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

DNA Solves
DNA Solves
DNA Solves

New Posts

Status
Not open for further replies.
The window had blinds, and they said it opened at the top like a flap, and the balcony had curtains.
 
https://twitter.com/Traceyams?lang=en

Botha: I did not want to mislead the court by saying I do not intend on calling my client I wanted to let the court know that I am not certain if I will lead my client at this stage, I want to lead his experts and will decide thereafter

Desai: what does the article say?

B:accused has 4 choices. Decide to testify and not call witnesses, decide to testify and call witnesses or do a combination of two but he says that he is forced to do that at a time where he has not had oppurtunity to test the veracity of his witnesses evidence

B: The previous Criminal procedure act did not have a provision like that in fact there was a reported decision that the accused has an unfettered decision to elect when he testifies

B: of course in certain circumstances it would be prudent to call your client to avoid the risk of court finding that he may have tailored his evidence based on what he has heard from his witnesses

B it is archaic to have witnesses wait outside and suggest that they do not know what is happening inside the courtroom these days


(Tracey's personal opinion) This is why Botha is paid the big bucks he is presenting an excellent argument for his client

Desai: I am asking you to follow the law

B if that is the case then I will decide in terms of 151(1)(a)(b)(ii) not to call the accused
 
https://twitter.com/Traceyams?lang=en

Galloway stands up and although it seems that there is no decision to be made as Botha is not going to call Henri and will exercise his right to call the witness and run the risk of the court drawing inferences

Galloway: we agree with the court, there are only 2 options he must elect and what the consequences of those options are

G so he is fully aware of his options

G: similar as to when he is made aware of right to remain silent, u can do so but u run the risk of inferences being made

G: u can testify now or u can elect not to but just know the risks

G: the difference between the defence case calling accused after is that he is in court he has to be in court

G but our witnesses cannot be in court and would only know what is happening in the media, not the same

D: if as Botha suggests that I make a finding not to compel him to call him first then that would jeopardise all criminal trials

G yes and B says I want to see how well my witnesses do before I decide to call him that is the reason why accused is called first

G the plea explanation is not evidence before court so we cross examine the experts on the version before the court

G now the accused testifies after the experts and maybe changes his version now the state cant cross examine experts on new version

(Tracey's personal opinion) Great point by Galloway on the fact that the state may not have opportunity to test Henri's testimony on his experts

G accused is saying I do not want to be held responsible for having to make a choice its the law who forced me to make a choice

G: so he is effectively saying dont hold it against me that I made a choice I was forced to
 
https://twitter.com/Traceyams?lang=en

G: we raised the point that sec 36 of constitution is there for reasonable limitation of rights of accused

Botha I want to deal with G's statement that there may be something untowards if he elects to call witnesses and then decides

B not to testify

Desai but the point is that the experts testify on a version given to them, untested version is she not prejudiced in cross exam

B: there is no such rule

Desai: she would be cross examining effectively blind without knowing what the reports are based upon

B: my DNA expert reports have nothing to do with what my client has said

B my client has said that he lost consciousness so my experts version cant be changed

B: pathologist will deal with his wounds, we already know what his version is on his wounds so he cant change that

Botha: if he changes his version he is facing a far bigger problem than his experts evidence being challenged

B: if my client does come and testify after his witnesses, it depends on what he says whether the court can draw adverse inference

B: if he doesnt testify then the law is clear on what inferences can be drawn

B: it is not a necessity that the court draws a negative inference on that decision

Desai: this is a very unusual application, I will need time to consider, I will hand down judgment sometime on 27 September

Matter postponed to 27 September 2017 for the judgment in this unusual application


(Tracey's personal opinion) Swings and round abouts, still not sure Henri will be testifying

It seems far too convenient for Botha to be so uncertain regarding Henri's testimony

Galloway is right this is an accused wanting his bread buttered on both sides
 
Tortoise said:
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.
Click to expand...

Me too. I have never thought Henri would testify. B. is little more than a toe rag IMO. He has known this all along but, all the time, stating that Henri was keen to testify. I hope Desai is not bamboozled. Botha appears to be attempting to set a precedent on the hoof if he gets his way.

Glad you were right, Tortoise, about the argument. I have just caught up and it was interesting. Other than the three Expert Witnesses it seems Botha has two other witnesses. Character witnesses?? Desai seems to be on the ball. I hope he disallows Botha's argument.

Thank you for the correction to the whereabouts of the blood spatter on the wall. Tracey seems to have made a pig's ear of that.
 
Judge Desai asks Botha to follow the law but can't make a decision today, decides to spend a week to decide what... to break the law, change the law for Henri van Breda!!!!
 
Report from News 24 re this mornings court proceedings.


http://www.news24.com/SouthAfrica/N...only-testify-if-he-goes-last-defence-20170921

Cape Town - If the Western Cape High Court does not agree to allow Henri van Breda to testify at the end of their case, he will not take to the stand.

