Psychiatric Report:
Psychologist / Scholtz Report (redacted) – click on link below:
Full Video – “Sunday Night” Program
Here it is – the full video of Oscar’s reenactment for his Defense team as shown on the Australian TV show, Sunday Night.
This program is lacking many details that are relevant to the full account of the events. It also has some inaccurate information and is heavily biased in favor of Oscar’s innocence.
For the past week in court, Oscar’s team has painted a picture of a man who can barely balance on his stumps and cannot stand on them for long. It is a terrible vulnerability that would not have allowed him the ability to run away when faced with danger. However, throughout this video, Oscar appears to be walking forwards and backwards unaided on his stumps. He is also able to walk quickly, almost jogging for a brief period of time on his stumps. While he is talking to the team making the film, he is standing on his stumps. He doesn’t take a break to sit; he seems to be somewhat comfortable standing on his stumps talking to them.
Perhaps most shocking to me is his flat affect throughout the reenactment. In court, he has been sobbing, throwing up, and has been seemingly inconsolable at times. But in this video, he speaks very calmly and bluntly about what happened that night. He appears to be emotionless. The complete opposite of what we have seen in court. He has been medicated since last year, including in court, so that can’t be used as an excuse. It just appears to me like he’s two different people in private and in public.
Oscar’s reenactment of yelling “call the police – get out of the fucking house” in the beginning of the video definitely sounds like a man to me! Nobody would confuse that for a woman’s voice or a woman’s terrified screams.
The “please god” and “helps” that he yells a little later in the video do sound more high-pitched but they still don’t sound like a woman’s blood-curdling screams, in my opinion. More importantly, his account of what he screamed, how he screamed it and when he screamed it still doesn’t match what the witnesses heard. It was only after the State’s ear witnesses testified that Oscar started adding in to his story that he screamed loudly immediately after shooting his gun. He also added in that he was screaming in his bedroom while searching for Reeva. That was some of his finest tailoring in court.
Another huge problem I have with this program is that Oscar says he heard the noise of the magazine rack moving and fired 4 shots. There are multiple issues with this statement.
On the stand, he claimed that he didn’t mean to fire any shots. He acknowledged having his finger on the trigger and pointing in the general vicinity of the door, but refused to admit that he meant to pull the trigger or that he aimed the gun. He considered those particular actions to be an “accident” due to being startled. He claims he never meant to shoot anybody. But in this video, he states matter of factly “I fired four shots”. No waivering, no lame explanations, no “I didn’t have time to think” rehearsed lines… just, “I fired four shots”.
Also, the sound of the magazine rack moving (“wood moving” as Oscar called it in court) was not mentioned in direct examination. It was only mentioned in cross-examination as an after-thought when Nel pressed him about what “wood moving” sounds like. He originally testified that he thought the “wood moving” was the door opening because of the particular sound that his toilet door makes, but in hind sight he said he realizes it was probably the magazine rack that he heard.
This is impossible. The magazine rack didn’t move until Reeva fell on it, after she was shot in the hip. So that noise can’t be what prompted him to shoot. It was proven by ballistics that Reeva was standing up near the door when the first shot hit her in the hip. After that shot, she fell backwards on to the magazine rack that was against the wall on the other side of the toilet. Witnesses described hearing a pause after that shot, which again is supported by the ballistics. Oscar repositioned his aim and shot 3 more times hitting her in the arm, hand and head. One bullet missed.
His claim that a sudden sound caused him to shoot rapidly 4 times, without conscious thought, is not supported by the physical evidence, primarily the injuries that Reeva sustained, and what the ear witnesses heard.
One item that the narrator got incorrect was how Oscar and Reeva’s relationship began. He states that initially they first kept their relationship quiet, but at the red carpet sporting event on November 4, 2012, they went public for the first time. This is not accurate. They had just met that same day through a mutual friend, Justin Devaris. They hung out during the day and on a whim, Oscar asked her to go with him to the event that night. They had not been secretly dating prior to this.
Another problem I have with the animated reenactment is that it shows the duvet on the bed. Oscar got himself in trouble on the stand when he tried to insist that the duvet was on the bed and the police moved it. Nel was able to prove that the duvet was found on the floor due to the blood spatter pattern on top of it. That blood spatter was caused by Oscar carrying Reeva out of the bathroom after the shooting.
Also in that animation, when Oscar is getting off of the bed (after looking for Reeva), it shows his figure getting off at the front of the bed. On the stand, he said he got off on the right side of the bed closest to the balcony (where the cords, iPads, shaver, etc. were all on the floor), he felt around the curtains to see if Reeva was hiding there (then quickly changed that to he was balancing himself with the curtains), he then finally screamed for the lord to help him repeatedly, then went back to the bathroom. None of this was depicted in the animation, which means that Oscar never relayed it to the animator because it never happened. He was making it up on the stand.
The animation also shows Oscar walking toward the balcony (after he realizes the toilet door is locked) and the fans can be seen off to the right. On the stand, Oscar testified that when he brought the fans in, they were still on and he moved them to the front right corner of the bed. We know this couldn’t be possible because that is where the duvet was found on the ground We also know that the fans were not on, and the small fan wasn’t even plugged in. The large fan was found directly in the middle of the balcony doorway. Oscar would not have been able to run out on to the patio with the fan in that position.
The last issue I’d like to address is the sound test of wood banging on wood, versus the gun shooting the door. Dixon’s evidence about this in court was a joke and in my opinion, so is this comparison. The sounds are completely different. Scott Roder from the Evidence Room claims that due to the distance of the witnesses, they could have mistaken the bat noises for gunshots. He mentions that some witnesses were 300 and 500 meters away, which is not true. The furthest witnesses were the Standers and they were 212 meters away. Everybody else was between 70-170 meters away.
I took a bunch of screen grabs to illustrate some of these points above, and so you can see the reconstructed bedroom and bathroom (which was built exactly to scale). It’s shocking how small those areas look with people standing in them. Some other pictures that I grabbed are just more crime scene photos of interest and photos of Oscar throughout the reenactment. Sadly, we see another picture of the deceased Reeva, this time a full body shot at the bottom of the stairs where she was found when the police arrived.
Leaked Trailer – Oscar Running on Stumps
For those of you who have not seen it yet, this video trailer was just leaked to the public. It shows Oscar running on his stumps in a re-creation that was filmed by the Defense team (but not used in court).
Considering the Defense team has been utilizing witnesses all week to testify about how immobile Oscar is on his stumps, he needs to hold on to objects to balance himself, and is not able to run, this video is very damaging to their CURRENT defense strategy. Why is it damaging? The Defense wants you to believe that Oscar could not possibly run away if faced with a dangerous situation. He had to stay and fight.
According to Oscar’s story, when he heard the “supposed” noise of the window opening that fateful night, his only logical and physical option was to go towards the danger. He had to fight instead of flight according to his defense experts.
If there were an intruder, could Oscar have made it a few steps across the bedroom and out the door? Or does it seem like retrieving a gun from under the bed, removing the holster and safety, walking down the carpeted passageway, then making a right over the tiled passageway, in to the bathroom to face possible violent intruders was a better option? You watch the video and decide.
https://au.news.yahoo.com/sunday-night/video/watch/24393536/exclusive-pistorius-video/
UPDATE: The video at the link above has been pulled, but I have found a new link that shows another teaser to the Australian “Sunday Night” program. In this teaser you can hear Oscar yelling “help” as part of the reenactment and in my opinion, he clearly sounds like a man.
http://thejuice.co.za/top-stories/watch-now-that-oscar-video-can-be-viewed-here/
Oscar Trial – Day 32, May 20 ORDER FOR REFERRAL
The following are the terms of the order for referral:
SECTION 1
The accused must present himself as an outpatient to the medical superintendant of the Weskoppies Psychiatric Hospital.
Start date: May 26, 2014 at 9am
Every week day thereafter at such times as may be determined by the medical superintendant, or a person designated by the medical superintendant, for a period not exceeding 30 days at a time, as the court may (from time to time) determine.
SECTION 2
The accused must remain at the Weskoppies Hospital until 4:00pm daily or until such time that he’s formally excused by the medical superintendant, or the person designated by the medical superintendant.
SECTION 3
The following psychiatrists will be on the panel:
1. Dr. Leon Fine – on behalf of the Defense
2. Professor Herman Pretorius – on behalf of the Court
3. Professor Jonathan Scholtz – Clinical Psychologist
4. A psychiatrist appointed (by Weskoppies)
In terms of the provisions of Section 79, subsection 1B, the psychiatrists and psychologist must:
•Inquire in to whether the accused by reason of mental illness or mental defect was at the time of the commission of the offense criminally responsible for the offenses charged.
•Whether he was capable of appreciating the wrongfulness of his act or if acting in accordance with an appreciation of the wrongfulness of his act.
SECTION 4
The appointed psychiatrists and psychologist shall submit their report compiled in terms of Section 79.3 – 79.5 of the act to the registrar of the court, as well as to the Director of Public Prosecutions and the accused as soon as it is completed.
SECTION 5
The record of the court proceedings will be made available to the said psychiatrists and psychologist, should they regard it necessary to peruse some or any part thereof.
SECTION 6
The matter will be postponed until June 30.
Oscar Trial – Day 31, May 14 REFERRAL
Judge Masipa:
“The State has launched an application for a referral of the accused for observation in terms of Section 79 of the Criminal Procedure Act. The application is brought in terms of Section 78, subsection 2 of the act.
Counsel for the state referred to this court a number of cases which I found very useful. Strangely, the application is opposed on behalf of the accused.”
She then reads subsection 2 of the act:
If it is alleged at criminal proceedings that the accused is by reason of mental illness or mental defect or for any other reason not criminally responsible for the offense charged, or if it appears to the court at criminal proceedings that the accused might for such a reason not be so responsible, the court shall in the case of an allegation or appearance of mental illness or mental defect, and may, in any other case, direct that the matter be enquired into and be reported on in accordance with the provisions of section 79.
She points out that it is clear from the wording of that section that the key points are:
•If it is alleged… or…
•If it appears that due to mental illness or mental defect the accused might not be criminally responsible, then a referral is in order
She then references the case law used to help guide her decision.
She then states:
“It is clear that counsel for the State was correct when he submitted that the court has no discretion once either of the two requirements has been met. The trigger to the application was Dr. Merryll Vorster, a forensic psychiatrist, called on behalf of the accused.
Counsel for the State submitted that it was clear that the evidence of Dr. Vorster was that the accused suffered from a generalized anxiety disorder and at this stage of the proceedings, was calculated to make up for the accused’s bad performance as a witness. He submitted that the facts of the evidence of Dr. Vorster may become important should the court reject the evidence of the accused, hence the application for referral.
In opposing the application, counsel for the Defense submitted that there was no allegation as envisaged in the act, or if there was, it was not substantiated. He submitted further that it did not appear that at the time of the incident, the accused was not criminally responsible. For these reasons he argued to the application could not succeed.
It is so, as counsel for the Defense argued, that the court does not act on a mere allegation of criminal incapacity without some indication of the reasons therefore.”
The Judge says that she does not agree that there are no allegations. She says: “The accused may not have raised the issue that he was not criminally responsible at the time of the incident in so many words, but evidence led on his behalf clearly raises the issue and therefore cannot be ignored. Not only that, but the allegations have been properly substantiated by the evidence of Dr. Vorster.”
The Judge mentions all of the various sections of Dr. Vorster’s report, such as his developmental history, his previous medical history and psychiatric history, and states that the report focused on the diagnosis of an anxiety disorder which may have affected his conduct on February 14, 2013. She repeated that fact under oath. To fully understand the significance of the doctor’s evidence, it’s necessary to focus on the following which the Judge believes are of some relevance:
•The accused, amongst other things, was hyper-vigilant. The doctor went on to explain that hyper-vigilance is somebody who is constantly looking around scanning their surroundings for any kind of threat.
•When dealing with the history of the incident, the doctor’s opening remarks were “Mr. Pistorius relates that he believed he heard an intruder. He became scared and he describes having had escalating levels of anxiety.”
•The Defense then asked the doctor “any relevance in the physical vulnerability in relation to his anxiety?” The doctor’s response was “I think they go hand in hand, my Lady. His physical vulnerability makes him more anxious. His anxiety makes him want to conceal his physical vulnerability.”
•The doctor stated more than once that the accused has a long history of GAD that appears to have been increasing with time. She set out a number of factors which were responsible for his increased level of anxiety and then stated the following: “These factors were all operating at the time of the offense under discussion, and would have been compounded by Mr. Pistorius’ physical vulnerability and the additional pressure of perceiving his environment as hostile and unsafe. When exposed to a threat, Mr. Pistorius is more likely to respond with a fight response rather than a flight response as his physical capacity for flight is limited.”
•When explaining what a fight or flight response is, the doctor said “this is a response that protects us and helps to keep us safe. So when exposed to a threat, we can either fight or flight depending on our own personal circumstances. In Mr. Pistorius’ instance, he would have been more likely to fight as his capacity to flight was compromised. In my opinion, Mr. Pistorius’ reaction to the perceived threat during the incident of February 14, 3013, should be considered in the light of his physical vulnerability and his co-morbid diagnosis of generalized anxiety disorder.”
•Dr. Vorster mentioned two aspects that would have been operating at the time of the offense: 1) The accused’s physical vulnerability, amputation, which prevents him from moving around easily. 2) The generalized anxiety disorder which was pervasive and had been present for many years which would also have been present on the day of the offense.
Although Dr. Vorster stated that she did not think that a generalized anxiety disorder was a mental illness, for purposes of the act, she stated the following: “I think it is clear that Mr. Pistorius has a psychiatric illness. He certainly was able to appreciate the difference between right and wrong but it may be that his ability to act in accordance with such appreciation was affected by this generalized anxiety disorder.”
The Judge says, in consideration of the statement above, a debate about what the generalized anxiety disorder really is or where it may fit in within the act, would be a fruitless exercise. Nowhere in the act is there a definition of mental illness. There is however an indication from case law that it would be unwise for the court to attempt a diagnosis without assistance from the relevant experts. Mental illness and mental defect are morbid disorders that are not capable of being diagnosed by a lay court without the guidance of expert psychiatric evidence.
The Judge also says that Dr. Vorster’s evidence was placed before the court by the Defense. The fact of the evidence is that a doubt has been created that the accused may possibly have another defense relating to his criminal responsibility. There is also a possibility that there may be diminished criminal responsibility. Dr. Vorster’s evidence has not and cannot be contradicted in the absence of other psychiatric evidence. This lay court is ill-equipped to deal with the issue raised in Dr. Vorster’s evidence at this stage.
The allegations in the report of Dr. Vorster and the views expressed by her have substance and what is more, they are in line with the accused’s evidence. That in itself is significant. Dr. Vorster’s report, however inclusive it may be, cannot replace a proper inquiry made in terms of the act. Among other things, Dr. Vorster had only two interviews. The duration of the interviews is not stated in the report. It appears she may have had very little time to compile her report. A proper inquiry which would be more comprehensive would ensure that the accused gets a fair trial.
Counsel for the Defense submitted that the application for referral was premature as he intended to call another witness who would give evidence on the fight or flight response. This witness would explain the concept in detail, Defense argued, and if the State still wanted to make the application afterward then they could do so. In the Judge’s view, the question is whether the applicant (the State) has made out a case for the relief that is sought at this stage. If it has, she fails to see how this additional witness’s evidence will assist the court to determine whether a referral is sought by the State.
The question is whether there is a reasonable possibility that the referral of the accused would reveal that AT THE TIME OF THE OFFENSE, the accused suffered from a mental disorder which could have resulted in his not being criminally responsible for his act. In regard to this case, “she is convinced that the requirement of a reasonable possibility has been met.”
(Do not misunderstand this statement from her. She is saying that the REQUIREMENT of a reasonable possibility has been met because of what Dr. Vorster is alleging… NOT that she believes there is a reasonable possibility that he is not criminally responsible.)
It is so, as counsel for the State submitted during argument, that a referral inevitably means more delays in finalizing this matter. This is not about anyone’s convenience but rather about whether justice has been served and it is not taken lightly.
The Judge is satisfied that a case has been made out for the application sought by the State. The order is granted, however the specific order will be handed down next Tuesday, May 20.
Nel says that he and Roux have agreed that they will assist the court with the order. They will have it ready by Tuesday morning and will make sure that they are both in agreement. Roux then mentions the possibility of outpatient referral, as well as a psychologist on the panel (in addition to the psychiatrists). They will be making recommendations for the court to consider.
The Judge wants to place on record that she’s glad that counsel agreed on this. The Judge says that the aim of the referral is not to punish the accused twice. So if there is a possibility of making sure that he’s an outpatient that would be preferable. Nel says that it will be investigated.
They adjourn until Tuesday.
I’ve seen this hotly contested on both sides whether this is good for the State or good for the Defense. In reality, we are all just guessing until the report comes back. But of course, we can pontificate. When the Judge started out by saying that “strangely” the Defense opposed this application, I believe she was directly taking a dig at the Defense for this game they appear to be playing. They brought this witness very late in the game, and they raised the question about Oscar’s state of mind on the night in question, but they are seemingly very opposed to any additional psychiatric evaluation. It doesn’t make sense (if his condition is sincere), so the Judge is very correct in observing that it’s “strange.”
And Nel is 100% on the mark when he says that the court must take in to consideration the timing of the psychiatrist’s evidence. How could they not? Oscar has been talking about the phantom intruder since the day of the shooting, so why in the world would they not use this right from the very beginning of the charges to shed some light on a very bizarre story. They knew the world was scrutinizing his story and a GAD diagnosis, if sincere, could have potentially helped them.
The only thing you can infer from them waiting until May 2, 2014, is that this is their Hail Mary moment, and this Judge is too wise not to fully appreciate that. The fact that their expert mentioned on the stand that her evidence could go towards the merits for conviction OR towards sentencing, is a clear indication that they are just covering all of their bases. To do this at the very last moment indicates that it was not planned from the start.
As the Judge says, Dr. Vorster’s evidence can’t be tested or contradicted in the absence of other psychiatric evidence, so the court is ill-equipped to deal with her evidence. They had no choice but to have him evaluated. The Defense can’t have it both ways. They can’t just lay this evidence on the court as a factor for consideration and then turn around and say it has nothing to do with his competency.
Some people are worried that Oscar will go through 30 days of evaluation, and the doctors will agree that he does indeed have GAD, and he will walk free. From all I have read, that is not at all how this works. Having GAD, does not automatically mean that they deem you free of criminal responsibility. Not even close.
The Judge specifically pointed out that the panel needs to determine if at the time of the offense, the accused suffered from a mental disorder which could have resulted in his not being criminally responsible for his act. That is usually a pretty hefty thing to prove.
•If he did not, and is deemed mentally competent at the time of the offense, then the GAD is simply a part of the story. If the court does not believe Oscar’s version, then the GAD is useless. They will not give it any weight in verdict or in sentencing.
•If he is deemed mentally competent at the time of the offense, and the court does believe Oscar’s version, then the GAD could potentially help him in both verdict and sentencing (if applicable).
•If the panel comes back and says that Oscar was NOT mentally competent at the time of the offense, well then, the case is over. Oscar will go straight to a mental institution for an undetermined length of time, quite possibly a very long time. I really, really do not see this happening. And I really do not believe that Oscar wants that to happen. Again, from all I’ve read, you cannot fake mental insanity in these types of evaluations.
I believe that when Oscar is done in 30 days, the case will resume. I really have no clue if they will deem the GAD diagnosis valid or not. But even if they do, I believe strongly that the State has been successful in discrediting Oscar’s evidence. I don’t think the GAD will matter. And he won’t be able to bring it up on appeal, nor can he weasel his way in to a lighter sentence. This could be a huge win for the State. That is my opinion.
I welcome any and all comments to my thoughts above as I am not a mental health professional, nor am I a South African citizen. I am just relaying the information that I have read from various sources and applying it to my interpretation of the case.
One final thought… the Judge’s statement “the aim of the referral is not to punish the accused twice” was pretty shocking. I have listened to it quite a few times now to see if I can put it in to any other context, and I can’t. It really seems to me that she is foreshadowing some type of punishment in this case. Would love to hear everybody’s thoughts about that so please do share.
See the YouTube video below for Arnold Pistorius’ response to today’s judgement. NOTE: This response makes no sense, considering the Defense strongly contested this referral.
Oscar Trial – Day 30, May 13 VORSTER
Dr. Merryll Vorster is back on the stand and Nel is still conducting cross-examination. The application that was mentioned yesterday has not been brought forth yet. They are discussing the diagnosis of generalized anxiety disorder (GAD).
Vorster explains that the word disorder implies impairment, which then means that Oscar suffered from some level of social and occupational impairment throughout his life.
Vorster says in general, anxiety is very common amongst people. People can have anxiety with or without the disorder.
Nel wants to know what differentiates every day anxiety from a diagnosed disorder. Vorster says in order to diagnosis somebody with a disorder, that person needs to have the anxiety more often than not for an extended period of time. The issues of what the person is anxious about are out of proportion with reality. The reaction to the anxiety is associated with various symptoms such as sleep disorder, appetite disorder, vomiting, nausea, sweating, diarrhea, irritability, inability to concentrate and distractibility. People with this disorder are not able to set their worries aside. They think about them constantly.
Vorster then talks about the fact that all disorders can either be mild or severe. A severe disorder would greatly affect your ability to have a normal life. She states that there is no evidence to suggest that Oscar had a severe form of the disorder. He was able to function at a high level as an athlete and he still socialized. He had distress because of anxiety, but could carry on with normal life.
Nel reminds her that yesterday she stated that Oscar’s GAD may have been relevant (on his version) to his actions on the night of the incident. Vorster says, that is correct and it would be for the court to decide if it’s relevant.
