Advocate Botha certainly came in with guns blazing this morning when he commenced his cross-examination of blood spatter expert Captain Joubert.
He is no doubt talented when it comes to testing a witness, and given that Joubert is the State’s last witness, today was Botha’s last chance to cross-examine. He also has to make up for the less-than-ideal bouts with Dr. Tiemensma and Professor Dempers.
Botha began his cross by reading case law (handed down by Judge Davis in the Western Cape High Court) regarding the responsibilities of an expert witness to Captain Joubert. It was pointed out most importantly that an expert witness has a duty to impart their knowledge to the court objectively, impartially and not with the intention of favoring of the party who has called the expert.
Joubert was told in no uncertain terms that an expert should not come to court as a “loaded gun”. A calm witness with quite a soft demeanor, Joubert didn’t seem too concerned by these comments. He said, where necessary, he is happy to concede two possibilities are equally possible, but that he formed an opinion and decided on one.
Reasonable, but obviously the Defence is not happy that his opinions swayed heavily on the side of the State.
These are the key issues that arose today:
Marli’s DNA
I have been asking this since Ltn. Coln. Otto’s evidence which we have previously heard, but now again the question remains – how is it possible that Marli’s DNA is not found in the possible blood on the axe, Henri’s shorts or his socks?
Botha put this to Joubert today and again Joubert offered the explanation that the injuries Marli had sustained were spread out, and that a number of factors would influence blood rising to the surface and spattering on the axe blade. It would depend on how quickly and near to that surface the next injury was inflicted as well as what kind of tissue it was, be it soft or vascular.
Advocate Botha told the court that his expert, Mr Styl, will testify that it is virtually impossible for Marli’s DNA to not be on that axe (if it was the same axe used to inflict her injuries) considering the injuries which she sustained, as well as the blood loss from those injuries. Joubert had to accept Mr Styl’s statement as being a possibility but Joubert countered that by offering the following quote:
“Absence of evidence does not necessarily mean evidence of absence”
In short, this means that because her DNA was not on the axe does not necessarily mean that she wasn’t attacked with that axe.
A good quote under those particular circumstances, (regarding the lack of evidence of Marli’s attack on Henri and the axe). Let’s for a moment apply the absence is evidence theory to the State’s case, which relies heavily on the fact that there is absence of evidence of an intruder, and that Henri is guilty. Then, if there is no evidence that Marli was attacked by Henri, this presents a significant problem for the State. To further the mystery around Marli, it is not in dispute that her injuries were similar to those sustained by Teresa, brother and father and as such inflicted by an object similar to the axe.
THE ELUSIVE SECOND AXE
Now we know why the second axe and the second intruder has been so incredibly important for the Defence!
There is no evidence of Marli’s DNA being present on any of the blood spatters on the axe, Henri’s shorts and Henri’s socks. Then we have Henri’s version, as stated in his plea explanation, that he did not see his mother or his sister being attacked, but heard voices as the attackers fled and thus knew that there were two intruders. Surely this is consistent with Henri not being near his sister when she was attacked if we apply the same principle of him being near his mother, father and Rudi when they were attacked due to the spatter evidence on his socks and on his shorts?
Now, enter James Jahn-Reade, who previously testified that he thought the axe from the house was black and not the dark green colour of the axe presented to him in court. The only witness to have testified that there might be a second axe, the same witness whose own WhatsApp messages to Marli expressed that he had a feeling “to murder the people” that were around her.
It now becomes reasonably possible to consider that there was a second person who attacked Marli with another instrument similar to the axe used on the other victims, purely because there doesn’t seem to be a plausible explanation for the lack of evidence of Marli’s DNA on the axe found on the scene.
A theory may be that Henri had an accomplice; Henri murdered his father and Rudi and his accomplice attacked Marli, possibly even his mother, but then where is the evidence of an intruder?
Is it reasonable to believe someone entered the home, assisted him and left without a trace? If so, it’s possible that an unknown intruder could have entered the home and committed the all the crimes and left without a trace.
Henri needs to tell us what happened. He needs to be tested and today we heard again from Advocate Botha that Henri will testify. This is not the first time Botha has said this but I am now convinced Henri will tell us his story soon.
So many questions still to come in this matter, and Advocate Botha will continue cross-examination of this witness tomorrow.
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Photography Megan-leigh Heilig / HM Images
