The defence presented their closing argument today in the Henri Van Breda murder trial at the Cape Town High Court. As expected, Advocate Pieter Botha put out a passionate, well articulated, well supported (references to case law) and most importantly a convincing closing argument. He will conclude tomorrow morning.
Henri stands accused of axing to death his parents, Rudi and Teresa, his brother Rudi – and attempting to kill his sister Marli in January 2015.
Botha began by telling the court that the states case hinges on two issues:
- Nobody else could have committed the crimes but the accused;
- The accused version is not reasonably true.
He argued that when considering the evidence against his client, one could speculate, as the state have done, and draw inferences which suit a particular narrative.
If one has to regard all the facts, this is a criminal matter, the onus of proof rests with the state and not the accused. One can draw inferences only if they are the only inferences to be drawn, if they are not, then this court cannot find Henri guilty.
Botha went through the states case and linked it with actual evidence which supported the states version, excluding, at first the evidence of his client, and submitting that the state had not proved their case beyond a reasonable doubt.
Close knit family
Botha argued his narrative, one which few members of the public have considered because Henri was convicted by social media on day one. It was interesting to hear the defence’s argument, it was a very compelling argument particularly the portion which deals with the lack of Marli’s DNA on the axe found at the scene.
Botha said there is no evidence before the court that there was something unusual about this family, of course there is speculation and hearsay in the media regarding Henri’s drug use and possible rehabilitation. He was actually charged with possession of dagga, but as far as this court is concerned and the evidence supports this, the Van Breda family were happy and close knit.
On the evening before the murders, there is evidence that both Henri and Marli were whatsapping their friends (James and Bianca) until around 10pm. Neither mentioned a fight which the state alleges occurred around 10pm, based on the evidence of the neighbour, Stephanie Op’t Hof.
Botha went into great detail arguing the states point that the estate was so secure that it was impenetrable. Judge Siraj Desai took issue with these points throughout the security issue argument. He corrected Botha and said, that the states point was that the estate was so secure it was improbable that two intruders could have entered, executed these vicious attacks, and exited without being detected, given the security measures in place.
Botha’s final point was the fact that a report existed and the objective evidence before the court showed that an alarm was triggered at 3.37am very near to where the murders were (on Henri’s version) committed.
The evidence of entry into the house itself, he argued was relatively easy as the back door was open, as well all the downstairs windows and the boundary wall was low enough to jump over. Moreover, he argued that the blood on the pantry door and the two blood spots on the boundary wall supported the version of the accused that the attacker’s ran out the back door.
Having seen the crime scene footage, I do think this is a weak point of the defence’s case. The blood on the boundary wall is two spots of blood, 1cm at best. Surely the fleeing intruders would have more liquid blood dripping off them, in the house and outside than just those two tiny spots, and there would be a handprint or some more drips as they ran out the house.
Neighbour who heard shouting
Botha argued that there was evidence which was before the court which would indicate that Op’t Hof was likely incorrect or that her version had been constructed due to her having been exposed to media on the case after the fact.
He argued that the security guard told the court that he had driven passed the house during the time Op’t Hof said she heard men arguing loudly, yet the security guard never heard this.
He also argued that Op’t Hof heard Henri watching Star Trek 2 on their new surround sound with his father and brother. This he said was supported by the footage of the scene, where a DVD was on the lounge table and the cushions were placed as if 3 people had been watching TV.
He also argued that a verbal altercation continuing unabated for 2 hours (which he said is 30 minutes longer than a football match) is so improbable.
Desai rightly pointed out that Op’t Hof was a good witness, she had no reason to come forward and say she had heard something if she had not.
DNA and Blood Stain Evidence
In my view, the strongest point argued by the defence today related to this evidence. The defence is arguing against the admission of the evidence altogether, but they also raised an alternative argument regarding the lack of Marli’s DNA found on the axe as well as the lack of Henri’s mother’s DNA, on him as well as the lack of Henri’s DNA on the deceased and on Marli.
Botha argued that case law has set a precedent which requires 3 conditions to be met in order for a DNA result to be accepted as evidence, these are:
- Standard Operating Procedure’s are followed when testing for DNA;
- The lab is accredited;
- The practitioner is proficient.
Botha argued that, on the evidence before court, none of these requirements were met and he said that Lieutenant Colonel Sharlene Otto had misrepresented, in a manner which would have been severely prejudicial to Henri if the defence had not lead their own expert to clarify it, in her report mixture results.
On this basis alone Botha asked the court to exclude the DNA report of Otto, altogether.
In the alternative, he argued, if the report is accepted then the he argued that the state has several more issues and that the DNA evidence actually supported Henri’s version.
Henri’s version, he said, from the very beginning was that there were two intruders and that he witnessed Rudi and his father being attacked, but not Marli and his mother being attacked.
The DNA evidence corroborates this in that, Henri’s shorts display spatter which indicate he was near Martin and Rudi when they were attacked but there is no spatter of Teresa or Marli on Henri’s shorts.
Henri’s sock had Teresa’s blood spatter on it ( only one spot), which Captain Marius Joubert conceded could have fallen from the staircase or dripped off the axe when he chased the intruder.
He argued that there is no evidence of Henri’s DNA belonging to Henri having been found on Marli or any of the deceased family members, yet he is to have viciously attacked them and fought with Marli.
Furthermore, Botha argued that Marli was hit with an axe 8 times. And we heard evidence of there having been a struggle between Marli and the attacker, how could it possibly be that her DNA was not found on the axe blade, not a single strand.
Botha put forward that the second axe is not a story raised by the defence to poke holes in the states case, but it was raised because the only plausible explanation for this, would be that Marli was attacked with another axe wielded by the other attacker. This corroborates Henri’s version of two intruders, a version which he gave months before the DNA test results.
This was compelling, however, Desai noted that there are other explanations for the lack of Marli’s DNA. Even though Botha fought tooth and nail in return saying surely that is the most probable.
Desai is certainly alive to the fact that Henri may have wiped the axe, this is consistent with his finger prints not being on it either. The Judge was right to note that it is not the only probable reason, but Botha raised some very good points for his client today, points which, collectively may allow for the doubt he needs to get Henri acquitted.
We will hear more from him tomorrow.