One Tragic Night

by Mandy Wiener

  On 30 April 2013 Vermeulen received a call from Mangena asking him to join him at the Forensic Science Lab to inspect the door. Taking a closer look, he identified two distinct marks – the compressed wood at an angle above the door handle, and a mark that was more like a hole through the door. Photographs were taken of this process and, during the trial, the album marked ‘Exhibit Y’ contained 16 photos, mostly of Vermeulen conducting tests in what appeared to be a storeroom, where numerous shelves and items in boxes could be seen packed neatly away. The panels in the door were being crudely held in place with clear tape, and while Vermeulen wielded the bat, Mangena’s hand could be seen holding up a measuring tape for the record.

  Nearly a year after conducting these tests, while giving his evidence to the trial court, the investigator asked Judge Masipa if he could take off his jacket in court to demonstrate. Vermeulen wanted to replicate the April tests, as depicted in the photos taken at the Forensic Science Lab. He wanted to demonstrate how he matched up the various marks. ‘The investigation revealed that the cricket bat actually made a physical match with the marks, which is of undisputable confirmation that the bat was used to bash the door,’ said Vermeulen. It was, however, never in dispute that Oscar had used the bat to break down the door.

  Incongruously dressed in his suit pants and tie, Vermeulen stood in front of the wooden panels, slightly to the right so as not to obscure the judge’s view, holding the bat with both his hands against the door. It was a match. He then grabbed the bat by the handle and positioned himself where the person wielding it – and made the mark – would have been located, his left shoulder close to the door, but his arms slightly lowered. When Nel asked him to perform a mock swing at the door, it was clear from the demonstration that the bat would have struck the door a lot higher, approximately 1.85 metres high, but the mark on the door was about 1.53 metres high. The state would argue that for Oscar to have made that mark on the door, he would have had to have been on his stumps.

  Nel asked the officer to position the bat against the mark, and questioned him about his body position and posture. ‘I would have been in an uncomfortable position, not a natural position,’ said Vermeulen. ‘Even if I stood further away from the door, it would have been in a very uncomfortable and unnatural position for me.’

  Vermeulen then pulled out a small stool, and balanced on it with his knees. This put him at approximately the same shoulder height as the accused on his stumps, and he swung the bat again. This time it matched up with the first mark on the door.

  The second mark on the door saw the bat break through the wood, smashing out a large splinter, and becoming wedged between the panels – scratch marks on either side of the bat’s toe confirmed this. He compared the marks and the way the bat fitted into the door to a nail being driven into a piece of wood – if you pull that nail out of the wood, it’s difficult to merely just push it back in because the force of the hammer actually displaces and expands the wood. Vermeulen suggested that the bat was jammed through the door in this way.

  But he insisted that for a person to have caused such damage to the bat and door, he would have been in a different position. Vermeulen once again gripped the bat by its handle with its face to his left, but this time stood in front of the door and facing it. He pulled his arms up over his right shoulder and whipped them forward as if he were attacking – the wooden corner of the improvised ram slotted snugly into the gaping crack in the door. Another match, but, like before, he said he had to be in an unnatural position to make the mark, except when he was lowered to about Oscar’s shoulder height.

  Vermeulen believed that while the bat was slotted through the crack, it was twisted to break the panels away. This would have allowed Oscar to pull away the other panels and peer inside to where Reeva was lying.

  It was important for Vermeulen to demonstrate that a person in two different positions caused the two marks, and he further believed that whoever had caused them had a significantly lower shoulder height – like the accused without his prosthetic legs fitted.

  Vermeulen told the court that apart from the two marks about which he had testified, there was only one other mark that drew his attention. That mark was located just below the door handle, but he could not confirm that the cricket bat or any other item had caused it. ‘It seems like it is a kind of a shaving or a mark that was caused by an object going kind of in line with the door, as opposed to a perpendicular direction. It is very difficult to confirm that it is in fact one hundred per cent what happened there. The other characteristic of that mark is that it is quite low, low down on the door, which is not a normal position where I would suspect a mark to be caused by a cricket bat, if someone wanted to break open the door,’ he said.

  This remark would come back to haunt the policeman during cross-examination.

  During the adjournment, Advocate Barry Roux picked up the bat and, while surrounded by his own expert Wollie Wolmarans, attorney Brian Webber and Oscar, he swung it at the door but from various positions and different angles. Oscar was guiding his advocate, explaining how he wielded the bat that morning when he attacked the door, while Wolmarans directed the meeting’s attention to a mark on the door, higher than those on which Vermeulen had concentrated. Oscar had been taking notes throughout the morning as Vermeulen was testifying. At one point he was seen folding a piece of paper that had a stick figure drawn on it, which appeared to be holding a bat standing in front of a door.

  Roux wasted no time going for the credibility of the witness and the reliability of his tests. ‘Colonel, are you a certified tool mark examiner?’

  Vermeulen revealed he was not, but said he had used a technique to obtain the match between the bat and the marks on the door as a tool mark examiner would.

