Decision today on cop ‘ill-treatment’
MURDER accused Henri van Breda will have to wait until today to hear if Judge Siraj Desai sees him as a victim of illtreatment by police.
In the trial-within-a-trial which began in the Cape Town High Court on Friday‚ defence counsel Piet Botha described Van Breda as a young man shivering in just underpants‚ deprived of sleep‚ hungry and traumatised at just having seen his parents and brother axed to death in the Stellenbosch family home.
He wants the statement Van Breda gave to police on January 27 2015 to be disallowed as evidence in court.
The state says he was perfectly calm‚ was treated as a victim and not a suspect‚ and happily signed an electronic version of the statement.
Botha argued that Van Breda had been pinned as a suspect from the beginning but then denied his rights to silence or legal representation.
But Susan Galloway‚ for the state‚ told Desai yesterday: “When he gave his statement‚ he was perceived as the only surviving member of the Van Breda family who was able to give an account of what happened.”
At that stage‚ “there was no incriminating evidence” and Van Breda was “calm and was able to give an account of what happened”.
He was not a suspect when he made the statement, was “read an electronic version of it and was satisfied”.
She said the testimony of Sergeant Clinton Malan‚ who took the statement‚ was corroborated by Dr Lizette Albertse, who had examined him and recorded him as a victim and not a suspect.
Galloway said only arrested‚ detained or accused persons were made aware of the constitutional rights to which Botha referred.
The police had acted within the law and nothing about the giving or taking of the statement was detrimental to the administration of justice, she said. According to Botha‚ Van Breda was treated in a way that made it clear he was a suspect‚ and he was therefore entitled to those rights.
“He should have been informed he had rights,” he said.
“There is no onus on the accused to prove that his rights have been contravened. The onus is on the state to prove that they weren’t.”
The judge, who will give his ruling today, said: “He was neither detained‚ arrested nor accused‚ and therefore why is there reason to make him aware of his constitutional rights?”