We have divided this article into several sections, to enable better digestion of a the main points we extracted from the official transcript of this day’s events (the cross-examination of the witness whose evidence you can read about here):
Cross-Examination by Senior State Advocate Christhénus van der Vijver of Timothy Atkinson: Monday 17th October @ 10:15
State Advocate Christhénus van der Vijver begins by stating that for obvious reasons which will become clear later, the State will argue that the person getting out of the vehicle (previously referred to at the ‘walker’) and the person who then assaults the deceased (the ‘kicker’), as well as the person getting back into the vehicle (previously separately referred to as the ‘walker’) is the same person. But for purposes of cross-examination this morning they will refer to the person getting out of the car, the person getting into the car and the kicker as such, so that the cross-examination is clear and that it cannot be misconstrued that van der Vijver is in agreement with Atkinson’s theory for the defence.
Adv. van der Vijver is handing phrases Atkinson used in his evidence back to him throughout the cross-examination, making light of the witnesses’s slightly hubristic testimony. A direct quote from Atkinson’s website is illuminating:
Formally recognised as an expert in the AV field, Atkinson has been called on to testify in a number of high profile court cases in South Africa, where he has had to examine audio and video tape recordings to find inconsistencies ,or to verify their authenticity and originality. “My mother always said I should have been a .lawyer and perhaps she was right,” he says.
The cross-examination begins with the State confirming the points Atkinson made in his evidence for the defence.
Those points are as follows:
- Atkinson confirms that he can’t really say that the ‘walker’ who leaves the car and the ‘kicker’, who appears later, could be one and the same person.
- Secondly that the footage is of course limited by the camera’s reach, and Atkinson further suggested that particular events could have occurred outside of this frame.
- And thirdly that that Camera 5’s footage is of such poor quality (in terms of sharpness, and the available light in the area filmed) that one can’t make any definitive conclusions regarding who or what is being seen.
To illustrate the content below, here are the approximate times recorded for the events that took place on Camera 5:
02:46:57 – car stops in Ravenscraig Road (1)
02:47:00 – car lights come on full bright (1)
02:47:06 – ‘walker’ gets out of car (1) and proceeds to exit screen top left (2)
02:47:34 – ‘kicker’ enters the screen (2) Note: 23 seconds after ‘walker’ exits
02:47:37 – the deceased, having falling onto the pavement (2), tries to sit up
‘kicker’ assaults the deceased
02:49:33 – ‘unknown woman’ enters screen
‘kicker’ exits the screen (2)
02:52:24 – ‘walker’ enters screen (2), continues past the deceased, and enters car (1)
Tying the two ‘walkers’ together:
Atkinson: “It is impossible to say with absolutely certainty because of the poor quality of the footage but because of the action one would assume that a man who gets out of the car will later get in and drive off, there is no proof.”
Atkinson: “No I don’t rule out the possibility, I simply say that I cannot state it with certainty that a man who gets out of the car is the man who gets into the car but on the balance of probabilities I would say yes they are the same person.”
The State: “I know, Mr Atkinson, I’ve asked you this previously and I can’t quite remember what your answer was, so can you just repeat it, the question whether the person gets out of the car and the person getting back into the car, whether that’s the same person according to you?
The State: “And I think we’re in agreement, we, being the State and yourself, on that point, but on what do you base it? Why do you say that the person getting out of the car and the person getting back into the car is the same person?
Atkinson: “On the, as you might say, the probabilities that the man who gets out of the car, presumably has some connection with the car, the driver, the owner, whatever, and when he is finished whatever he is doing, he gets back in, and there’s no indication or evidence that people changed drivers at the scene.”
The State: Especially that hour of the morning.
Atkinson: Bit of a shortage of drivers, yes.
The State then moves on to the ‘kicker’ or assailant, and draws in the suggestion of the defence that was painstakingly detailed – how the ‘kicker’ could not have been stumbling but must have been running into the scene. How Atkinson had stated that “something put the fear of God into him.”
Atkinson: “Those are correct, those are my words and you have to ask yourself from what was the kicker, what was the kicker running away from.”
The State: “Now if the person was running onto the screen, if we now stick with your assumption, is it further, do you go as far as to say that one must then draw an inference that he was running away from something or someone?”
