Van Breda will not take the stand ‘at this stage’

THE advocate for triple murder accused Henri van Breda told the Western Cape High Court yesterday that he would not call his client to testify “at this stage”.

Defence advocate Piet Botha said: “The most difficult decision a defence can take is whether to call a client or not. The evidence by the State is circumstantial, we intend calling expert witnesses and lay witnesses to counter that.”

In terms of the law, when the State closes its case, the defence must make its decision on whether it will call on the accused to testify. In this case, Botha wanted to make that decision only after the defence’s expert witnesses had testified. Usually, an accused is called as the defence’s first witness. This would create the possibility that the accused could tailor his version based on what expert witnesses testified.

Forced to make the choice, however, Botha said he would not call Henri to testify. Botha is allowed to change the decision not to call him at a later stage, but it could have consequences if the court draws a negative inference. “If we change our mind, we will have to live with any possible consequences or inferences your Lordship may draw,” Botha conceded.

But senior State prosecutor Susan Galloway said if Henri testified last it would prejudice the State. “He (Botha) says he wants to assess the veracity of what his experts say; is he trying to see how well they answer to points Henri must answer to? That is what his client must do. If he (Van Breda) testified last, we would not have the opportunity to cross-examine experts on Henri’s testimony.”

Botha said his client was innocent until proven guilty and had the right to not testify, but Galloway countered: “Similar to remaining silent, there are consequences to the accused not testifying.”