Anene ac­cused fights for rights

Weekend Argus (Saturday Edition) - - NEWS - FA­TIMA SCHROEDER

AD­VERSE find­ings on his de­ci­sion not to tes­tify in his own de­fence formed the cen­tre of a new chal­lenge that Jo­hannes Kana, the man con­victed of the rape and mur­der of Bredas­dorp teenager Anene Booy­sen, took to court this week.

In fact, he is so de­ter­mined to chal­lenge the find­ings that he has in­structed his lawyer, Pi­eter du Toit, to take the mat­ter all the way to the Con­sti­tu­tional Court if nec­es­sary.

Du Toit told Western Cape High Court Judge Pa­tri­cia Go­liath yes­ter­day that it is Kana’s case that, when he de­cided not to tes­tify in his trial, he was ex­er­cis­ing his right to re­main silent.

The fact that the de­ci­sion counted against him de­prived him of that right, Du Toit said.

He was ad­dress­ing the court in an ap­pli­ca­tion Kana lodged for leave to ap­peal against his rape and mur­der con­vic­tions.

State ad­vo­cate Maria Mar­shall re­sponded that the is­sue on an ac­cused ex­er­cis­ing his right to re­main silent had al­ready been dealt with by the courts. She sub­mit­ted that there was no prospect of another court com­ing to a dif­fer­ent con­clu­sion.

In Oc­to­ber, Kana was con­victed of the mur­der and rape of the 17-year-old. He was later sen­tenced to two life terms in jail, to be served con­cur­rently.

Booy­sen was raped, as­saulted, dis­em­bow­elled and left for dead dur­ing the early hours of Fe­bru­ary 2. While Kana ad­mit­ted to rap­ing and as­sault­ing Booy­sen, he de­nied that he had dis­em­bow­elled her, claim­ing there were no open wounds when he left. How­ever, he did not tes­tify dur­ing the trial, and Judge Go­liath found that this fail­ure weak­ened the de­fence’s at­tempts to prove his in­no­cence.

“The ac­cused is the only one that could have pro­vided the court with in­for­ma­tion about what hap­pened that night. While he ex­er­cised his right not to tes­tify, it did not come with­out con­se­quence,” she said at the time.

Now Kana wants to chal­lenge her find­ings on ap­peal. How­ever, he needs to ob­tain leave to take the case fur­ther.

Judge Go­liath said there was no doubt that Kana had com­mit­ted the rape and the mur­der. She re­fused the ap­pli­ca­tion.

Du Toit said he had in­struc­tions to pe­ti­tion the Supreme Court of Ap­peal for leave to ap­peal.

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