Nel says that there was evidence given from friends and a former girlfriend in this case and none of those individuals stated that he had any type of anxiety issue. Vorster says people can control and conceal their anxiety. Vorster points out that Oscar said that his family was not even aware of his anxiety issues. Again, Oscar can say whatever he wants to the doctor. It’s all his own word which has been proven in court to not be of much value.
Nel says, but it hasn’t been mentioned by anybody that they observed Oscar being anxious. Vorster says that it did come up in the collateral information that she obtained (from Oscar’s family, coach and manager).
Nel brings up the three statements from Vorster’s report that she mentioned were included yesterday – affidavits from Justin Devaris, Samantha Greyvenstein, and Graham Binge. Nel asks her if she received them from the Defense team. She says, yes. He also asks her if these are the only statements that she had the opportunity to peruse. She says yes.
We’ve all seen this in court before, the Defense only gives their expert the information that is of benefit to their side rather than all of the relevant materials in the case. These three individuals testified in favor of Oscar at his bail hearing back in Feburary, 2013. Since that time, it has been reported that Justin and Samantha no longer have a friendship with Oscar (although, I cannot substantiate that). The Defense made a decisive move not to call Justin Devaris to the stand. You can read between the lines.
Nel asks Vorster if she took in to account that Oscar was severely anxious about crime in SA when diagnosing him. She answers, yes. Oscar told her that he took excessive security measures. He moved to a housing estate (Silverwoods) where he would be more secure because of the guards at the perimeters. After he found out that there had been some burglaries there too, he became more concerned that he still wasn’t sufficiently secure. He then added dogs, beams around his house, an alarm inside the house and he locked himself in his bedroom at night. He informed Vorster that he intended to move from that estate because he no longer felt safe. He was in the process of moving to Johannesburg. Vorster felt that the measures he took were more than the average South African would take.
Nel asks her why she considers his measures to be more than average. She says it’s her own perception. Nel asks her if she agrees that most people have burglar alarms, often with beams. She says, yes. Also, don’t most people have dogs? She agrees with this too. Nel doesn’t understand then why she thinks his measures are excessive. She says that most people don’t lock themselves in their rooms at night. Nel says, that’s interesting considering evidence was given in court from neighbors who did the same thing. Nel suggests to her that she is showing some level of impartiality to the accused because in Nel’s view, the security measures mentioned are quite common in South Africa. She disagrees that it shows bias towards Oscar. She was trying to evaluate if he was paranoid, which she found he was not. She states she is not a security expert, and these are just her opinions from being a South African herself.
I’d like to point out a few other things that jumped out at me:
First, the Defense specifically brought forth evidence that Oscar’s dogs were not guard dogs. Mr. Stander testified about how friendly and docile they were. There weren’t even reports of them barking during the incident. They were also playful with the police when they were there to investigate. You cannot all of a sudden say that they were guard dogs for his safety. If Oscar really intended to have dogs as guard dogs, he would have made sure to secure the appropriate dogs for that purpose. He did not.
Second, evidence was presented by the Defense that Oscar was moving to Johannesburg to be closer to Reeva, so they could live together. The Defense has been bending over backwards to prove this supposed intense love that Oscar felt for Reeva… now he tells his psychiatrist (in the last few weeks) that he was moving to a new house in Johannesburg because of safety concerns? Just one more inconsistent story.
Nel says that if a person has GAD, wouldn’t you expect that the person would have taken even more measures to security the rest of his house (not just lock himself in his bedroom). She says yes, she would expect that. Nel tells her that there was a broken window downstairs on a window with no burglar proofing/bars (which he acknowledges they are not allowed to do at their estate) and Oscar wasn’t overly anxious to have it fixed. It was broken for days. She doesn’t think this is weird; he may have been reliant on his sensors and beams. Nel says, that would be the perspective of a normal person but we are dealing with somebody who has GAD. She agrees that one would not likely leave a broken window for an extended period of time.
Also, let’s not forget Oscar’s dodgy testimony about the painting of his house and the possibility that the sensors were not put back on properly. Oscar went to great pains to make it seem like his alarm system may not have been 100% reliable and he admitted that he did not have it tested after the last house painting to make sure. He also admitted to not checking to see if the ladders were outside. It was proven in court that he was not meticulous about his security measures. His testimony does not match what Vorster is now trying to say. I don’t necessarily blame her, because she’s just relaying what Oscar told her but there are very clear disparities.
Roux objects and says that it’s not accurate that Oscar wasn’t concerned about whether or not his security alarm worked. It was only one sensor outside, not the whole alarm system inside. Nel says the record will show that the evidence ended with the beams, but it started earlier with the alarm system inside. The Judge agrees with Nel but asks him to be more specific with his question to avoid any confusion.
So Nel asks Vorster, a person with GAD would insure that their alarm system is functioning properly? She says, yes.
Next, Nel wants to know if the doctor agrees that for a person with GAD who is concerned about crime, they would not be able to sleep with their balcony door open and not secured/locked. Vorster says she can’t directly answer yes because it depends on who the person is living with. If they live alone, it would be up to the person to ensure that the house is locked and secured. But if they were living with another person than they may need to consider that other person’s needs and comforts as well. So she will give him a conditional, yes. Nel says, but then wouldn’t it be an issue for that person to sleep. Even though their partner may be comfortable, the person with GAD would likely be laying there anxious about the door being open. Vorster concedes that it could be an issue.
Nel asks Vorster if she is aware of the incident with the police while Oscar was returning from the Vaal River. She says she would need specific questions to be able to answer. Nel tells her about the incident. He relays that Oscar’s friend had some type of disagreement with a police officer. Nel wants to know if for a person with GAD, wouldn’t they be anxious about this situation. She says, yes, the person would likely be afraid that they’d get in to trouble. But they don’t really get in to what he would or wouldn’t do, just that he would be more anxious than the average person in that situation. But to Nel’s point, Oscar hopped out of that car and had no qualms about arguing with police, especially when they unloaded his gun. To me, those do not sound like the actions of an anxious person. It sounds more like something a hot head would do.
She again points out how common it is for people to have GAD. It’s like the Defense is walking a tightrope of trying to say that Oscar didn’t act normally that night because of his anxiety, but they don’t want to fully commit to him being a disordered person. Nel is calling their bluff with this application. Either his disorder is severe enough to cause him to act differently, which then requires by law that he be referred (examined) under Section 78… or it’s not severe enough, in which case it has no relevance whatsoever in the case and Vorster’s evidence should not be given any weight.
Nel asks her if Oscar coped with his life growing up, and she says yes, he did cope well.
Nel establishes with Vorster that she stated yesterday that her report could either be used for the merits of the case or for sentencing. It would be up to the court to decide how to use it. Nel says, as far as it potentially being used for sentencing, is that why you included his depression and remorsefulness in the report? She says, no. The depression after the incident is simply as part of his current mental state. She doesn’t know if this would be a factor if he were to be sentenced or not. Nel asks, so then what portions of your report would be relevant to the sentencing process? Would it be the remorse and the guilt? She says no, it would be the GAD diagnosis and the vulnerability. Nel points out that these points could go to merits as well, and she agrees.
Nel has reviewed the portion of her report from Dr. Richard Holmes and comments that he is registered as an educational and industrial psychologist, not a clinical psychologist. Nel wants to know what the purpose of his report was. She doesn’t know. Nel asks, how did it assist you? She says it contained history and he also had a clinical psychologist who did testing on Oscar. The history and the test results matched her own impressions of Oscar after she met with him.
Nel wants to know if this clinical psychologist’s findings played a role in her own findings, and she says, no. It was just another source of information. Nel asks if Dr. Holmes’ report was for forensic or therapeutic purposes. She thinks it was forensic.
Nel says that in her report, she based her conclusions on Oscar’s version of events. She agrees. She did not take in to account the State’s version. She also states that she did not have it. No surprise. Nel asks if she thinks that is impartial. She answers, no. She stated in her report that it is based on what the accused told her and it’s up to the court to decide whether his version is a reasonably possible version. Her asking for Oscar’s version was not to come to the truth of the matter but rather to look at his mental state at the time of the offense.
Nel asks, if this is the purpose of your report, to determine his mental state at the time of the event, wouldn’t it have been better to have all versions available to you? She says it would have been an advantage to have them but at the same time, she wouldn’t have been to determine which version the court would accept. Nel asks, but shouldn’t an expert want to have all of the information before making a finding? She says she would be happy to look at alternative versions and comment on them to the court today, but all she had available to her at the time was Oscar’s version. She then says that she was given a transcript of Oscar’s evidence in court, but she didn’t go through it because it’s not necessarily the version that the court will accept.
Oscar wonders if different versions would have affected her opinion that GAD played a role. She says, no. The diagnosis stays constant, it played a role at the time of the offense, and that would be regardless of which version the court accepts. She says it’s up to the courts to decide what the accepted version is and how this diagnosis may factor in.
Nel asks, if the court finds that Oscar knew that Reeva was in the toilet room and he fired to kill her, would GAD still play a role? She says, yes. Nel asks, how does it play a role? Vorster answers because a person with GAD would be anxious about losing a relationship. Nel asks Vorster, so then you presuppose that there would have been an argument about the relationship? She answers, if there had been an argument about the relationship, a person with GAD would have had increased levels of anxiety. It could play a role in the build up (prior to the shots) but does NOT play a role during the shots.
Everyone was listening very intently during this exchange.
Nel says, but all people get anxious during arguments. She agrees, all people get anxious and upset during arguments. That is the nature of an argument, it’s an emotional event.
Nel wants to know why the fact that a person with GAD who shot and killed a person and was considered a danger with a gun was not included in her report. She says, people suffering with GAD are not dangerous as such. “People with GAD probably shouldn’t have firearms.” That is the element of the dangerousness. The person alone is not to be considered violent, but if you add in a firearm, then you add in risk that they may be involved in violent activities.
Nel asks Vorster if she is aware that Oscar purchased more guns in 2012, and she states that she is aware. She comments that he is a gun enthusiast. Nel asks, so it wasn’t just for his own safety? She says, no, it wasn’t.
Nel asks her if she ever consulted the father. She says, no. Nel asks, wouldn’t it have been valuable, considering he is the only remaining parent, to get information from him. She agrees, it would have been advantageous to see the father. Sounds like the Defense and the Pistorius clan kept Henke out of this whole process. It seems those pesky .38 Specials in the safe continue to be a problem. Daddy needs to stay hidden.
Nel points out to her that she diagnosed Oscar with having GAD from the age of 11 months old, and also reported that he suppressed it as a child. But by all accounts, Oscar was a well-adjusted child at 17 months who was thriving. Nel says, a child that young does not have the ability to suppress anxiety. His family would have picked up on it. Vorster answers that these are the factors that contributed to his GAD developing. I guess she is now saying then that he didn’t fully have GAD then, it was just the beginning stages of it developing. Nel wants to know then, how did she know it was developing if he’s coping just fine? She says that all children who have amputations at that age have difficulty adjusting. So essentially, she is making a general assumption and not basing it on any real fact that Oscar was developing GAD. Nel points out to her that making an assumption is very different thing than making a finding in a report.
Nel moves on to when Oscar is a little older, around 14 years old. He was doing well in school, playing sports and socializing. He was coping well. Nel wants to know why the doctor is making a finding that Oscar was suppressing his anxiety. Where is the proof? She states, because he was always encouraged to be as normal as possible, he had to suppress his anxiety. This would once again be taking Oscar’s word for it. She then goes on to say that when she diagnosed Oscar with GAD, she said it was “likely” that this had been going on for years. Also, Oscar did not know before now that he had this diagnosis. He supposedly didn’t know that he had a treatable condition.
Nel reads her report to her where she basically expresses that Oscar’s anxiety began at 11 months, and wants to know if he is misunderstanding her report. She says that perhaps she expressed it wrong. The anxiety disorder is something that has developed over time and the factors that should be taken in to account when making the diagnosis, commenced when he had the bilateral amputation. Nel says, now we understand each other.
Nel asks, if at the age of 14 he was able to cope with his disorder and conceal it, how would it be getting worse? She answers that as his stresses increased, his anxiety would have increased. Again, assumption, not fact.
Nel addresses the death of Oscar’s mother and states that any child losing a mother would be traumatized and their levels of anxiety would increase. Vorster agrees with this. Nel says, so this is not really a factor that is uncommon.
Then they talk about when Oscar started traveling more, and he reported not seeing his family as much. Nel says, isn’t that what happens in life. People grow up and this is common. He is methodically going through all of the points in her report to illustrate that there really is nothing that is way out of the norm. These were pretty much my same thoughts yesterday when I first heard her report. It sounded like all the usual and expected ups and downs that people experience throughout life.
Nel also wants to make the point that the death of Oscar’s mother would have been the most stressful thing in his life and wouldn’t it have been very difficult for him to control his GAD after this? She answers, no, and again explains how people with GAD can conceal it.
Nel wants to know what information specifically was used to elevate Oscar’s anxiety to a disorder. She says that clinically he presents with an anxiety disorder. He appears to have an anxiety disorder. And then if one takes in to account the history that HE provides, then you can see the symptoms. The collateral information obtained by family members, his manager and his coach confirmed his history of anxiety. So to sum it up it was history + clinical presentation + collateral information.
Nel wants to discuss the timing of her report. He says a person who is accused in a high court matter, that has given evidence, must be anxious… and this is the first time you’ve seen him? She says, yes. Nel asks, would that have been a factor for you? She says, no. He asks, why would you say no? She says that most people seeing a psychiatrist for evaluation will be a little bit anxious but the history, collateral information and clinical presentation were all indicative of GAD. But she does concede that a person who is involved in a murder matter who has just given evidence and been cross-examined, would be more anxious than a person who is just coming in for evaluation.
Nel wants to know if he had global dysfunction because of the GAD, meaning having dysfunction in all aspects of life. She says socially he was coping, and he had friends that he had maintained over the years which is normal, but his new friends that he was spending time with were people that he kept around so he wouldn’t be lonely. They were not people that he could confide in. Also, his sexual relationships all appear to be quite short in duration. She doesn’t necessarily think that his socializing was healthy, but he did overall function socially. This sounds to me like a personal judgement, not a clinical assessment.
I’m surprised to hear her say that his sexual relationships were all quite short. He reportedly dated Samantha for one and a half years, and dated a handful of other girls each for a few years at a time. It all sounds pretty normal to me for a young guy.
Nel says that the fact that a young man might not make close friends or that he has short term relationships is quite common. She agrees that it’s common. And GAD is common. She is insinuating that perhaps they are linked.
Nel then says… but it’s not common to shoot and kill somebody in your house. And she agrees, that is not at all common. Nel says, and you are bringing in that GAD played a role. She says that she is introducing it as a factor that GAD may have played a role and that is for the court to decide on the facts of the case.
Nel says, yesterday you told the court that this was definitely relevant to Oscar’s defense. Vorster says, “it would be relevant if the court finds that he shot at what he presumed was an intruder. If the court finds that he deliberately shot Ms. Steenkamp, then it doesn’t play a role other than perhaps subsequently in sentencing.”
Vorster then says, what Oscar told her was: “he thought there was an intruder, he certainly armed himself and walked towards that danger and he certainly fired shots at the noise as he was scared.” Nel confirms with Vorster that Oscar said HE fired AT the noise. Nel says, he fired four times at the noise. She says, he did not specifically say how many times he shot but we know that he fired four times.
Oscar has had his head down this entire morning of testimony. I think he has looked up once or twice all day.
Nel asks, do you know that Oscar denies that he fired at the noise? She says, she doesn’t know what he said in court.
Nel says to Vorster, he told you that he fired at the noise, but then in court he denies firing at the noise… there must be red lights flickering for you as far as his version is concerned. She says, “it would appear that there are inconsistencies.”
She then says it may have been difficult for him to remember firing the shot if he was so frightened. Nel says, that’s interesting because I’ve never said that he didn’t remember firing shots. Her statement implies that she is indeed aware of what he said in court. For her to claim that she was given a report of his testimony, but didn’t read it, does not ring true to me at all. She was hired to evaluate him. Of course she would read his testimony.
Nel is pointing out to her that he told the court one thing and he told her another. It has nothing to do with him not remembering, he told you directly that he fired at the noise. The doctor is trying to explain it away that under extreme fear, he may not remember all the aspects of the incident but her argument doesn’t make sense seeing that he has clearly given two versions of it. Nel says, there could be another explanation… he could be lying. And she says, yes… he could be lying.
After a short break, Nel comes back and once again addresses with Dr. Vorster that she testified that the GAD may have played a role in Oscar’s actions on February 14, and GAD is a psychiatric disorder. She agrees that the psychiatric disorder may have played a role. But, Nel establishes that it only played a role in line with his version of events. Nel also establishes that there have been no psychiatric evaluations in line with other versions brought before the court. Vorster says his psychiatric diagnosis would remain a constant, but it hasn’t been applied to other versions.
Nel confirms with Vorster that the GAD does not come in to play as far as Oscar knowing right from wrong; it’s more in his ability to act in accordance with that understanding. Nel says, this is then in accordance with Section 78, part 1B (not 1A). See link below to read the act.
Nel also confirms that GAD is contained in the DSM-5 (Diagnostic and Statistical Manual of Mental Disorder, version 5). This means that GAD would qualify as a mental disorder, as do all other disorders listed in there.
Nel concludes by stating that making a diagnosis is in the realm of the psychiatric experts, whereas the factual findings on the offense are in the realm of the court, and Vorster is in agreement.
Nel rests. Roux requests a ten minute adjournment.
Roux begins with the DSM-5 and wants to put it in the proper context. Vorster says that the DSM-5 is a comprehensive classification system of all mental disorders. Roux says it also has a cautionary statement in the beginning against its forensic use. Roux asks Vorster to read it and the following is just an excerpt from that statement:
“The use of DSM-5 should be informed by an awareness of the risks and limitations in its use in forensic setting. When DSM-5 categories, criteria and textual descriptions are employed for forensic purposes, there’s a risk that diagnostic information will be misused or misunderstood. These dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis. “
Roux then says he wants to put her evidence in the proper context and wants to read her evidence from the court transcript:
“Generalized anxiety disorder is a psychiatric diagnosis. I would not consider it to be a mental illness as perceived in a criminal procedure act and so in my opinion it would not be something that can be taken in to account in terms of looking at his responsibility as though it were mental illness. I think that what I’m trying to bring to the court’s attention is his generalized anxiety disorder that would affect his reaction when placed in situations. So it is not as though he has a mental illness, that perhaps he had a delusion about people entering his house, I’m not saying that at all. So it’s rather that, being a mental illness, although it is a psychiatric diagnosis, what I’m saying is that it’s not a mental illness as considered in terms of the criminal procedure act.”
Vorster acknowledges her words from yesterday and goes on to say that if one looks further at the mental health act, where one could be an involuntary patient, this would not be a diagnosis that would render one as in need of involuntary care or treatment.
Roux asks about her experience with people who are typically referred for observation. She states that she has seen many hundreds, if not thousands, referred for observation and in her opinion, a diagnosis of GAD would not be one of the reasons you are referred. GAD does not render one unfit to stand trial or make one unable to appreciate the wrongfulness of their acts.
Roux addresses delusions and paranoia and points out an example from Vorster. If Oscar’s version was that he heard a window sliding open and the common cause facts are that the window was closed the whole time, would that be a factor she would take in to account potentially rendering him delusional? Vorster says that people who have GAD can wake up at night and hear noises and think it’s something other than what it really is. That’s not really a delusion. But if there was a delusion that people were trying to break in to one’s house, in terms of a paranoid belief, then one would say that this person has lost touch with reality and should be referred for observation.
Roux says the evidence is that Oscar heard the window sliding open and the common cause facts in this case are that the window was open. They have photos of the scene to prove it. The second part of his evidence is that he heard the toilet door slamming and it was indeed closed. Vorster says an anxious person who thinks there’s an intruder in the house, who then hears the toilet door close, will become very fearful.
Roux goes on to say, it’s not like we are talking about a delusion here. The toilet door was closed and the window was open. Vorster says yes, this is not in the realm of delusion. Roux asks her if she looked for delusion and paranoia in this case and she says, yes. She looked for it but didn’t find it.
Roux says, as you stand here, you don’t make an allegation that he must be referred. Vorster answers, no.
Roux now wants to address her saying that Oscar is a dangerous person due to the disorder plus the firearm. Roux tells Vorster that there was evidence of an assault where Oscar was hit from behind and he needed medical attention, and he had his firearm with him but did not use it. What does she say about that? Vorster says that Oscar was obviously able to maintain a sense of responsibility and not use his firearm irresponsibly.
It’s very convenient of Roux to not mention the Tasha’s incident, the Vaal River incident or the time he pointed his gun at the people who were following him in his car, but instead pick the incident in which Oscar was noticeably vague when providing details on the stand (claiming he never knew who hit him). Give me a break. Should we give Oscar an award every time he doesn’t pull his gun out or shoot somebody?
Roux now addresses the issue about Oscar locking his bedroom door at night. He points out that not only did he lock his door but he also wedged his cricket bat in between the door and the display case to prevent anybody from getting in. He wants to know if this information supports Vorster’s thoughts about his anxiety and she believes it does.
The Judge calls out Roux on this and says “there was a reason for that, wasn’t there?” Meaning there was another reason why Oscar supposedly had the bat in that position. Roux has his confused face on. The Judge reminds him that there was an issue with the key mechanism. She is absolutely right! She is paying attention. On direct, Oscar stated that the lock mechanism on his door is not very strong. So he uses this bat for extra security up against the door since the lock itself is not reliable.
Roux doesn’t recall the testimony and says he’ll make a submission about that, and moves on.
The next topic is the broken window downstairs. Roux says that the new glass was already on the premises and Oscar was just waiting on the contractor to fix it. But he doesn’t mention how long it sat unfixed for.
