Lying in the Sun

Roux Defending Derman

Roux Defending Derman

Barry Roux, Defence Closing Arguments.

In his closing argument, and have not viewed it all, but from what I have seen, Barry Roux, was left, after Gerrie Nel's Closing Arguments, not only with the problem of defending Pistorius, but Professor Derman, one of the Defence Expert Witnesses.

Roux, his counter argument on the points Gerri Nel made in respect of the Professor Derman’s evidence in relation to

  • Startles and Sounds
  • The Magazine rack sounds not being properly investigated
  • The Professor not having kept notes, records of any investigation, testing, or findings he came to.
  • And the Professor stating that his memory was fuzzy in respect of specific areas on which Nel had questioned him.

Barry Roux begins this part of his Closing on this issue by saying he would like to address some of the points that Mr Nel made, which were materially wrong.


On point of law.

And it is this, and he says     (by ‘he’ Roux is referring to Gerrie Nel)

That perception of the accused, the perception there was intruders must be reasonable. 

M’Lady that’s not the law!

What the law is really –

When someone is charged with an offence requiring intent, you test intention with the subjective mind.  It’s subjective, not objective.  What you can and should do, you can look at probabilities and you can look at objective facts to determine whether he is telling the truth about his perception but that does not change the requisite, that the perception IS subjective.

What the real effect of the law is. Once you find, that that, was genuinely his perception - but he was negligent in the following respects - and THEN you are in the arena of culpable homicide, and this is made quite clear by all the authoritative text book writers. 

Then you move to the next step and say ‘well I’ll give you/it the benefit of the doubt in your perception’

But that’s not the end of the case – ‘that is what you subjectively thought at the time, and I accept it, because that ‘s what…, that’s not only what you said,  you said it, immediately after the case, immediately after the incident.  You told Stander (? ) within 2 minutes…4 minutes.  You told the Police.  You told C.. Stander (?)  You told  … Stander (?)  You told Dr Stipp (?)'  

He (Pistorius) repeated that.  He went into the Bail Application without seeing the Docket, without hearing the evidence of the investigating officer at the Bail.  Before that, he filed his Affidavit telling his story. So it can’t be a recent fabrication.  He did it then already BEFORE being exposed to the Statements, to the Docket and, to any Evidence.  So what basis do you say he is lying about it? 

Whether that…whether he was negligent, that we will deal with, and that falls within the ambit of culpable homicide, which is a very different argument, and I may say so I really genuinely believe that’s where the start…that is where the trial should have started.  And that’s what the trial should have been about, but unfortunately it was not.

Mr Nell spoke about Professor Derman, and he calls him -  a self- proclaimed expert.

That’s extremely unfair, he’s highly, highly, highly qualified.  He’s the most qualified person in the country.  Whatever he was saying to the Court he backed up with research, with authoritative articles, publications on that very point!

 He was not saying something because ‘that is what I’m thinking’    He says: ‘what  I’m saying to you is ALSO in research’

But it’s more than that, then Mr Nel says to you:

And you know, how can you depend on someone’s evidence when his memory was fuzzy?’


(Roux now speaking of Derman what Derman stated in Court)


He did NOT say his evidence was fuzzy, he said it was a BIT FUZZY on the reaction to the second startle.   He could not remember, what was, his reaction, to the second startle because that was not as important.   His evidence was not fuzzy in general.   And in any event not fuzzy, but he says – ‘On that I’m a BIT fuzzy.’   He explains  - ‘I  just cannot remember it on thinking back.’  


And (Nel) blaming him FOR NOT KEEPING NOTES

That I understand, that I understand but that does not mean that he’s not highly qualified and that he was not absolutely... whatever he was saying to the Court, was corroborated by research.

But what is more important, then he gets blamed, he says (before continuing Roux speaks in an almost whispers to his assistant – “where’s that note?”  A pause in proceedings while he speaks with assistant…’2914, 2914’ and they try to find what they are looking for)

Roux now continues….

…He gets blamed, and says (Roux is referring to what Nel said previously in Court to Derman)  -

 ‘you come tell us you are an expert, why did you not investigate that third startle?   This magazine rack -Why did you not investigate?'

M’Lady I want to take you to the evidence of Professor Derman in that respect at 2914. 

(Pause again while Roux and assistant look for 2914)



(Roux directs the Court to the point/sentence/paragraph,  on 2914 (now shown on screen) that he is referring to in relation to Nel ‘s questioning of Derman re the magazine rack. )


Roux reads from this 2914 – 2915


there was a third noise which evidently is the noise of a magazine rack.’ 


‘Evidently because I do not know what it is (?)

(Still in reference to the text on screen in relation to Nel’s previous questioning of Derman re magazine rack)

Roux continues:

And he carries on... and without wasting time, the other places 2870 M’Lady, and 2571 if you’d make a note, I don’t want to waste time, but what he says there is:    (‘he’ being Derman this time)


‘I DID NOT investigate the sound’

What must he do?   Must he now go to the house?  Take the magazine rack and move it around?

He’s an expert.   He says –

'This is the version , the accused heard a noise.  It subsequently – according to the accused – he thought it was,  at that time he thought it was the door opening, but it turned out that he believed it must have been the magazine rack moving.'

That’s an inference.

He said – ‘that’s what I know.  What must I investigate? ‘ All I can say in my expertise, is that if you have that noise, in that situation, that can create’ - and in view – created the startle, and I will deal with it later on.

So blaming him for not being an expert because he did not do an independent investigation into that? 

Experts don’t do that!  Unless you are a ballistics expert you go out to the scene, but psychiatrists, psychologists, medical people, they say-  'if this is the version' –  and it’s for the Court to accept or reject that’s what I say on the version.

So how can he be blamed for not going and doing an independent investigation?

The other point made by Mr Nel  He said:

‘Look at the grouping, look at the grouping on the door, it’s a good grouping.’ 

(the grouping being referred to is the bullet holes in the toilet door)

If anyone, should say to you,  and I’m not a (shot ?) -  I haven’t touched a firearm for many, many years – but if you put me two metres from the door, and asked me to fire 4 shots, I’m pretty sure I could get a better grouping.   If you say to me aim, and fire from 2 metres – M’lady  it’s from where Miss Johnston is sitting there -  fire 4 shots in the door, we must be careful‘ when we look at that grouping and think that’s a person on the door 150 metres away, that’s a brilliant grouping.’

But two metres away.  Is that a good grouping for two metres away?

That’s the only thing I want to highlight.  So we must be careful….

****  The 
Footage I was viewing was cut at this point.   But I think we get the point Roux was trying to make - trying to defend the failure of Professor Derman in his capacity as an expert witness and trying to defend Pistorius by claiming amongst other matters, that his shots fired were really not that accurate, not a good grouping.

He was trying also to counter Gerrie Nel's argument, the role of the Prosecutor and the argument/requirement of 'reasonably possibly true'

See Blog - 'Role of the Prosecutor'
9th August 2014

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