The testimony of Mrs Estelle van der Merwe was used by the State in an attempt to prove that there was an argument between Oscar and Reeva before the gunshots. We will deal with the evidence of an argument in a later post.
In this post we deal with the defence’s misguided and dishonest attempt to use Mrs van der Merwe’s testimony to prove that Oscar’s version was true. Throughout the trial the defence made several statements as if they were the undisputed truth, without any objective evidence, just because they fitted Oscar’s version of events. One such statement is that Mrs Estelle van der Merwe heard the “first sounds” and not the “second sounds”.
First some background:
Estelle van der Merwe said she woke up at about 2 am hearing a female voice. She couldn’t hear the words, nor the language, but judging by the “movement” in the tone of the voice she was confident that it came from a woman. It sounded like the woman was arguing with someone – although she couldn’t hear the second voice. The female voice was intermittent, i.e. it was quiet for periods, which could have ranged from 5 to 20 minutes, and lasted for about an hour.
She was irritated by the noises and tried to put a pillow over her head to block out the noise and get some sleep. At some stage she got up to check whether she could see anything. She looked in the opposite direction of Oscar’s house, towards Farm Inn (a small nature reserve close by) but didn’t see anything. She couldn’t tell where the sound was coming from. Then at about 3 am she heard four thuds (“plof geluide”) in rapid succession. These sounds also woke her husband. She asked her husband what these sounds were and he said they were gunshots. He got up and looked out of the window but didn’t see anything out of the ordinary. A while later, after hearing a commotion, Mr van der Merwe called security. After his phone call they heard someone crying very loudly – to her it sounded like a female, and to him it sounded like Oscar.
Around about 03:00 in the morning I heard four gunshots M'Lady. (Record 159, Lines 19–20)
Now let’s look at how the defence dealt with her testimony:
Consider the following statement from the defence’s 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.
It was very important to the defence’s case that Mrs van der Merwe heard the “first sounds”. Then the four thuds she heard, and the screaming thereafter fits Oscar’s version well and puts additional doubt on the very damaging testimonies of the Stipps, Burger and Johnson.
The defence’s reasoning as to why Mrs van der Merwe’s testimony “makes it clear” is explained in Par 206 of their 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.
This is not in dispute.
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 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.”
This is precisely what the defence did when they argued that “about three o’clock” could only refer to an event that took place at be 03:12 and not at 03:17.
In spite of the lack of objective evidence the Judge Masipa fell for it – hook, line and sinker: (Page 3301 Lines 10–18)
Ms Van der Merwe woke up around 01:56 to hear a one-sided argument, later heard four gunshots in close succession. Her estimation was that it was about three o’clock. Soon thereafter she heard someone crying out aloud. It seemed to her that it was a woman’s voice, but her husband told her that it was the accused crying. Although it was not established how her husband knew that it was the accused who was crying, this piece of evidence is enough to throw some doubt on the evidence of the witnesses who are adamant that they had heard a woman scream.
The court could only have come to this conclusion if she accepted that Mrs van der Merwe heard the “first sounds”.
In our book Oscar vs The Truth we convincingly show that the Van der Merwe house was so located relative to Oscar’s house, that they would not have been able to hear Reeva scream from a closed toilet, neither would they have been able to hear Oscar scream from the bathroom with an open window. Therefore the screaming they heard sometime after the gunshots did not originate in the bathroom but elsewhere in the house where there were windows facing in the direction of the Van der Merwe house. The only time that Oscar found himself in such a location was after the gunshots when he ran downstairs to open the front door.
If Mrs van der Merwe heard the “first sounds” as the defence argued, and the court accepted, it puts her in conflict with Mrs Stipp – who was awake and alert and in a far superior position to hear any sounds emanating from the Oscar’s bathroom.
It is clear that Mrs van der Merwe rather heard the “second sounds” – the gunshots – and then thereafter the agonizing cries of Oscar as he ran downstairs.