As for the ladders, Roux points out that Oscar had given instruction to the contractors to lock them away.
Again, he leaves out that the contractors had not done that and it was apparently of no concern to Oscar because they were sitting below his bedroom window (not the bathroom window). Good of him to leave that out too.
Roux says to Vorster… “You were asked about other possible versions of the event. Relevant to the shooting incident, there was only one witness and that is Mr. Pistorius, so it’s how you interpret his version. It’s not that there’s somebody else coming to court and saying that’s not what happened, in fact I saw the following.” She says, yes, there’s only one witness.
That’s not entirely true. He may be the only eyewitness but there are plenty of ear witnesses. Their evidence counts too, plus the enormity of the physical scene. It’s completely misleading to even make that statement that he’s the only witness therefore what he says should be the only version to interpret. Why even bother to have trials if that is the case?
Roux addresses the mother’s death and ponders that if you add in an absent father, wouldn’t that play a role? Vorster goes on about how her death would be stressful but he then had to rely on his siblings and aunt for emotional support.
In regards to Oscar meeting with Dr. Vorster after he gave evidence in court and being excessively anxious, Roux points out to the doctor that she’s also seen many people prior to them giving evidence and they are anxious as well. She agrees. She doesn’t think it makes a difference. It’s anxiety provoking for everybody.
Vorster tells the Judge that many people are referred for examination, including those with PTSD, and that does not necessarily mean that they will be found to have that disorder affecting their ability to stand trial or their responsibility.
They move on now to Oscar firing at the noise. Roux wants to make sure that Vorster understands what Oscar said in court. He states that when Oscar was standing facing the toilet door, he heard a noise from the inside which he perceived to be the person(s) coming out and he… Roux catches himself there and removes “he” from the sentence, and instead says… “that’s when the firing took place.” They always have to be very careful to label it as random, no blame attached, firing. The Defense and Oscar constantly have to tap dance around their words. There would be no need to do that if Oscar would just give a genuine account of the story. But we are way too far gone for that.
Roux says the noise precipitated the firing. So does Vorster see this as contradiction, as Nel suggested? She says, from a psychiatric perspective, it doesn’t make a difference. I like that she added in “from a psychiatric perspective”. She’s absolutely right. From a legal perspective, his choice of words makes all the difference.
Nel tells the Judge that he is ready to hand up his application to the court, as mentioned yesterday.
Here are some of the main points:
1.This pertains to Section 78, 1B and 2, and Section 79 of the Criminal Procedure Act.
2.The Defense called Dr. Vorster. She’s a well-known, respected psychiatrist.
3.The purpose of her evidence was to present to the court psychiatric factors that may be of reference to conviction and sentence.
4.She specified that Oscar suffered from GAD.
5.She testified that the diagnosis is directly relevant to Oscar’s version and in her opinion, the GAD may have affected Oscar’s ability to act in accordance with an appreciation for the wrongfulness of his act.
6.GAD is a psychiatric disorder. At the least, it’s a psychiatric factor that impacted on Oscar’s ability to act in accordance with his understanding of wrongfulness.
7.GAD is listed in the DSM-5.
Nel then reads point 2 from Section 78. See the link above in this post for the full content of point 2.
Nel says in bringing this application, they are mindful of the practical implications and if granted, an expensive delay in the matter. They have taken in to account the provisions of Section 78, 1A and 1B, and although the current Defense team may indicate that it was never their intention that the GAD is part of the accused’s defense, the matter doesn’t stop here. Accused persons in the past have replaced their counsel particularly when things go wrong. Even though the court will take in to account the views of the Defense team, the facts before the court is of more importance and the case law would bear that out.
Nel says its fact that the Defense elected to call Dr. Vorster at this late stage. There had been no indication prior to Dr. Vorster giving evidence of any psychiatric condition that may have affected the accused. Nel says that the plea statement may indicate vulnerability and that he was anxious about the crime, but so is everybody in this case. The fact that it is a psychiatric diagnosis may play a role and must play a role, and that is what they have based their application on.
Nel lists the people who know Oscar who have come to give evidence and there has been no indication of an abnormal level of anxiety. Nel also says, in fact, Mr. Roux reminded him of the incident where people assaulted a taxi driver and Oscar witnessed it. For somebody with GAD, it must have been an unbelievable stressor. But Oscar was able to control himself. And yet, the Defense calls Dr. Vorster as a witness who indicates that the GAD may have been a factor on the day in question.
Nel reads some case law for the court. Then he tells the Judge that the timing of this evidence should be taken in to account. The consultation and presentation of evidence happened subsequent to the accused testifying, and subsequent to the accused’s experts giving evidence. Nel says, “My Lady, there must be a reason why that consultation would take place at that time.” Nel says the Defense can use this on appeal if we don’t refer. The court could very well question why the accused was not referred if psychiatric issues were brought up. But if this was part of the Defense’s intention, then why did it happen when it did. One could view it as a fall-back position. Nel tells the Judge that this should be significant.
Nel now addresses another paragraph in his argument. He states that we’ve had in this matter a defense of putative self defense. Which then in chief turned in to “I acted automatically.” Now they have a witness being called by the Defense saying the accused definitely did not act automatically in a state of automatism, but a psychiatric disorder may have played a role. Nel says, if one is confronted at this stage of trial by three different defenses, then the court should err on the side of caution expecting that there could be yet another defense. He says there should be red lights going off to the court and they should err on the side of caution.
Next, Nel says they made a point and they put it to Dr. Vorster that the accused was not the most impressive witness. That caught Oscar’s attention. His head popped up when he heard that. Nel says that they will argue that his testimony should be rejected. Nel says, “isn’t that the only reason why a psychiatrist is consulted after his evidence?” If this had sincerely been the Defense’s case from day one, why did they only consult with her when they did? Nel says, this is why he is arguing strongly that the timing of the consultations and the witness being called is important.
He refers to some more case law. Nel believes it is best that the doctors examining him have a global view of the case, not just one version (his version) that was given to Dr. Vorster. The court is entitled to know what the accused’s defense is.
Nel adds that the process in terms of Section 79 that would be followed, apart from all the different psychiatrists that would be appointed, is for the panel to make a finding if a psychiatric condition existed at the time of the offense. They would also need to make findings in regard to whether or not the psychiatric condition or mental illness played a role in the commission of the act, and to what extent. He believes it’s important for the court to know this.
He says the risk that the Defense took in calling Dr. Vorster at this stage of the trial has already indicated that there’s a reasonably possibility that it may play a role. Nel also says, if the court were to ask him directly if he thought it played a role, he would answer no, it didn’t, and he would argue that. He says that Section 78 has a low threshold and the court should act in terms of that.
Nel rests and Roux gets up to object the application.
He begins by saying that Mr. Nel’s reading of the law reports is rather unfortunate. Roux reads from the law books. Roux says the State wants a second opinion and wants the court to assist with this. Roux disputes that Vorster stated that Oscar may not have acted in accordance with his understanding of right and wrong. She did not claim him to be delusional or paranoid. He says it’s for the court to find what is relevant. Roux says that Nel is trying to suggest to Dr. Vorster that it’s a 78 situation. Roux read Section 78, part 1. See above for link.
Roux does not believe that the state has said anything that warrants a 30 day evaluation. Roux then references the court record from yesterday and looks for an exchange that he had with the Judge. He tells her “with great respect, you’re absolutely in debate with some of the position and I want to show you where it is.” She doesn’t look too pleased.
The record reads that the Judge stated to Roux: “In other words you say it’s not an allegation? There must be an allegation first.” Roux says, “absolutely, My Lady, that’s why I object.” Roux says an allegation cannot be a mere allegation; it must be supported by facts.
Roux says for the State to bring up that there are three different defenses is irrelevant. And the reason that counsel would do this is because your case is not good enough on what you argue. He also says for the State to allege automatism is also incorrect. Dr. Vorster clearly stated that was not the case.
Roux is fighting this pretty hard and getting worked up.
Roux also says they have a further witness who will talk about the fight and flight response, and the vulnerability of disability. Not related to Section 78, but in any event, even if there’s a question mark in the court’s mind, which there should not be, there’s another witness coming and it’s premature because what if that witness says something that requires the accused to be sent off again. What if he is sent away for 30 days on the GAD, and then sent away again for another 30 days on the next part. Roux says, apart from the absence of merits, it’s a premature application and the state is welcome to bring another application after that witness.
Roux now addresses the onus. He says it’s not entirely correct that they have the onus. There is a new insertion in to the act:
1A) Every person is presumed not to suffer from a mental illness or mental defect so as not to be criminally responsible in terms of Section 78, until the contrary is proved on a balance of probabilities.
1B) Whenever the criminal responsibility of the accused, with reference to the commission of an act or omission which constitutes an offense is an issue, the burden of proof with reference to criminal responsibility of the accused shall be on the party who raises the issue.
Roux proclaims that they do not raise the issue. The onus should not be on them. Roux rests.
Nel stands back up and says the one thing he agrees on with Roux is that they should not be emotional. He says that its one thing for counsel in 2 minutes to read a case that the State has referred to and tell the court that the State doesn’t know what they’re doing in the matter… but the 1991 case that he cited previously was one in which HE was the counsel. He knows the case by heart. In that case, he was arguing for the matter not to be referred, just as Roux is doing now, and he lost! Nel says he referenced these cases for a reason and they are there for the court to read, and he stands by them.
It was quite an interesting, in your face, moment there by Nel.
As for Roux’s argument about calling another witness… Nel says, “let ME now use the word unfortunate.” The fact that the Defense says they have another witness, should be considered holding the court for ransom. But in addition, the fact that they then said after that next witness the State can bring their application again, is a clear indication to Nel that they are on the right track with this application. Nel says, he too would be emotional if he called a witness and that witness left open the door for referral of his client.
If Roux is telling the court that he’s going to do this again, bring evidence that puts Section 78 in to question, then that should be a clear indication to do the referral now.
Nel says, “we’ve never in our case presented a case that there is some mental illness, not at all, and we will not. But there’s now, by a defense witness, evidence before the court and the court must act. And I stand by the cases that I’ve referred to.”
The Judge will be back tomorrow morning with her decision. They adjourn.
Oscar Trial – Day 29, May 12 WOLMARANS, VORSTER
“Wollie” Wolmarans returns one last time for more cross-examination with Nel, who says this won’t take long. He just needs to cover a few things.
Nel confirms that Wollie has made available (as requested) his photos from the November 8, 2013, investigation at the crime scene.
Wollie would like to clear up that there may have been some miscommunication about what “file” meant on Friday. He does actually have a file for the case with some notes in it, even though he testified last week that he didn’t. But he is again careful not to commit to having done any full reports; he only compiled notes as his investigation continued. It’s really the same thing that he was discussing on Friday.
Nel asks, when he was at the scene on November 8th, did anybody give him a version from Oscar? Wollie answers, “not that I can remember.” After a pause, he then admits that he was given the bail application and he read through that.
Nel wants to know how Wollie knew where Oscar was standing during the shots. Wollie says that he used Mangena’s report to reconstruct the scene. He also believes that it was mentioned in the bail application, but Nel corrects him that Oscar did not go in to detail where he was standing in that document.
So Nel asks Wollie, at the time (on Nov. 8) was he in agreement with where the laser was placed to replicate Oscar’s position? He says he was happy that the laser was in the vicinity of where Oscar was standing. He then corrects himself to say, “let’s rather not say STANDING, but where the gun was when the shots were fired.”
Nel also wants to know if he agrees with Mangena that Oscar was on his stumps and in the normal firing position which would indicate the angle and trajectory of the bullets.
This is important because it goes to Oscar aiming at his target. With his arm stretched out in normal position, he likely has line of sight to his target.
Wollie will only agree that shot B had sight alignment, but he’s not sure about shots A, C and D.
Nel asks, but it’s possible? Wollie agrees that it’s possible but he’s not sure.
Nel is able to establish with Wollie that if the laser stays in its original position after testing hole B, and you then try to get it through holes A, C and D, you cannot do it. Wollie agrees.
The importance of this is to prove that Oscar moved positions while shooting. One could make the inference that he moved because he was changing aim as Reeva is moving inside the toilet room.
Nel says, as far as the splinters are concerned, he would like him to look at a photograph.
Nel points out that there is a splinter of wood on top of the toilet’s water tank area. It’s not visible to my eyes on the TV monitor but Wollie sees it and agrees there is a splinter there. Nel says that this is where the splinter landed after a bullet went through the door. Wollie says it could also be from a blow from the cricket bat on the door, but he concedes that in all likelihood it is probably from a shot. This indicates that a splinter could travel that far from the door. Wollie can’t disagree with him.
Nel then revisits the re-testing of the gun at the firing range. He wants to know why they went back to re-test. Wollie states that he believes he has answered this before, but the first firearm used was in his opinion not friendly with that type of ammunition and he couldn’t fire it in rapid succession. He was only able to shoot one bullet at a time and then had to reload manually. So the gun itself worked, it just couldn’t fire in rapid succession using the type of bullets they were trying to fire.
Nel asks, is that the only reason you went back to re-test, or could it also have been because of background noise?
Wollie claims it was only because of the issue with the gun. It had nothing to do with background noise.
Nel wants to know why they waited so long to go back and re-test. The first test was on March 21, 2014, and the second test was on April 9, 2014. That is 18 days. Why not go the next night? Wollie first states that he can’t say for sure why, but then goes on to say that this is not the only case he is involved with. He is busy.
Nel wants to know why they didn’t re-test the bat sounds on April 9th, since cricket/frog sounds were heard clearly in the background. Wollie says he doesn’t hear them due to his hearing condition, but other people had told him that the background noises were indeed there. So Nel says, since everybody was aware of these noises, to ensure that both tests had the same background noise, why not just repeat both tests on April 9th? Wollie says that the door was already broken to pieces and they didn’t have another one to use. Also, he’s not a sound expert. He didn’t think it would make any difference. He doesn’t see the necessity of it.
Nel then shows him the following photo which Wollie has seen before.
Nel tells Wollie that Roger Dixon thought this paper was used for splinter tests. Wollie laughs and says, “My Lady, that shows you that Mr. Dixon is not a ballistics expert.” Nel says, “I agree with you, you are right.”
Nel moves on to the back wound and the striations. The one aspect that they agree on is that the magazine rack would not have caused striations due to it being a smooth surface. In addition, the pattern of the striations on the abrasion are very “regular”. Wood grain is not a regular pattern.
To me, this is far more indicative of the striations being from the shirt. If the bullet had enough energy to create that injury, I would think that the energy or heat from that could have pressed that pattern on to the skin while the shirt was between the bullet and the skin.
Nel points out to Wollie that he is contradicting evidence from Professor Botha, the defense pathologist. Botha testified that he concluded that the striations were caused by the magazine rack. Wollie does not agree with Botha, but expresses very high respect for both Professor Botha and Professor Saayman. Wollie also says that he does not believe Professor Botha is a toolmark examiner (and Wollie is).
Nel now addresses the fact that Wollie and Dixon met with each other a few times after Dixon’s testimony. Nel wants to refresh Wollie’s memory on those meetings. He asks Wollie if he remembers having dinner with him at Jocks Restaurant. He does remember this meeting but states it was informal. He remembers that he wanted a pork chop but they didn’t have any so they both had t-bone steaks. Nel tells him, “that’s impressive that you remember that since the meeting took place on March 26, 2014.” Wollie doesn’t dispute it nor does he dispute that they discussed the case. Conveniently, he can’t remember the content of what they discussed when asked by Nel. Selective memory in court is always fascinating to me.
The next series of questions by Nel is extremely important because he is establishing, and getting Wollie to concede on most points, that Mangena’s findings of the sequence are accurate. And with Mangena’s sequence, the following occurs… there was a delay after the first shot, Reeva moved positions, Oscar repositioned his aim, Reeva was covering her head for the last two shots likely in defense, and Oscar kept shooting until it was silent. The neighbors support this by hearing a woman’s blood-curdling screams before and during the shooting. They also experienced the silence after the last shot. This is devastating for Oscar’s case. It is crucial for Nel to solidify Mangena’s findings because it tells a VERY different story than rapid succession, panicked, non-aimed shots. Here is how the questioning unfolds:
•Nel wants to know, after his investigation on November 8th, was Wollie content that bullet A hit Reeva in the hip. Wollie says he’s still content with that finding. Nel says the question is different. He wants to know if he was happy on that specific day with the finding that bullet A hit Reeva in the hip. Wollie answers, yes.
•Nel also establishes that Wollie is in agreement that Reeva was standing upright in front of the door at the time. Wollie adds that she may have been bent slightly but yes, she was standing upright in front of the door.
•Wollie says at this stage of his investigation, on November 8th, he did not have a finding on which injuries were caused by the other bullet holes. The only one that he can clearly remember they established was bullet A hitting the hip.
•Nel establishes that Reeva’s head must have been down lower than normal standing position in order to be hit by the bullets and Wollie agrees with that. The bullet holes in the door are too low for the injury to take place while she is standing. (Concluding that some time would have to pass in order for her to go from upright to down)
•Nel also points out that based on his testimony from Friday, Wollie agrees that Mangena was able to get the laser to mark E on the wall by going through hole B, with no deflection. And if there was no deflection, then bullet B missed Reeva. Wollie again agrees that this is possible.
•Nel says, in order for B to miss her, she must have fallen somewhere before that shot was fired because otherwise that shot would have hit her. Wollie agrees, she must have fallen with her right hip completely destroyed but he’s clearly trying to be careful about directly conceding here. I believe he can see where Nel is going with this. But again, some period of time must have to pass in order for Reeva to change position (fall) and shot B to totally miss her. I don’t see how A and B could be rapid succession considering her body movement. And let’s not forget, there are ear witnesses to support the pause after the first shot. That only strengthens Mangena’s findings here.
•Nel says we can exclude that she fell flat to the floor because then she would be too low for the arm and the head wound if she’s flat on the floor. Wollie agrees, he does not believe she collapsed straight down.
•They move on to holes C and D. They establish that the height of hole C is 99.4cm. And the height of hole D is 97.3cm. Nel says that based on those heights, it would not be possible for Reeva to be sitting flat on the floor when those shots hit her. She would be too low. Wollie says that she may have been hit when falling down, but he has to concede with Nel that if she was sitting flat on the floor, or in a stationary position when the C and D shots were fired, then she would not have been hit.
•To further support his point above, Nel says that with Reeva’s hip injury, she would not have been able to be on her haunches. Wollie agrees. In other words, she would not be able to support her own weight; she would have needed to be sitting on something. They all agree that she was not sitting on the toilet. So the only other “something” in that toilet room was the magazine rack. Wollie agrees with all of this. Nel ultimately asks, doesn’t it make sense that she was sitting on the magazine rack for the remainder of the shots? Wollie says he does not think that she would be able to sit because of the hip injury. Nel says, she’s not supporting her own weight, she’s basically propped up on the rack and her head/upper body is leaning over. Nel asks, doesn’t this make sense? Wollie doesn’t understand. Nel tries to explain it to him again but he won’t concede, he just says he’s not sure.
I found this illustration online that gives a clear depiction of the position that Nel is referring to.
Nel then embarks on an exchange with Wollie about the magazine rack and where it was positioned for Wollie’s reconstruction done on November 8th. By this date, Wollie would have seen the police photos and known where the rack was when originally found. But again, Wollie is confusing the point and trying to act as if he didn’t know exactly where it was supposed to be at that time.
Nel says to him this is very concerning because the magazine rack position was an integral part of Mangena’s findings and Mangena’s report had been available to him by that time. Wollie answers back that he also had Saayman’s report and Saayman indicated that one potential cause of the back injuries was contact with a hard surface, so he was working along those lines at first.
To me, his point seemed more like an excuse than a genuine explanation. I get the impression that because the rack is very problematic for the defense (it supports everything that I outlined above), they did not want it to be where it actually was at the time of the shooting and played around with the position during their investigation. And that would be exactly why Oscar lied about the magazine rack on the stand! On the surface, it seemed really silly for Oscar to be lying about that, but when you fully understand the significance of the rack’s position, it then makes sense.
Nel says to Wollie, in fairness to him, he sees in his report that he was testing what Saayman said about the hard surface, but why would he not also test the magazine rack conclusion that Mangena had given because that forms the basis of his conclusion? Wollie just says he only concentrated on that one point from Saayman, plus he isn’t really sure that the magazine rack really mattered. Also, he had very limited time at the scene to conduct his investigation.
Don’t let Wollie fool you… he’s trying to brush this off, but the Defense does understand the significance of this rack and they do not want to concede to Mangena’s findings. Hopefully the court is paying attention on the points that Nel made today.
Nel moves on and wants to know if Wollie had done any experiments or tests prior to March 8, 2013. Wollie says no, he had just visited the crime scene and took a few photos. Wollie says the photos were really of no value because the exhibits had been removed from the scene. Nel wants to know the dates that he was at the scene. Wollie says he can’t remember, except for November 8th, but then says he was requested (by Oscar’s family and legal team) a few other times to go to the scene and remove some personal articles for Oscar. He kept notes of what was removed. Nel tells him it’s not a memory test and lists all of the dates that they know he was there:
•February 17, 2013
•February 18, 2013 (when he found the fragment in toilet)
•March 8, 2013
•November 8, 2013
Nel then asks if he conducted any other sound tests at the scene. He says no, not myself. And Nel is about to continue on when Wollie says he may have just told a lie and grins a bit. There was one other test that he wants to mention for completeness sake… The day that they asked him to hang the door, he stood outside the toilet room and shouted to somebody standing outside in front of the house. He shouted his name (Christo) three times and asked him if he heard it. The window and the toilet door were open at the time. Then he stood inside the toilet room and closed the door and shouted Christo’s name again three times, and Christo said he couldn’t hear him. He reminds the court that he is not a sound expert.
