One Tragic Night (62 page)

Lin was careful not to confirm Nel's suggestion outright. ‘I think one needs
to appreciate what 120 means. 120 dB is extremely loud, it is almost hearing a jet taking off at a 100 metres away and that is not … it is a very slight possibility but it is a possibility.Wolmarans also did not dispute Mangena

Nel suggested that the hard tiles in the bathroom would have ‘amplified' the sound, a claim Lin could not agree with. It appeared the prosecutor was using the incorrect terminology, but Lin tried to explain that the energy – the scream level – could not be increased; however, the reflective properties could allow the energy to be transferred from the enclosure, as opposed to being absorbed.

Frustration emerged at times, as Nel grappled with unfamiliar and complex terminology and concepts. ‘I think we are all trying to understand this very complicated science of yours,' said Nel.

Nel wasn't aways satisfied with Lin's responses. Lin had been called as an expert witness and he would push on certain questions. ‘It is commonly known that woman has high-pitch voice and it is a common perception,' said the witness.

The state's argument on this score was that a voice with a particular tonal characteristic would stand out and be more noticeable above ambient noise. In this instance, the terrified screams of a woman whose life was threatened would be unmistakeable.

Nel said four people identified the voice of a woman – with no exceptions – that everybody who heard that sound at that time identified it as a woman's voice. Lin was not aware of this fact.

Roux objected, suggesting the state should clarify that it was the prosecution witnesses who made the claim, not everybody. To avoid an argument, Nel changed the proposition to include only the state witnesses:

The witness could thus not rule out the evidence of the state's witnesses. Even after all the calculations and possibilities considered, it was still very possible for human ears to hear and make out a woman screaming that morning. Roux had nevertheless cast some doubt. But would it be enough to dispel the claims that the blood-curdling screams of a woman pierced the early morning that Valentine's day?

Lin had not been asked to testify at all about the comparison between a cricket bat hitting a wooden door and the sound of gunshots. The only evidence that had been led to bolster this claim was that of a largely discredited Roger Dixon and Wollie Wolmarans, who by his own admission, is partially deaf.

Critically, no audio of Oscar screaming had been played. During the course of the trial, Oscar had told the court he was made to scream when he was anxious. But these recordings were never presented, leaving the claim that when anxious and screaming he sounds like a woman unsupported, except for the testimony of those immediate neighbours who had testified for the defence.

Despite this, Judge Masipa would have to come to her own conclusions about whether or not the defence had thrown enough doubt over the state witnesses' claims that they had heard a woman screaming that Valentine's Day morning. The onus lay on the state to prove its case beyond reasonable doubt, not on the defence to prove its case. If there was enough reasonable doubt in the judge's mind, then Oscar's lawyers would have done enough.

It was early afternoon at the tail end of the summer holidays. The piazza in Melrose Arch, lined with trendy eateries, was teeming with people returned from the country's beaches. Oscar Pistorius had also been to the coast with the new love in his life for part of the holidays and was catching up with friends at Tashas, the trendiest restaurant of them all.

Oscar took a guest visiting from the UK, fellow athlete Martyn Rooney, to meet up with his friend Darren Fresco and professional boxer Kevin Lerena. In an attempt to remain inconspicuous, the men chose a table in the far left corner inside the restaurant, close to the wooden tables heaped high with confectionary.

The patrons against the wall sat on plush cushioned couches, while on the opposite side of the table were two wooden chairs. Oscar sat in the corner, with a wall at his back and to his left. Lerena was opposite him, while Rooney was to the athlete's right and Fresco diagonally across from him, next to the boxer. It was lunchtime and the restaurant was packed as usual, with at least 200 people both inside and outside under a canopy of umbrellas to shield them from the scorching January sunshine. A queue of would-be patrons stood out in the piazza, holding tags and waiting for their numbers to be called.

Between the talk of nutrition, kilojoules and body mass, Oscar asked Fresco if he could see his firearm. The athlete had his eye on a Glock 27 and wanted to inspect his friend's handgun. This particular variant of the US-made weapon is a .40 calibre, described by the manufacturer as ‘small, light, accurate, powerful … and popular with police both on and off duty'. Unique to this handgun is its trademarked ‘Safe Action' system – it has no hammer and the trigger must be pulled for the weapon to discharge.

