One Tragic Night (82 page)

‘Someone must have moved it,' said Roux, convinced he'd proven that the scene had been tampered with.

But chatter in the gallery indicated otherwise as reporters struggled to understand why the witness hadn't pointed out to the advocate the scientific fault in his argument – he was dealing with a parallax error. Nel quickly dispensed with this argument in re-examination.

Roux then asked the witness to study two separate images, both of the firearm on the grey mat, but from different angles and framing. The advocate drew Van Staden's attention to a fold in the mat in the first picture, and asked him to compare it to the location of the same fold in the second picture.

‘If you look at it carefully you will see that the butt sits on a different position in relation to the fold and the line. Take your time. Can you see it?' asked Roux.

Van Staden could. Roux also pointed out that in the first picture, the black butt of the handgun was clean, but in the second picture, taken just three minutes later, a splinter had found its way on to it.

Although a translation from Afrikaans to English, ‘trampling' in relation to the crime scene is not what the state wanted to hear. It was not obvious that the firearm had been moved, but the splinter visible on the pistol's handle indicated that something had happened.

Roux asked again if Van Staden was alone upstairs when he took the pictures and he insisted he was.

The defence then went on to suggest that he wasn't. Roux asked Van Staden if he knew a Colonel Makhafola? He was the photographer's commander, said Van Staden, and he had been on the scene that morning, but he couldn't recall when.

What about a Colonel Motha, an officer from the ballistics section? Roux explained the defence had been handed photos by Motha that started, according to the metadata, at 5:56am.

Roux said the defence had studied the photographs and compared their times to Van Staden's photos in Album 1, which showed a ‘great overlap' in the times he claimed he was working alone upstairs.

Roux read out the times of several of Motha's pictures, and they coincided with Van Staden's movements and locations. Van Staden insisted again he did not see Motha and that he was alone upstairs.

An official picture showed Oscar's handgun with the caption ‘firearm in the main bathroom after it was made safe by Constable Msiza'. Van Staden said he had only learnt after returning inside that Motha had handled the firearm. When he found out he reprimanded the colonel and asked that he leave the scene. Msiza subsequently made the firearm safe before Van Staden took the photograph of it.

Another of Motha's photos, at 6:57am, showed the hammer on the firearm forward. A photo with a corresponding time placed Van Staden in the bathroom.

As Roux compared the timestamps on sets of pictures taken on separate cameras, the obvious question was how accurate this comparison was. For the evidence to be of any value, Roux would have to show that Motha's and Van Staden's cameras were synched – that the built-in electronic clocks were set at the same time. But Roux hadn't done this and was working off the assumption that they were.

Nel later pointed out that Colonel Motha was not visible in any of Van Staden's pictures to disprove the claim they were working upstairs together at the same time. Curiously, Nel never sought to question whether the two cameras were synched.

Roux also questioned the quality of some of the official pictures. Instead of a wide shot of the entire box of watches, for example, the best Van Staden had was one showing only half of it. His response was that his focus had been on the blood spatter on the inside mirror, and not the box itself.

The criticism of Van Staden's photographic skills, in the forensic context, was not limited to the courtroom. Police officers on the sidelines of proceedings explained to us that there was not a single shot, or series of shots, that could be used to portray accurately an uninhibited view of an entire room. One investigator explained that it is helpful if a photographer goes into each corner of a room and takes a wide shot looking inward. In that way a full perspective of the area is provided. Van Staden's pictures frustrated investigators, but all they could do was to work with what they had available.

Roux wanted to know more about Album 7, featuring state ballistics expert Colonel Gerhard Vermeulen and his investigations into the marks made on the door by the cricket bat – in particular, the third mark, which he did not investigate. Roux produced an image from the bundle handed over by the state, which appeared to show that Vermeulen had indeed investigated the third mark and Van Staden had in fact taken photos of him doing so. So why weren't they included in the album? The suggestion from the advocate was that the police were deliberately withholding information that did not corroborate their case.

Van Staden had no explanation other than that he compiled the album after consulting with the person who was conducting the investigation, which in this particular case was Vermeulen.

In Oscar's plea explanation he stated that it would be demonstrated that the crime scene had been ‘contaminated, disturbed and tampered with'. A starting point is to understand exactly what those terms mean in the forensic sense. ‘Contaminated' implies that evidence is introduced to the crime scene; ‘disturbed' means items on the crime scene are changed or moved; and ‘tampered' is the intentional moving or changing of items on the crime scene.

Was this why Oscar was pleading ‘not guilty'? He said it was part of the
reason, but not the entire reason for his defence, and that he had pleaded not guilty because ‘what I'm accused of didn't happen'. Oscar stated that his defence team got to learn that the crime scene had been ‘contaminated, disturbed and tampered with' when they studied the photographs provided by the state. Nel wanted to know specifics in terms of where the crime scene had been tampered with?