Nel asks, when was this? Wollie says it was very shortly before March 3, 2014, right before the start of trial. He was present along with Christo and the artisans who helped to hang the door. And FRANK was there too. Our mysterious gardener buddy Frank Chizweni pops up again! He was there to open the door for them.
Christo is a friend of Wollie’s who is an artisan and he asked him if he could assist him with the door, due to the disability with his back. Nel asks if this was done during the day. He says yes.
Nel asks him why he did this; did anybody ask him to do it? Wollie says that nobody asked him to do it, he just did it.
Nel asks Wollie why he was at the scene that day. He says that the legal team asked him to go to the house and take a door from the foyer leading to the garage, which is exactly the same shape and size as the toilet door, and hang it upstairs in the bathroom. He doesn’t know why. He also says he’s not an artisan, so he got some help. He says he still doesn’t know why they had him do that.
Nel asks if there were any other instances that he went back to the scene that had to do with the bathroom/toilet. Wollie says there was one more time that he and Dixon went back to the scene but he can’t remember the date. Nel says he’s not asking about that instance. That was the visit at night when they went to test the lighting conditions in the bedroom. Wollie says he can’t remember any other time. He’s been there a few other times, but can’t remember dates.
Nel wants to know if Wollie went back to the scene at night any other time. He says yes, one other time, but can’t remember the date. It was about 3-4 weeks ago, while the trial was in process. It was because of Mr. Dixon testifying on visibility. The legal team asked him to go put on the balcony light to see what he could see. It was only he and Frank there that night. Again, Frank opened the door for him. It only took him 15-20 minutes.
So overall, even though Wollie was seemingly reluctant to give details, Nel established that Wollie was at the crime scene quite a bit over the past year and there was some additional testing that the State didn’t know about.
Nel looks at Wollie’s CV and states that he left SAPS in 1992, and asks if it’s correct that he’s been practicing as an independent consultant ever since. Wollie confirms this is correct. Nel wants to know if he has done any proficiency tests during this time. He says no, it’s not required for independent consultants.
Nel concludes by showing Wollie a photo that Dixon gave to the court when he testified. It was this photo:
He wants to know what this is from but Wollie does not know. He is not familiar with the photo.
Nel rests and Roux is up for reexamination.
Roux addresses Mangena’s report and asks Wollie if anywhere in the report there is mention of Mangena testing holes A, C and D to see if they match up with mark E, taking deflection in to account. Wollie says, no.
Roux then asks about the bullet fragment hitting the back. Wollie states that in order for the fragment to end up in the toilet, it would have to make a U-turn after hitting the spot on the back. After hitting the spot, it would likely lose all of its energy. So he is still standing firm that the fragment could not hit the back and end up in the toilet. He thinks if it hit the back, it would be more likely to fall on the floor and the fragments under the magazine rack don’t match the injury.
Roux then addresses that the back injuries go in an upward pattern. He asks, how could the bullet fragment go from F to the bottom of the back and then upwards? Wollie says it would have to bounce off the back twice and then go up… it’s just not possible.
Roux wants to know about the accuracy of probes; can they move in various directions? Wollie walks over to the door and wiggles the probes and shows that there is movement upwards, downwards and sideways.
Roux asks, “when somebody fires four shots, would you expect them to be from the same exact position?” Wollie says, no. With recoil, your hand will never be in the same position.
Roux wants to know what Wollie meant about “sight alignment”. He answers that when he is at the shooting range, shooting at a target, there are certain principles to follow. The firearm has a back side and a front side. The back side has a V-shape and the front side has a pin. He demonstrates with his hands.
He then aligns his eye with the back side, front side and the target. They must all be lined up to hit the target correctly. Looking at the holes, he would not say that Oscar shot with sight alignment.
Wollie concludes his reexamination by saying that if the court wishes, he can have the shooting range and door set up again so that the court can go there to experience the sound tests in person. He thinks this will be the best way for them to experience it.
Roux rests, Wollie is excused.
The next witness is Dr. Merryll Vorster. She is a registered forensic psychiatrist.
She reads the introduction from the report that she has compiled for court. She states that Oscar was evaluated to determine his present mental condition and any psychiatric factors that may have been present at the time of the alleged offense.
Interviews were also conducted with family members, colleagues and friends to obtain collateral information.
The documents available are listed:
•A report from Richard Holmes dated February 18, 2014.
•Medical records from Milpark Hospital dated February 21, 2009.
•Affidavits from Justin Devaris, Samantha Greyvenstein and Graham Binge (cousin).
•And then the people that she interviewed for collateral information: Diana Binge (aunt), Aimee (sister), Peet Van Zyl (manager), Alex Pilakoutas (friend), Carl (brother), and Ampie Louw (coach).
The developmental history: Oscar is the middle of 3 children, born with a congenital abnormality resulting in the amputation of both legs below the knee at the age of 11 months. This surgery was performed pre-language level. Oscar would not have understood why he was in the hospital. Vorster explains that there would have been pain with this surgery, and since he was pre-language he would not have been able to be comforted by his mother. It would be perceived by the young child as a traumatic assault.
He was fitted with his limbs and able to walk by the age of 17 months. He was never restricted from participating in physical activity and was raised to be normal. Vorster says this is significant because he was never able to allow himself to be seen as disabled. To me this seems like a double-edged sword. One would think it would be a positive thing that the mother raised him to be a (for lack of better word) normal person but the doctor seems to imply that it had the opposite effect. Vorster says that over time, this could result in increasing levels of anxiety.
Oscar described his mom as being very loving. His father was often away. At 6 years old, his parents divorced and there were drastic changes in his social circumstances. His mom started working and his father had financial problems and didn’t always support them. The father was described as irresponsible and mostly absent according to all siblings.
From the collateral information obtained, his mother was an anxious person who abused alcohol intermittently. She slept with a gun under her pillow. There were frequent times that police had to be called to their home to investigate because of her fears. The siblings all grew up with issues of anxiety because their mother never adequately comforted their fears, she added to them.
I was really disappointed to hear the doctor testify about the mother. In everything I had previously read about her, she was described as being very loving and supportive, and that Oscar was very close to her. Now in court, while he’s trying to blame anxiety on his bad behavior, they are seemingly throwing her under the bus saying she had alcohol issues and gave them anxiety. Of course, I have no way of knowing what is true, but the poor lady is dead and this just feels wrong.
This type of testimony drives me nuts. In general, it’s just a sob story about every sad thing that ever happened in the accused person’s life. Everybody has tragedy and adversity, some worse than others. When people try to use it as an excuse for killing another person, it really makes me cringe. Prior to the shooting, I would imagine that the last thing that Oscar ever wanted was to be seen as emotionally or mentally challenged. Everything about his public persona was quite the opposite. Now that he’s on trial for killing a person, he is all of a sudden going to pull out psychological challenges as an excuse. Speaking bluntly, I find it insulting and malingering at its finest.
The report continues, Carl was often tasked with looking after his two siblings. The paternal grandmother supported the family financially. Oscar was a sociable child; he did well in school and in sports. He was occasionally teased and his brother would have to intervene. Vorster believes that in being sociable he was concealing his feelings about being disabled.
At age 14, Oscar moved to Pretoria to attend high school. He lived with his father and saw his mother on weekends. Within a few months of living at his father’s, there were problems at home so he became a weekly border at school. On weekends, he would go to his mother’s and his aunt’s/uncle’s homes. Carl attended the same school as a boarder as well. Aimee continued to live with the mother. Oscar played many sports.
At age 15, Oscar’s mother died suddenly. He was significantly traumatized by her death, increasing his anxiety levels. He describes this period of his life as very stressful which was confirmed by his siblings and his aunt.
After his mother’s death, he continued to be a weekly boarder at school and stayed with his aunt and friends on weekends. He had support from his extended family and friends, but had infrequent contact with his father. His relationship with his siblings was very close, but he had no primary attachment to a parental figure at this point in his life.
At age 16, Oscar sustained a knee injury playing rugby. As part of his rehab, he started running. He obtained a coach, started training and that lead to competitive running.
By grade 11, in addition to his coach, he had a manager, was competing internationally was becoming financially independent.
After he completed high school, he began competing as an international athlete. He had a coach, manager and various sports advisors and traveled extensively. He had few strong emotional ties. He saw extended family infrequently but saw his sister often. He described being quite lonely.
At age 21, he says he broke all ties with his father following an argument. He was financially independent by this time. He spent many months during the year in Italy training. On the occasions that he came back to South Africa, he reports being anxious about the high level of violence and crime as reported by the media and as discussed within his family setting. He bought a firearm for his own protection. His aunt, Mrs. Binge, mentioned that he had a burglary in his townhouse and that resulted in him adding extensive security measures to his property.
Oscar reported that as a professional athlete, he worked very hard to gain sponsorships to make a lot of money and be financially secure. Autonomy and independence was his attempt to manage his anxiety. He had a strict training regimen with focus on diet, lifestyle and training. He made sure he was always punctual and well-prepared for media events.
He had few long term relationships. He was very self-sufficient. He relied on social media to stay in contact with friends and siblings.
Vorster then says it is her opinion that Oscar has an anxiety disorder. People that have this disorder work hard to control their environment and be very prepared in order to alleviate their levels of anxiety. His strict training and diet helped him to alleviate his anxiety, but as he became exposed to being more famous and having media attention, he would have to prepare more and more to not embarrass himself in any way. Having order in your life helps to alleviate stress from anxiety.
Past medical history: Bilateral below knee amputations at 11 months old. On-going stump pathology treated intermittently. As a child, he contracted Encephalitis and since then has had chronic headaches. In Feb 2009, he was involved in a boating accident during which he sustained facial fractures. He had a brief period of loss of consciousness and had mild concussion. He was admitted to Milpark Hospital where he had extensive facial surgery.
Past psychiatric history: Oscar has many features of anxiety. There is a clear family history in his mother, sister and brother. Roux asks, what is the relevance of the family history of anxiety? Vorster says that anxiety disorders do have genetic pre-disposition. Oscar notes that he was always encouraged to appear as normal as possible, despite his disability. He became determined to participate in sport and was able to keep up with able-bodied friends in activity. He became increasingly unwilling to reveal his stumps publically and this gradually extended to family members and friends. He would keep on his prosthesis during the day, only removing them at night when he went to bed. He gradually started having feelings of inadequacy about his amputations.
I would imagine to some degree or another, that all of the feelings described above would be quite normal at certain stages of life for anybody dealing with amputations or disability. I don’t pretend to understand what it is like to experience this, my point only being that I’m not hearing anything that is shockingly abnormal for somebody who lives with a disability. And last I was aware; having these feelings should not be a pre-cursor to murderous activity.
Roux wants to know how having a poor self-image, yet being successful (confident) on the race track are compatible. Vorster explains that due to his success on the track, he strove to always conceal his stumps and his feelings of inadequacy. By concealing his disability, it rendered him less able to access the emotional support required to manage his vulnerability and self-esteem issues.
Matters were further compounded as he developed sexual relationships as he would shy away from revealing the extent of his disability. As he became more famous, his various sponsorships required him to attend media events and to do interviews. He describes that he would be anxious about these events and would spend many hours preparing so that he would not embarrass himself. He also describes feeling increasingly stressed by the demands placed on him as a professional athlete.
Vorster says with increasing stress, he would have to work even harder to keep his anxiety under control.
Not to sound insensitive to his issues, but average people with anxiety issues experience all of these things too. Everybody has jobs, responsibilities, families, and financial burdens that create extreme stress. In my opinion, just because you are famous, does not necessarily make your anxiety any more prolific or important. If anything, Oscar would have the financial resources and close personal advisors available to help him manage what he needed. Most every day people do not have access to that. If he really had an anxiety disorder and chose not to seek any help from anybody for his entire life, then he has to take responsibility for not treating his issue much earlier. To only reveal it now in court when it may be viewed as an advantage for you, is a bit disingenuous and that is why I tend not to fully believe it. He may very well have some anxiety, but I do not believe it caused what happened on February 14.
Everybody has an opinion about this trial, as they should. And I’ve noticed that those who seem to be on the side of not guilty are on that side only because they believe that the violence in SA coupled with Oscar’s anxiety are absolutely believable, end of story… despite all of the other evidence.
I do not dispute that violence exists frequently in SA nor do I dispute that Oscar may have some anxiety. I would think for anybody with his life story and circumstances, some anxiety would be fairly typical. BUT, I cannot ignore the totality of the evidence presented in this case. You can’t put the perceived intruder + anxiety story in one bucket, and the physical/circumstantial evidence + ear witnesses + common sense in another bucket. They cannot be separated. The totality of the evidence always tells the story. And the reason that we have this psychiatrist on the stand, days before the defense is due to rest, is because the defense team has hit the end of their road. Trust me, if psychological issues were at the heart of this case, it would have been dealt with LONG ago. Do not let your heart strings cloud your common sense in this matter.
Vorster goes on to say that while Oscar was training in Italy, he would feel lonely, but his fears about personal safety were fewer. He followed SA news closely and worried about his siblings’ safety, in particular his sister’s safety. Vorster states that as one becomes more anxious, their fear of personal safety increases, even when their safety may not really be threatened.
While in SA, Oscar describes having increased anxiety over safety, he was worried about being followed and worried about the safety of his home. He moved in to an estate believing that it would be safer for him there, but subsequently there were break-ins there as well.
Now keep in mind, these are all things that Oscar has relayed to the doctor. He can tell her anything he wants without having to completely substantiate it. But we all know that in court, the defense was not able to substantiate their claims of multiple break-ins and crimes against Oscar personally. Oscar and a friend (Stander) saying that crimes happened versus the police reading actual police reports is not much of a match. It is not a coincidence that the police do not have reports of what Oscar claims happened to him. Oscar couldn’t even remember who he called to pick him up on the night he was supposedly shot at on the highway.
She goes on to say that he tried to increase the security at his house, and his routine was to sleep with his bedroom door locked. He describes being hyper-vigilant and having sleep disturbances, waking often if there was a noise. He believed that being famous put him at increased risk.
He didn’t like to be home alone and always tried to invite friends to visit and sleep over. He describes feeling generally isolated and alone, although he made friends easily. He did not share his private feelings with his friends and is a guarded and mistrustful type of person.
Habits: Oscar does not generally drink alcohol during his training and competitive periods, but describes drinking excessively at times during the off season in which he may become intoxicated. He does not smoke or take drugs.
History of the incident: Oscar relates that he believed he heard an intruder. He became scared and had escalating levels of anxiety. During his description of the events, the following emotions were observed – distressed, crying and retching. He stated that he had no intention of shooting Ms. Steenkamp and he feels devastated that he killed his girlfriend.
Roux asks, in her profession, what is her opinion about the emotions that she observed? In her opinion she believes they were genuine, primarily because of what she witnessed with the retching. When feigning retching, one would develop a hoarse voice, redness in the face, perhaps some tears but what Oscar showed was a pallor (he became pale) and started sweating profusely. That cannot be feigned. That is a real manifestation of anxiety. This is why she believes that his distress was genuine.
I’m sure we all agree though that he was genuinely distressed. He just killed somebody and was charged with murder. Anybody would be distressed! That does not equal being remorseful or sad about Reeva dying.
Mental state evaluation: Oscar presented as a well-groomed, well-spoken and polite man. He was clearly anxious as could be seen by his tremor and from the way he perspired heavily during the interview. He had no speech difficulties or thought disorder. He was fully orientated. He gave a very detailed account of himself. His mood was markedly depressed and his affect flat (few expressions on his face). Vorster states that a flat affect is a typical feature of a depressed person. Oscar is on treatment for depression. His memory and concentration were good and he had no cognitive deficits (no intellectual incapacity).
Vorster goes on to say that depression can have a negative effect on memory and concentration. In this instance, she did not find any deficit on memory and concentration. Therefore, there shouldn’t be any reason why he can’t remember his call with Baba, his call to Netcare, his call with Justin Devaris, him carrying Reeva across the upstairs hallway to the stairs, etc. He has no problems talking about himself (as Vorster stated above) but conveniently forgets some incriminating parts of February 14. This goes to my point above about not just believing his intruder story and ignoring the facts of the case. You cannot ignore these very significant details. There is a reason why on the stand he suddenly could not remember those phone calls and it’s not anxiety. It’s because they do not support his story!
During their examination, Oscar was asked to remove his prosthesis. He was clearly embarrassed but complied. She observed him walking on his stumps. She says his balance was poor and he could easily be pushed over. His physical vulnerability was immediately apparent.
Vorster says that Oscar frequently expressed his guilt of having caused Ms. Steenkamp’s death.
Psychiatric diagnosis:
•Generalized anxiety disorder (GAD)
•Depressive disorder (caused by the shooting)
General anxiety disorder is pervasive, as opposed to having anxiety over specific things.
The depressive disorder is secondary to the shooting. She did not find any evidence that he was depressed prior to the shooting.
Discussion: Oscar has a long history of GAD which appears to have increased with time. It is likely to have commenced at the age of 11 months. His anxiety increased after his parents divorced. His mother’s anxiety heightened his and his siblings’ anxiety. After his mother’s death, Oscar lost his primary attachment figure. Although close with extended family members, he does not have a secure attachment to them.
One way to alleviate anxiety is to become very controlling about one’s environment. His anxiety increased commensurate with his increasing levels of public fame. A further factor increasing his anxiety was crime in SA. He had increased security measures at his home, more so than most people in SA.
The injuries he sustained from the boating accident in 2009 added to his levels of stress. He became aware that his life could change radically if he were to be injured, and that increased his personal sense of vulnerability. He could lose his ability to be an athlete, which in turn would mean he would lose his income and his independence.
A further factor that may be of relevance is the incident with Mr. Batchelor in December 2012. He was concerned that Mr. Batchelor and his friends posed an on-going physical threat to him.
These feelings of anxiety are confirmed by Peet Van Zyl, Aimee and Carl. These factors were all operating during the incident and would have been compounded by Oscar’s physical vulnerability and the additional pressure of perceiving his environment as hostile and unsafe. When exposed with a threat, Oscar is more likely to respond with a fight response rather than flight, as his physical capacity for flight is limited.
In Dr. Vorster’s opinion, Oscar’s reaction to the perceived threat on February 14, should be considered in the light of his physical vulnerability and his co-morbid diagnosis of GAD.
She would like the court to take in to consideration the following – operating at the time of the offense would have been Oscar’s physical vulnerability and secondly, his pervasive GAD which was present for many years, and would have been present on the day of the offense.
She states that he is remorseful about the events and feels guilty that he has caused Ms. Steenkamp’s death and has developed a depressive disorder as a consequence of this.
Roux rests and Nel is up for cross-examination.
Nel wants to know from Dr. Vorster, the fact that she diagnosed Oscar with GAD and that he had it at the time of the incident, did that affect his ability to distinguish right from wrong? She answers, no, not at all.
Nel asks, did it affect his ability to act in accordance with right and wrong? Vorster says, she is not saying that. Nel asks if Oscar had diminished responsibility at the time? Vorster answers that what she is trying to say is that the court should take in to account these factors and it’s really up to the court to determine if he had diminished capacity.
Nel says, well if you are going to say that, then we need to deal with Section 78. He pulls out a very large legal book and says to her… “so you are saying it is possible that he had diminished responsibility at the time?”
She says that what she is really trying to express is that Oscar is different from other offenders and from the normal person because he has a physical vulnerability and GAD, so his reaction to situations would be different.
Wow. If it becomes acceptable for people to use disability and anxiety as an excuse for murderous behavior, then we are certainly going to have a lot more murders on our hands. This is a dangerous path she is taking!
She then says, “I’m not saying that this constitutes a mental illness.” Nel says, I don’t understand why we are hearing this evidence now. He says, “if we are not dealing with a mental illness and not dealing with a direct contribute, then why are we dealing with this evidence now?” She doesn’t know the answer to the question. Of course, Roux called her as a witness, all she can do is come and testify. But Nel can only deal with the issue through her, so he is putting it to the court… why are we hearing all of this right now? And of course we already know the answer… because the Defense is desperate.
Nel tells the doctor, if you say there is a possibility of diminished responsibility, then he has to be referred today for mental observation in terms of the provision with Section 78. Vorster says, “that could be something the court could consider.” But what she is rather saying is that his reaction to situations would be different based on his GAD and his vulnerability. Nel says, taking that all in to account, it could have diminished his responsibility at the time. A referral is what would determine that.
Nel says to the doctor that he is aware she has spent many years doing this type of evaluation at hospitals. She confirms that she has and also understands the provisions of Section 78.
Nel reads section 78, point 2, from the book:
If it is alleged at criminal proceedings that the accused is by reason of mental illness or mental defect or for any other reason not criminally responsible for the offense charged, or if it appears to the court at criminal proceedings that the accused might for such a reason not be so responsible, the court shall in the case of an allegation or appearance of mental illness or mental defect, and may, in any other case, direct that the matter be enquired into and be reported on in accordance with the provisions of section 79.
Nel says, you have diagnosed a mental illness, GAD, am I right? Vorster says that GAD is a psychiatric diagnosis, but she would not consider it to be a mental illness as perceived in the criminal procedure act. In her opinion, it should not be taken in to account in terms of his responsibility. She only wanted to present the GAD as a possible reason for the way he reacted. So I’m right back to where Nel was… why are we even talking about this? It either played a role in his actions that night or it didn’t.
Nel says, but if the GAD is severe, it will affect your mental capacity? She says that if it were severe enough where one started to become paranoid about individuals or threats, then one may consider it as a mental illness. But GAD is not an uncommon psychiatric diagnosis. There are many people who have GAD. It affects social and occupational function but it doesn’t imply that one has lost touch with reality or can’t see right from wrong.
She was called by the Defense and she linked this GAD to the incident and that is what Section 78 deals with, linking a disorder to an incident. The court is then left no option but to refer.
