Life, etc

Pistorius Trial: Week 6, Day 3

By Rebecca Davis 16 April 2014

Pistorius is off the stand. This is no doubt a huge relief to the murder-accused athlete, but it will likely render the rest of the week's proceedings - which may be short, given prosecutor Gerrie Nel's application for a postponement - much less dramatic. But as we know, the testimony by other defence witnesses is also extremely significant: Judge Thokozile Masipa will be taking into account the full picture of the evidence, and not just Pistorius's words on the stand.

09.00 This morning the court will hear whether Judge Masipa will assent to the state’s application for a trial postponement until May 5th, due to both personal and professional responsibilities intervening on the part of the lawyers involved.

Oscar Pistorius may have had a better night’s sleep last night, knowing that his time giving evidence is officially at an end. We concluded yesterday’s proceedings with the testimony of forensic expert Roger Dixon on a range of aspects to the crime scene, and Dixon will be back up again this morning.

Constitutional Law professor Pierre de Vos tweeted earlier that a judgment has just been reached in another South African case involving putative self defence. Assuming that Pistorius’s defence is still putative self defence – prosecutor Nel stated definitively this week that his testimony that he wasn’t in full control when he pulled the trigger meant that his defence had to change to involuntary action – the case is quite interesting to consider.

In this case, the Supreme Court of Appeal overturned the murder conviction of Sixtus Mkhize, who in May 2003 shot and killed Denzil Tatchell and severely injured Tatchell’s uncle Dennis Peter. Mkhize was initially sentenced to 12 years for murder.

The deceased’s wife testified that a group had been drinking at a bar in Ixopo in 2003 and Mkhize had begun for no reason to assault Dennis Peter. Tatchell intervened and was later shot. The bartender, on the other hand, testified that he had tried to close the bar because it was late and Tatchell and party refused to leave. Tatchell and Peter, in the bartender’s version, began manhandling the security guard. Mkhize tried to intervene and was kicked and assaulted. Mkhize testified that he thought his life was in danger because the deceased approached him with his hand in his pocket, saying “let us kill this bastard”, causing Mkhize to shoot in self defence.

A ballistics expert testified for the defence that the deceased was at a very close distance from Mkhize, and that because a 9mm Parabellum expels bullets in quick succession, Mkhize would not have time to “reflect on his actions” once he had started shooting.

“A further aspect that remains for determination is  whether, despite the appellant’s subjective belief that if he did not react as he did he would have been killed, it was necessary for him to shoot the deceased three times,” the judgment reads. “The first shot would, in all probability, have had the desired effect to ward off the unlawful attack on him. In my view, the appellant, especially as a long serving police officer with considerable experience in handling firearms, ought to reasonably have realised that he was using excessive force beyond the legitimate bounds of private defence.”

Despite this, the murder conviction was set aside and a conviction for culpable homicide replaced it. The appellant was sentenced to five years, wholly suspended for five years.

Very different circumstances to the Pistorius case, needless to say, but interesting to see another instance in which a putative self defence claim has succeeded.

11.00 Before I get on to telling you what happened in the pre-tea session of court events, here’s one of the craziest stories published during the trial so far. SAPA has unearthed the fact that another Pistorius – Carel Pistorius, 1844 – had a wooden door with the words “Women Deceiveth Ever” chiseled into it.

Judge Masipa began by approving the defence’s application to take an adjournment after tomorrow’s sitting. She pointed out that the matter has now run for almost 7 weeks (which explains why I’m almost grey) as opposed to the initially-scheduled three, and counsel have other cases to deal with. Masipa also said that given that the trial record now runs to almost 2000 pages, “much of it technical”, the court has a good opportunity to do some reading during the break. She hinted that the adjournment might mean less time to prepare closing arguments.

So after tomorrow, court is in recess until May 5th. That’s elections week, but naturally there won’t be a sitting on election day (May 7th), since it’s a public holiday. (Will Pistorius brave the public eye to go vote? There’s a story for a desperate journalist, gratis.)

Forensic geologist Roger Dixon continued with his somewhat soporific testimony first thing, speaking to the ballistics evidence first. He reiterated his belief that contrary to the prosecution’s version, the bruises on Steenkamp’s back could not have been caused by a projectile. Instead, the abrasions were consistent with horizontal abrasions, as if she had fallen backwards against the magazine rack.

He also sought to counter the state’s version that Steenkamp was standing facing the door (talking to Pistorius, in Nel’s version) when she was shot. Dixon suggested that she was standing at an angle to the door with her right arm slightly up – which would support a version that she was about to exit the toilet and was reaching for the handle.

The defence’s Barry Roux concluded his questioning by playing Dixon the sounds recorded during testing: first of a cricket bat striking the door, and then of gunshots. Again, it’s impossible to avoid noting that the sounds do sound quite similar to the untrained ear.

Enter the prosecution’s Gerrie Nel, who is in no mood to be trifled with today. Nel hit the ground running, seeking to discredit Dixon’s expertise, question why he had given evidence on such a baffling range of aspects relating to the scene, and generally cast his methods as unreliable.

Nel extracted from Dixon the admission that he was not a sound expert, nor a light expert, nor a ballistic expert, nor a blood spatter expert – yet had given evidence on all. Dixon is a geologist currently based in a university lab, where he analyses “soils and all sorts of things”. He is not currently attached to any forensic body.

Dixon admitted that the “instrument” that he used to test the darkness in Pistorius’s bedroom was “my eyes”. He conceded that he had deduced that fibres on Pistorius’s sock might match fibres on the door based on a photograph, rather than handling the actual sock.  He acknowledged that he did not use the same cricket bat to strike the door in sound tests as was used in the crime. He also stated that he had not drafted one overarching report on his findings – in court he was using notes.

Dixon may need something a little stronger than tea during this break.

13.00 Dixon’s pre-lunch stint on the stand hasn’t been much more successful than previously, under the withering cross-examination of Gerrie Nel.

Dixon said that “to the best of my knowledge” no decibel tests had been carried out on the difference between gunshots and the noises of a cricket bat striking a wooden door. He acknowledged that there would likely be a difference. Under questioning, he said that the recordings of cricket bat bangs and gunshots had been made on different evenings, and that he had not been there when the shots were fired.  Dixon also acknowledged that because the gun used for the experiment had kept jamming, gunshots were recorded individually and edited into a rapid sequence by a sound engineer.

Dixon proceeded to challenge the ballistics evidence of Captain Chris Mangena, saying that according to his calculations, none of the four bullets fired at Steenkamp failed to hit her.

In looking at fibres on the door that could match with the sock on Pistorius’s prosthetic leg, Dixon said he took a close-up photograph of the door on 13th March this year (over a week after the trial began) because the light inside the court was better than previously. He defended this by saying he had often examined evidence long after events. Nel pointed out that the cleaners in court had been seen wiping the door, and suggested that fibres on the door could have resulted from this. Dixon disputed this.

Dixon also took on the evidence of state pathologist Gert Saayman, saying that he detected small splinters around Steenkamp’s hip wound that Saayman did not see.  It’s Saayman’s claim that a blue mark on Steenkamp’s buttock was made by the bullet which entered her hip; Dixon says it was caused by falling on to a magazine rack.

Brave stuff indeed for a man who has acknowledged he has no specialized expertise in some of the areas he is disputing the state’s findings on.

15.00 The post-lunch period saw the continuing demolition of Roger Dixon.

Nel took issue with Dixon’s assertion that the “kinetic energy” of being hit by a bullet in her right hip might cause her to move backwards – “like in the movies”, he said sarcastically. Dixon maintained that a small amount of energy would be transferred which could cause instability. Nel challenged him to go home and find any literature to support the idea that a bullet could move someone backwards. Dixon rather unenthusiastically agreed to try.

We moved back to Dixon’s challenge of state pathologist Saayman. Dixon, who was not at Steenkamp’s postmortem, was asked how many postmortems he had attended in his life. Three, he said.

“Is that all?” Nel asked scornfully. (It’s worth noting that Saayman testified that he had conducted, not just attended, between 10 000 and 15 000 postmortems.)

Despite not attending the postmortem, it’s Dixon’s assertion that he has identified a bruise on Steenkamp’s back which was missed by the pathologists. Nel disputed the likelihood of this, causing Dixon to again defend himself by saying that he was not a wound ballistics expert.

Returning to the issue of the wound on Steenkamp which Dixon says was caused by falling on the magazine rack, Nel asked Dixon to read Saayman’s report dealing with how the bruise was formed based on dissection. Nel claimed that as Dixon looked at the report, he exclaimed: “What?” Dixon said he didn’t hear himself say that; after all, he has testified that he is not a sound expert.

Nel pointed out that Saayman had covered the origins of the bruise in depth. Dixon, scrambling, said his “layman’s impression” differed – an unfortunate choice of words, jumped all over by Nel, who accused Dixon of being “irresponsible” in coming to court and purporting to give expert evidence on matters in which he was not actually expert.

Nel said that Dixon was irresponsible, too, in not having read Saayman’s report closely enough, though Dixon protested that he had read it cover to cover.

Nel wasn’t able to catch him out, however, in some of the aspects that related to Dixon’s actual field of expertise: trace evidence. Dixon confirmed, for instance, that the varnish traces found on Pistorius’s prosthesis had exactly the same chemical composition as varnish from the toilet door, which would seem to be a valuable bolstering of the defence’s version that Pistorius was on prosthetics when he attempted to break the door down.

Dixon said a number of times during his testimony that on the two occasions when sound tests were carried out using a gun, they had to use a different type of ranger-style ammunition because the Black Talon ammunition used by Pistorius was “hard to come by”. Pistorius testified on his last day on the stand that he used these bullets simply because it was the type of ammunition used for his type of firearm.

What Dixon’s testimony suggests is that either Pistorius had to go to some effort to find the bullets, in contrast with the athlete’s testimony that their use is routine, or that the defence did not try particularly hard to get hold of them.

“Sky did a test with Black Talon bullets,” tweeted correspondent Alex Crawford, “and we were supplied with them within a day”.

Mr Dixon is back on the stand tomorrow to continue facing Nel. The prosecutor will likely be going home feeling pretty self-satisfied; he did an undeniably thorough job in questioning why Dixon was brought in front of the court to give evidence so widely. Many people will still be wondering the same. Pistorius’s defence team is believed to have spared little expense in assembling their group of experts – going so far as to reportedly even unsuccessfully approach Henry Lee, a high-profile American forensic scientist who testified during the OJ Simpson trial.

What does it mean that Dixon was called to testify in so many areas in which he lacked formal expertise? (Legal minds agree that courts are far more likely to be impressed by very specialized testimony.) We’ll probably only have a better sense of the answer to that question when we’ve heard from the rest of the witnesses that the defence intends to call. DM

Photo: South African Paralympic athlete Oscar Pistorius sits in the dock during his trial at the high court in Pretoria, South Africa, 15 April 2014. EPA/ALON SKUY / POOL

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