13. MISREPRESENTING THE PROSECUTION CASE

The concept of inventing a fake argument, to then defeat it.

The concept of inventing a fake argument, to then defeat it.

A pattern repeated several times in Panorama, Jeremy Vine makes a false statement which misrepresents the South African prosecution’s case. He then proceeds to argue against the fictitious case, to “prove” it wrong.  A technique referred to as the Straw Man Argument, or Aunt Sally in the UK.

The trouble is, of course, that what Vine argues against is not what SA Authorities actually allege.

THE FORENSICS

Vine has misrepresented the prosecution case, suggesting there was a large difference between the conclusions of the SA authorities and the Panorama experts, when in fact they are in substantial agreement. In the three quoted examples below, the phrases in bold text are misleading, and do not accurately reflect the prosecution case, which was presented in sworn evidence at the trial of Xolile Mngeni, and easily accessible in media reports and court transcripts.

  • 43:55 Vine: “The South Africans claim the forensic evidence proves Anni was cowering against the back seat, and Mngeni took aim from the front passenger seat. So they claim, he deliberately shot her, with the gun barrel five to ten centimetres from her body, which means her death was not an accident.”
  • 47:27 Vine: But are the South Africans right to say the forensics prove Mngeni was Anni’s killer? Was the gunman in the front passenger seat?
  • 45:10 Vine: “If Anni was leaning forwards, can the South Africans be sure that the gun was held at a distance from her”.

Vine makes no reference to media reports and trial records, in which it is clear that the forensic evidence was never presented as “proof” in the way he suggests. To the contrary, pathologist Verster testified:

  1. That Anni had cowered in a defensive pose (she did not say “against the back seat”), and
  2. That the muzzle of the gun was likely five to ten cm away at the time.

Judge Robert Henney specifically asked Verster if she could tell where the shooter had been sitting in the car by looking at the wounds. “Unfortunately not. A person can be in a number of positions and holding the gun in numerous ways” she replied (Mail and Guardian, 10 Oct 2012).

The ballistics expert, Warrant Officer Pieter Engelbrecht, also did not say that the forensic evidence  was “proof” of where the gunman sat. He testified that the shot was probably fired from the front passenger seat (Mail and Guardian, 17 Oct 2012).

The SA forensic experts did not say the gun was “held at a distance”. As quoted by the Mail and Guardian above, Verster estimated that the gun was five to ten cm away. Panorama’s hired expert Mark Mastaglio (45:20) is in substantial agreement, saying “potentially less than 5 cm”.

HIGHLIGHTING THE TRIVIA

Panorama have also misrepresented the prosecution case in another, more subtle way. The issue is balance: What is important, what is not? What parts of the whole body of evidence merit our attention, and what can we safely ignore? What is convincing evidence, and what isn’t?

To suggest that a minor piece of evidence is somehow “crucial” or “key” to the prosecution case is actually to misrepresent it. Panorama have done this in several places. For example:

  • At 0729, Vine asserts “The volatile state of the relationship forms a key part of the prosecution”. How or why this is “key” is not explained.

It is a noticeable feature of Jeremy Vine’s approach, that he does concentrate on “appearances” rather than solid facts. Nowhere is this more obvious than in his 2012 program (also titled ‘The Honeymoon Murder’), in which he spends inordinate amounts of time speculating about the ‘state of the relationship’ , based on nothing more than CCTV footage captured in a public place. In the current 2013 program, he claims that: “During a Panorama investigation into Anni’s killing broadcast last year, I discovered significant cracks in the South African version of events.” (Vine: 04:24). He does not deign to explain, how CCTV showing how people have presented themselves in a public setting, could somehow disprove police evidence in the form of phone calls, SMS messages, financial records, forensic evidence, and the testimony of multiple eyewitnesses. Vine’s characterisation of his own perceptions as “key” evidence is not surprising, but that is a feature of Vine’s journalism, not the prosecution case.

  • At 4602 Mastaglio is shown saying “I think this is a major flaw in the investigation”.

The context of his comment is not made clear. Was Mastaglio commenting on the prosecution case as a whole, or the technical detail of a forensic report? Mastaglio is a technical expert. He is highly skilled in determining factual detail related to the discharge of firearms, and Panorama have asked him to comment on those aspects. Although Panorama do not make it clear, it seems likely that Mastaglio’s comment refers specifically to the forensic examinations carried out, rather than the entire prosecution case.

  • At 5348 Vine tells us “…the CCTV contradicts crucial evidence in [Tongo’s] sworn statement”.

The alleged “crucial evidence” is a listing in telephone records, of a 54 second call from Dewani to Tongo, made the day before Dewani flew back to England. How this could be “crucial evidence” is not explained. There is no evidence proffered as to the subject of that call, and no suggestion about how it might relate to the murder which happened four days earlier, nor any other detail of evidence.

It is apparent that “crucial” and “key” are descriptions which Jeremy Vine has used to describe even the most minor, inconsequential issues. This is a feature of Vine’s journalism, not the prosecution case.

Irrespective of whether the alleged flaws can be proven or not, in misrepresenting trivial and minor matters as being of “key”, or “crucial”, or “major” importance, Vine has shown that he is not the impartial and reasonable arbiter he pretends to be.

Further aspects of these questions are  addressed in the following section “QUESTIONS OF BALANCE

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