Van Breda to take stand in new court term

Source in lawyers’ team con­firms he will tes­tify in his own de­fence, which could be chal­leng­ing

Weekend Argus (Saturday Edition) - - FRONT PAGE - MARK BEHR

HENRI van Breda will tes­tify in his own de­fence, prob­a­bly when the Western Cape High Court re­sumes for the third term on Oc­to­ber 9.

De­fence ad­vo­cate Pi­eter Botha hinted at this sev­eral times dur­ing his cross-ex­am­i­na­tion, but Van Breda’s ap­pear­ance in the wit­ness box was con­firmed this week by a source in his de­fence team.

Van Breda has pleaded not guilty to the mur­der of his mother Teresa, fa­ther Martin and brother Rudi van Breda, and the at­tempted mur­der of his sis­ter Marli in their home in the lux­ury De Zalze Es­tate in Stel­len­bosch on Jan­uary 27, 2015.

The State is ex­pected to close its case on Mon­day af­ter Botha com­pletes his cross-ex­am­i­na­tion of their vet- eran blood spat­ter ex­pert, the con­vinc­ing and knowl­edge­able Cap­tain Mar­ius Jou­bert, who has not blinked once un­der de­fence fire.

Once the State wraps up, Botha will have to play his hand which is most likely go­ing be a re­quest to the court that he call Van Breda only at the start of the new term on Oc­to­ber 9 and not next week.

“Nor­mally the ac­cused tes­ti­fies first,” said an in­formed source. “This pre­vents him amend­ing his ver­sion of events once his ex­perts have tes­ti­fied. But the de­fence can re­quest that Henri doesn’t tes­tify first so long as they pro­vide Judge De­sai with com­pelling rea­sons for the change of or­der.”

Botha will prob­a­bly choose this route as the sec­ond term ends on Thurs­day and he would not want a two-week in­ter­rup­tion of his client’s cru­cial tes­ti­mony. Ex­perts say Botha would rather utilise the re­cess to rest and prep his client ex­haus­tively with­out any dis­trac­tions.

Van Breda’s tes­ti­mony and cross-ex­am­i­na­tion is ex­pected to last at least five days.

If De­sai al­lows Van Breda to take the stand in the new term, then it’s likely that Botha will lead with ex­pert wit­nesses who do not ad­dress the mer­its of the case.

The pos­si­bil­ity of Van Breda not tak­ing the stand is re­mote. “If Botha doesn’t call him then he has big­ger prob­lems than he will have if he does put him on the stand,” said a sea­soned ad­vo­cate who did not want to be named.

“That’s the beauty of cir­cum­stan­tial ev­i­dence – the guilt of the ac­cused does not have to be the only in­fer­ence. It just has to be the only rea­son- able in­fer­ence. If Henri does not give a rea­son­ably pos­si­bly true al­ter­na­tive ex­pla­na­tion for the in­crim­i­nat­ing cir­cum­stan­tial ev­i­dence then the court must ac­cept the State’s in­ter­pre­ta­tion of the cir­cum­stan­tial ev­i­dence that has been pre­sented as the only rea­son­able ex­pla­na­tion. So Van Breda has to tes­tify to pro­vide some sort of equally com­pelling ex­pla­na­tion.”

Van Breda has al­ready pro­vided a ver­sion in his plea state­ment pre­sented at the start of his high court trial. The source said: “But it’s im­por­tant to re­mem­ber that his state­ment has not been tested un­der cross-ex­am­i­na­tion.

“So at this stage it’s sim­ply a ver­sion of events. It was not made un­der oath so the court can’t take that ver­sion into ac­count in his favour un­til he tes­ti­fies un­der oath and the State has tested him on his ver­sion.”

Botha could call ex­perts to counter the State’s in­ter­pre­ta­tion of the cir­cum­stan­tial ev­i­dence, which in­cludes some very in­crim­i­nat­ing tes­ti­mony by State ex­perts, but the prob­lem for the de­fence is the court doesn’t have to ac­cept their ver­sions or opin­ions.

“Ex­pert opin­ion is only pro­vided to as­sist the court in mak­ing de­ci­sions. Which is why it’s a no-brainer that Henri has to tes­tify if he stands any chance of an ac­quit­tal.”

It seemed Botha would com­plete his cross-ex­am­i­na­tion of Jou­bert on Thurs­day but the po­lice ex­pert put a spoke in his wheel when he con­fi­dently stepped out of the stand to demon­strate why, in his opin­ion, it was un­likely that Van Breda had thrown the axe at a flee­ing mur­derer (played by the court or­derly) when he was close enough to strike him di­rectly in the back.

Clearly an­noyed at Jou­bert’s demon­stra­tion and his prox­im­ity to the “at­tacker”, Botha boomed that Jou­bert was cre­at­ing a false im­pres­sion.

But Judge De­sai quickly re­minded Botha: “I will de­cide whether the im­pres­sion is false or not.”

Ad­di­tional chal­lenges for the de­fence in the days ahead will be to counter Jou­bert’s con­vinc­ing tes­ti­mony that the blood splat­ter on Van Breda’s sleep shorts placed him close to his brother, fa­ther and mother when they were axed.

He had claimed in his plea state­ment that he was stand­ing frozen at the door­way of the brother’s en-suite bath­room, sev­eral me­tres away, and wit­ness­ing the fren­zied axe at­tack.

Once in the stand Van Breda will also be hard-pressed to ex­plain why Jou­bert did not find any blood spat­ter on his naked torso, arms or legs con­sis­tent with the blood spat­ter found on his socks.

PIC­TURE: DAVID RITCHIE/ANA

Triple mur­der ac­cused Henri van Breda out­side the Western Cape High Court as pro­test­ers picket.

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