Today, the prosecutor, Advocate Susan Galloway continued her cross-examination of Henri Van Breda, slowly and steadily testing his version and weaving through a number of different angles throughout the day. Henri is being charged with the triple axe murder of his family in January 2015 at their home in De Zalze Estate, Stellenbosch.

On the second day of his cross examination Henri appeared far less confident in the witness box than he did yesterday. It is certainly not unusual to see a change in demeanor in a witness under cross-examination on day one versus how they may be on days 4, 5 or 6.

It remains unknown whether Galloway will take as many days to finalise her cross-examination.  In my experience, she won’t use less than 4 court days, she has many more questions for Henri. After going through evidence for almost 3 years – unlike his counsel who have had plenty of time to listen to his version – this is the very first time Galloway has had an opportunity to question Henri about that night.

I have enjoyed Galloway’s manner of examining Henri. She allows him to feel as if he is taking control of the questioning and in turn he answers more than is required. A tactic which may expose untruths when she revisits them later on in her cross-examination.

Tailored Evidence?

Henri refuses to take responsibility for what was said to the police the day after the murders. When his statement differs from his plea explanation and again in his evidence before court (which is given after having had access to the police docket and having consulted with his legal team and experts and hearing evidence in court), his only explanation is that those were not his words. It’s obvious that an Afrikaans speaking person wrote the statement and not Henri himself, or that he did not think those details were necessary for his plea explanation.

An important inconsistency between the statement, his plea explanation, and his testimony in court, which in my view will likely be accepted as tailored evidence, is Henri’s position when he opened the bathroom door and saw the attacker hitting Rudi. Today he told the court that he is certain he opened the door and stepped into the room when he saw Rudi and his father being attacked, a version which could possibly explain the blood spatter on his shorts.

In his police statement he says he heard the noises and opened the bathroom door slightly, he saw someone hitting Rudi and he stood there afraid to come out of the toilet.

In his plea explanation he says he heard noises and moved towards the bathroom door which was partially closed. He then opened the door and saw the silhouette of someone standing over Rudi attacking him. He froze and cannot remember if he remained in that same position.

When asked why he had told the police he had stayed in the bathroom, Henri said that he had not and that it was unfair to say that he had told the police to use that wording.

Judge Siraj Desai intervened and asked Henri why he thought the police officer would have recorded that? Henri said it must have been a mistranslation. Desai then put it to Henri that it could not have been, the statement was not translated, he spoke English and it was written in English. This is a fair point.

Henri also introduced new evidence with regards to his father working after dinner and before they watched the movie. This detail was not in his statement to the police nor was it in his plea explanation. Galloway said that it seems as if he has introduced this new evidence as a way of explaining the noises that the neighbour heard from 10pm. Another point which would support the argument that he has tailored his testimony.

Henri introduced further new evidence about seeing an unknown person (we heard today that it was probably the neighbour’s nanny), outside the house while he was waiting for the police and that he had asked her to get help. Galloway pointed out it can be inferred that even though he asked her to get help, she did nothing and asked why the defence team had not lead evidence from this person to support this fact. Henri told the court that his legal team made this decision.

In what was a fairly gripping portion of today’s cross examination. Henri was asked to demonstrate, using a replica axe in court, how the attacker attacked Rudi and his father. Henri was visibly uncomfortable holding the axe. Later on when asked to comment on the fact that the axe looked new, Henri said he had not spent much time looking at the axe. Galloway immediately offered him an opportunity to study it but he quickly refused, shaking his head. “No, I do not want to see it up close,” he said.

Henri also conceded that there was probably only one axe in the house. He confirmed that he had never seen that particular axe in the house but he hadn’t seen any axe in the house for that matter.

When Henri was asked to comment on the intruders entering the home to commit this crime unarmed or under armed, given that the attacker needed to use a weapon from within the house, Henri commented that perhaps it was a case of opportunity versus need.

 

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