by Mandy Wiener
‘I understand that,’ said Roux. ‘Thank you, M’Lady. I have no further questions.’
Saayman had remained firm despite the defence advocate’s attempts to undermine his findings, but Roux would call two witnesses in an attempt to cast doubt on the professor’s evidence.
Nel explored only three aspects in his re-examination of Professor Saayman, starting with cognitive function after being shot – it was the state’s case that Reeva was screaming up until the last shot to the head killed her. He referred to Saayman’s answers to the question from Roux about a stress response after being shot – the fight-or-flight mode. ‘Now cognitive function … I just wanted to know, would that include screaming? Would screaming be possible?’ asked Nel.
‘Yes, screaming would of course be possible and that is a voluntary action and probably an expression of fear or anguish,’ said Saayman.
‘And the wound on the arm …?’ Nel explored a potential reaction from someone who had sustained such a wound.
‘I would think it would be somewhat abnormal if one does not scream when you sustain a wound of this nature, or wounds of this nature,’ Saayman said. This, of course, opened the door to the probability that Reeva would have screamed after being struck first in the hip and then in the arm, before the final shot to the head rendered her unconscious. Those screams would tie in with the evidence of neighbours, who testified they heard the terrified high-pitched calls of a woman in distress up until the last shot was fired; the suggestion also raised the question that, if Reeva was screaming, why did Oscar keep shooting at the door?
The prosecutor moved on to his second issue – the bladder and the fact that it was virtually empty. He wanted to know whether the state or the amount of urine in the bladder would have been any different had Reeva been awake and emptied it two hours prior to her death.
‘If she voided her bladder half an hour or an hour before her death,’ explained Saayman, ‘it could also have been virtually empty, because it may well be that at that time there was no further substantive urine production.’ This meant that it might be possible that Reeva could have emptied her bladder when she was eating, prior to her death, and disputed the defence team’s claim that her bladder was empty because she had emptied it shortly before death – it was Oscar who claimed that Reeva went to the toilet while he was collecting the fans.
On the issue of gastric emptying, the pathologist reiterated that estimating the time it takes food to pass through the stomach was not an exact science, but that it did not mean a determination could not be made. ‘The best I can offer the court,’ he said, ‘as a summation of my entire experience in this field and my reading of the literature and my own anecdotal observations, given the nature of the meal, the appearance thereof in the stomach, was that I would suggest that we are dealing with a period of approximately two hours.’
Nel concluded, and Saayman was excused, but he would return to court later in the trial when the defence team’s pathologist testified. Then Saayman listened to the evidence provided and consulted with Nel to guide him in terms of the testimony provided.
Dr Jan Botha was the first witness called by the defence team, despite it being usual practice for the accused to take the stand first. In this instance, an arrangement had been made with the state that Botha be called first because he had a genuine family emergency – his wife was ill – and Nel did not oppose the request.
Botha, who was called to stand in for Dr Reggie Perumal, obtained his medical degree from the University of Cape Town in 1969 and later his Master of Medicine in Anatomical Pathology from the same institution, and has been registered as a specialist pathologist since 1975.
Like Saayman, Botha has decades of experience and had been the chief state pathologist in the Free State until his retirement in 2010, but he had also worked in the private sector. In that period he said he’d presented evidence in court on thousands of occasions, and conducted as many as 25 000 postmortems.
When Saayman entered the court, he put down his bag and a few files before greeting Botha, who had stood up to shake his counterpart’s hand. The pair engaged briefly in conversation, before Saayman took up a seat to Nel’s right, from where he would consult with the prosecutor as Botha testified.
As in his cross-examination of Professor Saayman, Roux’s evidence-in-chief of the defence pathologist focused on the issue of gastric emptying. Before Roux asked his witness to refer to academic articles pertaining to the subject, he asked what the doctor’s position was on the matter. ‘The modern consensus is that it is a highly controversial and inexact science, if one wants to call it that,’ said Botha. ‘All the books virtually, warn of the dangers and the variations not only from person to person, but in the same person from day to day.’
Botha referred to the ‘landmark’ Truscott case in Canada that tested the value of using gastric emptying as a determining time of death. Canadian Steven Murray Truscott was sentenced to death by hanging in 1959 at the age of 14 for the murder of his classmate, 12-year-old Lynne Harper. His sentence was commuted in 1960 to life in prison, but was finally parolled in 1969.
But nearly 50 years after the incident, in 2007, Truscott was acquitted on appeal in which it was found that his murder conviction had been a miscarriage of justice. Evidence from experts was presented, who concurred that ‘an estimate of the time of death based on the volume of stomach contents and state of digestion should never be used as probative evidence’, and the use of gastric emptying to ascertain time of death ‘cannot withstand scientific scrutiny’.
Roux led his witness through questions related to the amount of food, the time of the last meal, the medication the deceased was taking, the psychological state of the deceased as well as other factors – information, he said, a pathologist would not ordinarily be privy to – telling the court that these factors would be relevant if it became necessary to call another expert witness to testify in this regard. Dr Botha believed that Saayman could not make a finding on the time of death based on analysis of the stomach contents.