  ‘Have you done microscopic imaging of the mark on the door?’

  He had not.

  Roux quickly turned to the experiments he had been conducting during the adjournment, putting it to Vermeulen that he could replicate the mark on the door by standing in different body positions, using different shoulder turns and at varying distances from the door. The point Roux was making was that a person did not have to be in this ‘natural’ or ‘comfortable’ position – as described by the police officer – in order to replicate the mark on the door.

  Roux asked Vermeulen once again to take the bat and wield it in front of the door as he had done earlier, but this time he should be down on his knees. The expert obliged. ‘Now do me a favour and lift your feet,’ instructed Roux.

  Down on his knees with the bat in his hands, Vermeulen lifted his feet, which were behind him, as if to precariously balance solely on his kneecaps. He immediately lost his balance and had to return his feet to the floor. Roux had attempted to demonstrate his client’s inability to maintain his balance when on his stumps.

  ‘Could you hit the door with the bat?’ he asked, seemingly satisfied his demonstration went well to prove his point.

  Vermeulen wasn’t biting. ‘Well, I do not know whether I would be able to do it if I grew up without legs.’

  ‘Would you want to try again?’ urged Roux.

  ‘The other argument is also valid, M’Lady, if he had enough balance to fire a firearm, then I would suspect that he would have enough balance to hit a door with a cricket bat.’

  Vermeulen declined to replicate the experiment proposed by the defence advocate, insisting that he was not used to walking on his knees; whereas the accused had spent a lifetime on his stumps. (Oscar later testified that when he fired the shots his back was against the bathroom wall, which would have provided him with stability.)

  Roux interrogated Vermeulen’s description and findings based on the assumption that the person hitting the door was in a ‘natural position’, or in the ‘expected position’, and to demonstrate his point, positioned the officer in front of the door in various positions. The policeman thus spent the morning taking the three or four steps between the witness box and door, wielding the bat on instruction from
the defence advocate as he interrogated his findings.

  In the varying positions – with his knees slightly bent, or his back bent forward – he had to concede that the bat did in fact match up to the mark, but he would always insist that this was in an unnatural position. But it raised the question – an unnatural position for whom? Could he speak for Oscar? Roux pointed out that with the policeman’s additional weight and shortness, he had a different physique to the accused.

  The state forensic analyst agreed with the defence that the door had been intact when it was shot – the bullets first, then the bat – which he confirmed by analysis of the damage. This is explained by a crack down one of the panels through bullet hole ‘D’. The crack enters the hole at the top to the right and continues out the bottom left. Vermeulen explained that the crack would have carried on in a straight line down the grain of the wood if the hole had not been there. Wolmarans also later supported this theory.

  This confirmed the defence’s sequence of events – that Oscar first fired the shots through the door before bashing it down with the cricket bat.

  True to form, Roux went on to direct his attack to police process, an age-old tactic of defence advocates. Invariably, questions will be raised during a criminal trial about whether or not police acted according to protocol; did they retain the integrity of the crime scene and properly preserve the exhibits?

  Roux then asked about the door, telling the court that he would produce photographs that showed additional marks on the door that were not present on the day of the shooting, like the shoe prints. The unmistakable tread of boots – like those worn by police officers – had been trampled along the two centre panels of the door. It appeared as if these were caused by the fine dust kicked up from the tile grouting when the tiles fell off the back wall. The boots had perhaps transferred the dust on to the meranti wood. This would in all likelihood have happened on the crime scene when the panels were still lying around the bathroom. This suggested yet again carelessness and unprofessionalism on the part of the police, and Roux made a meal of it.

  The defence advocate attacked every detail of Vermeulen’s investigation in an attempt to establish any kind of reasonable doubt, such as the slight angle at which the door was leaned up against a cabinet in the labs on the test day could have altered the findings, and that Vermeulen did not compare photos of the door on the day of the shooting to the door when he was studying it.

  The expert could not explain where the large splinters from the section broken out by the cricket bat had disappeared to. Vermeulen believed they were unaccounted for, possibly not collected at the scene. He explained that he did not seize the door at the crime scene on the day of the shooting; he was only handed the case weeks later, but he conceded that he never asked about the splinters because they were not relevant to his investigation. Roux presented a statement and photos to the court from a lieutenant-colonel at the Forensic Science Lab’s trace analysis section who had, in fact, studied and compiled a report on the splinters that Vermeulen claimed he could not locate. Vermeulen insisted that the first time he had seen the splinters was in court.

  To illustrate his point, Roux referred to the photos of Vermeulen and Mangena conducting the tests on the door – photo 480 in the albums – and asked the man to describe what he saw. The screens in the courtrooms came to life and showed a picture of Vermeulen’s arm holding the bat against the door, while Mangena, wearing blue gloves, held a tape measure against it.

  But there was something else of significance. ‘Oh,’ exclaimed Vermeulen, ‘there are some pieces of wood next to that …’

  And there they were, in plain sight. The large splinters from the crack in the door had been removed from the body bag in which the door was being kept, and placed on top of the crumpled-up bag as the men inspected the door. For Roux it was all about testing the competencies of the experts and the thoroughness of their investigation in order to show the court that there could be doubt about their findings. Vermeulen accepted that this was an oversight on his part.

