Today, the State closed their case against Henri Van Breda, and Advocate Botha made special requests to support how he intends running his defence. Both the State and the Defense addressed the possible future testimony from the two surviving siblings of the axe murders.

Marli does not want to be made available for the Defence’s case

 Advocate Galloway advised the court, prior to closing her case today, that the State makes available (to the Defense) all of the witnesses that the State did not call, excluding Henri’s sister, Marli. This is because Marli has no memory and cannot contribute to the events that night and more importantly because Marli has requested that she not be made available to the court.

Advocate Botha advised that he would reserve his views, to deal with the matter if the need arose, on his rights to consult with Marli after the State has closed their case but he did say that the Defence will probably not call Marli.

Following the State’s case closing, Advocate Botha told the court this afternoon that he wanted to postpone the Defense’s case to Monday 9 October 2017 and that he wanted to first call 3 of his expert witnesses before Henri would testify.

In the event that Judge Desai refuses the Defence’s request, Advocate Botha will need to place Henri in the witness box, if he still intends calling him, when we return on 9 October 2017.

It would be unusual for an accused to be allowed to do so. You see, in civil matters, witnesses who have yet to testify are not allowed to be in court while other witnesses are testifying to ensure that their versions are not amended based on evidence heard from other witnesses. In criminal matters like these, the accused must be in court every moment his trial runs. As such, if the accused is going to testify, he must do so before calling any other witnesses in his defence of the matter against him, to avoid a situation where a Defense experts’ testimony may lead to him changing his version when he testifies.

Advocate Galloway advised that the State had serious concerns about this request. Galloway said these 3 experts were testifying to corroborate the accused’s versions and depending on testimony from them the accused may alter his version, or he may even elect not to testify.

Advocate Botha argued there is legal authority which supports a request to allow an accused to testify after experts. When prompted by Judge Desai as to what authority he was referring to, Advocate Botha asked for an opportunity to revisit the applicable authority and present it to the court. Judge Desai advised that this is a complex matter, and he will consider both legal authority and argument to decide on the issue. Both legal teams now need to hand up heads of argument on Thursday and Judge Desai will make a decision thereafter.

Advocate Botha outlined the reasons he wanted the experts to testify first by offering the following grounds:

  1. To secure his experts availability in court, he needs to book them for those dates now;
  2. The evidence they will deal with will not deal factual aspects of Henri’s version;
  3. Henri did not come to court, plead not guilty and remain silent, he entered a plea explanation and placed his version before court. If he were to change his version when testifying that would only count against him.

While I look forward to hearing argument on this, as well as Judge Desai’s ruling, my view is that the prejudice potentially suffered by the State if Henri were allowed to testify after he has heard his own expert’s testimony would far outweigh any potential prejudice to the accused regarding securing availability of his expert witnesses.

Follow me on Thursday 21 September 2017 as we return to court to hear argument on this issue.

 

Photography Megan-leigh Heilig

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