This was, in essence, the argument made by Advocate Pieter Botha on Thursday during arguments for an application to grant its expert witnesses permission to present their findings before the triple murder accused’s version of events is tested…………..
 
IMO this is such a frustratingly slow case so I lost interest and am just lurking. In the meantime, I have been following two other cases - Holly Bobo and the Jason Corbett trial in the US. The HB trial has taken just two weeks starting at 8.30 or 9.30am and going until 5.30 or 6pm 5 days a week and half day on Saturdays. The jury is now deliberating so it should finish by this Saturday with sentencing to follow. The JC case has been over for some time yet this HvB case seems to be taking forever. IMO Botha wastes so much of the court's time plus Desai seems slow in making decisions. Will this trial ever end?
 
Estelle said:
IMO this is such a frustratingly slow case so I lost interest and am just lurking. In the meantime, I have been following two other cases - Holly Bobo and the Jason Corbett trial in the US. The HB trial has taken just two weeks starting at 8.30 or 9.30am and going until 5.30 or 6pm 5 days a week and half day on Saturdays. The jury is now deliberating so it should finish by this Saturday with sentencing to follow. The JC case has been over for some time yet this HvB case seems to be taking forever. IMO Botha wastes so much of the court's time plus Desai seems slow in making decisions. Will this trial ever end?
Click to expand...

I don't blame anyone losing interest in this trial, it's an absolute mess! I used to feel reticent about bagging the SA court process but so many SAs in the video chat expressed the same disgust about how lax the court system is! The long delays for no apparent reason, extended lunches and late starts, the defence calls the shots with ridiculous excuses, HvB helping set up the speakers and projector in the first week?!!

The judge is exceptional compared to Masipa but he still lacks conviction, he can't make a ruling without delaying this trial further. Botha had a free run in the Dewani trial, the judge and Botha overruled everything like they were in cahoots, now Botha stringing the judge along because he knows the outcome will be unfavourable, so might as well make a load of cash while making a fool out of himself!! JMO
 
PrimeSuspect said:
I don't blame anyone losing interest in this trial, it's an absolute mess! I used to feel reticent about bagging the SA court process but so many SAs in the video chat expressed the same disgust about how lax the court system is! The long delays for no apparent reason, extended lunches and late starts, the defence calls the shots with ridiculous excuses, HvB helping set up the speakers and projector in the first week?!!

The judge is exceptional compared to Masipa but he still lacks conviction, he can't make a ruling without delaying this trial further. Botha had a free run in the Dewani trial, the judge and Botha overruled everything like they were in cahoots, now Botha stringing the judge along because he knows the outcome will be unfavourable, so might as well make a load of cash while making a fool out of himself!! JMO
Click to expand...
As an American attorney, and as I have said before, I am completely gobsmacked by all of the aspects of this trial (the delays!!! The two hour days and frequent random stops!! THE MONTHS LONG TRIAL BREAKS!!!)

But today's stuff takes the case. It's just beyond. I'm glad I am not an advocate in SA is all I can say.

I think Desai, in the end, is just being careful...and will come to correct conclusion... fingers crossed anyway.

Thanks to all for transcribing each day... it's brilliant!! [emoji122][emoji122]

Sent from my SM-G935V using Tapatalk
 
Botha's tricks were shown for what they were. Desai said that the booking of his witnesses was not good cause and Botha had to agree and say it was really about wanting to see how well his witnesses do before deciding whether to call HvB.

Desai was very clear that he wants a detailed explanation of the events that night from HvB. That is not going to be addressed by his experts, so we can see that Botha is dealing with a client who does not want to testify, not as Botha states - a client who might not need to testify.

The only thing I'm still not sure about is what happens with HvB's plea explanation if he doesn't testify. I'm gathering that it's not evidence until it can be tested for its value, or veracity, so how does the court treat it in the event that he doesn't take the stand? Do they say the only version made under oath to hold to the standard of being reasonably possibly true is the first police statement? How can he introduce all the changes he wanted to make like watching a film, the second intruder and with that the possibility of Marli being attacked with a different axe, and Rudi moving and making noises?

Would Desai have to ignore the plea explanation as if he hadn't seen it?
 
Yes Estelle.
I also checked out Holly Bobo and Jason Corbett's cases.
What a difference, when compared to this 'circus'.
Hope Desai checks here and with learned folk,
and realizes his actions and decision now, will be a talking point for years.
 
Estelle said:
IMO this is such a frustratingly slow case so I lost interest and am just lurking. In the meantime, I have been following two other cases - Holly Bobo and the Jason Corbett trial in the US. The HB trial has taken just two weeks starting at 8.30 or 9.30am and going until 5.30 or 6pm 5 days a week and half day on Saturdays. The jury is now deliberating so it should finish by this Saturday with sentencing to follow. The JC case has been over for some time yet this HvB case seems to be taking forever. IMO Botha wastes so much of the court's time plus Desai seems slow in making decisions. Will this trial ever end?
Click to expand...

Yippee, Estelle.
OFF topic. Zach Adams GUILY. So we get guilty in both these cases.
Hope here, also: good results, come in threes.
 