‘My Lady, I am advised through my counsel that there will be people that will come forward. I have seen many of the photos that the state has handed to me where there are massive inconsistencies, where items have been moved, where things were not as they were left on previous photos.'

But Nel pressed the witness – he wanted answers. ‘It is unfortunately not that easy. Really it is not that easy. I am asking you. It is your plea explanation, you are in the box. You tell me, sir, where was the scene tampered with?'

Oscar replied:

Nel took notes as the witness listed the items. The prosecutor started with the cellphones. Oscar claimed that blood marks on the floor next to his cellphone matched up to blood on the phone, which proved it had been moved. He added that different photos showing the cellphone with its cover on and then with it off indicated there was an attempt to make it appear like a misunderstanding about the number of phones in the bathroom.

And Reeva's phone?

The question posed a problem for the witness: he didn't have an independent recollection of the crime scene. Oscar was making allegations based on the study of crime scene photographs, not on his memory. But he was confident of his case. ‘Various things were disturbed and various things were tampered with. I do not have the knowledge of what it was, but I know that the experts that will come and testify, these things did happen,' he said.

Nel wanted to know exactly who the defence intended calling to support his tampering claims. Oscar said he didn't know the experts by name. It was an odd claim – surely the accused would have consulted with them?

Nel asked about the location of the fans. Van Staden's pictures showed the silver tripod fan in front of the sliding door, while the smaller black floor fan was unplugged and to its right, near the chest of drawers. Both devices were switched off. Oscar said he remembered that the fans were running that night because it was warm. The policemen had testified the fans were switched off and Oscar had deduced the fans had been tampered with. He also said the fans were moved from where he had left them to different points around the room.

A picture of Oscar's side of the bed that showed part of the tripod fan, an extension cable and a pair of hair clippers was displayed on the screen. The accused was unable to comment on the location of the clippers, but confirmed he plugged the device into the same adapter as the tripod fan. Nel asked if Oscar could see the problem with this photograph. ‘There is no place for the other fan,' said Nel, as the magnified picture showed there was no third socket on the adapter.

The accused hesitated, now unsure whether he had actually plugged the floor fan into this adapter, and suggested he may have tripped over the cord causing it to unplug, before telling the court he didn't have an independent recollection of where the fan was plugged in.

This was a problem for the defence.

One minute Oscar was sure; the next minute, after being presented with problematic evidence, he was unsure. Oscar believed it was insignificant.

‘It is not so insignificant, Mr Pistorius,' said Nel. ‘It will show that you are lying and it is very significant.' Nel was slowly building his ‘baker's dozen' of inconsistencies in Oscar's version, which would be presented in closing argument.

An argument followed about the length of the cable of the small black fan, and whether it was long enough to have been plugged into a socket behind the chest of drawers. Nel said it was impossible; Oscar said it was, but he couldn't be sure.

This was important for Nel because it proved to the state that Oscar was tailoring his evidence and adapting his version. In his bail application statement Oscar made reference to only one fan collected from the balcony that morning. The inference now was that, on studying the crime scene, the accused had to factor the second fan into his story in an effort to explain its presence.

Oscar said the fan was probably moved unintentionally when the police made space to spread out the duvet to take pictures. ‘This is not where I moved the fan that evening. I do not walk and put the fan in the corner of the room with the plug out,' he said. Oscar was also adamant he did not put the grey duvet on the floor and that somebody must have put it there. He remembered it being on the bed.

The cops had testified that when they arrived on the scene, the duvet was on the floor. The state argued that the duvet would have been directly in his path when he moved around in the dark on his stumps. Oscar said he remembered it being over Reeva's legs when he got out of bed to fetch the fans, and seeing it again after the shooting when he was putting on his prosthetic legs.

Oscar said he put the tripod fan with one of its feet on the balcony and the other two inside the room, with the smaller floor fan beneath it on the floor. He said he first brought the small fan in and then the larger fan in before closing the door, blinds and curtains. Looking at photos of the bedroom, he said ‘the fan could not have possibly been there, because it is in the way of the door's opening'.

‘Indeed. Indeed,' agreed Nel.

‘I would have run out on to the balcony My Lady and where I shouted for help, that fan would have been in the way. So it was …'

Nel interrupted the witness: ‘It never happened!'

‘So it must have been moved, My Lady,' said Oscar, concluding his deduction.

‘It never happened, because now you see it. That fan in the position where it is there, would have blocked you … would have made it difficult for you to close that door.' Nel sounded triumphant, like he'd forced the concession he was chasing. He was building to his crescendo.