Atkinson: “Well if you are running somewhere …”
The State: “Now if this person was running away from something, let’s first explore that possibility, if he was running away from something, don’t you think it is quite amazing that this person then, when he then manage to stop, first of all it is not clear why he stopped at the point where he has stopped because we don’t see him look over his shoulder, in other words that the danger no longer exists, that is the first point. Then secondly he turns around and like immediately starts attacking the deceased. Now if one takes that against the backdrop of him running in the first place on your version or your assumption that he was running away from danger, it just doesn’t make sense Mr Atkinson. Why would he stop in the first place and he stopped there, he could have ran all the way down to Victoria Road but he stopped, he turned around and immediately he goes for the deceased, what does that tell you?”
The State: “I say that the theory or the possibility that you have now just described as to what could have happened and explained the running etc, is not only improbable it is so far fetched that he [the ‘walker’] would get out of the car, talk to this kicker, say you can’t do this to this lady, the kicker as you put it mockingly run away at a high speed we must add according to your evidence, turn around, then kicked this poor deceased to a pulp and your driver we know must have stood there watching this, and when the lady was dead he walked past her and got into his car and off his goes. Do you really think that is a probable scenario?
The State: “And he tried to get hold of her and well he must have bumped or got hold of her to get her off balance. So my point is can you rule out as a real possibility that the kicker was actually chasing the deceased and he was not running away from anything else or anybody else?”
Atkinson: “I did not take that, I did not make calculations about that in my work, so I can’t honestly answer you, I would prefer to leave it open until I can look further into it.”
The Court: “Well that is precisely why the Court asked you [reffering to Atkinson] why did you not depict the lady [the deceased], that is precisely the reason why the Court paused and inquired from you in your hypothesis why you did not include the lady so that the Court could have a full explanation as to the presence of both and what both of them would have been doing off screen and on screen, do you understand?”
This is eactly what the court was referring to in the description published in our article from earlier in the trial.
Atkinson: “Well first of all there is the question of the other woman and then I was a bit intrigued with Liebenberg’s evidence that the blow that created the commotio cordis could have been struck by a very light person. We could have had a situation that the other woman actually struck the victim and the victim fell into the screen as a result of this blow and so the victim falling into the screen is not necessarily connected with the kicker running into the screen.”
Recognisable features that might connect the ‘walker’ and the ‘kicker’:
Atkinson insists that he cannot state unequivocally that the ‘walker’ and the ‘kicker’ are the same person through not only the quality of the footage, but that the visual continuity link is broken as each figure walks off screen during the incident.
Atkinson: “I can’t see the connection between the two and therefore I say on, what is it, balance of probabilities, they are not the same person.”
The state perseveres and directly asks Atkinson whether there “is there room that it might be the same person?”
Atkinson: “We cannot see what happens off screen as it were and therefore it is obviously conceivable that it could be that the man who walks, continues to walk, turns around and becomes the person who runs on screen. So you cannot exclude it totally, I merely say that I cannot see it positively.”
The State: “Would you agree with me that the top garment of the kicker is of a lighter colour than the pants?
Atkinson: “It looks like that, yes.
The State: “Now can you go back to where the person got out of the car? It’s about 02:47:08, ja, there about, just stop there. If you look at that picture, would you agree that the top garment also seems lighter than the bottom?”
Atkinson: “Marginally so, yes.”
The State: “And now can we get to one where the person walked back to the car? This is now after everything is completed, done and dusted.”
“Would you agree there, the top garment is lighter than the bottom?
Atkinson: “Yes, I don’t see them side by side, and I’m not prepared to say that they are the same brightness, but the top one is lighter than the bottom on this scene here, yes.”
On the gait of the walker who gets out of the car:
The State: Would you agree with me that that could be indicative of a person that is angry, he is walking with purpose?
Atkinson: Yes it could be.
Atkinson: “Yes it is one possibility that he could be angry, it could also be a possibility that he saw something that he didn’t approve of.”
As Atkinson had also spoken in his evidence about the difference in gait of the walkers – the State refers to an occasion when Atkinson had pointed out that the person who got out of the vehicle was walking with bigger strides than the person who entered the vehicle. The state asks Atkinson if this was intended to show that the walkers were different people, and Atkinson confirms that it was not.
Atkinson: “No, no, no that is not intended to show that it is possibly not the same person, if anything it would show that the person had set out to achieve something that was going there and on his way back saying okay my work is done, that would be the maximum that I would go to. “
Van der Vijver: “To use your words you said he almost walked back to the car in a dejected manner, those were your words.”
