140915OPJudgment

CC113/2013-mb 3305 JUDGMENT
2014-09-11
can assist this court to determine whether the accused had the requisite
intention to kill the deceased. For that reason this court refrains from
making inferences one way or the other in this regard.
There is also the matter of partially digested food that Professor
Saayman found in the stomach of the deceased’s body during the postmortem
examination of the deceased. Counsel for the state submitted
that this fact was a strong indication that dinner was not at 19:00 the
night before as alleged by the accused, but closer to the time when the
deceased was shot dead. He argued that that would explain the
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‘argument’ that was heard by Ms van der Merwe just after she had
woken up at 01:56. This argument seems to lose sight of the following:
1. That the experts agreed that gastric emptying was not an exact
science. It would therefore be unwise for this court to even attempt
to figure out what the presence of partially digested food might
mean as the evidence before this court is inconclusive. However,
even if this court were to accept that the deceased had something
to eat shortly before she was killed, it would not assist the state as
the inference sought to be drawn by the state from this fact is not
the only reasonable inference. She might have left the bedroom
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while the accused was asleep to get something to eat. What
complicates this matter is that it is not even clear when and if the
alarm was activated at any given time that evening or that morning.
2. That Ms van der Merwe had no idea where the voice came from,
what language was being spoken or what was being said.
Accordingly, there is nothing in the evidence of Ms van der Merwe
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