Roux objects. He says it must be linked to mental disorder.
Nel wants to know if she is categorically saying that GAD is not a mental disorder. She answers that it is a psychiatric diagnosis. Nel asks her, what is the difference? She says mental disorders affect one’s capacity to see right from wrong, and act in accordance. She doesn’t believe that an anxiety disorder limits capacity unless there are psychotic elements, which she doesn’t believe that Oscar suffers from.
Oscar went from looking sad with his head hanging low during direct examination, to looking pissed at this cross-examination.
Now that an evaluation is on the table, Vorster seems to be back-peddling a little bit to get out of this jam. Nel states that Oscar’s defense is that he thought there was an intruder in his house and that he was under attack that night. If the Defense is going to introduce evidence that Oscar has a diagnosed anxiety diagnosis, and his supposed heightened fears and hyper-vigilance played a role in his actions that night, then it certainly is relevant for the court to have him examined per Section 78.
Vorster says that the diagnosed GAD is relevant for the facts of the case, so it would be up to the court to decide if it constitutes a mental illness or if the accused should be referred or not.
Nel asks for an adjournment to review documents as he may bring an application. They break for an hour.
When they return, Nel asks the doctor if it is correct that the first interview she had with Oscar was on May 2, 2014 (that would be 10 days ago). She acknowledges that it was, and that it was after Oscar and other witnesses testified.
Nel wants to know if she followed the trial at all. She says, not daily, just parts of it in the media. Nel asks her, if I put it to you that it was reported that Oscar was not a good witness, and some of the expert witnesses were not good either, do you think that would increase his anxiety? She says, I don’t know. Nel says… if he believed his case wasn’t going well, and now he has to see a psychiatrist, wouldn’t that have made him anxious. Vorster says she does not know how he perceives his case.
Nel points out to the doctor that at one point during cross-examination, Oscar expressed that he was fighting for his life. Vorster acknowledges that she heard about that statement. Nel states, so in his interview with you, he is fighting for his life. Vorster says that he did not say that to her.
They only had two interviews total. One on May 2, and the other on May 7, 2014. The other people in the report were interviewed on the following days:
May 2: Mrs. Binge
May 5: Aimee, Carl, Peet, Ampie
Nel asks Vorster, what is the purpose of your report? She says to bring psychiatric factors to the court’s attention that may be of relevance for the purpose of conviction, and if required, of sentencing. Nel states, these are factors that may have affected his capacity to act appropriately at the time. She agrees. In terms of his defense, it is directly relevant.
Nel asks, his anxiety disorder is worsening? She says, yes.
Nel asks, for somebody suffering with a general anxiety disorder, for them to possess guns, does that make them a dangerous person in society? Vorster answers, yes!!
Nel asks if people with PTSD are typically referred for observation, and she says that’s correct. Vorster acknowledges that PTSD and GAD are related disorders. Vorster seems to agree with Nel that having him evaluated would not be a bad thing because then the court could have another opinion. Not so sure the Defense agrees with that.
Nel says, the court really doesn’t have an option in this matter. They have to follow the law.
Roux objects and says that the accused has to have both a mental defect and lacked the capacity to act in accordance with right and wrong, and that is not her evidence.
Nel and Roux embark on a pretty fascinating legal argument to determine if this application for evaluation is valid. Roux seems pretty hell bent on objecting to this.
Nel asks a few more questions to Vorster which seem to solidify his application and he states his intentions to formally bring the application forward. Per the terms of Section 78, he states that Oscar should be observed and evaluated at a mental institution for 30 days. Nel presents some relevant case law to the Judge. He also throws in a dig at the Defense saying this is the 3rd defense that they have now presented for Oscar (first was putative self-defense, second was accident, and now third is GAD). He asks for the witness to be provisionally excused after he asks her a few last questions. Judge agrees and allows him to proceed.
Nel asks the doctor if someone who killed their partner while in the midst of anger could have deep remorse immediately afterwards. She says, yes. Nel states that they both (meaning Nel and Vorster) have dealt with these matters in court before, and they have seen immediate remorse before. She agrees. He asks her to consider only normal people, not psychopaths, and doesn’t she usually expect normal people to have deep remorse after they’ve done something like this. She says, yes.
Nel states that it’s interesting how she phrased her last sentence in her report. “He’s certainly remorseful about the events. “ He asks, what does that mean? She says he feels remorse about having caused the death of Ms. Steenkamp. Nel asks, did he ever say to you I’m so sorry I killed her? She says, no, she does not have a recollection that he said that. But she doesn’t believe that how he phrased it has psychiatric relevance.
Nel asks, if somebody had a defense that they acted “automatically” (without thought), wouldn’t you then look for events leading up to the shooting and after the shooting, and if planning is observed along the way, then shouldn’t you discredit that they acted automatically?” She says, yes, there’s no question in her mind that this is not a defense of insane automatism, there was no evidence of amnesia and his reaction after the death is appropriate.
This was an important point to establish. We all know that Oscar wants to claim that he just pulled the trigger without any thought process, but the doctor is saying that there is no evidence to support that he would have acted in such a way that he wouldn’t be responsible for his actions. In other words, he knew what he was doing!
Nel goes through Oscar’s version: He thought there was an intruder, he armed himself and he approached the danger to sort the danger out. The doctor says, yes. Nel says to Vorster, having lots of experience in these types of matters, when Oscar armed himself, he at least saw the possibility that he might have to shoot because otherwise why would he arm himself and approach the danger, am I right? She says, “he must have (seen the possibility).” And we know that he did end up shooting.
Nel tells her then she must agree with Dolus Eventualis (where a perpetrator foresees consequences other than those directly desired as a possibility). By Oscar intentionally arming himself and going toward the danger, he may not have wanted to kill someone, but he could foresee the possibility and acted anyway. And he did kill that person.
The way that I understand the SA law is that you can get to the conviction of Murder a few different ways. Dolus Directus is direct intent. You want to kill somebody, so you do. The State has been setting up their case as Dolus Directus. Oscar knew he was shooting Reeva (hence the ear witnesses, the argument heard at 2am, etc.)
However, if the Judge rejects Dolus Directus (that Oscar knew it was Reeva), the State has also been setting up Dolus Eventualis, where Oscar acted in such a way that he foresaw he could kill a person. Even though he didn’t have direct intent to kill, he took actions that he knew could potentially kill. Essentially, recklessness.
I don’t see how the Judge could reject Dolus Eventualis. Nel has proven it through many witnesses in this case, and just did it again with Dr. Vorster. I cannot possibly fathom how they would let him walk on this.
Nel wants to address Vorster’s observation that Oscar is more likely to fight then flee. Nel says, so we have a person with GAD that has a fight response, and doesn’t this make him even more of a danger because he gets anxious quickly and he approaches danger and wants to fight? She says that is not her evidence. She says that his desire to fight is really only because he has limited ability to flee because of his disability.
Nel says, but Oscar armed himself and walked 5 meters on his stumps towards the danger. He entered the bathroom and walked another 2 meters on his stumps towards the danger. In actuality, it would have been much easier for him and Reeva to flee out the bedroom door instead of walking that distance. Nel asks, is this how an anxious person acts? She says, yes, some do approach danger. She states, he couldn’t run away, he’s not really mobile on his stumps. Nel says, but you did state that somebody with GAD plus a gun is a danger, and she still agrees with that statement.
Nel asks Dr. Vorster what documents or witnesses she had available to her to establish Oscar’s version of events. She says she did not have access to the court docket, the bail application, or witnesses. She only relied on her interviews with Oscar and she did have available to her a report by Dr. Richard Holmes. Nel asks if the state of Oscar’s case, his evidence, or the multiple versions he has presented, ever came up during their interviews. She says, no.
Nel asks, he wanted to shoot an intruder? Dr. Vorster says, yes, that’s what he told me. Nel also asks, his deep remorse is because it wasn’t an intruder that he shot, but because it was Reeva? Dr. Vorster says, yes.
Nel asks to adjourn, provisionally excuse Dr. Vorster, and he will bring the application forward. If the case is referred (meaning Oscar gets sent for evaluation), then that’s the end of the evidence with Vorster. But if it’s not referred, then he might continue with her. The Judge agrees.
But Roux objects, you can’t deprive me of the right to reexamine the witness. He doesn’t want to argue this point in front of her so the Judge asks the witness to wait outside. While Roux is adamantly arguing his point against this application, Brian Webber looks like he’s having a baby behind Roux. Somebody might need to refer him; I think he has GAD too.
Roux wants Nel to first finish his cross-examination, so he can then reexamine, and then Nel can bring forth the application (which they will object to). They go back and forth on this for a while and then take a ten minute break so Nel can consider what he wants to do. When they come back, he asks to adjourn for the day. Vorster will return tomorrow.
Oscar Trial – Day 28, May 9 WOLMARANS
“Wollie” Wolmarans is back on the stand for more direct examination. They pick up with his findings from his report.
They begin with bullet hole B which he believes caused the right upper arm wound. The wounds that were seen on the upper right anterior chest could be related to entrance and exit wounds to the right upper arm. The height of these wounds is approximately 117cm above the heel of the right foot, according to Saayman’s measurements.
There were secondary wounds seen around the entrance on the arm which was likely caused by wood splintering. On the underside of the arm were one very large exit wound and a smaller exit wound caused by the humerus bone being fractured and fragments exiting. However, there were no small secondary wounds from wood splintering seen on the underside of the arm since that portion of the arm was facing inward toward her chest. There were also wood splinters found in the right forearm.
Wollie reiterates that the pattern of the splintering on the arm is consistent with the arm being 6-20cm away from the door, as shown on the witness boards in their testing.
The head wound could have been caused by bullet hole C or D. It is Wollie’s opinion that the deceased was not in a standing position when the head wounds were inflicted. This is due to the fact that the holes in the door are in a lower position, maximum height 104cm.
The wounds are consistent with the deceased falling down in the right side area of the toilet bowl. Due to the absence of abrasions or secondary wounds to the head and face, it can be inferred that the deceased was probably further than 60cm away from the door at the time of sustaining the head wounds.
The wound to the webbing on the left hand could have been caused by bullet hole C or D. It could have gone through the webbing and hit mark E on the wall… Or…. It could have been the bullet that caused the head wound. If it was the one that caused the head wound then he does not believe that the left hand was on her head at the time, as testified by Mangena.
Wollie says that if the hand was on the head then he would have expected the exit wound to cause secondary injuries to the inside of her hand since there were fragments of bullet exiting from that wound.
Furthermore, if the hand was covering part of the head then he would not have expected the brain tissue to have traveled as far as it did against the toilet lid. The hand would have blocked it and the matter would be on the inside of the hand which it was not.
There was also a lack of secondary wounds by wood splintering on the left hand, therefore the hand was likely more than 60cm away from the door when hit.
According to Mangena, the only bullet that could have caused the injury to Reeva’s back was the bullet that impacted at mark E on the wall and ricocheted to mark F.
Although Wollie disagrees that a ricocheting bullet caused the injury to the back, he does agree with Mangena that none of the bullets that hit Reeva in the hip, arm and head could have impacted the wall at mark E or F. He believes that the two abrasions on Reeva’s back were consistent with her falling against a hard, blunt surface. He does not believe that the bullet that hit at mark E and ricocheted to F could have caused that back injury.
The following bullet fragments listed below were found by police. (Each unused bullet has a total of 6 grooves):
• Fragment B1 is a fragmented jacket. It has 2 grooves. It weighed 13.3 grains. It was found next to the cricket bat in the bathroom.
• Fragment B2 is a fragmented jacket. It has 2 grooves. It weighed 9.8 grains. It was found between the toilet door and the toilet bowl. (If standing looking at the bowl, it was to the left of the bowl)
• Fragment B3 is part of a jacket and a fragmented core. The combined weight is 47 grains. It was found at the entrance to the toilet room, on the right hand side, close to the door frame.
• Fragment B4A is a fragmented jacket. It has 3 grooves. It weighed 13.7 grains.
• Fragment B4B is a fragmented jacket. It has 4 grooves. It weighed 11.5 grains.
• Fragments B4A and B4B cannot be from the same bullet as they have a combined total of 7 grooves, which is one too many for a full bullet.
• Fragment B4C is a fragmented core. It weighed 20.1 grains. According to Mangena this is a fragment of the bullet from the head wound, and Wollie agrees.
• Fragment B4D is a fragmented core. It weighed 13.2 grains.
• Fragment H is a fragmented jacket that was found in the vest (tank top) of the deceased. It has 2 grooves. It weighed 17.2 grains.
• Fragment J had a core that weighed 70.5 grains, and its fragmented jacket weighed 23.1 grains. Combined weight is 93.6 grains. This was found in the head of the deceased. It is likely that fragment B4C is the remaining portion of the core from the same bullet.
• Fragment K is the core that was found in the toilet bowl by Wollie. The weight was 65.9 grains.
Wollie refers now to a photo that has 3 circles, depicting 3 fragments that were found. However, he states that the exhibit that was given to him by Mangena had 4 fragments, not 3. He believes that one of the dots seen at the top of the photo is a fragment and was not captured in this photo.
He is now going through all of the fragments listed above and linking them to the wounds.
The bullet that caused the hip wound did not exit. No fragments were retrieved from that wound.
The bullet that caused the head wound consisted of fragment B4C and fragment J. The combined weight was 113.7 grains. That leaves 13.3 grains of the bullet that were unaccounted for.
The bullet that penetrated the right upper arm and caused the injuries to the upper chest would have broken up once it penetrated flesh and bone. He says that a Ranger bullet would have reacted the same as a Black Talon, so it sounds like he is saying that Oscar actually used Ranger bullet(s) not Black Talons. The bullet that hit her arm consisted of Fragment H. The remaining portion of the bullet fragments were unaccounted for and would have been very small.
Fragment K, which impacted at mark E and F (the one that Mangena states hit Reeva’s back), was found in the toilet bowl. The remaining portion of this bullet may be B4A and B4D… Or… B4B and B4D.
The bullet that hit at E and ricocheted to F, would have lost most of its energy once it impacted at point F, and fallen in to the toilet bowl along with a piece of tile. It would not have enough remaining energy to cause the back injuries, nor would it have been able to hit the back and then bounce off her in to the toilet. This trajectory would not be possible according to Wollie.
Wollie says that if the back had been hit by bullet fragments, the fragments would have damaged the fabric of the top which it did not do. The wounds are also inconsistent with wounds caused by this type of ammunition.
Wollie’s conclusion is that the back wounds were caused by the back coming in to contact with a hard surface while falling down. The only thing that could have caused them was the magazine rack. He points out that Saayman’s report stated that the injuries could have been caused by a blunt object.
For the bullet injuries, Wollie came to the following conclusions:
The pattern of wood splinters from the door on the hip and the indicate that Reeva was in close proximity to the door when she received those injuries. The distance of her arm from the door was probably between 6 and 20cm.
When Reeva sustained the wounds to her head and left finger, she was not in close promixity to the door according to the absence of secondary abrasions that would have been caused by wood splinters. He is uncertain which bullet caused the injury to the web of the left finger but it would probably be B. Or it could have also been in line with the bullet that hit her in the head.
According to the trajectories of the bullet holes in the door, Wollie agrees with Mangena that the accused was on his stumps when the shots were fired. The version of the accused, that he shot from the entrance to the bathroom, is consistent with the trajectories. Primer residue was also found on the light switch by the police. The cartridges found near the entrance to the bathroom also support his shooting position.
Wollie agrees with Vermuelen that the cricket bat was used to strike the upper door panel of the toilet door, in order to break it open. He also agrees with Vermuelen that the door was first damaged by the four shots that perforated the door, and then after by the cricket bat.
On March 21, 2014, at 21:00, sound recordings of a cricket bat and 9mm gun were conducted at the Bluegum Valley Shooting Range. (Remember, this is AFTER the trial had already begun.) The purpose of this testing was to determine the resemblance, if any, to the sounds of the cricket bat striking the door and the firearm firing shots.
They used a door that was removed from the Silverwoods estate. The firearm used was a Taurus 9mm pistol. The ammunition was 127 grain Ranger without the black tip.
They recorded the sounds of the bat striking the door, and the firearm shooting from 60 meters and 180 meters from the door.
The following people were involved in conducting these tests and recordings: Dixon, van der Westhuisen, Andre Hertha, Mr. Hertha’s assistant Dick Smith and Wollie. Hertha from Montana Studios performed the sound recordings. Wollie gives details to the court about the type and brand of recording equipment used.
Wollie then states that the firearm malfunctioned after each shot resulting in only one shot that could be recorded at the time with manual reloading. In order to record shots fired in quick succession, a second recording was conducted on April 9, 2014, at the same shooting range and by using the same recording equipment. The new gun used was similar to the Taurus previously used. The cricket bat was not used. The people present were Andre Hertha, Rikus Kruger, and Wollie.
On March 21, 2014, during the testing, Wollie positioned himself at each distance. At both distances, the door was struck by the cricket bat and a shot was also fired. Wollie states that although he is not a sound expert, as a ballistics expert he can say that the sounds made by the cricket bat resembled the sound made by the firearm, although not as loud. He must also point out that he has Tinnitus (constant ringing in the ears) caused by experiencing a lot of shooting in his career. So his hearing is impaired.
Roux asks Wollie what his involvement was in the testing of the piece of prosthetic foot. He says he went with van der Westhuisen on February 27, 2013, to Arnold Pistorius’ house and van der Westhuisen cut the piece out of the right foot on the prosthesis. He stored it in an envelope, sealed it and marked it. The piece was given to Wollie. On March 1, 2013, Wollie gave it back to van der Westhuisen and he then gave it to Dixon. Roux asks if they confirmed that the leg was indeed the leg that was worn on February 13 and 14, 2013, and Wollie says “that’s what he told me.”
Roux rests and Nel is up.
The State begins by taking the Judge and her assessors on a field trip to the door in court. Mangena has his laser pointer set up to demonstrate the bullet hole B trajectory through the door. The red piece of tape depicts mark E on the wall.
Roux wants to put on record that hole B aligns with mark E from where the laser was placed. He assumes that the laser test was also done with the other bullet holes in relation to mark E.
Nel asks Wollie if he was in court when Professor Botha testified. He says yes. He was also in court for a portion of the time when Roger Dixon testified. Nel says that Dixon was excused from court on April 16, 2014, and he notices that Wollie’s report was dated April 23, 2014. Nel wants to know if this is the only report he furnished, or just the latest. Wollie says it was an on-going report.
Wollie states that when he first arrived on the scene to conduct his investigation, the scene was not in the same condition anymore. He mostly gave verbal reports to the legal team. As the investigation went on and he got more information, he made his report. Nel asks if he furnished other written reports that he had signed off on and gave to the Defense. Wollie answers, “not really.” Nel wants to know what “not really” means. Wollie stumbles and repeats that most of his reports were verbal, but this report he wrote and he kept the Defense informed as he went on. He was tripping over his words and I really got the impression that he didn’t want to answer that question directly.
Nel tells him this is not a difficult question and he hasn’t answered it. Wollie says he thinks he has answered it but the Judge interjects because she was obviously not satisfied with his answer. Even speaking with her, Wollie stutters more than usual and can’t give a direct answer. He explains that he worked on the report as he went along. And then he throws out there that his English is not very good. It totally reminded me of how when Oscar was cornered by a question on the stand, he would either cry, say he made a mistake or say that he “didn’t have time to think.” It’s that same nervous deflection that Wollie is doing here. He even giggles as he is trying to explain his reports to the Judge.
So Nel says, I hear your answer and you are telling us that you have furnished written, signed reports to the Defense before this one. Wollie answers that he’s never signed another report, he just sent some notes at one or two stages to the legal team. The same answer that Roger Dixon gave on the stand. Nel doesn’t want to talk about notes, he wants to talk about reports. Has he furnished a report to the Defense prior to this one? Wollie shakes his head and says, “not that I can remember.”
How freaking hard is it to remember when or if you sent a report to the Defense team that hired you? The frequency of evasiveness in this Defense team is very troubling. I really think that Wollie is full of it when he says that he didn’t do a report prior to this one from April 2014. Does he really expect the Judge to believe that the Defense ballistics expert did not have a report ready prior to the beginning of trial? Remember, trial started in March 2014. His report was dated and signed just two weeks ago.
Finally… Wollie admits that there was another written report prior to this one that was furnished to the Defense. Nel asks for a copy; Wollie says he doesn’t have one. Nel asks, why? Why would you not want us to see your earlier report? Wollie seems very annoyed, he says that most of it was to amend mistakes… nothing was really different… he repeated himself in one spot and he edited it.
Wollie is completely bamboozled as to why the court would want to see his earlier report. Nel asks, “as an expert, you wouldn’t mind the courts to see the reports that you furnished?” Wollie is trying to explain that his science is like building a puzzle. As it went on, things have changed.
Now, I certainly can’t read body language, it’s just my speculation, but the Judge looked pretty annoyed to me during this exchange. I can’t imagine she is happy with yet another late set of reports from the Defense.
Nel says, this is why we want to see your earlier report. The court should be able to see how your views have changed over time. Wollie says the first time he went to the scene, the door was not there nor were the exhibits there. He couldn’t come to any conclusion with a scene that was not complete. Wollie says he was originally hired just to determine if Oscar was on his stumps and from what distance he fired the gun. The other stuff came later on.
Nel asks him, as an independent expert consultant, does he have a filing system in his office? Wollie says that his filing system is on his computer “most of the time.” Again… Nel wants to know what “most of the time” means. Why can’t he give a direct answer? He asks again, do you have a filing system? Wollie answers, no.
Nel asks him if the court wanted to gain access to his original reports, how would they do that? Wollie says he altered it because of his English and he was assisted to alter his report. Wollie then says he discussed the report with them (the Defense), but he’s not sure that he handed it to them.