  Another oversight, it emerged, was that he did not study a mark just below and to the left of the door’s brass handle because he had focused solely on matching up the bat to the door. He could find no other marks that matched up to the bat. ‘We will present evidence that that mark was caused by the prosthesis kicking the door or making contact with that door and the fabric of the sock was in fact still embedded [in the door] and varnish of the door [was found] on the prosthesis,’ said Roux. This was another important aspect of Oscar’s timeline – that he first tried to kick the door before fetching the bat.

  How and why did Vermeulen overlook this? ‘I could not link it to the cricket bat so that is why I only elaborated on the first two marks that we spoke about,’ he said, before suggesting that the mark could have been caused by Oscar possibly tripping over or stepping on the piece of wood after it was knocked from the panel.

  Roux appeared incensed, arguing that it was impossible for the sock fibres to become embedded in the wood of the door and the varnish on the prosthesis without significant force being applied – like a kick. ‘The fabric was tested, the wood was tested, the prosthesis was tested, they all match,’ he insisted.

  Despite these assuring claims from the defence team, it later emerged that the tests had been conducted by Roger Dixon, and by the time he stepped off the stand Dixon’s credibility was questioned by many.

  But for now the focus was still on the state and the fact that it had not tested the prosthetic legs and the sock fibres against the mark on the door, despite Oscar telling the bail court a year earlier that he had kicked the door with his prosthetic legs.

  Vermeulen admitted that he did have the prosthetic leg in his possession, but he was only requested to examine damage to the plastic covering on the shin. He had not used his initiative to carry out any kind of tests outside the ambit of his instructions. He also accepted that if a study of the mark on the door proved to be a match to the prosthetic foot – although he was not convinced of it – it would indicate that Oscar was wearing the prosthetic legs at the time.

  Roux presented a photograph to the court of the prosthetic leg where a sample of the plastic covering had been removed ‘in order to do the comparison and the markings in the microscopic testing in relation to the mark on the door’ – he was referring to the tests conducted by Dixon. Vermeulen said he knew Dixon; he had been his commander before he left the police’s forensic laboratory, and he had experienced him as a competent person.

  In wrapping up his cross-examination, Roux asked Vermeulen whether he had seen the YouTube video of a man conducting the bat vs gun sound test. The video had been posted online and had gone viral. It showed an American expert, Alexander Jason, conducting an experiment to determine if a bat strike on a wooden door could produce a sound similar to a gunshot when heard at a distance. It wasn’t an attempt to replicate Oscar’s door, his bat or the technique used but despite this, it seemed to suggest that the sounds were similar.

  Vermeulen had not seen the video.

  ‘I do not know how scientific, but it was done with a microphone 180 metres away and the person taking a bat and hitting a door and then after that, firing a 9 mm to compare the significant resemblance of the shot and the bat,’ Roux told him. ‘Did you do any test when you heard about the version that there was, of the accused, there was first a shooting and the hitting of the door, to understand the resemblance between that?’ asked Roux.

  Vermeulen had not conducted such a test, but neither had the defence team, and it was only after this video emerged that Roux dispatched Wolmarans and Dixon to the shooting range to conduct a similar test.

  When he re-examined Vermeulen, Nel wanted to deal with nine items, and posed them as fairly straightforward questions. While Vermeulen provided some explanation to support his answers, it was clear what his answers were:

  1. The fact that pieces were missing and you could not locate them at the time of your investigation; did it affec
t your findings?

  No.

  2. If the bat had hit the door anywhere above Mark 2, you would have expected to see the indentation in the wood?

  Yes.

  3. For you to hit the door with the bat at Mark 2, you would be in an unnatural position, and to hit even lower than that you’d be at an even more unnatural position?

  Yes.

  4. Is there any damage to the door handle?

  No.

  5. Do you still stand by your findings in relation to the angle and position of the bat when it struck the door, even after the demonstrations from Mr Roux?

  Yes.

  6. The bat being wedged through the door would have placed the accused in an unnatural position if he was wearing his prosthetic legs?

  Yes.

  7. You testified that the bullet hole was caused before the panel was broken – but are you able to say whether Mark 1 caused by the bat against the door was before the shots?

  No.

  8. For you to establish at what angle the bat hit the door, was a microscopic investigation necessary?

  No.

  9. If the mark pointed out by the defence team is in fact a kick mark, can you say whether it was caused before or after the shots?

  No.

  Nel paused here and asked Vermeulen to speculate, as he had been asked to do by Roux. It was earlier put to the witness that the only reason why the accused would have kicked the door was to open it because it was locked. ‘Could there be other reasons?’ asked Nel. ‘Let us speculate. You were asked to speculate. Could it be to scare someone? Is it possible? Just to make a noise? That is possible.’

  Vermeulen agreed that was indeed a possibility.