South Africa - Martin, 55, Theresa, 54, Rudi van Breda, 22, murdered, 26 Jan 2015 #3

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https://twitter.com/ajnarsee?lang=en

J Desai: many others have been in this position, 50% of cases have to make the decision of whether client takes the stand or not

B: my client can't tailor evidence because he gave a detailed explanation

B: defence is hampered, the state has an unfettered discretion with the order in which witnesses are called

Botha: his client is entitled to change his mind, J Desai would also pick up if he deviates from statement and tailors evidence

J Desai: what are you arguing then? What do you want me to order??

B: if I had to make a decision at this stage, I would not call my client to take the stand
 
https://twitter.com/ajnarsee?lang=en

Botha: the section of law, forces accused to make the decision on whether to take this stand now rather than later

Botha: at his stage I make the choice not to call my client

Just In: Henri #vanbreda will not testify at this stage


(When will Botha stop talking?!! Henri not going to testify, stop making excuses!!)
 
#vanbreda Advocate Botha starts addressing the court in his application to request that Henri testify after his 3 experts

At this stage we are not certain what the accused will testify but I can confirm he will testify

B:evidence of the state is circumstantial,we will lead evidence to counter this using experts but I cannot say that H will testify

B: sec 151 this is an election that the accused must make at this stage. If that is so, constitutionality comes into play

Desai: in the Zuli case they said it was unconstitutional

B: Refers to US case law, Tennesse, where it was held to be unconstituional, but I am not asking u to decide that issue

B; I accept that I have not given notice for u to do so in terms of the court rules

B: the court should ask if the accused is going to testify, if no but decides to testify after hearing evidence the court draws

inferences from that.

B: Its ironic that we face a situation, I can do no better wrt witnesses being influenced by hearing other witnesses testify

B: The SCA dealt with it and in the day and time we are living in that has become an archaic rule, since witness have access

to what is said in court

Desai: is your application to call witnesses when you do not know if you will call your client

Botha: I cant tell you that I will call my client at this stage I do not know this

https://twitter.com/traceyams?lang=en
 
Sorry Prime, I didn't see your posts. I thought you must have been having dinner., I'll leave you to it.
 
https://twitter.com/ajnarsee?lang=en

Adv Galloway: the difference in the Defence case is that the accused has to be in court

Galloway: in practice the state is in no better position than the Defence

Galloway: I am concerned that defence wants to prejudice the state by seeing how well their witnesses do before deciding

Galloway: also if Henri adds or amends his version, state will not have a chance to test this on defence witnesses

Botha: my client is presumed innocent, has the right to remain silent and not testify

Botha: his experts testimony is not based in Henri version, but on evidence

Judge Desai: I will give the judgment on 27 September


(Botha starting to stutter, he's nervously attempting to persuade the Judge, I don't think he believes his own words.)
 
Botha says Henri is entitled to change his mind and Judge Desai would also pick up if he if he deviates from statement and tailors evidence.

What do you want me to order, Judge Desai asks.

Adv Botha says to allow experts to go first. He will later decide if Henri should testify.

Botha says if he had to make a decision at this stage, he would not call Henri to take the stand.

[But it's up to Henri as to whether or not he testifies, not Botha. If Henri wanted to get in the box, Botha can't stop him. So much for Botha saying that HvB couldn't wait to tell his story.]

"At this stage I'm not calling my client, if we change our mind at a later stage then we'll be subject to the consequences."


Henri #VanBreda is being forced to make decision to testify right now, without checking veracity of his witnesses' testimony, Botha says.

Adv Botha has told Judge Siraj Desai that he has now made the decision that Henri Van Breda will not testify.

State prosecutor Adv Galloway says similar to remaining silent, there are consequences to Henri #VanBreda not testifying.


Galloway: Reason Van Breda is called first is to not allow defence to see how well witnesses do.

A plea explanation is not evidence before court.

http://www.news24.com/SouthAfrica/News/live-van-breda-axe-murder-trial-day-41-20170921-2
 
Botha took offense to Galloway suggesting HvB will change his mind to testify after the 3 experts have taken the stand, Botha reminds the court that his client is presumed innocent.
 
Botha: my client is presumed innocent, has the right to remain silent and not testify.

Henri Van Breda experts will testify on evidence, not his client's version, Adv Botha says.

[I simply can't believe this. C'mon Galloway. Stand up and fight.]
 
As I've mentioned before I have no legal knowledge but this seems to me like HvB wants to have the best of both sides - will testify if the defence witness do well but won't if they don't? :fence:


Thanks for the updates :tyou:
 
Tracey's tweets all disappeared from the #vanbreda twitter search, but they are there on her account.