He remembers there was a consultation with Oldwage and the report was just briefly discussed. After more prodding by Nel, Wollie says the report was on his computer. Nel asks if he emailed it to the Defense. Wollie says it was too big to email. Nel asks if he saved that copy. Wollie says no, he altered it.
Good grief. This is painful!
Nel asks him quite directly – “did you change your report because of consultation?” Wollie is still stuttering all over the place and says he has already told the court that he was helped with his English but he was never asked to alter his report to suit the Defense case.
Nel asks about the sound tests done on March 21, 2014. He wants to know if this was the first time they tested the bat and gun sounds? Wollie answers yes, he cannot recall doing any other tests with a bat and a gun prior to that. Nel asks did you do any other sound tests prior to that? Wollie answers at that stage there was a person who had done some decibel tests on hitting the door. Nel looks pretty shocked by this information.
Nel wants to know when this test was done. Wollie says he would need to look up the date but it was probably about two months ago. Nel asks if he was present. He says he was present. It was done at Arnold Pistorius’ house.
A similar door was inserted in to a door frame and a cricket bat was used to hit the door. Unfortunately the test did not work out because the door was not fitted properly and it moved. The whole exercise was a mishap. Wollie says he was not a part of the test, he was just present. He reminds the court that he’s not a sound expert. Nel tells him that he’s not going to test him on anything as far as sound is concerned, but has some questions relating to his physical presence at the test.
Nel wants to know who was present for the test. Wollie believes a Mr. Milan(?), an artisan who helped to fit the door in to the frame, Oscar, Uncle Arnold, and Wollie.
Oscar was the one who hit the door with the bat for the test. Wollie says again, he cannot testify about the decibel tests done but the reason why the test was done there was because they wanted to do it inside in a room.
Nel asks if there were decibel tests done when they were at the shooting range both times. Wollie says no. He wants to point out to the Judge again that he is not a sound expert. He was only there at those tests to supervise and provide direction. The idea of the tests at the range only came up because of a video that was seen on YouTube. Here is the video.
Roux does not look thrilled at this discussion.
Nel asks Wollie if he met with Dixon after he was excused from court on April 16, 2014. Wollie says yes. Dixon had a thorough cross-examination and Wollie thought he would take him for a beer. He met with him one more time after that, possibly twice. One time was at his house and another time was somewhere he can’t remember. He’s getting squirmy again.
Nel asks if he discussed the case with Dixon. Wollie says it’s highly improbable that they didn’t discuss the matter. Nel wants to know if after hearing Dixon’s evidence, did he change anything in his report. Wollie says it’s a possibility that he’s changed things in his report but not after he discussed things with Dixon. He says “Mr. Dixon is not a ballistics expert so I would not take his advice to change my report.”
Nel says, that’s interesting. So the court should throw out everything Dixon said about ballistics? More stuttering and more confusion from Wollie. Ultimately Wollie says that Dixon may have his opinion on the ballistics, but it would not be the same as his opinion.
Nel asks Wollie if he consulted with Oscar about the shooting incident. He answers that he first met Oscar the day when the piece of his prosthetic foot was cut out. They were not there for more than an hour. He also took a measurement of the height of Oscar’s arm with and without the prosthesis on. Up until today, he has never consulted with Oscar. But… Oscar was present at consultation where questions were put to him by the legal team, but he has never consulted with him directly on what happened that night. That’s a crafty way of getting info out of Oscar without having to say you consulted with him.
As Nel is asking Wollie more questions about the interaction he had with Oscar during consultation, Wollie mentions that at one point he (Wollie) was talking about something and pulled up a picture of the deceased on his phone. Oscar went out of the room to vomit and never came back.
This makes Nel pretty angry. He says that Wollie is showing his bias and he just wanted to tell the court that Oscar vomited. Wollie says he is not biased. He sees himself as a witness of the court and he’s there to assist wherever he can. He says he’s never lied in court.
Nel asks him if a court has ever rejected his evidence. Wollie recounts that there were a few cases where his evidence was rejected, one very recently, but he can’t say which ones they were. Nel tells the court which case it was recently and Wollie tries to explain the situation. It was a case that Mangena testified in as well. Mangena listens on with an interesting look.
Nel says on March 8, 2013, Wollie went to the crime scene and Mangena was there. Mangena reconstructed the scene. Wollie made observations while he was there and he took photographs as well. He gave verbal reports to the Defense of what was done that day.
Nel wants to know who gave Wollie the information about Oscar’s position in the bathroom when he fired the shots. Wollie answers, Mangena gave him that information. Wollie primarily agreed with Mangena on Oscar’s position when he fired.
Nel shows Wollie the photo of Mangena’s laser at the crime scene and wants to know if he agrees that Oscar shot from this position. Wollie says this is approximately the position. He can’t say exactly, but yes it is approximately correct.
The next photo shows the laser again, this time with the door closed.
The laser is positioned at exactly 2.2 meters and it is going through hole B. Wollie hasn’t measured the distances but he’ll accept that what Nel is telling him is correct. He also adds in that he has great respect for Mangena, and believes Mangena has the same for him.
Nel points out on the photo that if Oscar were to move any more to the right, the wall (separating the sinks and the passageway) would be in the way. Wollie agrees; Oscar would be going out the passage at that point if he moved more to the right.
Nel then says if you moved the laser slightly forward and to the right to go through hole C, you will not hit mark E. Wollie goes around and around with Nel on whether or not this is possible and can’t really answer the question. So Nel asks him a different way. He asks, do you agree with Mangena that bullet hole A hit Reeva in the hip. He agrees. They all agree that was the first shot.
Oscar seems really annoyed now, hand leaning on his head, waving his hand towards his attorneys and I believe he passed a note too. Maybe he’s not enjoying the Wollie show so much at this point.
Nel then establishes with Wollie that Reeva would have collapsed and fell to the right after the hip shot.
He also establishes that two more shots hit her, one in the head and one in the arm (he instructs Wollie to forget about the finger for now). Wollie agrees with all thus far. Nel goes on to say that we all agree in all probability that the head shot was last.
Nel then says that Dixon gave evidence that his version was bullet hole C caused mark E. Wollie says his opinion is that it was C or D, but he can’t say specifically that it was C. Wollie won’t say that Dixon is wrong, he’ll only say he’s half way wrong (and he giggles).
Nel wants Wollie to act out Reeva’s movements as she is shot. Wollie says he can, but he can’t move well due to a recent back operation. So he mainly just acts out the arm shot.
Wollie points out that hole A hit her in the right hip and then she would be falling, but hole B needs to line up with her right arm wound and the exit wound on the arm needs to line up with the abrasions on her chest… so she needs to be leaning over in order for these things to line up.
Nel points out that if the bullet from hole B hit her right arm at 6-20cm away from the door as she is falling over, and all of the holes line up properly there is no place for her head to go. It would be through the wall. Wollie doesn’t understand. My opinion, he chooses not to understand… or he’s too rusty at this point to pick up on these important details.
Wollie can’t figure out any other way the splinters could be around the arm wound other than her being close to the door.
They look at the next photo which shows the rods in the door as seen from inside the toilet room and they point out hole B (the second from the right).
Nel takes him through his sequence of positions again and ultimately points out that if her right side is facing the door and she is falling down, she could never have ended up where she ended on top of the toilet. Wollie disagrees. He says anything could have happened in that toilet room.
Nel tells him he’s right, anything is possible in the world. But the court deals with probabilities, not possibilities.
Wollie believes that these shots happened in quick succession. Nel asks him why. He says, for all of this to happen. Nel wants to know if he asked Oscar how he fired. He says no. Nel also asks Wollie if he was present in court when Oscar explained how he fired. Wollie says no he was not in court during that time. Nel wants to know, outside of court, wouldn’t it have been important for him to know how Oscar fired? Wollie believes that Roux told him about the quick succession shots.
Nel wants to know if he will agree with him that the head wound bled in to the toilet and the arm wound bled on the floor to the right side of the toilet. Wollie agrees. He says that the blood near the magazine rack was from the arm wound.
Nel says, the one thing that Dixon was correct on was that the magazine rack was in the position that is seen on the photographs. Wollie agrees that it was there.
Wollie says, that is one thing that he had to look after when Dixon testified (the position of the rack). He agrees with him because the mark from the foot of the magazine rack was seen in the blood. The rack was there when she bled. Wollie says that is common sense.
Nel tells Wollie that it is not Oscar’s version that the rack was there. Nel asks, so the accused must be wrong? Wollie says it’s his version that the rack was not there. Meaning that he obviously does not agree with Oscar, he just can’t directly say that.
Nel also establishes with Wollie that the head must have been very close to the toilet lid when hit due to the tissue and broken hair on the lid. Nel also points out that there is body tissue on the back wall, near the marks E and F. Wollie agrees.
Nel moves on to the back injury. Wollie says that he ruled out the fragments being the cause of the injury because the type of abrasion is not consistent with these fragments. The injuries on her chest are consistent with fragments, but not on the back.
They look at a photo and Wollie identifies this fragment as the core that he retrieved from the toilet.
Next they look at a close-up of the injury on the back.
And finally, they look at the photos side by side.
Wollie pretty adamantly says he does not see the similarity so Nel makes it clearer for him. Nel says, the rounded and uneven area of the core (around the edge) is what caused the bruise.. Wollie says he really does not see the resemblance. He is getting exasperated and annoyed now, and pointing to various things on the photos disagreeing with Nel. But, in my opinion, anybody with two functional eyes can see that this fragment very possibly, and in all likelihood, caused that bruise.
Nel tells him that we have to take in to account that she had a top on. Wollie and Nel agree that the top was in position (meaning it was covering that portion of the back when it became injured). Nel wants to know if Wollie excludes the fabric of the vest being the cause of the striations. Wollie says he’s only seen photos of the top, he has never seen it in person so he can’t really make a determination if that caused the striations.
Wollie does however agree that one needs some sort of edge to cause a striation. He also agrees that the magazine rack is smooth. So the magazine rack can’t be the cause of the striations alone, since it is smooth, but it possibly could be the cause if you couple it with the shirt. One could then also surmise that if you couple the shirt with a bullet fragment that could also be the cause of striations.
When they resume after lunch, the video feed had cut out once again so I missed a portion of how the questioning started but they are talking about the trajectory of the shots.
Nel is focusing on bullet hole B. He states it is 104cm from the ground. Reeva’s wounds on her arm and upper chest are higher than that. The trajectory of the bullets in the door, as proven by the rods, is a downward trajectory. Wollie is saying that it is possible that Oscar’s arm was in a lower position, below his line of sight, and the bullets could have had an upward trajectory after going through the door. Deflection could be a factor in that. Nel tells him that is impossible. Wollie says the wood of the door could have more resistance in certain areas than other. The bullet could have gone in at a downward trajectory but come out upward. Wollie says the probes in the holes are not accurate because they can alter the hole when they go through, also the door was hung and rehung a few times so things may not have been lined up properly.
Wollie then references a photo where there is a probe inserted in to one of the wounds on Reeva’s body and he states that it’s in an upwards trajectory. They do not show the photo on camera. Nel says the probe in this wound is much smaller than the wound itself. Wollie says his evidence is only based on the photo, he was not present for the autopsy nor did he ever ask Dr. Perumal about this. He only saw Perumal once, and as we all know, the Defense did not have Perumal testify. Nel asks him why he would put something in his report without first discussing it with the doctor who provided the information. Wollie answers, “he never had the opportunity to discuss it with him.”
Nel then reads from Wollie’s report, “if regard is had to the above (deflection), any of the bullets entering positions A, B, C and D on the toilet door could have caused the mark at E.” Nel asks Wollie if he has done it (meaning link all of the holes himself to mark E). Wollie says, no he did not because he didn’t know the degree of deflection. Nel asks if he tried a laser. Wollie says he did but none of the holes ended up at mark E. Nel then asks the following: “If Capt Mangena can get the laser through B to E, why could you not do it?” Wollie gets confused and then says that he did not say he wasn’t able to. Nel points out that he just told us that he was not able to match them up. So then Wollie changes his answer to say that he could link B very near to E, but could not get it on the exact spot.
Wollie then goes on to say that when you put the laser through the door, the beam is very clear to see as its going through the hole but as the laser nears the wall it breaks up a bit. He believes there is some sort of distortion with the laser. Nel challenges him on this and wants to make sure that he agrees that a laser cannot be deflected, Wollie agrees.
I’m not sure what exactly Wollie is trying to say here. I think he’s just trying to muddy the waters with some silly argument about the efficacy of the laser but I think it falls flat. Wollie admits that he was there at the scene when Mangena put the laser through hole B and hit mark E. He saw it with his own eyes so he can’t accurately argue his point.
Nel wants to know where the laser ended up when he tried it through holes A, C and D. Wollie says that one point was on the toilet side of the wall and the other two points were somewhere near F and G. He can’t say where exactly though and he did not write a report on this portion of his testing. Therefore, I don’t know how he can make the statement that any of the bullets entering A, B, C and D could have caused the mark at E, since he was not able to achieve that nor does he have any proof of his testing. It’s either a direct attempt to mislead or just lazy work.
Nel wants to address the decibel tests done at the house of Arnold Pistorius. He wants to know if Wollie has seen the decibel report. Wollie does not answer but instead says he wouldn’t even know how to interpret it since he’s not a sound expert.
After Nel asks again, he says that yes he has seen it. It was not long ago, maybe 2-3 weeks ago that he viewed the report. Then he says that he requested to see it to see if he could make anything out of it, but he’s not a sound expert.
This makes absolutely no sense. Why would he ask to see the report if he’s so adamant that he wouldn’t be able to read it? Wollie claims he just wanted to see it as a matter of interest. Nel wants to know if he wanted to discuss it with somebody and Wollie says no, but obviously that is not true. He must have requested it for a reason.
Nel wants to know if photos were taken that day at Uncle Arnold’s house of Oscar hitting the door with the bat. Wollie says yes photos were taken but he’s not sure about video. He also says that his camera was on the sport setting but the pictures (conveniently) came out too blurry to see.
Nel asks, it was never suggested that they use those decibel tests done at Uncle Arnold’s house rather than going to an open shooting range to do the same testing? Wollie is clearly annoyed. He says he was requested to do the test at the range based on the YouTube video that came up.
Nel asks if Wollie has heard the sound clips played in court. He says, he heard the recordings at the shooting range with headphones on. Nel wants to know what differences he picked up on between the bat and the gun sounds. Wollie would like to state again for the court that he is hard of hearing, but for him the sounds were very similar. He listened to it without his hearing aids on. Nel tells him that you can clearly hear crickets in the background with the bat recording. But with the gunshot, the cricket sounds are very faint and distant. Wollie says he can’t disagree with this. This indicates, as stated by Nel in court before, that the sound people amplified the sounds of the cricket bat tests.
Nel goes back to the topic of deflection and states that Mangena found that the most deflection he could account for was 3%. Wollie does not disagree with this. Nel points out that in order to get from hole A to mark E, you would need a much larger deflection.
Wollie says that factors to consider are that the bullet could have been unstable and could have been the cause of the injury on the left hand, deflecting the bullet. But when Nel challenges him again on deflection and asks him if he can work out how much deflection he needs to hit E from each of the holes, Wollie says he can’t work it out.
Wollie, upon prompting, says he is sure he has photographs of this testing on his computer but he’ll have to look them up. Just a few minutes ago, he testified that he did not have any records of this testing? He is all over the place with his answers.
Nel requests to see photos of the testing he had done on November 8th, and Wollie says yes, he will make them available.
Nel focus now on the ammunition used. He establishes with Wollie that at the time they did their testing on the witness boards, they were still under the impression that Oscar used Black Talon. Nel wants to know if Wollie asked Oscar what type of ammunition he used and Wollie says no, he did not.
The first time that Wollie heard that Black Talon was used was when they were at the scene on March 8, 2013. Professor Saayman was there and he asked Wollie if Black Talon bullets were prohibited and if it’s possible to still get them from a dealer. Wollie then saw some photos of the cartridge cases and without asking anybody else, he assumed they were Black Talon. It was only later on that he established that the bullets were 127 grain and Black Talon was never manufactured in 127 grain, only the Ranger was. Some Rangers have a black tip. Wollie says he established they were not Black Talon by looking online, as well as by speaking with Jason Alexander, the man who created the YouTube video seen earlier.
Nel tells Wollie that it is Mangena’s view that Black Talon was used. Mangena fired both Black Talon and Ranger in to a water tank and although they have the same effect, they are different bullets.
Nel wants to know how Wollie came up with 127 grains. Wollie says he weighed a bullet that was given to him by Mangena. Nel asks Wollie if Mangena can produce information that Black Talon was made in 127 grain, will he concede that Black Talon could have been used? Wollie says yes, if he can produce something from Winchester (the manufacturer), he would concede.
On to the witness boards… Nel wants to know if Wollie agrees that shooting one shot from one distance does not give an accurate disbursement of wood splinters. Wollie agrees but he had a very difficult time finding more Black Talon. If he had more, he would have done more tests. Typically a good norm would be 5 shots at each distance.
Nel looks at the board that was used by Wollie and points out that they were testing very light particles (wood splinters), so he wants to know why they would use this type of thick, hard board instead of paper.
Wollie says the board is better; the particles will just penetrate the paper. Nel says exactly… that is what you should be looking for. Wollie says that paper is not the same as human skin… and obviously his board is also not the same as human skin. Wollie says, this is just the way he has always done it. Nel wants to know if he will agree that smaller particles can be picked up better on paper and Wollie says that he can’t disagree.
Nel wants to know who was present when they did the tests on the board. Wollie answers himself plus van der Westhuisen, Dixon, and possibly Rikus Kruger.
Nel goes back to the arm injuries. He points out that Reeva’s forearm has a wide area of splinters on it. Wollie is trying to make it seem smaller, but Nel tells him to just look at the photo (which we can’t see) and they both agree that it is a wide area of splinters.
Nel says this means that the splinters must have spread in order to do that. Wollie says that is a possibility. He concedes that the arm may have been a little bit further away from the door.
Nel wants to know “further than what?” Wollie says she could have been as close as 6-20cm but no further than 60cm. So Nel says, after seeing this photo, you agree that it is possible that she could have been 55cm away from the door when her arm was hit and Wollie says, correct.
Nel wants to know in light of this (above), does this change his reconstruction with hole B. Wollie is defensive again. He basically says that it’s very difficult to come to a precise conclusion on what her position was behind the door. He agrees that since her face and hand did not have splinters, those injuries occurred further away. As for the other injuries with splinters, it’s basically an estimate on her distance. He makes it very clear that he does not want to be pinned down on any specific measurements or conclusions.
Now addressing the back injury again, Nel says that if Reeva is sitting on the magazine rack leaning over with her head near the toilet (but facing the door)… the bullet that hit mark E and ricocheted to mark F could then have come down and hit her on the back. Wollie won’t say it’s impossible, but then he wouldn’t expect the bullet to land in the toilet if that was the case. Nel says that the toilet room is so small and with Reeva hunched over the toilet and in alignment with the toilet, it’s possible it could have ricocheted off her back and landed in the toilet bowl. Wollie doesn’t think that’s possible.
Nel asks Wollie about the testing done at the shooting range and wants to address what happened with the gun that malfunctioned. Wollie says that he believes the type of firearm that they were using was not very friendly with that type of ammunition. Sometimes the ramp of the gun is not very smooth and the bullet can stick due to its shape. This is one reason that he believes is likely.
Nel says, doesn’t this type of firearm have a very short ramp where the bullet basically goes straight from the magazine in to the barrel? Wollie says he’s not sure, for some reason the firearm did not function. This answer is strange to me considering he is a very well know and well respected ballistics expert with years of experience. Shouldn’t he be able to inspect that firearm and know what the issue is?
Nel says, it’s possible that there wasn’t enough propellant powder in the ammunition to force the gun to cycle and Wollie agrees, that is also a possibility. But Wollie does know that Oscar’s weapon did work with this type of ammunition.
Wollie says the bullets were given to him from a box with the name Ranger on it and it didn’t appear to be self-loaded ammunition. Another reason he cites for possible malfunction is that the ammunition could be old and not stored properly.
Nel wants to know how many shots they fired that night at the range. Wollie can’t remember, and he’s stuttering badly now and his sentence doesn’t make any sense. He first says that it was only a few rounds with Black Talon. But then he says he remembers that he bought the Ranger bullets but they did not have the black tip. It could not have been more than 10 shots.
Nel says, well then we can exclude that it was old ammunition because you just told us that you bought it. Wollie says he made a mistake earlier and yes, it was fresh ammunition. He now remembers buying it.
Nel asks if they tried to fix the gun. Again… Wollie is annoyed and defensive. He says they were out in the dark and had no tools, so no he could not fix it.
I’ve said this before in an earlier post and I’ll say it again, their reasoning to go back to the range to re-shoot and re-record in April 2014, was only because they switched their story from double taps to rapid succession and they needed the sound testing to support it. This whole gun-jamming business, plus a seasoned gun expert who can’t properly conduct the test, and the fact that nobody knows where the dysfunctional gun is now are one big red flag for me.
Nel concludes today with discussing the magazine rack and points out that the rack is smooth. Wollie agrees. He has examined that rack and has seen the photos of the injury and he can’t see how that smooth surface would cause the striations. Nel asks him, based on the location of the back injury and the magazine rack being on the floor, does he agree that Reeva was low to the ground? Wollie agrees.
So Nel ponders that if she was low down, wouldn’t she have had to get up again to end up slumped on the toilet. Wollie says he doesn’t know exactly in what position she was found. He agrees that the scene indicates her head was on the toilet. He believes that if she was sitting on the floor, she could have achieved that position. But Nel says that if she’s sitting on the floor, the bullet holes are too high. Wollie says that his evidence is that she was falling down while the shots were fired.
