We’ve entered week 6 of the van Breda Trial, and the cross–examination of Sergeant Quinton Malan, led by Advocate Botha, continued.

Sgt. Malan is the officer who took down Henri’s statement on the afternoon of January 27th 2015 – the very statement that has lead to the ‘trial within a trial’ at this stage of the murder trial.

After finishing the cross-examination of Sgt. Malan, and hearing that the state will not call any more witnesses in this new twist in the trial, the defence changed their strategy regarding leading evidence from Henri van Breda. The team must be confident that they wouldn’t need Henri’s evidence to convince Judge Desai that the statement taken on the day is inadmissible.

Strangely enough, Advocate Botha ended up handing up the disputed statement to Judge Desai, seemingly defeating the purpose of the application to have it found to be inadmissible – but additionally informing the judge that sometimes one must consider the contents when considering whether or not it is admissible.

 

IMPORTANT CONCESSIONS

  1. At no stage was Henri warned of his constitutional rights prior to giving a statement to Sergeant Malan or Colonel Beneke.
  1. It is unusual to ask a witness to give a blood sample to test for drugs and alcohol. Sergeant Malan confirmed that this was unusual, and Dr Van Zyl took this test on the evening of 27 January 2017 with her evidence having been admitted into court.

  1. Sergeant Malan was adamant that Henri had been wearing a t-shirt and sleep shorts from the time he was at the scene. This is not consistent with what Dr Albertse noted when she stated that he had grey sleep shorts on when he arrived at her rooms.
  1. Sergeant Malan said that he had been present during the questioning of Henri by Colonel Beneke, except for two occasions he had to step out – one when he left to attend to administrative work and another when he had lunch. It turns out that Sergeant Malan had written in his notebook that he had attended a murder investigation in Blue Downs sometime between taking Henri to the station and hearing his interview, a trip which he estimated to be a 30-40 minute drive. However, it was a trip in which he completed in 25 minutes, according to his notebook, this being in total, the drive there, back and the time spent in Blue Downs. Judge Desai will likely not accept this version, so if he went to Blue Downs after bringing Henri back to the station he was most likely away for most of the questioning by Colonel Beneke.

  1. The version Henri gave Sergeant Malan is not exactly what Sergeant Malan had typed out. In the statement typed by Sergeant Malan, a number of spelling and grammatical errors were made which would commonly be made by an Afrikaans speaking person when translating to English. For example one would say “was” in the place of “were”.

Judge Desai tried to explain to Sergeant Malan that an English speaking person would not make those types of mistakes. Sergeant Malan would not concede that he paraphrased the statement and insisted that he took it down word for word.

I think Judge Desai may accept that it is unlikely Sergeant Malan was telling the truth here, but he probably won’t believe that Sergeant Malan was trying to mislead the court. Of course this leads to the question of what else did he record incorrectly due to incorrect translation?

It was for the purposes of proving this inconsistency in Sergeant Malan’s version that Advocate Botha handed up the statement in question in order to show Judge Desai that it could not have been taken down word for word due to the language and spelling used.

When doing so, he advised Judge Desai that the version wasn’t completely inconsistent with what his client’s version of events were, but a number of important details were excluded and incorrectly conveyed. He felt it was important to show Judge Desai that this witness was not being truthful when he said it was Henri’s word-for-word version. He then asked Judge Desai to divorce the contents of this statement from his mind, in the event that he finds it to be inadmissible.

  1. Advocate Botha indicated that he intends to argue Sergeant Malan’s version that no other evidence was taken from Henri in the form of specimens by Dr. Albertse – that in fact Sergeant Malan knew that evidence was taken.

Advocate Botha can only argue this by using Dr. Albertse’s evidence which has been incorporated into the ‘trial within a trial’ wherein Dr. Albertse states that she sealed specimens taken from the accused and as such Sergeant Malan must have known.

Advocate Botha then closed his questioning of Sergeant Malan today.

State prosecutor, Advocate Galloway, then advised that the state would not call in further witnesses regarding the trial within a trial. Advocate Botha further noted that despite putting Henri’s version of events to Sergeant Malan throughout his cross-examination, he only intended to call Henri’s uncle, Mr. du Toit, to give evidence on what happened that day.

Obviously Advocate Botha can change his mind about what evidence he wishes to lead on the statement admissibility issue at any time prior to closing the ‘trial within a trial’. He may need to re-consider his position when Henri’s uncle’s version is tested through cross-examination, but for now, the defence seems to have decided against placing Henri in the witness box – a decision which could lead to his statement being admitted as Judge Desai cannot ignore the fact that the accused has elected not to put his version into evidence and allow the state to test it.

Tomorrow we will hear evidence from Mr Du Toit, Henri’s maternal uncle, in the ‘trial within a trial’ and his evidence will be limited to that issue. Thereafter, assuming that the defence closes the matter, we will hear legal argument from Advocate Galloway and Advocate Botha in order to persuade Judge Desai to make a finding on admissibility.

Follow me on Twitter for live, to-the-minute updates from the courtroom.

 

Photography K-Leigh Siebritz / HM Image

Article written by

Tracey Ann Stewart

Legal expert and counsel for Highbury Media