Botha also studied Saayman’s report with regard to the location of the wounds on Reeva’s body, the location of the bullet holes through the door, the damage to the toilet cubicle walls, as well as police ballistics expert Captain Chris Mangena’s report and made a finding on the sequence of the wounds. Botha echoed Mangena’s finding that the first shot struck Reeva in the hip, but unlike the police expert’s finding, he said that the victim was probably leaning forward at the time it struck her because of the shape and detail of the entry wound – the collar of abrasion. ‘The hip wound would have caused immediate instability and she would have fallen,’ he said. ‘I’m not sure how much pain she felt. Certainly shock and instability.’
The witness said the second shot, which Mangena said missed its target, struck Reeva in the right arm. Botha couldn’t say for certain, but he believed that the third shot struck Reeva between the fingers on her left hand and then ricocheted off the back wall.
‘I think by this time she had dropped considerably … she then fell down. She fell against the magazine rack. She certainly didn’t fall on top of the magazine rack,’ said Botha. ‘And it was on this position, while falling against … as she was going down against the magazine rack, she incurred the last shot to the right side of the head.’
Botha dismissed Mangena’s claim, saying he was ‘absolutely confident’ that the two wounds on Reeva’s back were not caused by a bullet that had ricocheted off the back wall, but were in fact caused by the edges of the magazine rack when she fell against it.
This was different to Mangena’s finding in two key respects: that the shots to the arm and the head took place when Reeva was seated on top of the magazine rack. Botha disputed this by first noting that one would then have expected blood spatter on the wall above the magazine rack, and secondly claiming that there was no blood on the magazine rack or on the magazines. Botha said the splinter wounds to Reeva’s right forearm could not have occurred if she was far away from the door �
�� she must have been closer, not further back where Mangena claimed she was. The defence version was that Reeva sustained the wounds quickly while still close to the door as Oscar pulled the trigger in rapid succession, but on the state’s version, there was time – time for Reeva to fall backwards onto the magazine rack, time when one of the bullets missed her, and importantly, time to scream.
Several neighbours told the court they heard screaming during and up until the last shot was fired – could that have been Reeva? But Botha also ruled out the possibility that the deceased could have screamed after being shot. ‘I think a combination of shock, panic, fear and possibly pain, I think before she would be in a position to react to that, the remaining bullets would have struck her.’
Lastly, Botha said the teaspoon of urine in Reeva’s bladder indicated that it had been emptied shortly before her death, which further supported Oscar’s claim that he believed Reeva had got out of bed and gone to the bathroom to relieve herself.
The question of Reggie Perumal and his notable absence was first for Gerrie Nel. Did Botha read his fellow defence pathologist’s report and how much of it did he use or discard before coming to his findings? Botha responded that while he had read Perumal’s report, he did not use it, and relied on Saayman’s report to reach his findings because it was far more detailed. This was a significant admission for the state because it raised serious questions over the contents of Perumal’s report. It made no sense to hire an expert of that pathologist’s calibre, have him in Pretoria to attend the postmortem in person, and then for fellow defence experts not even to consider it.
Nel slowly made his way through the various issues emanating from Saayman’s testimony, in particular the angle of the bullet through the door and the wound it would inflict and, of course, the reliability of gastric emptying as an indication of time lapse. Was Saayman’s finding that the food was consumed approximately two hours prior to death wrong? he asked Botha.
‘I said he might be right, he might be wrong,’ explained Botha. ‘I cannot say that it was two hours, or think it was five hours.’
Nel was satisfied. ‘Good. So you are not saying he is wrong … He is saying, “I used my experience, I used what I saw, my view is two hours.” You say, you do not know if he is wrong, but he could be?’ Botha agreed with Nel’s summary, which was a boon for the state because it meant Saayman’s evidence trumped the defence pathologist.
Nel moved on to the sequence of shots and wounds about which the doctor gave evidence by referring him to the letters marked ‘A’ to ‘D’ on the wooden door mounted in court. Botha revealed, to Nel’s astonishment, that he had not established which of the lettered holes corresponded to the wounds on Reeva’s body because he had not even considered the door. ‘But, professor, if you want to give the court your expert opinion on the sequence of wounds, why do you leave out the most important piece of the puzzle?’ asked the prosecutor.
‘Because, it’s obvious,’ explained Botha, ‘I am not a ballistician. I am a pathologist, I base my opinion on wound ballistics.’
For Nel, it was another tick for his case, but Botha continued, saying that he based his findings on the locations of the wounds on the body – that the hip was the lowest, the arm wound in the middle and the head the highest wound, which showed the sequence of shots being fired at roughly the same height while the body collapsed towards the ground.
‘That is if she is in the anatomical position?’ Nel was quick in with the question. Botha confirmed that that is how he made his determinations. The standard anatomical position for a human being is standing upright, with the arms to the side and palms of the hands facing forward.
‘But not in the toilet, you cannot say that in the toilet, can you?’ Botha couldn’t. There was no way he could, with the body moving and falling around, that one could make an accurate finding if the anatomical position of the body was assumed when making any findings.