But he still has the problem of the tissue and hair on the toilet lid, and the lack of high velocity spatter on the walls that would have been seen if her head was higher up when shot. Wollie is obviously not factoring this in.
Nel asks Wollie again if he would be willing to share with the court his photographs from the November 8, 2013, testing that he did at the scene and Wollie says yes, he will share them.
They adjourn for the weekend and sounds like we’ll be subjected to more Wollie on Monday.
This was a rough stretch of testimony to get through! Not just because of language barrier issues, but because Wollie seemed to want to dodge a lot of information. I’m disappointed. I have heard so many people talk about how great this guy was back in the day but it seems to me that he is really off his game now and I have to wonder if he is regretting getting involved with this case. He seemed so defensive and annoyed throughout most of the cross-examination, yet there are glimmers of a man who wants to be honest and thorough. That’s just my impression of him. I find myself almost feeling sorry for anybody who has to deal with this Defense team. Surely it’s a nightmare with all of Oscar’s ever-changing versions.
Before concluding, Roux asks the Judge to make an order about keeping some of the “sensitive” photos from Wollie’s report private, which she grants. But let’s be honest, it’s not a sensitivity issue. I’m sure the only reason the Defense wants these photos to be private is because they don’t want the world to see exactly what Oscar did.
Oscar Trial – Day 27, May 8 LUNDGREN, VAN SCHALKWYK, WOLMARANS
After court on Tuesday, May 6, it was reported that Oscar whispered to Kim Myers, “how do you sleep at night?” while walking past her in the gallery. Reeva was very close to the Myers family and had been living with them in Johannesburg since September 2012. It is not known why Oscar made that comment to Kim, but it was witnessed by other people in court. Kim’s father, Cecil Myers, had previously talked to the press about Reeva and her relationship with Oscar, but that had been several months before. More details about the comment that Oscar made in court, as well as details about the Myers family, can be found at the links below.
http://www.latimes.com/world/africa/la-fg-south-africa-pistorius-remark-20140506-story.html
http://www.citypress.co.za/news/i-could-have-saved-reeva/
When they resumed court today, Mark Batchelor was seen sitting next to the Myers family providing a human barricade between them and the Pistorius clan. To read more about Mr. Batchelor, see my post for Day 20 of the trial. He was a part of the argument with Mr. Quinton van der Burgh over Samantha Taylor.
He is the large, blonde man seated on the right.
The first witness today is Professor Christina Lundgren. She is an anesthetist who will speak about the topic of gastric emptying. She has been practicing since 1979.
She testifies that one of the most dangerous complications of general anesthesia is the regurgitation of stomach contacts in to the pharynx and then aspiration in to the lungs. She says this is an absolute disaster when this happens during surgery but there are many measures that can be taken to avoid this. They try to make sure that the patient’s stomach is empty when they arrive for surgery so they assign time periods in which the person is not to eat and/or drink certain liquids.
Prior to anesthesia, the doctors need to define the timing of the last meal along with the volume (last oral intake). They also take in to account the injuries, such as a head injury, because there are physiological factors that can delay stomach emptying.
SA does not have their own guidelines for oral intake prior to surgery therefore they follow the standard guidelines of other countries. Patients are given instruction on what they can eat and drink prior to surgery.
She states that 10% of a low fat meal will typically remain in the stomach after four hours. And even when the guidelines are followed, it’s not always an exact science. She gave an example of one of her patients who had not eaten solid foods for many hours and still regurgitated food under anesthesia.
There are many internal and external factors that may affect stomach emptying including neurological, emotional and hormonal interactions. Pain and anxiety in particular can delay the process.
It’s been thought very recently that pre-menopausal women may also delay emptying.
Sleep is an accepted factor that can also cause stomach emptying delay. Smoking delays it as well. Alcohol may delay or increase the process. And diseases also need to be taken in to account.
Psychological and eating disorders, prescription medications, recreational drugs and slimming aids are additional causes for gastric emptying delay.
The professor then continues by saying that she was asked to be there today to comment on the stomach contents for the deceased. She would like to state that she is a practicing clinician; she is not a forensic pathologist.
The evidence (from Oscar) indicates that Reeva ate a chicken stir fry dinner at approximately 7-8pm on February 13, 2013. The professor says that in her professional opinion, the factors that may have affected emptying in this case are: the meal contained insoluble fiber, Reeva was pre-menopausal, not known if she was on medication, she had performed yoga that night, not known if she had bulimia or anorexia, and it was stated that she had slept that evening. All of these could have had an effect on her stomach contents.
She then states in an ideal world, after 6 hours of fasting after the meal, her stomach should have probably been empty. But there are so many unknowns that she cannot state anything as fact. It’s only speculative.
The professor states that she did consult with a gastroenterologist who agreed with her findings.
Nel objects and states that is pure hearsay (to state that an unnamed gastroenterologist agrees with her). Roux accepts that and agrees. The Judge expunges it from the record.
Roux then refers to two publications that support her findings.
Roux rests and Nel is up. He asks for a brief adjournment, as he only just received the Professor’s report today.
Nel starts by saying to the Professor that he believes her information is balanced, and there are many things that he agrees with. But there are a few things that he will need to test. He asks her if she has read Professor Saayman’s evidence. She says yes.
Professor Saayman.
Nel points out to her that all of the possible causes of stomach emptying that she mentioned earlier are not based on facts or known conditions, just possible causes (with the exception of Reeva being pre-menopausal). She agrees that she doesn’t know whether or not those conditions applied to Reeva.
Nel asks her if she has read Professor Botha’s evidence. She says yes.
Nel points out that Professor Saayman said that gastric emptying is not an exact science. She agrees. He also said there are indeed fairly good timelines that have been established from physiological guidelines. She agrees. And this is important because, as stated above, surgeons need to make sure that the stomach is empty so the patient does not regurgitate under anesthesia.
The professor then says it is commonly accepted amongst her peers that 4 hours for solid food may well be insufficient for emptying and a minimum of 6 hours is required.
The professor agrees with Saayman’s statement that the content of the food is also relevant to emptying. She adds, particularly the fat, carbohydrate and insoluble fiber content. The next relevant factor is the volume of food.
She would like to add that even though in reality, 6 hours is typically enough allowable time for emptying, most surgeons in SA like to be extra conservative for safety purposes and have a longer period of time.
Nel then turns to a page in Saayman’s report that deals with gastric emptying post-mortem and the professor says that is not her area of expertise, so he moves on.
Nel then tells her that under cross-examination, the accused stated that they ate dinner closer to 7pm that evening, and using an approximate time of her being shot around 3am, that is an 8 hour time span in which she did not eat.
He asks her if she has seen a photo of the contents of Reeva’s stomach. She says yes, it was a photo of green, gelatinous substance. Nel wants to know, if Reeva was just a normal person who had something to eat and went to bed, would she expect that Reeva’s stomach would be empty after 6 hours? She says that she doesn’t believe anybody can categorically state that it would have been empty. Reeva ate stir fry with insoluble fiber and she went to sleep, those are factors that can cause delay, in addition to being pre-menopausal.
Nel asks what is exceptional about a stir fry meal? It’s just chicken and vegetables. Sarcastically he asks, does she warn her patients not to have a stir fry meal before surgery? The gallery chuckles and Nel tells her that he’s not being funny. He wants to know what is so exceptional about this food. She says that she warns all of her patients to eat something light.
Nel goes on to say that Saayman was able to identify that the contents were vegetables (without knowing what she had to eat), and doesn’t that mean that if he can still identify the food that the process has not been taking place very long. She is not able to answer that. All she can say is that the stomach is not empty.
Nel asks if digestion alters the physical nature of the food. She says it does unless it’s insoluble fiber. Nel says, so after 8 hours, one would still be able to identify the food? She asks to see the photo again. He says he’ll show it to her again but he wants to address what Saayman said.
Nel reads from Saayman’s report, “the stomach contains approximately 200ml of partially digested food residue with the appearance of primarily vegetable matter and with a slightly green and grey color. White-ish cheese-like particles may be seen.”
So one day after the shooting, Saayman was still able to identify the meal that Reeva had that prior evening. Nel wants to know what she thinks about that. The professor says that cheese can be a high fat meal and can take a long time to empty, as can insoluble fiber. Nel replies, that’s not the question. He wants to know, wouldn’t you have expected the digestive process to cause the contents to be unrecognizable after 8 hours? She says she can’t answer that. Nel says, Saayman can… and he did.
Nel wants to read one more item from Saayman’s report. It says, “post-mortem, after death, the gastric emptying stops but the physical break down of the food, the digestion because of the enzymes and the hydrochloric acid, etc, continues breaking down the food.” Nel asks her if she has a view on this. She says she is a clinician, she deals with live patients. She has immense respect for Saayman who is a forensic pathologist and his patients are deceased. She did try to find information on the enzymes continuing to work in post-mortem, especially if the body is refrigerated, and she was unable to find any evidence either way.
Nel tells the professor that even though Reeva died sometime around 3am, she remained on the scene for hours until her remains were removed and refrigerated. That should also be taken in to account. The Judge asks Nel for the number of hours that the body remained on the scene. Nel says her body was turned over to the mortuary at 11:45am.
Nel says, taking all of these things in to account, her last meal was not 8 hours before. The professor says, “that’s Professor Saayman’s opinion.”
The professor also says she did not consult with Oscar, but she did read the court transcript of his testimony and that is how she obtained the details about what they ate and the time of the meal.
Nel goes back to the professor’s earlier statement that typically after 4 hours one could expect only 10% of that meal to still be present in the stomach. Considering Reeva was found with 200ml in her stomach, Nel calculates that she must have eaten 2 liters of food 4 hours before death. That is quite a large amount of food and extremely unlikely that Reeva ate that much. The professor does not recall that she was found with 200ml in her stomach, but Nel assures her that measurement is accurate and is in Saayman’s report.
The professor believes that Nel’s assertion of 2 liters of food 4 hours before death is speculative. Nel tells her that she was the one that opened the avenues for speculation (with all of the probable causes of delay in gastric emptying), so he wants her to speculate…
Would she expect Reeva to have taken in 2 liters of food 4 hours before her death? She says she is not aware that Reeva ate food 4 hours before. Nel says, if we then go back 8 hours to when Oscar says she last ate, then she would have taken in 4 liters of food. That is basically impossible.
Nel says the more probable scenario is what Saayman reported; she likely took food 2 hours prior to her death.
She reads from Knight’s resource that it’s not advisable to estimate the last meal from what is found in the stomach at the time of death. She is not prepared to comment on Saayman’s opinion.
Nel asks her if she has given evidence in court before and she says “many times.” Nel says that she should then be aware that the court will take everything in to account and come to a conclusion by themself. Nel asks, “there’s nothing that you’ve seen that the court should reject from Professor Saayman?” Professor Lundgren answers, “that is for the court to decide.”
Good cross-examination by Nel! The main points that he made were:
1. Saayman was able to determine the type of food that was eaten a full day after death, indicating that food had not been in her stomach very long before death.
2. There was still 200ml of food in her stomach. One would expect that after 8 hours of digestion, the volume would either be none or a great deal less than that.
3. After 8 hours of digestion, any remaining food should theoretically be unrecognizable due to stomach enzymes.
4. Saayman is a pathologist. This is his area of expertise. Lundgren is a clinician. Although gastric emptying is relevant to what she does, she is not as qualified to comment as Saayman, nor was she present for the autopsy.
Lundgren is excused.
The next witness is Ingrid van Schalkwyk. In February 2013, she worked with the Dept of Social Development as a social worker. She had been working there since 1989.
On the morning that Oscar first appeared in court on February 15, 2013, the court asked her to speak with Oscar. She was also asked by the court manager to assist Oscar throughout the whole bail application. She believes she was asked to do this to provide emotional support, as well as to monitor his behavior. She was not working on behalf of the Defense.
She was requested by the Defense last year to testify but due to the fact that she didn’t know the merits of the case she didn’t think she could contribute to the case. But after reading what was said during trial, she decided to come forward. She was upset that people were claiming Oscar was putting on a show for court. So she approached the Defense on May 6, 2014, two days prior to her being on the stand.
She states, from the first moment she saw him, Oscar was a man who was heartbroken. He cried and was in mourning. He was very sorry about Reeva’s loss, especially for her parents. Mrs. van Schalkwyk then says “he loved her” and Nel stands up to object.
Nel states this is evidence of a previous consistent statement.
Roux says this witness deals with the State’s assertions that Oscar was fabricating his emotions; that he wasn’t sorry for Reeva, he was only sorry for himself. They are rebutting this assertion.
Nel disagrees. He states that he never said it was a previous inconsistent statement. He says he waited for the witness to testify that he said he’s sorry for Reeva, that he loved Reeva… this is previous consistent statement and it’s inadmissible. He goes on to say that if Roux says it’s about something different, and it’s perhaps just emotions that they are testifying about, then that’s different. But it can’t be about what the accused said.
Roux says you can’t factor the words out of the emotions; that’s the whole package. It is relevant and it’s for the court to decide how much weight they will give to it. He says this testimony is to give the court the full picture of what happened coming from somebody who is independent from the Defense.
Nel says Roux can’t argue it’s not from the Defense side, it’s their witness. Nel says, what somebody says after the incident while distraught is not relevant to the actual charges. Nel says we’re not dealing with sentencing at this point, we’re dealing with the charges.
The Judge believes it is relevant because during cross-examination Nel challenged Oscar about using his emotions as an excuse. Nel says he has objected for the record and if the court feels it is relevant then he can’t take his argument any further.
The Judge allows Mrs. van Schalkwyk to proceed with her testimony. She states that Oscar cried 80% of the time. Oscar expressed to her how he and Reeva had planned for their future. He was worried about what Reeva’s family was going through.
One of the conditions of his bail release was that he needed to be monitored and the social worker had to provide weekly reports. She did this up until the bail conditions changed.
Roux submits her reports in to evidence. The following are some highlights from her reports:
March 1, 2013:
• OP saw a psychologist, Dr. Lore Hartzenberg, for intense therapy. (She is often seen in court)
• OP held a small memorial service for Reeva at his uncle’s house. He was emotionally drained.
• OP is cooperative and motivated to subject to the conditions provided by the court.
• OP was tested for prohibitive substances on Feb 28, 2013, and the results were negative.
• OP is heartbroken. He has a lot of emotions and stress.
Dr. Lore Hartzenberg is the lady in red on the left.
March 8, 2013:
• The psychologist states that OP is still experiencing physical and emotional reactions.
• OP is fully compliant to the conditions.
• He was tested again for substances on March 8, and was negative.
March 15, 2013:
• OP is fully compliant.
• The psychologist met with him again. He is not suicidal as said in the newspaper.
• Even though he is heartbroken, he is coping with the situation.
• He was not tested again for substances.
March 22, 2013:
• He spoke with the psychologist again and she found he is slowly improving and coping with the situation.
• Still working through his heartbrokenness in therapy and also in art therapy.
• He was tested again on March 19, and he was negative for substances.
• He is still compliant with conditions.
It looks like Oscar is still enjoying the art therapy.
Roux asks, aside from Oscar’s crying and the talks that they had, were there other things that she observed during this time? She says he vomited twice. One time when he came out of court he cried uncontrollably and they had to calm him down.
During the bail affidavit she met with him in his cell. After release, they met once at court, once at a facility where he used to train and the remaining times were at his home. (I would assume they mean Uncle Arnold’s and not his own home?)
Roux rests and Nel is up.
Nel says to Mrs. van Schalkwyk, so the first time you met Oscar was right after his court appearance and he was crying and feeling sorry for himself? She says no, she doesn’t agree that he felt sorry for himself. Nel asks her, why? She states that he told her that he suffered a loss, he misses Reeva.
Nel asks, did he say he killed her? She says no. He also asks, did he say he shot her? She says he later on told her that. But Nel wants to know about the first day they met. She says no, he didn’t mention anything about the case and she actually told him that she didn’t want to know about the case.
Nel says, most accused people feel traumatized after they have been arrested. She agrees with that.
Nel asks her if she has dealt with other family murder matters. She says yes. Nel says, those people all act in the same way. She says that when she sees accused people, it is for her report or for pre-trial; it is never directly after arrest so she can’t comment on that. Oscar is the only accused she has ever seen shortly after arrest.
Nel asks, you saw the accused after arrest and he was crying and felt sorry for Reeva? She answers, he said that “he misses Reeva so much.” Those were the first words he said to her. Nel asks, considering he had just shot and killed her the day before, does that make sense? She answers that he told her (not that day, but later on) that he accidentally shot and killed her.
Nel says…. OK. So he told you that he accidentally shot her? Mrs. van Schalkwyk says yes, those are the words that he used.
Nel asks her if she is aware of what his defense is. She says no. Nel tells her that Oscar thought he was under attack by intruders and that is why he fired. Nel tells her that he has changed his story since he talked to you. She says they did not talk about the merits of the case. Later on after he was released on bail, they talked therapeutically about the situation. He told her that he accidentally shot her, and he felt bad because he accidentally shot her.
Nel establishes that Mrs. van Schalkwyk was never present when Dr. Hartzenberg conducted interviews with Oscar. Everything that is mentioned in van Schalkwyk’s reports about Dr. Hartzenberg is not directly from Hartzenberg nor has she seen her reports.
Nel asks her why she wanted to testify in court. She says that it upset her to read in the newspaper that Oscar was not sincere about his feelings. She wanted to come and give her observation.
Nel asks her, for a normal person that had just shot somebody, what would you expect their emotions to be?
She says that each person is different, they react differently.
Nel says, that’s true, but if you saw somebody who had just shot and killed a person the day before and they had just come from court where there were lots of people watching them, wouldn’t you expect a person to be traumatized? She says, that’s correct.
She goes on to say that Oscar was emotional; he kept talking about Reeva’s parents.
Nel points out that one thing Oscar has never said is “I’m so sorry.” Mrs. van Schalkwyk says that he was sorry. Nel says no, he never said that. She says, he told her that he was sorry about what had happened. Nel says no, you would have said that to us. She says they had five days together with many discussions.
Nel clarifies that there is a big difference between being sorry for what he did, and being sorry for the loss. Mrs. van Schalkwyk confirms that he was sorry for his loss, for his heartbrokenness and he was sorry for her parents. But she agrees that he never said “I’m sorry I killed her.”
This may seem like a trivial nit-picking over words but I do think the content of what Oscar said is telling. For somebody who genuinely just killed a person by accident, you would think they would absolutely hate themselves. They would probably go on and on about how sorry they were for their actions, how stupid their actions were, how they will never forgive themselves. I know that is speculation, but it seems like a more normal response than what Oscar does… from the beginning (literally as early as minutes after her death) he seems to be totally preoccupied with defending his intruder story. He says it over and over, as if a robot… I thought she was an intruder. It does not ring true of somebody who is devastated and mortified over what THEY have just done.
Van Schalkwyk states that her sole purpose was to provide emotional support, not to assess him. She wasn’t looking for remorse. Nel does not chastise her for not looking for remorse; he just wants to know her professional opinion. Isn’t sincere remorse admitting/accepting what one has done? She agrees with that. Oscar did not say that he was sorry for what he did, he only expressed emotions about his heartbrokenness but she expected that because she was there to deal with his emotions.
Nel establishes that her only role was to provide support and monitor his mental state and health. Apart from referring him to a psychologist, she did not run any psychological tests on him.
Nel reconfirms that the first time she saw Oscar was in court on February 15, 2013. That morning, she had no indication of the facts of the matter. She learned about his version through the bail proceedings. She later learned about what was happening in his trial through the media.
Nel asks, you felt sorry for the accused on Feburary 15, 2013? She says that after 24 years of experience, she has empathy for what people are going through.
Nel asks her if it bothered her that he never said he was sorry for what he did during their meetings throughout the bail application. She says that everybody is different. He was traumatized and heartbroken.
Nel says that other people also witnessed him being traumatized that morning when he carried Reeva’s body down the stairs.
Nel has no further questions but considering that the State’s psychologist is not in court today to consult with, he would like to reserve the right to recall the witness if additional questions come up.
Roux asks her if Oscar explained the “accident” to bring it in to further context. She says yes. Roux says, without going in to the facts, what was the explanation. She says that he thought there was an intruder, he got his firearm and went in to the bathroom. He heard noise.
No further questions from Roux. The witness is excused but may be recalled if necessary.
In my opinion, this witness was useless. She was appointed by the court as an emotional support system for Oscar, so of course he is going to be emotional with her. She admittedly did not know any details of the killing (he could be a serial killer for all she knew), nor did she know any background information on Oscar, and she decided he was sincere because he was crying. If I were the Judge, I would give it zero weight.
The next witness is “Wollie” Wolmarans. I will refer to him as Wollie. He states to the Judge that he is hard of hearing. He also says that he will testify in English, but he speaks Afrikaans so if he runs in to difficulty, he will ask the interpreter for help. He is very difficult to understand, not only because of the language barrier, but also because he has a tendency to ramble on with his answers. Often times Roux would cut him off and redirect him to shorten his answers.
Wollie is the Defense ballistics expert. He graduated in 1965 and gained experience in the army. He then joined the SAPS. He was employed by the confiscated firearms section for about 5-6 years. He was transferred to the criminal bureau and trained in fingerprints. He was later transferred to ballistics. He has extensive experience with firearms. He is also a tool mark examiner. He resigned from SAPS in 1992, and has since worked as a private forensic consultant. He is a well respected ballistics consultant but in my opinion, is past his prime.
Roux hands up the report that Wollie compiled.
During the bail application, Wollie was instructed by the Defense team to run ballistics tests. There were two major disputes at the beginning of the application that they wanted him to work on:
• Whether or not Oscar was on his prosthetics when he fired the shots.
