Dear Advocate Barry Roux
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.
Order Oscar vs The Truth at mollettmedia.com.