’s downstairs lights at the time of the trial more than a year after the event.
181. Clearly, the speculative nature concerning the evidence of a female voice far away, which the State seeks to rely upon for the existence of an argument, does not meet the criteria so as to constitute acceptable circumstantial evidence. It also does not meet any objective standard in order to qualify to form part of an event for purposes of the time line
Note how the defence again refers to the voice as “far away”. As Mrs van der Merwe did not physically see the source of the voice there is no objective evidence that the voice came from far away.
In our opinion, Mrs van der Merwe’s testimony was not the only evidence that supports that there was an argument between Oscar and Reeva that evening.
Let’s look at the other circumstantial evidence that needed to be considered by the court to see the whole picture.
To corroborate Mrs van der Merwe’s evidence the State tried to use the fact that Reeva had partially digested food in her stomach which could not have been much older than about 2 hours. To the State this meant that Reeva was downstairs in the kitchen at about 01:00 – in a part of the house where an argument could have been audible to Mrs van der Merwe.
164. Professor Saayman’s expert opinion that the deceased had eaten two hours or less before she was killed is strengthened by the fact that he identified 200 millimeters of stomach content during the post mortem, and that post mortem digestion continued at least until 11:45 when the body was handed over to the mortuary.
165 If the court “step(s) back and consider(s) the mosaic as a whole” the following conclusive inferences are to be made:
-There is no evidence that the deceased ate something in the bedroom
- If follows that if she had eaten something it must have been downstairs in the kitchen
- This will place her closer to the Van der Merwe’s residence which will corroborate Mrs van der Merwe’s evidence
- These inferences will also shed light on the accused’s struggle to deal with the de-activation of the alarm. The only reasonable inference to be made is that the alarm had not been activated at all
166. We respectfully argue that the court will have no option but to find that the deceased had eaten between 01:00 and 03:17 on the morning of 14 February 2013.
Judge Masipa said:
There is also the matter of partially digested food that Professor Saayman found in the stomach of the deceased’s body during the post-mortem examination of the deceased. Counsel for the state submitted that this fact was a strong indication that dinner was not at 19:00 the night before as alleged by the accused, but closer to the time when the deceased was shot dead. He argued that that would explain the ‘argument’ that was heard by Ms van der Merwe just after she had woken up at 01:56. This argument seems to lose sight of the following:
1. That the experts agreed that gastric emptying was not an exact science. It would therefore be unwise for this court to even attempt to figure out what the presence of partially digested food might mean as the evidence before this court is inconclusive. However, even if this court were to accept that the deceased had something to eat shortly before she was killed, it would not assist the state as the inference sought to be drawn by the state from this fact is not the only reasonable inference. She might have left the bedroom while the accused was asleep to get something to eat. What complicates this matter is that it is not even clear when and if the alarm was activated at any given time that evening or that morning.
It is hard the find fault with the Judge’s reasoning.
If we accept Oscar’s version that they had dinner at about 19:00 and she still had partially undigested food in her stomach at the time of the autopsy the next day we must accept that there must be a reason for this abnormally slow rate of digestion. It is an accepted fact in pathology that stress can slow down digestion significantly. The reader is referred to page 88 of Knight’s Forensic Pathology, 3rd Edition, by Pekka Saukko and Bernard Knight, published by Hodder Arnold, 2004.
One of the most important factors in the forensic context is the effect of a physical or mental shock or stress during the digestion process. As stated, this can completely inhibit digestion, gastric motility and pyloric opening.
If, however, a domestic dispute or a developing altercation culminated in a strangling or stabbing, the antecedent stresses would almost certainly affect gastric function and render invalid any interpretation of the condition of stomach contents at autopsy
It is hard to understand why the State chose Reeva’s stomach content to corroborate that there was an argument when there were much stronger evidence available which the State largely ignored either misunderstood, overlooked or chose to ignore.
1) Reeva had injuries on her body that cannot be reconciled with events in the toilet – an abraded nipple, and two abrasions on her back
The striations in the larger abrasion is clearly visible – as well as how the skin got pushed and compressed in the direction of the yellow lines and arrow. It is clear that the abrasions on Reeva’s back were made by an object that moved downwards from left to right. A ricocheted bullet would have approached Reeva’s back from the right, and if she fell against a magazine rack the wounds would have shown upwards directionality, which clearly they don’t.