• Whether or not Oscar was standing approximately 1.5 meters in front of the toilet door when he fired.
Roux points out that the State no longer disputes that Oscar was on his stumps when he fired the shots and also it could not be stated with certainty that he was standing 1.5 meters away. Both Wollie and Mangena came to the same conclusions regarding the above two matters.
Wollie arrived at the crime scene on February 17, to investigate after the scene was released by police. The scene was secure and the key was handed to him by Mr. Christian Stander at 15:54. He entered in protective clothing. He did a walk through and took photographs. Mr. van der Westhuisen was also present and took photographs. Two investigators from CSI Africa arrived on the scene around 17:40, and wore protective clothing. They did a fingerprint investigation. It was found that the toilet door had been removed by police for safe keeping.
On February 18, at 21:44, Wollie removed a fragment of a bullet from the toilet bowl (that the police had missed).
Unfortunately the video feed cut out after this so I missed a portion of the testimony. It picked up again with Wollie talking about the testing they had done and also about the Black Talon bullets. He explains how hard they are to get as they are no longer manufactured. He had to really pull some strings to get his hands on a few of them for testing.
He goes on to explain that shots were fired from a position which was previously determined by Mangena. This was recreated by positioning the door and the point of aim according to measurements made at the crime scene to accord with Mangena’s measurements.
They used witness boards at varying distances from 6cm to 60cm behind the door to establish the distribution pattern of wood splinters and fragments caused by the bullet perforating the door.
They look at the first board which was at 6cm behind the door. The splinters seen on this board are consistent with the wound pattern seen on Reeva’s upper arm.
The next board was placed at 20cm. The dispersion pattern was much wider, although there are a few splinters close to the bullet hole. It’s possible that this distance could also be consistent with the upper arm wound.
The third board was 30cm behind the door. Wollie points out that the boards say “Black Talon” at the top because at the time he was under the impression that was the bullet used, not the Rangers. Apparently in testimony which must have been missed by the feed earlier, he testified about Oscar using Ranger bullets, not Black Talons. Hopefully I can pick up more details about this in his testimony during Nel’s cross-examination.
At 30cm, there are even less splinters. He can only see a few of them and some didn’t even penetrate the board. The pattern is inconsistent with the pattern seen on the upper arm.
The final board was placed at 60cm behind the door. This pattern is also inconsistent with the pattern seen on the upper arm.
Wollie’s conclusion is that Reeva’s right upper arm was between 6-20cm away from the door when hit by the bullet.
The next testing that they did was the cricket bat on the door.
And like clockwork, Oscar hides behind his hands.
Wollie found that a cricket bat did strike the upper right side of the door panel. There are three distinct marks on the door caused by the bat. The marks are consistent with the bat striking the door at an angle.
They next look at bullet mark E and F on the toilet room wall. One of the bullets that went through the door hit the wall at point E. It then ricocheted to F, causing the tile to break. A fragment lead core weighing 65.9 grains was found in the toilet bowl, along with a piece of the broken tile, by Wollie.
The mark G on the wall was caused by a fragment exiting the head wound. Both he and Mangena are in agreement on this.
The vest (tank top) was examined to see the extent of damage caused by bullets, bone fragments and possible wood splinters. The front of the vest shows damage. There is a hole in the right front area of the chest (below the breast), per Saayman’s post-morten report. The damage to the shirt is consistent with the wound.
A fragmented jacket (marked H) was found in the shirt. It has 2 grooves and weighs 17.2 grains. Wollie points out that the fragment has a black appearance. You can’t see the talons but it’s very similar to a Ranger with a black tip.
They next look at a photo of the back of the shirt, which Wollie took at the forensic lab on Nov 8, 2013. He couldn’t find any defects. There was no sign that a bullet had come in to contact with the back.
They also take a look at a photo of the shorts worn by Reeva that night. He points out that there is a bullet hole in the elastic band.
The next photo is a close-up of the buttock bruise. Most of these photos are not shown in court, but I did capture a screen shot from a previous day in testimony which showed some thumbnails from the post-mortem. (thank you to homegirl from WS for blowing this up). It’s still a little grainy, but this gives you an idea of the size of the bruise. See the middle picture.
Wollie says it is not possible to determine with total accuracy the sequence of the shots or the body position of the deceased.
But he does agree that the bullet from hole A hit her in the hip. She was in the upright position at an angle toward the door, possibly leaning forward to some extent because of the eccentric abrasion ring of the wound.
According to Saayman’s report, the right hip would have immediately become unstable and she would be incapable of voluntary movement. She would have started to collapse.
The position of the probe in the hip wound (photo taken at autopsy) shows an upwards trajectory.
The secondary wounds seen on the hip were possibly caused by wood splinters. It is difficult to determine the approximate distance to the door due to the clothing that could have prevented injury from the splinters.
For bullet hold B, he believes this was the wound to the upper arm. The abrasion wounds to the right chest (below the breast) could be related to the entrance/exit wound of the upper arm. The height of these wounds was 117cm above the heel of the right foot. Roux points out there are secondary wounds around the entrance wound to the arm.
It is time to adjourn for the day so they will continue with Wollie’s findings tomorrow.
Oscar Trial – Day 26, May 6 NHLEGENTHWA, MOTSHUANE
The first witness today is Mike Nhlegenthwa. I will refer to him as Mike. He is Oscar’s next door neighbor and lives at #287 Bushwillow Crescent. His profession is civil engineering.
He moved in to the estates in 2009. Oscar was already living there. The builder who was working on Mike’s house introduced him to Oscar. Mike went inside Oscar’s house to get an idea of the finishes that were available. Oscar was the first person to welcome him to the neighborhood.
Their relationship was just a friendly neighbor relationship. They did not socialize together. Mike said every time Oscar would drive by, he’d get out of his car to greet Mike and they would chat. They shared a common interest in cars.
Mike did have the opportunity to meet Reeva once. It was the Sunday prior to the shooting. That day, Oscar was driving a white BMW. He stopped to say hello to Mike and said he wanted to introduce him to somebody. He called for Reeva to come out. Mike stretched out his hand to shake her hand and instead Reeva hugged him. He was really touched by that and thought it was a clear indication of the type of person she was.
Mike also said that when Oscar introduced Reeva, he introduced her as his fiancé. At that point, Reeva gave them some space and went back to the car. Mike said to Oscar, “this one is for keeps.” Oscar told Mike that he was moving to Johannesburg to be closer to her. Mike said it would be sad to lose a neighbor like him, but if it’s for her, then it’s worth it. As they were getting ready to leave, Reeva came back over and gave him another hug. Mike’s comments bring a small smile to June’s face.
They look at an aerial photo of the neighborhood and you can see Mike’s house # 287 to the left of Oscar’s house, if you are looking at it from the front.
Then they look at an aerial photo of the back of the homes and you can see Mike’s house on the right from this view. The red arrows in the photo point out the distances from Mike’s balcony to Oscar’s bedroom balcony, as well as his bathroom windows.
The beginning of Mike’s balcony that can be seen at the very right of this photo is actually his daughter’s room. His bedroom is further to the right (not seen on this photo) at the far end of the balcony.
On Feb 13, 2013, he was home with his wife and children. They went to bed between 10-11pm that night. In the early hours of the morning he was woken up by his wife who said she heard a “bang”. She wasn’t sure if it was inside or outside. He sat up to listen and went to check on his daughter. They always locked their doors at night, and hers was still locked when he checked it. He then checked the rest of the house including the downstairs. He went back upstairs and said he didn’t find anything so it must have been outside.
He then looked out the blinds of his window and didn’t see anything. As he was talking to his wife, he started hearing a man crying very loudly. They knew something was wrong either with a neighbor or perhaps a security guard. He did not turn on any lights because he did not want to be seen looking out the window.
Mike describes that the way the man cried was how somebody cries when they are desperate for help. He assumed the person was in danger. He says it was a very high-pitched cry. He didn’t know which side it was coming from. The only words he could make out from the crying were “no, please, no, no.”
Mike said he wanted to go out to check but his wife would not allow him. So instead he phoned security.
Phones records show that his first call to security was at 3:16:13 but it did not go through. His next call to security was at 3:16:36 and he did get through this time. The call was 44 seconds long. Mike spoke to the guard and informed him that he was at #287 Bushwillow. He asked him to come quickly to his house because he heard a man crying desperately for help. He also told him to check the neighbors around him.
After the phone call, he could still hear the crying.
He then heard the sound of a car coming up the street. When he checked through the blinds, he could see the police buggy over at Stipp’s house.
Mike did not know Dr. Stipp at the time of the incident. He saw security talking to the people at the house, so he assumed the problem was there. But not more than a minute after, he saw the police buggy drive out of the driveway. A person from that house also drove his car out of the garage. They drove in separate directions. Remember, Dr. Stipp testified that he first went to the police gate to make sure it was ok for him to drive to Oscar’s house and Baba drove directly to Oscar’s to check it out.
He then said to his wife that two cars are driving off, which means it must not be at that house. He saw the cars coming closer to them. Mike then walked over to his study which faces the front of his house. He looked through the blinds and saw the buggy at Oscar’s house. At this point, he knew that it would be safer to go. He told his wife he was going.
Mike got dressed and went next door. Roux asks about the lighting in his house. Mike said at the time he went out, he switched on the lights on the ground floor of his house. He mentioned that some of the lights in the house are a bit faint and they sleep with those lights on but to see better he had to switch on more downstairs.
Remember, Annette Stipp testified that there were upstairs lights on at Mike’s house (the house on the right from their vantage point) during both sets of bangs. These may have been the lights that she saw on which means they could have still been sleeping at that point and only woke up later in the sequence of events.
Immediately from there he started walking towards Oscar’s house.
He was able to identify the police buggy, as well as the car that pulled out of Dr. Stipp’s house, as he approached the home. He could still hear the crying coming from the house. Roux asks him if the crying was the same intensity as he heard before. He says this crying voice was a bit low.
The first person he saw was Johan Stander. Mike greeted him and asked “is Oscar ok?” Stander said to him that Oscar is ok but maybe you should check for yourself inside.
Why in the world would Stander send him in to look at that? That’s terrible, if true. He could have simply told Mike that Reeva had been shot. No need to send him in to go look.
Mike went to the door and what he saw, he says, is difficult to explain. He takes a pause and his voice seemed a bit broken for a moment. He goes on to say that he saw Oscar kneeling next to the lady. There was blood all over. Oscar was crying. There was one gentleman inside, Dr. Stipp. Oscar was pleading with him (Dr. Stipp) to help him. He could see that the situation was quite bad and he couldn’t walk any closer. He couldn’t take watching was he was seeing. It was very difficult.
He was still there when the paramedics arrived. They got out with their stretcher. They were struggling to open the other side of the front door. He helped them open that door so they could get in. The stretcher was only in there for about 3 minutes before it was taken out. At that moment, he knew that she was dead. After that, he stayed for about 5-10 minutes and then went back to his house as there was nothing he could do.
Roux asks him what type of blinds he has in his bedroom. He says they are wooden blinds that close horizontally. The light from outside and from inside is not visible through them other than just some streaks of light coming from underneath the slats. He said they close their blinds when they sleep.
At around 10am on February 14, he was approached as he was driving out of his garage by a police officer. The police officer did not properly introduce himself and basically said something to the effect of “hey brother, what happened here?” Mike was not very pleased with the manner in which he talked to him so he told the officer that if he wanted to talk to him, he would need to make a proper appointment to come and see him.
The following day, February 15, there were cars parked outside of Oscar’s house and they sent two female police officers to go speak with Mike again. He also said to them, you see me driving out of my house and you want me to drop everything to talk to you? He didn’t think that was appropriate so he told them the same, make an appointment with me and we can sit down and talk.
A few more days passed and Capt Van Aardt stopped by his house. Mike says that he introduced himself properly and had a business card with him. He felt more comfortable now giving a statement as he felt Van Aardt was more credible. They made an appointment and Van Aardt returned the following week at that time and Mike gave him a statement.
Roux asks if his wife gave a statement as well. He says yes. Roux wants to know where he was when she gave her statement. Mike doesn’t answer that question directly, instead he says that when he gave his statement, she was busy cooking. He was sitting in the dining area speaking with Van Aardt.
So Roux asks again, where were you when she gave her statement? Mike says that after he finished, Van Aardt asked to take a statement from his wife. Mike said no, he would be the only one giving a statement. He didn’t want his wife involved, as a protective measure toward her and his family. Van Aardt explained to him how it works, and assured him that their statements are safe. Mike then allowed his wife to give the statement. He sat with her while she was giving it because he said Van Aardt allowed him to do that.
Mike’s wife told Van Aardt that she heard “help, help, help” that night, however Mike never heard that. He also discussed this with the Defense during their consultation, telling them that he never heard that. Only his wife did.
Roux rests and Nel is up.
Nel mentions that when he consulted with Mike prior to trial, Mike indicated to him that he had followed the whole trial since the start. Nel asks Mike to tell the court what they discussed when they were in consultation. Mike says that Nel asked him if there was anything that he has picked up during trial that he would like to add to his statement. Mike’s response was that he said everything he knows in his statement.
His wife was not present during consultation; Nel spoke with each of them separately.
Mike also says that he told Nel he was surprised to hear about what the further away ear witnesses heard that night, but theorizes that perhaps he was still sleeping at that time and that’s why he didn’t hear the whole incident.
Nel asks, “you never heard any shots?” Mike says no. Nel asks him if he heard any sounds that would be similar to a cricket bat breaking down a door. Mike says he did not hear any bangs like that, nor did his wife.
Nel asks Mike if he ever heard anyone scream. Mike says he only heard a man crying very loudly. He agrees with Nel, that in consultation when they talked there was no mention of screaming.
Nel asks Mike if his wife ever left the room that night. He says no, she did not.
Nel then asks where the faint lights were on in the house that he mentioned earlier. At the time of the incident, they had a young baby at home. If all the lights were off in their bedroom, it would be pitch dark. So at night they leave some lights on in the passage to the dressing room to provide light for them in their bedroom. They also leave a light on leading to their son’s room, and a light on over the stairs. On the ground floor, there is typically a light illuminated as well.
Nel asks him if he ever entered his daughter’s room that night. He said no. He just tested the door knob to make sure it was still locked and listened to hear if she was still sleeping, which she was.
Nel asks him if he associated the crying that he heard with one of his neighbors. Mike says he couldn’t relate it with anyone but does agree that he told the security guard that it could be one of his neighbors; the sound was not far from his house.
Nel says, you know from following the case that the Stipps gave evidence of a woman screaming. He wants to know if Mike heard a woman screaming. He says, no, he did not. Nel also points out the testimony of Burger stating that she heard blood-curdling screams from a woman that night. He asks Mike if he heard that. He says, no, he did not. And Nel points out that Burger heard 4 gunshots at 3:17am. Did he hear that? Mike says it’s quite interesting to hear what others heard, but he did not hear any of those things. He only heard the crying.
Nel points out that Oscar testified that he screamed “like he never had before.” He wants to know if Mike heard that. He says no, as he said, he only heard the loud crying.
Nel asks Mike if he spoke to Oscar that night. He says no. And Nel wants to know if they have spoken since. Mike says no, they have not.
Nel asks Mike if he discussed the incident with Mr. Stander outside that night. Mike says no. The only exchange he had with Stander that night was when he first arrived and asked if Oscar was ok.
Nel asks Mike if he discussed any of this with the security people and Mike says, not at all.
Then finally, Nel asks Mike if he discussed this incident with anybody at the scene that night. Mike says no, he has only spoken with police about the incident.
Next, Nel wants to know if Mike saw any lights on in Oscar’s house that night before he went out of his house. Mike says it wouldn’t have been possible to see in his house at that time. He only looked outside, he didn’t specifically look towards Oscar’s bathroom windows so he didn’t take note of what lights were on.
Nel wraps up by establishing with Mike that he is aware that the Defense asserts that hitting a door with a cricket bat can sound like a gunshot. Nel wants to know if he heard anything like that. Mike says he did not hear any bangs at all that night.
Nel rests. Roux reexamines.
Roux asks Mike why he described the cries as “very loud” and not just as crying. Mike doesn’t know quite how to describe it; just that it was so loud that he believed the man’s life was in danger. He also says it was a “pitched” voice, it was very loud.
Roux then asks if at the same time, a woman was screaming very loudly, would he have heard it. Mike says yes, he would have heard it, but he didn’t.
Roux has no further questions. Mike is excused.
The next witness is Mike’s wife, Eonite Nhlegenthwa. She uses an interpreter for her testimony. She lives in the same home as Mike next to Oscar. She describes herself as a house wife. She does know Oscar, but only as a neighbor. They greet each other when they pass by. They do not socialize together. She had never met Reeva.
On Feb 13, 2013, she was home. She went to bed between 10-11pm. She was awakened in the early morning hours by a bang sound. It was a very loud sound. Roux asks if she knows where it came from. She says she wasn’t sure. She woke her husband up and asked him if he heard the noise.
Her husband got up and left the bedroom to check where the noise came from. He then came back in to the bedroom and she was sitting on the bed. While her husband was looking around the house, she heard somebody yelling “help, help, help.” Roux asks if it was a man or woman’s voice. It was a little difficult to understand the interpreter but I believe she said that it seemed like a “male person’s” voice. After that she heard the crying. She said it sounded like the person needed urgent help. It was very loud. Roux asks if she could hear what the person was saying then. She says no. The person would cry, stop for a while, and then cry again.
Her husband then called security. She didn’t follow the whole conversation that he was having on the phone, because she was very frightened at this stage. Her husband then peered out the window. He told her that a security patrol car was parked in the house across the field (the Stipp’s house.)
He then described to her how the two vehicles left the Stipp’s house and went in different directions. When the cars then passed their house, he went to go see where they went. He came back in to the bedroom and informed her that the car was parked at Oscar’s and he was going out to see what was happening. She did not leave the house at any time.
When he got home, he told her that somebody had passed away at Oscar’s house but he didn’t know what transpired.
Roux rests and Nel is up.
Nel asks her if the “bangshot” woke her up. She answers yes. After that, she woke her husband up. They only had a very short conversation. She heard the “help, help, help” when he was outside of the room investigating the noise. She was afraid of the noise that she heard. Nel establishes with her that she is very awake at this stage and listening to what is going on. And she heard a man crying. But she never heard any other bang sounds.
Nel says, if you look at Dr. Stipp’s evidence of the “help, help, help” that was yelled, you must have heard the last bang of the banging sounds that he heard (which was right around 3:15am+). Mrs. Nhlegenthwa agrees with this.
Nel rests and Roux has no further questions. Mrs. Nhlegenthwa is excused.
The next witness up is Rica Motshuane. She lives at #285 Bushwillow Crescent in Silverwoods Estates. She lives on the right side of Oscar, if you are looking directly at his home. Her husband is Kenneth. She met Oscar once in 2008, when they moved in. Oscar went to their house to welcome them but they weren’t home. So they went to his house the next day to say hello. He invited them in for coffee but they did not have time. This was the only time she had met him. She works for the Dept of Labor.
On Feb 13, 2013, she was home with her husband. They went to bed around 10pm. In the early hours of February 14, she heard a man crying. It was a cry of pain. She woke her husband up and asked him if he heard it. He said yes but he thought he was dreaming. She said to him, no it’s real and the person is panicked. She said to her husband that maybe one of the security guards has been shot. She also heard dogs barking.
Roux asks her if the crying was soft, loud, high or low. She says it was very loud and very close. She even thought it could be inside the house. She said the crying was continuous. They were in a sitting position in their bed. They didn’t switch on the lights. They were kind of frozen in panic. Shortly after, she heard a car passing by and it stopped.
She points out that their bedroom faces the front of their house, which is the opposite side from Oscar’s house. So looking at this picture, their bedroom faces the #285 number on the map.
So she went to a window on the other side of her house, the side that faces Oscar’s house, and she could see a mini Cooper in the road in front of Oscar’s driveway. (This would have been Carice’s car.) They got back in to bed and wondered what had happened. She then heard another car passing by and stop. She again got out of bed, looked through that same window and saw the security car. She told her husband that she was going to call security to see what happened. She called them but they didn’t answer. After a while, her husband called. They told her husband that they are taking care of the situation.
They went back to bed again but had difficulty sleeping so they just laid in bed and talked about what may be going on.
Roux wants to know how long the time frame was in between the loud crying and the mini cooper pulling up. She thinks maybe 5 minutes, but not more than 10 minutes.
She was approached by Hilton Botha to give a statement. They made an appointment and she did give a statement.
Roux asks at the time you heard the crying, was there anybody else crying or screaming? She says no, she only heard a man crying. Roux asks her if a female had been screaming at the same time, would she have heard it. She believes she would have.
Roux has no further questions. Nel is up.
Nel asks, if you had heard a lady scream, you would have put that in your statement, correct? And she says yes. But she only heard a man crying at about 3:20am that morning according to her statement. She estimated the time because she didn’t look at her clock and didn’t know the exact time.
Nel asks her if she followed the matter in the media. She says yes, she has watched it on TV but she did ask Capt Van Aardt first via SMS message. She was informed that the State would not be calling her so she was free to watch the trial.
Nel asks her, you are aware of the issues that have come up regarding the gunshots, etc. She says she is aware. But she did not hear gunshots that night.
Nel concludes by establishing that when she got up and looked out the window after the crying, the mini cooper was parked in the street. This means that the Standers were already there, and she only heard the tail end of the event where Oscar was crying.
Nel rests and Roux has no further reexamination. Mrs. Motshuane is excused.
The only thing these three witnesses did today, in my opinion, is solidify that they only heard the end of the incident (after the gunshots) and they were able to identify Oscar as a male voice crying. This does not help him at all. It only reinforces the State’s case.
Roux has no further witnesses available for today, and tomorrow is a public holiday, so they will resume on Thursday.
Juror13 