One Tragic Night (94 page)

Nel believed that all of this showed Oscar was guilty of murder. ‘If the accused's elaborate false version is rejected, the court will have no option but to accept that the accused knew the deceased was in the toilet and fired four shots with
dolus directus
to kill her.'

To even consider Oscar's version, Nel argued the court would have to accept that:

Nel's delivery was theatrical, his voice low but elevating occasionally as he emphasised a point, picking his foot up on the chair next to him and swinging his glasses around. He laughed at times, as he trailed off sentences, emphasising the incredulity of the claims made by Oscar or his witnesses. But he was sure to maintain decorum, punctuating each remark with the words ‘with the utmost respect'.

His baker's dozen delivered, Nel focused on the reason why Oscar shot, the screams, the neighbours and the gastric content of Reeva's stomach. He also asked the questions that had been asked in every hairdressing salon and around ever water cooler and dinner table in the country: why did Reeva take her cellphone to the toilet with her and why didn't she scream when Oscar screamed at her to call the police?

The state anticipated the defence would argue that emphasis should be placed on Professor Derman's testimony about the so-called ‘third startle'. This would explain Oscar's reflex action to shoot when he heard what Derman and Oscar suggested was the magazine rack scraping across the floor. In an attempt to discredit Derman's evidence about Oscar's impulse to shoot on hearing the sound of wood moving, Nel argued that Derman was biased and unconvincing. On the state's version there was no startle to trigger the shooting.

‘We have four well-grouped shots by the accused. Somebody that is in control not somebody that is not in control. He wants us … he wants the court to believe that he was … acted automatically, did not know what he was doing. When he heard the sound it was exactly when it started and he just fired. He did not, M'Lady. There is four shots, grouped shots and the angle would indicate, M'Lady, that it is all aimed at the toilet bowl,' argued Nel. He was also heavily critical of defence forensic experts Wolmarans and Dixon, suggesting that they were in his experience the worst expert witnesses to testify in a trial.

For Nel, it was crucial to substantiate the state's claim that Oscar and Reeva had had an argument. With no direct evidence, he had to rely on separate pieces of circumstantial evidence. This included the testimony of pathologist Gert Saayman that Reeva had eaten at around 1am, that Estelle van der Merwe heard what she thought was an argument, that Mrs Stipp testified that the bathroom light was on and that the WhatsApp messages on Reeva's phone revealed a turbulent relationship.

Nel also anticipated the defence would spend significant time trying to cast doubt on the neighbours called as witnesses for the state. This was undeniably one of the prosecution's strongest cards – the claims that the neighbours heard the blood-curdling screams of a woman and then gunshots.

He emphasised their reliability as credible witnesses. ‘None of them have ever met the accused or the deceased. Furthermore it can safely be argued that other than where these witnesses are each other's spouses, the others have never met each other. They have made their statements independently and the corroboration is exceptional. Not only do they corroborate each other's versions but the objective facts and circumstantial evidence corroborates detailed aspects of their evidence. They all remain steadfast and even explained why they didn't believe it was a man they heard screaming.'

Nel acknowledged that their evidence was not perfect but argued that ‘imperfections and possible imperfections are expected of people who witnessed an event without an idea that they were later going to be cross-examined about minute detail and it clearly indicates the absence of a conspiracy to prejudice the accused'.

He insisted that if the court found that the bathroom light was on immediately after or even before the shots were fired, as Mrs Stipp claimed under oath, ‘then the accused's version will crash dramatically'. This would show that Oscar and Reeva were awake and likely arguing.

He believed the fact that Reeva must have eaten between 01:00 and 03:17, coupled with the evidence of Estelle van der Merwe that she heard an argument, had to be viewed together. ‘It cannot be a mere coincidence that on the same morning that the accused shot and killed the deceased, that Van der Merwe heard a woman's voice as though engaged in an argument and that this argument ended with the gunshots.

‘This is a good example of something that seems insignificant if seen in isolation but becomes significant if evaluated with the other evidence. The trial court has to step back and evaluate the mosaic as a whole.'

On the WhatsApp messages extracted from Reeva's phone, Nel argued that they provided the court with insight into the relationship. Bizarrely, he used a quote from an interview clinical psychologist Leonard Carr had done on a radio station. Carr had responded to Roux's suggestion that 90 per cent of the messages were of a loving nature – the psychologist said this equates with arguing that only 10 per cent of your body has cancer.

