I'll be the Judge

When we reported in nose98 that the public tends to have a skewed notion of the role of forensic science in solving crimes, we hardly thought to include high court judges among the mystified – until a recent case in the Pretoria High Court came to our attention. Or was Judge Willie L Seriti just having a bad day?

Ballistic: Judge Willie Seriti

On the afternoon of 10 October 2003, Mr and Mrs Hennop of the Brits district were travelling in a light delivery vehicle towards the town of Brits when they were forced to stop by two men. One approached the passenger side while the other, armed with a gun, headed towards Mr Hennop in the driver’s seat. Fearing for their lives, Hennop asked his wife to pass him his own firearm – a small 6.35mm Browning.

According to court files, the thug aimed at Hennop’s head and fired, but Hennop leaned backwards and the bullet hit his wife in the neck.

Mr Hennop then shot at the assailant, hitting him twice about the head. Instead of going down, the man and his companion fled the scene, and the Hennops headed home to call an ambulance. Mrs Hennop died of her injury six weeks later.

Later in the afternoon of the shooting, Eric Mtshweni sought treatment for two bullet wounds to his head at Ga-Rankuwa hospital, saying he’d been robbed and shot in Soshanguve township, some 45kms north of Pretoria. Detective Inspector van Tonder didn’t buy Mtshweni’s story and placed him under arrest for the attempted murder of Mr Hennop and the murder of Mrs Hennop.

At the trial Mtshweni denied being the assailant, and for his part Mr Hennop testified that he couldn’t identify the individuals who had attacked them. It was therefore incumbent on Inspector van Tonder to place Mtshweni at the scene of the Hennop attack, and the prosecution to convince the court that he had been the attacker.

The state built its case on DNA evidence and on the testimony of Mtshweni’s aunt, Martha Motsweni, with whom he had been living at the time. Three blood samples collected from the crime scene matched Mtshweni’s sample at the hospital where he had sought treatment, and Martha Motsweni testified that Mtshweni had confessed to her that he’d been involved in the shooting.

Although Dr JM Mchenga, a dentist in training as a maxillofacial surgeon, had removed a bullet from Mtshweni’s right cheek, the other, lodged behind the left ear, could not be extracted. Inspector Van Tonder explained in his testimony that ballistics experts at the police unit in Pretoria could not determine whether or not the removed bullet had been fired by Hennop’s Browning.

But on this point Judge Seriti appears to fall into that category of South Africans whose understanding of forensic science is unduly influenced by the CSI television series – he assumed that the answer would arrive in clear either/or terms.

Prosecuting attorney DWM Broughton had asked the inspector: “Can it be determined whether the bullet from the accused’s face was fired from Mr Hennop’s firearm?” To which Van Tonder replied: “No.”

Judge Seriti took this to mean that the bullet was not fired from the gun. Mtshweni’s attorney appears to have perfectly understood the difference between saying “wasn’t fired by” and “could not be determined whether or not”, but he, of course, didn’t question the judge’s interpretation.

A heated argument ensued between the judge and the prosecutor, as can be seen in the following edited excerpt from the trial.

Judge Seriti: “Where did the accused get injured? According to the ballistic report, the bullet that was removed from his face was not fired from the firearm of Mr Hennop. If he was not injured at the scene, then it means that he must have been injured at Soshanguve. That is the only evidence which is on record. Once I accept that he was shot at Soshanguve, then of course the entire evidence of Martha Motsweni [the aunt] must go down the drain.”

Adv Broughton: “M’Lord, it is important to bear in mind that the evidence was that it could not be determined whether the bullet extracted from the face of the accused was fired from Mr Hennop’s firearm. Now, there is a big difference between ‘it was not fired’ – a categorical statement that it was not fired from the firearm – and ‘it cannot be determined’.”

Judge Seriti: “The ballistic expert examines it and he cannot tell me that this bullet came from this firearm, and I have got another version this side which says, this bullet was shot by people at Soshanguve.”

Adv Broughton: “M’Lord, there can be various factors that can lead to the ballistics expert not being able to determine whether a bullet was indeed fired from a certain firearm. The bullet might be so damaged that one cannot determine whether there are sufficient identifying features – in Afrikaans we note it as ‘klaskenmerke’. It might be that there were not enough identifying features on the bullet.”

Judge Seriti: “You are speculating on that point. I do not have any evidence.”

Adv Broughton: “M’Lord, the evidence is that it could not be determined. There is a difference between it could not be determined and a categorical statement that the bullet was not fired from the firearm.”

Judge Seriti: “Let us go to the evidence of the investigating officer as far as that is concerned, unless I am the one who did not understand him.”

Adv Broughton: “M’Lord, his evidence was to the effect that it could not be determined whether the bullet that was extracted from the face of the accused was discharged or fired from Mr Hennop’s firearm. His evidence was not that the ballistics expert indicated that the bullet was not fired from Mr Hennop’s firearm.”

Judge Seriti: “Let me tell you what I have in my notes, unless there is something wrong with my notes. Ballistic report was received and it says the bullet removed from the cheek of the accused was not fired from the gun of Mr Hennop.”

Adv Broughton: “M’Lord, my notes clearly show that the evidence of the inspector was that it could not be determined whether the bullet was fired from the firearm of Mr Hennop. There are various factors that can lead to that. The evidence of Inspector van Tonder was clear in this regard. Now, surely, if it turned out according to the ballistics tests that the bullet was in fact not fired from the firearm, then the ballistics expert would have mentioned this.”

But Judge Seriti maintained that what he had in his notes was the correct translation of the testimony of the detective inspector, and not even the transcript of the testimony played back to him could convince him otherwise.

Since the honorable judge believed that the ballistic evidence was vital to reaching his judgment, he should have called the ballistics expert to explain why a determination of the origin of the bullet had not been possible. Instead, he chose to believe that the accused had been shot at Soshanguve – and the aunt’s testimony did indeed go down the drain. Mtshweni and his co-accused were acquitted.

The state appealed against the judgment, questioning the judge’s failure to call the ballistics expert. The appeal was heard by Appeal Judges Farlam, Cloete and Lewis, who unanimously ruled in favour of the state and ordered the retrial of Mtshweni and his co-accused by a different judge.

The summary of their judgment reads: “Where the presiding judge at a trial believes that the evidence of a witness is essential to the just decision of the case, and fails to call such witness, he makes an error of law. If the error is one on which the acquittal of an accused turns then there is a grave irregularity in the proceedings and the court of appeal is bound to order a retrial on the same or amended charges.”

In his judgment, Judge Lewis wrote: “In my view it is clear from the record that Judge Seriti did believe that the evidence of the ballistics expert was essential to the just decision of the case, and acquitted Mtshweni because there was no explanation of the inconclusive finding. He had a duty, in view of his belief that it was essential to the just decision of the case, to call the witness. Moreover it is apparent from the argument quoted above that Judge Seriti did not understand the import of the ballistics report. He said as much. All the more so, therefore, did he have an obligation to call the witness [the ballistics expert] in order to understand that evidence.”

Perhaps our learned Judge Willie Seriti should take time out from watching crime programmes, and register for a refresher course in logic. 

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