Fresco believed Oscar to be a competent firearm owner – they'd spent time
at the shooting range together – and didn't question why he wanted to see the weapon. As Fresco leaned forward, with Oscar leaning in towards him to take the firearm, he allegedly warned the athlete: ‘There is one-up.'

The buzz of multiple conversations was suddenly interrupted by the deafening crack of a single gunshot.

After the bang rang out a silence fell over the place. White noise filled the ears of the men around the table. ‘Is everybody okay? asked Oscar.

Fresco was shocked. ‘Just carry on as if nothing has happened.'

Oscar continued, ‘I don't know what happened, how the gun went off. I'm sorry, it was a mistake. Are you okay?'

Lerena looked down and saw a hole in the tiles next to his foot. His toe had been hit by shrapnel and was bleeding. Fresco thought that their close proximity to the kitchen might lead some patrons to believe that the noise had been a gas explosion.

Owner of the franchise Jason Loupis and his wife Maria were working the lunchtime rush when they heard the bang. Jason's immediate thought was that it was a firearm – but he wanted to believe it was a balloon popping.

As he later testified:

Jason couldn't believe what he was hearing. He turned around and walked back to his wife, checking to see whether anyone had been hurt.

‘Can you believe that was a gun?' Jason asked Maria, who was still in the outside area. She also went to have a word with the men – Fresco told her the same story he had given her husband just moments earlier. ‘But what is the first rule of owning a gun, “Safety First”'? asked Maria.

As Fresco answered yes, she slapped him over the head and walked off.

The group wanted to get out of there as quickly as possible. Oscar paid the bill. Lerena said he never again spoke of the incident, agreeing with everyone at the table that it should be kept under wraps. Fresco agreed. But by 2pm, Oscar had told Reeva and, in a message, pleaded with her to keep quiet about it:

Reeva agreed to play along:

A second message followed 20 seconds later:

In court, more than a year later, the hefty boxer in a black suit and red tie waited to be sworn in. He stood with his hands crossed in front of his waist with his shoulders back and his head high – easily mistaken for a bouncer outside a nightclub. He was to testify about the first of the firearm-related charges against Oscar, the incident at Tashas. Later the state would call the athlete's ex-girlfriend, Samantha Taylor, to tell the court about an incident in April 2012, when Oscar allegedly fired a gun out of the sunroof of a car. And then Fresco – allegedly present at both incidents – would be called by the prosecution to tie it all together.

In the days after the Valentine's Day shooting and before the formal bail application, the police busied themselves trying to find as much ‘dirt' on Oscar as possible. As part of this process, former Scorpions investigator Andrew Leask, who is currently based at the Special Investigating Unit under the National Prosecuting Authority, paid his own visit to Tashas in Melrose Arch. He met with Marc Batchelor and his circle of friends, who had reason to feed information about Oscar to the authorities. Through ‘Batch' and his mates, Leask was directed to Fresco, Taylor and Lerena, from whom he learnt about the Tashas shooting and the sunroof incident.

The additional firearm-related charges – counts two and three on the indictment – were only added to the charge sheet in late 2013 after attempts by the defence to have these excluded. While they have no direct link to the shooting on 14 February, the state used them to paint a specific picture about the accused: of a person who was reckless with firearms, who showed scant regard for the laws surrounding the use of guns, and who, when in trouble, refused to take responsibility for his actions. The charges were the mechanism to introduce character
evidence, which is exactly what the defence believed the state was doing.

The official reasoning given by the state at the time of adding the gun charges was for convenience – the prosecutor argued that the gun charges dealt with many of the same witnesses thus it made sense to deal with the matters in one court in one trial from a pragmatic perspective.

‘Arguably this is a thinly veiled argument. It is quite clear that the state has relied on the gun charges as a means to enter much more character evidence than they would otherwise have been permitted to do,' explains law lecturer Kelly Phelps. ‘The gun charges set a backdrop implication of Pistorius having a bad character, which essentially forced Pistorius to put evidence of his good character on record to address the perception created. Once an accused puts evidence of his good character on record the state is permitted to cross-examine him on evidence of bad character.'