She made an error concerning the blood drips on the outside wall on her diagram. She said the blood would have travelled all the way from Rudi's bed, across Henri's bed and out the balcony door. This is incorrect because there was no outside wall facing the balcony door. The window that the state says the blood must have travelled through was behind the head of the beds.

See these photos of the house showing positions of balcony and window, I posted earlier

http://www.websleuths.com/forums/sh...urdered-26-Jan-2015-2&p=13423122#post13423122

http://www.websleuths.com/forums/sh...urdered-26-Jan-2015-3&p=13430641#post13430641

http://www.websleuths.com/forums/sh...urdered-26-Jan-2015-3&p=13430650#post13430650
 
https://twitter.com/Traceyams?lang=en

Advocate Botha starts addressing the court in his application to request that Henri testify after his 3 experts

B:evidence of the state is circumstantial,we will lead evidence to counter this using experts but I cannot say that H will testify

B: sec 151 this is an election that the accused must make at this stage. If that is so, constitutionality comes into play

Desai: in the Zuli case they said it was unconstitutional

B: Refers to US case law, Tennessee, where it was held to be unconstitutional, but I am not asking u to decide that issue

B; I accept that I have not given notice for u to do so in terms of the court rules

B: the court should ask if the accused is going to testify, if no but decides to testify after hearing evidence the court draws
inferences from that.

B: Its ironic that we face a situation, I can do no better wrt witnesses being influenced by hearing other witnesses testify

B: The SCA dealt with it and in the day and time we are living in that has become an archaic rule, since witness have access to what is said in court

Desai: is your application to call witnesses when you do not know if you will call your client

Botha: I cant tell you that I will call my client at this stage I do not know this

Botha: This case is different as there is no direct evidence against my client, if there was of course he must testify first

B:if i had to decide at this stage I would be forced to act in terms of 151(ii)

Desai: this sec takes away my discretion, if he says he shall then u will need to give good cause why he doesnt

B: I am not bringing that application because I simply as I stand here today cannot tell the court I will call my client

B:this is not a case where witnesses will allow my client to tailor his evidence
 
https://twitter.com/Traceyams?lang=en

B: if he deviates and its clear he tailored his version the court can draw adverse inference

D: the mere fact that he elects to give evidence after his witnesses can I not draw a negative inference?

B: with respect no, if he doesnt tailor his evidence then no negative inference can be drawn

B: in an instance where there are alibi witnesses and he tailors evidence post that, then u can draw negative inferences

D; So u saying u do not fit into either provision?

B: correct this is only circumstantial evidence and the nature of the evidence will be expert nothing to do with his version

B so we submit that the wording from 151(ii) expressly provides that the accused can change his mind, and decide not to testify

B: if you interpret this in diff manner, the defence is hampered in the way the defence presents its case but the state is unfettered in that it can call its witness in any order

Desai: but the state needs to prove his guilt beyond reasonable doubt?

B: if this section prevents the accused from making the same election that is unconstitutional

Desai: u say that the court retains discretion, where does that come from?

Desai: it says at the end of the states case the court must ask accused, are u going to testify
 
https://twitter.com/Traceyams?lang=en

B: I am saying, I can say I intend calling my client after experts, on good cause shown but I am not bringing that application because I don't know if my client will give evidence

Botha: I will only be able to assess whether to call accused once I have assessed the veracity of the expert witnesses evidence

Desai: does that not happen in all criminal cases?

B: I am saying that this point has never been taken and it should be the only decision I can take is to act in terms of 151(ii)that I will not call my client and then that allows him to change mind


Desai: then the cause of action u propose can be adopted in any criminal trial and will nullify the intent of sec 151(b)

B: if u think of the practicality that there were witnesses and the risk is there that he may tailor his evidence

B: if he doesn't give a plea and regurgitates what his witnesses say then yes the court will draw a negative inference
 
I said Henri would probably not testify. No surprises there. I'm happy - this was never about accommodating his witnesses. He was stuffed the day Desai decided to allow his first statement into evidence and he's responding to the court system in the same way that he disposed of his family. The monster has a small child's brain.
 
https://twitter.com/Traceyams?lang=en

B: I am saying this cannot be in every matter, and not in this matter

Desai: what do u want me to order?

B: I submit if u agree with me on the interpretation then it should no force my client to make that decision now

B: I intend leading evidence on his expert witnesses before I make that decision

B: if you dont agree I will just say, I am not going to call him and if he changes his mind he runs the risk of sec151(ii)

Desai but then why are u bogging me down with argument

Desai: we would put the process in jeopardy in all cases if we allow accused to say he is not ready to decide to testify

Desai that principle has been in our law for generations
 
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