Dear Judge Masipa
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.
JJ Doyle, former Solicitor General for South Australia wrote a very interesting article on the Admissibility of Opinion Evidence. (http://netk.net.au/ExpertEvidence/DoyleArticle.pdf)
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?
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