What else of what happened in the toilet could have caused these abrasions – or were they inflicted outside the toilet?
In our opinion it is more likely that these abrasions were made by the tip of Oscar’s bat during a downswing that grazed two protuberances of the spinal column.
Reeva’s right nipple was severely abraded. This is what Professor Saayman said:
There is reddish discolouration of the tip of the right nipple, having the appearance of relatively fresh contusion.
And that is seen on photograph 1115, M'Lady.
Can you further comment on that specific injury? --- M'Lady, I have described this as a ‘contusion’. A contusion is technically a, a bruise without stripping of the superficial layers of the skin. In this particular instance with the naked eye on macroscopic description, it did look like a contusion, but upon significant enlargement of this photograph, it does become apparent that there is indeed superficial stripping of the skin layers. So it would probably technically be more correct to describe this as an ‘abrasion’, where there had been frictional contact and denudation of the skin, of the nipple itself. (Record 504, lines 4–15)
We believe that there is a connection between the nipple abrasion and the rents in Reeva’s vest.
2) The rents in Reeva’s black vest is not compatible with the wounds on Reeva’s chest
Reeva’s vest and the holes found in it
In OVTT we show an overlay to illustrate that the holes in Reeva’s vest does not align with any wounds on her body and are highly unlikely to have been made by bullet fragments. Their frayed and rough edges are rather consistent with ripping after someone pulled on it. It is also not consistent with cutting by scissors or a sharp blade.
It is also no coincidence that the rents are on same side as Reeva’s abraded nipple. Is it possible that when Oscar gripped and pulled the vest during an argument that the combination of pressure and pulling on the right side caused not only the rents,but also the friction that abraded Reeva’s right nipple? It seems that during this tussle Oscar likely pulled the vest completely off because when Reeva was shot in the toilet indications are that she was’t wearing the vest. If she was indeed wearing the vest then where is the corresponding hole in the vest aligning with the bullet that hit her in the hip? In the OVTT overlays we also show that the vest was long enough to hang below where she was shot. One can see the bullet hole in her shorts but not on the vest.
3) A duvet and an inside-out pair of Reeva’s jeans laid crumpled on the bedroom floor
One has to ask what a reasonable person would do. On Oscar’s version – after dinner, they both retired to the bedroom where they chatted, surfed the internet, watched TV, etc. At some point Reeva did yoga on the bedroom floor. One can assume that when they got to the bedroom Reeva took off her bra, flip-flops and jeans to put on the Nike shorts. If one accepts Oscar’s version – knowing how the police found the scene in the bedroom we also have to accept that Reeva took off her flip-flops and left them neatly on the left side of the bed, placed the bra back into the bag, and then took off her pants and left them discarded on the floor, instead of at least draping it over a chair. If one could ask 100 people to remove their jeans – how many of them do you think will take it off in a way that will turn the jeans inside out? Try this for yourself – it takes considerably more effort. The inside-out jeans are more consistent with someone standing trying to take off their pants by pulling out the feet without using their hands – OR with the pants being removed forcibly by another person.
And then, what reasonably neat person would just leave clothes lying on the floor? And why only the jeans and nothing else?
Regarding the duvet. Oscar denies that the duvet was on the floor before and after the shooting incident. He claims that police deliberately placed the duvet on the floor – to manipulate the scene at a time when they didn’t even know what his version was. No one – not Oscar, nor his attorneys – could ever give a plausible explanation as to why the police would do something this bizarre. If we accept that the police didn’t place the duvet on the floor we have to ask the question what went on inside that bedroom for the duvet to end up on the floor – and why did Oscar try to hide what led to this? The fact that Oscar lied means that the truth would have been detrimental to his case.
And if we accept that the police did not manipulate the scene in this manner then we must also accept that Oscar admitted that his version is not true:
Nel: Now let us take it one step further, if that photograph that we see there, photograph 55, if that is the way it was that morning, your version cannot be true.
Oscar: That is correct, M’Lady.
4) The bedroom doors were damaged – dents, a bullet hole (consistent with the size of a pellet) and cracks as if someone tried to break them open.
How many of us have a bedroom door with a bullet hole through it, and with dents that appear as if they could have been made by striking it with an object like a cricket or baseball bat?
In OVTT we show high-quality photos of the damage to the bedroom door.