Judge Masipa, who was largely quiet during proceedings, observing and absorbing, spoke up at this point:

Nel believed that in the absence of anyone other than Oscar saying the couple was happy, the court had to accept the messages.

The state's approach to the gun-related charges was similar to that of the main charge. The intention was to attack Oscar and his version, accusing him of shirking responsibility.

‘In summary, he avers that he has done nothing wrong as far as count 3 (sunroof) is concerned. His stance is that the two witnesses gave false evidence against him. He will argue that they have conspired to lie against him. As far as count 2 (Tashas) is concerned he will admit he had the gun in his hand, he will accept that the gun cannot fire without the trigger being pulled but never the less he claims that it did. In this instance he would have the court believe that the impossible inexplicably occurred.'

In wrapping up his argument, Nel became increasingly animated and urged Masipa to convict Oscar. He argued that even if the court accepted Oscar's version that he thought there was an intruder in the toilet, he must be convicted of murder with
dolus directus –
a direct intention to kill.

He also argued that should the court accept Oscar's version of events as reasonably possibly true, he cannot escape a conviction on culpable homicide. ‘A reasonable man, armed with a firearm, facing a closed door would not have fired four shots through the door if “provoked” only by a sound.'

It was the state's argument that Oscar was guilty of a premeditated murder.

When Nel took his seat he left a major question open – one that Roux eagerly attempted to capitalise on. Crucially, Nel had given no explanation whatsoever for the first sounds (at 3:12am) that some of Oscar's neighbours had apparently heard. On the defence version, these were the shots. On the state's version, they seemed simply not to exist. Instead, the state argued the shots had been at 3:17am. It was the defence's contention that the second set of noises was Oscar breaking the door down with the bat.

But if the state believed the shots happened at 3:17am, it would leave Oscar only two minutes to leave the bathroom, discover Reeva was missing, find his cricket bat, break down the door and pull out his dying girlfriend before phoning Johan Stander at 03:19am.

It was the timeline that was out of kilter and this was Barry Roux's focus when he got to his feet to argue his client's case. Roux was indignant. His argument was impassioned and his voice, usually high in pitch, was even squeakier than usual. He was at pains to argue his case, appearing astounded by the state's version.

He used two clear strategies to cast doubt on the prosecution's case. After all, the onus was not on him to prove Oscar's case, only to create reasonable doubt about the state's argument. He turned to what he called the ‘objective facts' of the case and showed how the state's version, on flimsy circumstantial evidence, could not be the only inference drawn – there could be other possible inferences. He built his case around a timeline that had been meticulously constructed from the evidence. He plotted the events of Valentine's Day morning to show how the defence's version was the only one that made sense. He coupled this with a blistering attack on Dr Stipp, calling his credibility into doubt and effectively accusing him of lying.

Secondly, he focused significant attention on police incompetence and the credibility of the police experts who testified. He was not claiming ‘conspiracy', but rather that the policemen had disrupted the crime scene through folly and that this could not be held against Oscar.

But the most significant issue Roux had with the prosecution was why Nel did not give an explanation for the first set of sounds. ‘We were waiting for the state to tell the court, what were those first shots? And you will not find the answer in his heads of argument and you will not find the answer in his argument and one thing you cannot do in a criminal trial, you cannot ignore a serious material objective fact. You cannot do that and the state has done. I know why the state has done it, because it will cause a nosedive of their case on the 03:17 description, what they described as shots. They also do not deal with the cricket bat striking the door, because they cannot. But we will deal with that,' argued Roux.

He rebutted Nel's suggestion that Oscar was anxious on command and not at all times. ‘An anxious person and a vulnerable person does not walk around and show his anxiety and his vulnerability all the time. That will come to the fore when there is danger, or a perceived danger,' argued Roux and reminded the judge of Professor Scholtz's idea of the ‘Two Oscars' – one confident and one anxious. ‘One that you will see, that is everything fine and the other one, that you will not necessarily see when he is vulnerable.'

Roux also focused on the state's failure to call former investigating officer Hilton Botha to the stand to testify. This was ironic because the prosecution had been so critical of the defence for not calling witnesses to back up its claims on the screams.

The bulk of the defence's argument was, however, moulded around the timeline that was carefully constructed. On the defence's version, the timeline appeared as follows: