Life, etc

The Killing of Anni: Defence roughs up prosecution’s ballistics expert

By Marianne Thamm 23 October 2014

If Tuesday was all about the language used in court surrounding the killing of Swedish holidaymaker Anni Dewani, yesterday was all about maths, bad maths and apparently shoddy police work. So far, Shrien Dewani’s defence team appears to be making headway in an attempt to prove his innocence. By MARIANNE THAMM.

We all know the police service in South Africa is under-resourced and under pressure. It is a highly challenging job, particularly in a country with a crime rate as high as ours and where badly paid police officers are often expected to play the role of social workers, deal with a legacy of a fractured society as well as prevent crime.

While it is tempting to keep invoking the “incompetence” narrative – one that almost immediately appeared in the local and international media after the shooting of Reeva Steenkamp by Oscar Pistorius last year – it should be borne in mind that there are many highly skilled and competent members of the SAPS. Many criminals are successfully prosecuted in South African courts because of the good work of solid, professional policemen and women.

That said, the murder trial of Bristol chartered accountant, Shrien Dewani, currently being heard in the Cape High Court, is another “show trial” for South Africa.

The accused fought his extradition to this country for several years, arguing that he would not receive a fair hearing. The Department of Justice and Constitutional Development has been exemplary in handling the matter, accommodating the strict requirements of the extradition order and making it easy for the world’s media to cover the trial in the country.

The state flew the accused to the country in a private jet and has been careful to protect his privacy – a requirement understood to be a component of the agreement with British authorities.

The prosecution team in this case has had four years – and two other trials – that of hit men Xolile Mngeni and Mziwamdoda Qwabe, as well as of driver Zola Tongo, who were all sentenced to various jail terms in 2012 and 201o – to prepare for this moment.

A large media contingent was in South Africa at the start of the trial and many are expected to return next week when the German Master, Leopold Leisser, who alleges Dewani used his escort services, is expected to take the stand on Monday. Much of the detail surrounding Dewani’s sexual life will be inadmissible now, after Deputy Judge President Jeanette Traverso ruled earlier on that the accused’s sexual orientation did not prove motive or intention and would not be an issue.

Dewani has pleaded not guilty to all charges that he masterminded the hijacking and killing of his wife Anni while the couple was on honeymoon in South Africa in November 2010.

So, while the larger cogs of justice appear to have been humming smoothly, this week exposed the weaknesses in the smaller cogs – the ordinary lower-ranking SAPS members who are often the first port of call after a crime has occurred.

From Warrant Officer George Leon Stephanus, who testified last week that he had “lost” his pocketbook, to the testimony this week of Sergeant Cornelius Jacobus Mellet, who was stationed as a clerk at Harare on the 13 November 2010 when the hijacking and murder occurred, it is clear that the pressures these cops face can and do result in a lack of attention to detail. But this in itself will not scupper an entire case and it is likely that the Judge will allow room for conflicting accounts and lapses of memory.

Considering the case load and the conditions of a region like Khayelitsha – which have been highlighted in the recent Khayelitsha Commission of Enquiry – these apparent “blunders” are forgivable to an extent.

But yesterday Dewani’s junior counsel, Pieter Botha, was tasked with cross-examining Warrant Officer Pieter Engelbrecht, a SAPS ballistics expert who also testified in the trial of Xolile Mngeni, one of the hit men who was jailed for life and who died in the Goodwood Prison hospital wing on Sunday. Mngeni was diagnosed with a brain tumour in 2011 while awaiting trial.

The experts, the forensics and ballistics experts and the detectives who take over a high-profile case once the likes of Mellet or Stephanus have done the initial mop-up, is where the real expertise and attention to detail should become of paramount concern. And particularly in a case such as the murder of Anni Dewani, a tourist to this country.

Immediately after the hijacking and murder our former national police commissioner, General Bheki Cele, had told the world’s media that Dewani was a “monkey” who had “come all the way from London to have his wife murdered here. Shrien thought we South Africans were stupid when he came all the way to kill his wife in our country. He lied to himself.”

Cele later apologised for his intemperate outburst. One would imagine, then, that the investigation from that point onwards would have been conducted as meticulously as possible.

Much time was taken up in court on Wednesday with Engelbrecht giving his evidence in chief. Events were rather unremarkable as state prosecutor Adrian Mopp led Engelbrecht through his testimony. Engelbrecht had previously worked with the Public Order Policing Unit and became an expert in ballistics in 2008 after completing a three-year diploma course. A Sergeant Serfontein, who has subsequently left the SAPS and now works in the US, had conducted the original ballistics report for the case. In 2010 Engelbrecht had still been in training.

Engelbrecht spoke of how he had measured the possible trajectory of the bullet based on the evidence found inside the abandoned VW Sharan that Tongo had used as a taxi. He spoke of degrees and angles and bullet tracks in the upholstery that he had measured; the distance between the left front passenger seat where Mngeni had been sitting and the right rear set where Anni was shot. He recounted the angle of the bullet that had killed Anni, the entrance and exit wounds. Engelbrecht said he had established that the shot had been fired from the left front seat toward the right back of the vehicle.

The court was shown three videos of a reenactment by police officers of the various positions Mngeni might have taken when he fired the gun. There has been some dispute as two whether Mngeni actually fired the shot or whether Qwabe was the gunman. Last week the court heard that primary gunshot residue had been found on the yellow latex glove Qwabe had worn on the night.

At the end of his testimony Engelbrecht surprised the court by admitting that he had only measured the length of both Mngeni’s arms last week, a day or two before the assassin died on Sunday. Mngeni’s left arm was shorter than his right. The measurements are of concern because of the reach of the shooter in relation to where Anni had been sitting.

He was very sick and in a wheelchair and we did not want to put him under unnecessary pressure,” Engelbrecht offered.

Botha began his cross-examination like a Rottweiler who had been irked by a Chihuahua. He asked Engelbrecht why he had only sent his consolidated report at 9pm the previous evening.

Engelbrecht mumbled an excuse that he had had to compile what he termed a “complex report” combining his past two reports with his new measurements. He began visibly to sweat as he loosened his tie and took a sip of water.

When Botha discovered that the tests the ballistics expert had done for the videos that had been shown to the court earlier had been conducted on ANOTHER vehicle and not the original “death car”, he let rip. These measurements, the court also heard, had only occurred LAST month. Four years after the killing.

What on earth did you, as an expert witness, try to achieve, taking measurements of a vehicle that had nothing to do with the crime?” Botha barked from the counsel bench.

At which point Judge Traverso interjected, reminding Engelbrecht that “measurements are of the utmost importance”.

It is known that the defence team managed to track down the new owner of the VW Sharan to conduct their own tests that their expert ballistics witness will no doubt refer to in his testimony later. The state had tried unsuccessfully last month to do the same and resorted to finding a vehicle similar to the one driven by Tongo.

It was clear from photographs handed to the court yesterday that the “replica” vehicle the state had located had a different interior to the VW Tongo had used. Apart from that, Engelbrecht had failed to move the front seats in the replica Sharan so that they were in the same position as photographs of the original vehicle.

It was all downhill from there. Engelbrecht conceded that he should not have measured Mngeni’s arm from the armpit to the fingertips but to the centre of the palm of his hand where he would have held the gun.

Proceedings degenerated to an almost farcical level as Botha asked Engelbrecht to explain how the policeman used in the demonstration in the video could have been “seated” as Mngeni said he had been “when his buttocks are not even on the seat”.

Let me suggest that you created a video that made the fact that the shooter was sitting in the left front seat more probable,” Botha told Engelbrecht.

Engelbrecht looked like a man cornered. At times it appeared as if he might be testifying about an entirely different crime, his evidence seemed that conflicted. But let’s cut him some slack, the man has done ballistics tests on over 1,000 weapons, he told the court.

The final blow arrived shortly before adjournment when Botha pointed out that an original statement had noted that the gun that had been used to kill Anni had been a .38 special Rossi revolver, when in fact a Norinco pistol with a sliding mechanism had been the murder weapon. Engelbrecht is a ballistics expert, remember.

It was clear from their demeanour in the courtroom yesterday that Dewani’s defence team, being instructed by his older brother Preyen, was considerably buoyed by events yesterday. Even Dewani, whom Van Zyl told the court earlier was not feeling well, smiled several times as Englebrecht, um, shot himself in the foot, repeatedly. DM

Photo: British businessman Shrien Dewani arrives in the back of a police vehicle for his trial at the Western Cape High Court, Cape Town, South Africa, 08 October 2014. EPA/NIC BOTHMA

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