Inexplicably Oscar was never asked to explain the bullet hole or the dents on the edge of the door. Regarding the damage around the latches Oscar volunteered the following explanation:
The ... after I got off the phone with the ... with the Netcare 911 call centre, I ran down downstairs to open the front door. I could barely pick Reeva up, I would not have been able to open the door and carry her. So I ran, I open my bedroom door and I open the front door. I then ran back up to my room and on the way into my room I tried to force the door open. There is ... there is two ... two doors to my bedroom, M'Lady. The one I use, just locks with a key and then the other one, has got a latch at the top and at the bottom. So I ran into the door and it did not break open and I unlatched the bottom latch and when I unlatch the bottom latch, the door opened. (Record 1480, lines 24 to 25 and Record 1481 lines 1–9).
So on his way back to the bedroom instead of simply unlatching the second door Oscar tried to forcibly break it open by running into it? Let’s not forget that when the police got to the scene the second door was still closed and latched. Clearly, Oscar told a lie. People tell lies to hide something. In this case, he lied to hide how the door really got damaged like that. If the truth wasn’t detrimental to his case then he would have told the truth.
5) On the paving outside, directly below the toilet window, there was another pair of discarded jeans
Is it a coincidence that right under the window where Reeva was shot a few hours before, the police found a pair of jeans outside on the paving? As the State didn’t ask Oscar about whose jeans they were and how they got there one can just speculate. It could be that the dog dragged it thereafter it fell from the washing line, or it could be that Reeva used the jeans to try and draw attention by waving it through an open toilet window, but it fell from her fingers too soon. Point is, Oscar was not asked about it under cross-examination.
6) In the bathroom there was a damaged metal plate on the side of the bath tub.
What would it take to bend the metal plate like this? This is not normal wear and tear, or the result of an accidental bump by a garbage can or even Oscar’s prostheses. There are no moveable furniture in the bathroom. This is the result of a targeted blow – likely by a long linear object – like a cricket bat. Some may say this plate was damaged when Oscar hit it by mistake after the bat glanced of the door or after a swing missed the door altogether. No able minded person with a serious and honest intention to break down a door with a cricket bat will miss the door or hit it in a manner that would cause the bat to glance off it and hit the plate behind him/her. One will instinctively position oneself at the most optimal position to impart maximal damage to the door – it comes naturally as a result of an accumulation of life’s experiences. Try it for yourself – take a cricket bat, a golf club, a broomstick, etc. and pretend that you have to break a door open – behind it is a mortally wounded person you care deeply about. What did you need to do to miss the door in order to instead hit something behind you? Was it natural?
7) The cricket bat shows unusual damage
According to Oscar he only came into contact with Reeva’s bloodied body – after he handled the cricket bat. Now if one looks closely at the cricket bat handle one can see a red discoloration – as if someone gripped it with bloodied hands. In addition, the rubber lining is badly torn and ripped. Not the type of damage one would expect from normal use or only three hard blows to a door. The damage is more consistent with pulling and twisting of the bat – as when someone tried to pull the bat from someone else’s hands.
In OVTT we provide better quality pictures and close-ups of the cricket bat’s handle.
Here we have lots of circumstantial evidence. And when an issue is based solely on circumstantial evidence the court must carefully consider the cumulative effect of all the evidence together as a whole, and they should not be weighed separately to determine guilt or innocence.
According to Supreme Court of Appeal in State versus Hadebe 1998(1) SACR 422 (SCA) at 426 g-h: …the court must guard against a tendency to focus too intently upon the separate and individual parts of what is, after all, a mosaic of proof. Doubts about one aspect of the evidence led in a trial may arise when that aspect is viewed in isolation. The doubts may be set at rest when it is evaluated again together with all other available evidence…it is necessary to step back a pace and consider the mosaic as a whole. If that is not done, one may fail to see the wood for the trees
Here we have someone that heard an argument about an hour before hearing four gunshots. Inside the house there are signs of a turbulent evening – a damaged bedroom door with a bullet hole, clothes and bedding strewn on the floor – abrasions and bruises on Reeva’s body that are not consistent with events that took place inside the toilet – ripped clothing, a damaged cricket bat – an inexplicably dented steel plate – several witness hearing a woman’s frantic screams before being silenced by four gunshots.
Now that we have applied all the paint to the canvas what picture of truth emerges?
If we reject the conclusion that there was indeed an argument between Oscar and Reeva that evening the we also HAVE to accept the following alternatives put forward by the defence.