The following is from a Judgment of the Supreme Court of Appeal. While the case itself cannot be compared to this trial, the State quoted excerpts from a Constitutional Court Judgment in another matter.

[5] In its heads of argument the State argued that the failure by the appellant to testify exposed him to what obtained in S v Boesak 2001 (1) SACR 1 (CC) para 24 where the Constitutional Court held as follows:

‘The fact that an accused person is under no obligation to testify does not mean that there are no consequences attaching to a decision to remain silent during the trial. If there is evidence calling for an answer, and an accused person chooses to remain silent in the face of such evidence, a court may well be entitled to conclude that the evidence is sufficient in the absence of an explanation to prove the guilt of the accused. Whether such a conclusion is justified will depend on the weight of the evidence. What is stated above is consistent with the remarks of Madala J, writing for the Court, in Osman & another v Attorney-General, Transvaal, when he said the following:

“Our legal system is an adversarial one. Once the prosecution has produced evidence sufficient to establish a prima facie case, an accused who fails to produce evidence to rebut that case is at risk. The failure to testify does not relieve the prosecution of its duty to prove guilt beyond reasonable doubt. An accused, however, always runs the risk that, absent any rebuttal, the prosecution’s case may be sufficient to prove the elements of the offence. The fact that an accused has to make such an election is not a breach of the right to silence. If the right to silence were to be so interpreted, it would destroy the fundamental nature of our adversarial system of criminal justice.”’

[20] … It bears restating that, for an inference to be permissible, it not only had to be based on proved facts, but also had to be the only reasonable inference from those facts, to the exclusion of all other reasonable inferences. The ultimate question is whether, in the light of all the evidence adduced at trial, the guilt of the appellant was established beyond reasonable doubt. … the correct approach is ‘to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and, having done so, to decide whether the balance weighs so heavily in favour of the state as to exclude any reasonable doubt about the accused’s guilt’.

http://www.saflii.org/za/cases/ZASCA/2016/181.html

I hope Desai rules that the witnesses testify first. Botha has said in this event, Henri won’t testify. He knows there can be consequences, but if Henri’s found guilty, he’ll use this as a ground of appeal and say his client was denied a fair trial.
 
Botha's obfuscation says quite clearly to me that he knows HvB is guilty (don't we all). I hope Desai comes back strong with a rebuff of B's argument. As China says above (and she/he is in a far better than I to form an opinion) Desai is being careful; maybe because he doesn't want HvB to get off the hook on a technicality. At least he does put up an argument against B. which is so different from Masipa in the OP case. However, somebody needs to shake up the SA system. It is grossly unfair to the innocent (and guilty) to allow cases to drift on for years in some cases.
 
Galloway argued that it has not been alleged that any of these witnesses would be unavailable after Henri has concluded his testimony.

Botha’s all smoke and mirrors and Desai needs to remind him that he’s the judge and he’ll decide what happens.
 
We all probably had a similar expression when we heard this

Click to enlarge

Botha.jpg
 
Should Desai decide against HvB testifying after the witnesses or changing his mind later, here’s something else to support the State. While this case has nothing in common with this trial, the following comments in the judgment are very relevant.

Bogaards vs The State (Constitutional Court: Decided on: 28 September 2012)

The right to a fair trial

70. ...

“It is clear also that fairness is not a one-way street conferring an unlimited right on an accused to demand the most favourable possible treatment.”

Furthermore, in Jaipal, this Court referred to the need for —

“fairness to the public as represented by the State. It has to instil confidence in the criminal justice system with the public, including those close to the accused, as well as those distressed by the audacity and horror of crime.”

http://www.saflii.org/za/cases/ZACC/2012/23.html
 
JudgeJudi said:
Should Desai decide against HvB testifying after the witnesses or changing his mind later, here’s something else to support the State. While this case has nothing in common with this trial, the following comments in the judgment are very relevant.

Bogaards vs The State (Constitutional Court: Decided on: 28 September 2012)

The right to a fair trial

70. ...

“It is clear also that fairness is not a one-way street conferring an unlimited right on an accused to demand the most favourable possible treatment.”

Furthermore, in Jaipal, this Court referred to the need for —

“fairness to the public as represented by the State. It has to instil confidence in the criminal justice system with the public, including those close to the accused, as well as those distressed by the audacity and horror of crime.”

http://www.saflii.org/za/cases/ZACC/2012/23.html
Click to expand...

Thanks JudgeJudi.
Great article.
I thought we would hear the outcome today.
What have I missed. ?? another delay.
 
Status
Not open for further replies.

DNASolves

Who is Escambia County John Doe (1989)?

Members online

... and 128 more.
Total: 1,472 (members: 129, guests: 1,343)

Online statistics

Members online
129
Guests online
1,343
Total visitors
1,472
Totals may include hidden visitors.

Forum statistics

Threads
598,664
Messages
18,084,709
Members
230,701
Latest member
Murphmaic
Back
Top