The prosecution also points out the fact that the car was parked fairly far away from the side of the road, in van der Vijver’s words “virtually in the middle of the street”. Atkinson had previously stated that “either somebody was in a hurry to stop and get out or the vehicle’s lights were picking up something that was in view and they didn’t want to loose it” – this is van der Vijver quoting Atkinson.
Van der Vijver: “And then one mustn’t forget one important point is that the State has got evidence which they will argue is sufficient and I am sure the defence will argue otherwise, that the car that was there was the car of the accused.”
Atkinson: “Yes well I don’t think the defence is arguing that it isn’t.”
The ‘unknown woman’:
Van der Vijver also gives attention to an uknown woman (it is agreed that this person is most probably a woman) who approaches the deceased after the assault, seemingly tries to perhaps slap her on the face, and then later attempts to speak with the walker who gets into the car before driving away from the scene. This women was on the scene with the kicker, as well as with the walker.
Other people who feature in the 2 hours of footage are first ruled out: an unknown man (here referred to as the ‘pedestrian’), the police, the District Watch, and the two security guards who were inside a building close by, as “irrelevant for purposes of this trial in terms of the commitment of the offence” van der Vijver’s words.
This unknown woman, who “observed the whole exercise and at the end of the exercise went down and spoke to the man in the garden, walked back, went to the guardhouse and went away, that woman has never come forward to say what she saw” – van der Vijver’s words.
Note: The ‘kicker’ enters the scene just prior to the deceased, who is in the process of falling to the pavement.
Van der Vijver refers to the karate championship dismissively as “the video with the Karate Kid”.
The State: “When you refer to the video with the ‘Karate Kid’ and then you apply, try to apply the same principle as to what we have here on EXHIBIT 2, and you then showed the Court that at one stage the lady was – her head was falling to the side…
The State: “And I think you, to use your words, ja, you said that on page 1922, line 8, well actually from seven, you said: “In my view, that is the point at which the body gives out.” But surely, Mr Atkinson, you’re not in a position to make that assumption.”
Atkinson: ‘Yes, and immediately after saying that, I qualify that we would need medical opinion on that matter.”
The State: “But we obviously now venture on to unfamiliar grounds for both of us, I mean we’re not medical experts in this field.”
The State: “I simply put it to you that the proposition that that could also have been a reflex movement to protect herself, one cannot rule out that possibility, especially if one have regard to the evidence of Dr Liebenberg, that her trying to get up in a crouching position, is indicative to her that the person was at that stage still alive.”
The State: I’m not posing this question to determine whether she was protecting herself or not, I’m posing this question objectively for the viewer, when one views the footage, can one conclude as a fact that the victim, who was flung on to screen, was being attacked immediately prior to her being flung into the screen?”
Atkinson?: “Yes, that’s a reasonably assumption.”
The State: “I’m saying that what we see on screen, that’s compatible with a murder being committed in the fashion that was portrayed by the pathologist, the nature of the injuries, etcetera. And – yes, there wasn’t another attacker, there was the lady with her three silly slaps [who approached the deceased after the attack], or how many it could have been, but there’s not another attacker on what one could see on screen.”
Atkinson: “If I understand Dr Liebenberg and the literature that she gave us to read a child can initiate a blow like that.”
The State: “I come back to what you’ve alerted us to right in the beginning of your evidence about being bias. And I must put it to you, Mr Atkinson, that I think you fell into that trap. Because I mean you are – you’re not really here to assist the Court, I would argue, but just to kick up dust and to say well there must be some other possibilities off screen. And I don’t know how that assists the Court.
But you go further than just trying to alert or to warn us, Mr Atkinson, you come to conclusions, and that’s the problem that I have, you come to conclusions. You come to a medical conclusion by saying that you think that’s where the body gives out, to use your words. You stated it as a fact that somebody was chasing the kicker. You come to conclusions and I must say that if you are portrayed as an expert witness in this matter, and this particular topic, I have great difficulty with that, because you’re not here to assist the Court. As a matter of fact, this bundle that you compiled, you don’t need to be a specific expert to do what you’ve done here, am I correct? You don’t need to be an engineer, electrical engineer, to compile a bundle like this. You draw a few lines, you’ve come to conclusions, you did photoshopping, you don’t need to be an expert to do that.”
“That’s my difficulty that I have. You were portrayed as an expert witness that was called to assist this Court with this bundle. So the difficulty that I have, is that you even tried to venture on that unfamiliar ground, and that’s why I say I must question your objectivity.”
On Tuesday 01 November 09:30 the trial will continue with the defence’s second-to-last witness.