Nel had struck another blow in this evidence. But this did not deter him from pushing just as hard on other issues raised as evidence by other witnesses: Mangena’s findings related to the holes in the toilet door, the possible location of Reeva’s head and the matter of the blood spatter on the back wall. The latter proved a particular point of interest when Botha was forced to concede that there had indeed been blood on the wall.
This posed another problem for the defence: its expert was giving evidence without properly studying the crime scene photographs. If a judge has to choose which expert’s findings carry the most weight, the balance would likely tip in favour of the witness who had taken into account all the available evidence, rather than an expert who had not studied all the available evidence.
But that would not be the end of it. Nel persevered, challenging Botha on a number of issues until he either conceded or at least admitted some uncertainty on his part. This included how the small track-like wounds on Reeva’s back came to be inflicted and by what; and the likelihood that the screams came from a wounded Reeva; as well as the sequence and timing of the shots. The doctor accepted Nel’s proposition that if Reeva had fled to the toilet and was hiding in fear, she would have been primed and ready and would have screamed when the shots went off.
The prosecutor questioned Botha on his understanding of a double-tap – discharging a firearm twice in quick succession – because it was understood that Oscar had fired two sets of double-taps. Botha confirmed that he was aware that this was part of Oscar’s explanation of what happened that night – Roux had put it to previous witnesses.
But when Roux started his re-examination he told the court that while he did ask Mangena about double-tapping, he was told soon after that that was not Oscar’s contention, but that he had rather fired in quick succession. ‘It was incorrectly put by me,’ said Roux. ‘So let me correct that.’
How was it possible that an advocate of Roux’s calibre would submit as evidence something he had not heard from his client? The fact that this correction had come so late in the trial might suggest that Oscar could have tailored his evidence when faced with the facts presented by the state, which absolutely ruled out his version of a double-tap. Nel raised this issue when the accused took the stand.
The cross-examination of Botha called into question many of the defence expert’s findings, which appeared to swing this witness in favour of the prosecution team. When pressed, Botha could not dispute some of the major findings of Saayman, such as the evidence on gastric emptying. This was significant, as the court could accept the state’s witness testimony that Reeva was eating at least two hours prior to her death, the time the accused claimed she was in bed next to him. It wasn’t the strong start the defence would have wanted, but the anaesthetist who subsequently addressed this issue further for the defence was adamant that no absolute timelines were possible.
Professor Christina Lundgren is considered a leading expert in the field of anaesthesia, with more than 30 years of experience and hundreds of published journal articles. She was called by the defence to cast doubt on Saayman’s findings related to Reeva’s last meal.
The professor wore a neat black jacket with a white blouse, her greying hair cut so short it barely touched the garment’s collar and she was quietly confident in her delivery. Lundgren explained that an anaesthetist must have a wide-ranging understanding of various physiological and pharmacological factors that might affect patients’ health while they are unconscious, so as to ensure their safety. And one of the most important aspects is to establish whether a patient has any food in his or her stomach because one of the most dangerous complications that can occur is for food to be regurgitated and inhaled into the lungs, ‘which is an absolute disaster for the patient, hence we are experts in gastric emptying’.
She stated that there are general guidelines – related to clear fluids and solid food – adopted by anaesthetists to reduce the risk of a patient’s stomach containing solid food at the time they are put under. Clear fluids can be consumed up to two hours before an operation and
it will be expected to have passed through the stomach. ‘When it comes to solid foods, the studies are very difficult to perform,’ she said, as she listed a host of factors that affect the rate at which food is digested and passed through the stomach.
But there is, however, an accepted guideline. ‘We have always felt that four to six hours after a buttered slice of toast and a cup of tea is acceptable time for you to come to theatre and have an empty stomach but, in fact, the anaesthetic literature has not been able to prove that there is no solid food in the stomach after four hours, hence the consensus amongst anaesthesiologists is a minimum of six hours after any solid food, so to ensure and in the hopes that the stomach is empty after that six hour period.’
Lundgren recalled, anecdotally, a patient who had fasted in hospital for at least eight hours prior to a procedure but regurgitated green stomach contents as she was putting the woman to sleep. ‘She still had not emptied her stomach and had no good reason not to have emptied her stomach after eight hours, and if I chat to colleagues, they have all had similar experiences. So it is not an exact science, unfortunately,’ said the professor, echoing what Botha had said in his evidence.
Roux had provided the expert with Oscar’s version – that Reeva had consumed a meal of chicken stir-fry between 7pm and 8pm the evening before she was killed – and asked her to study the contents of Reeva’s stomach from the autopsy photographs and offer the court her opinion. ‘After six hours of fasting, after this meal, her stomach should probably have been empty but there are so many unknowns about possible factors that could have delayed gastric emptying that one cannot state it as being a fact and I would say it would be purely speculative.’ Like Botha, she could not provide a hard-and-fast answer.
Nel was very polite to Lundgren, setting out firstly that he found her evidence balanced and that he did not have many differences of opinion. ‘Understand that I am not fighting with you, I just think that we will have to go through certain things.’
