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

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JudgeJudi said:
Sorry all, but I’m doing the tweets in the Chris Panayiotou trial. It started 1 full hour before van Breda was due to start. Maybe someone else can post the tweets. The other trial is far more interesting.

http://www.websleuths.com/forums/sh...nayiotou-28-Port-Elizabeth-21-Apr-2015/page55
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WooHoo
AS IT HAPPENED: Van Breda will not testify amid dismissal of defence's application
http://www.news24.com/SouthAfrica/N...will-testify-after-defence-witnesses-20170927

Advocate Pieter Botha has informed Judge Siraj Desai that triple murder accused Henri Van Breda has decided not to testify, following the dismissal of the defence's application to allow Van Breda to testify last in the case underway at the Western Cape High Court.
 
Tammy Petersen @TammyPetersen87
Judge Desai points out Criminal Procedure Act says accused testifies first if chooses to give evidence unless valid reasons given. #VanBreda
9:06 AM - Sep 27, 2017


Nothing prohibits #VanBreda from modifying or amplifying his testimony, Judge Desai says.
9:08 AM - Sep 27, 2017


Henri #VanBreda not shown good cause why he should testify last, Desai says. The application is dismissed.

Adv Botha has told Judge SIraj Desai that Henri #VanBreda has decided not to testify.
 
Nobody is tweeting at the moment but Judge Desai is reading his decision. You can see it Live at the link above.
 
Thanks, IB! As we expected. Coward as well as killer! Did you notice how quickly HvB made his exit from the court? Botha didn't even look at HvB but instead went over to the police officer that Desai congratulated on his pending retirement!
 
https://twitter.com/ajnarsee

J Desai: Botha initially sought the leave of the court to change the order of testimony

J Desai: concern of availability of expert witnesses is somewhat premature

J Desai: now goes through Criminal Procedure Act, Section 151

J Desai: purpose of 151 is to prevent accused from tampering/ tailor his evidence

J Desai: Accused is the only person from the #vanbreda family who can testify about the events

J Desai: if experts testify it will also cause prejudice to the states case

J Desai: I am not at liberty to make a decision on whether or not he should make a decision

J Desai: constitutionality of 151 was raised, but Botha did not request a decision on this

Botha: we have decided at this stage that our client will not testify
 
Nobody is tweeting. Sorry folks. One can watch a rerun of the judgement on the above link. There was no indication of when the court will sit, ie whether they have gone for coffee or whether it is adjourned to another day.
 
...it is of course difficult to predict the duration of the accused's testimony and hardly logical to state that the experts would not be available after the accused has testified. One has no real idea whether the accused's testimony would be concluded.

As Ms S M Galloway appearing with Ms M Blows for the State has also pointed out, one would not be abe to predict for how long each of the experts will testify. It seems that the concern of the availability of the expert witnesses is somewhat premature.

S.151 (1) (b) (i) of the CPA provides as follows:

(1) (b) The court shall ask the accused whether he intends giving evidence on behalf of the defence, and-

(i) if the accused answers in the affirmative, he shall, except where the court on good cause shown allows otherwise, be called as a witness before any other witness for the defence; or

(ii) if the accused answers in the negative but decides, after other evidence has been given on behalf of the defence, to give evidence himself, the court may draw such inference from the accused's conduct as may be reasonable in the circumstances.

It follows from S.151 (1) (b) (i) that an accused has to testify first in his own defence unless on good cause shown the court permits otherwise. With regard to the above section there is limited case law on what can be considered as good cause. I see that in [..] application good cause simply has been regarded as a satisfactory and acceptable explanation. See in this regard S v Mzizi [2009] 3 All South Africa Law reports 246 (SCA) http://www.saflii.org/za/cases/ZASCA/2009/32.html . The only reported authority which deals directly with the notion of good cause as contemplated in S.151 (b) (i) is S v Nene and Others (1) 1979 (2) SA 520(D). In that case an accused brought an application for his wife to testify before he gave evidence. She apparently had returned from another Province to attend. The court held that in ordinary circumstances they would have refused the application but found that in this instance the convenience of the witness amounted to good cause. The judgement as reported is very brief and the ambit of the wife's testimony is not set out in the judgement.

In the present matter Mr Botha contended that his experts will not testify on the merits of the case. He argued that the accused's plea explanation sets out his version in some detail and the accused will accordingly not be in a position to alter his version. The purpose of S.151 is clearly to lessen the probability of an accused tailoring his evidence and making it more consistent with the evidence of other defence witnesses. See in this regard Du Toit et al - the commentary on the Criminal Procedure Act pages 22/16. The submission that the accused would not be in a position to tailor his evidence is not entirely correct. The State's case is based on circumstantial evidence and to a large extent the evidence of expert witnesses. Although the evidence will not amount to direct evidence, the accused's experts will testify on the merits of the State's case. The accused is the only member of the van Breda family who is in a position to give direct evidence about the events underpinning these charges. Nothing prohibits him from modifying or amplifying his version in accordance with what is stated or conceded by his expert witnesses during their testimony.

There are also practical problems if the expert witnesses testify first. These have been highlighted by Ms Galloway. She's only in possession of an expert's report emanating from the defence. She may have to consult with her own experts after the defence witness testifies in chief. This would occasion delays with the experts having to extend their stay in Cape Town or even having to return. Or, if the accused states a new fact during his testimony, the court may have to recall one or more of the defence experts, if their opinion is essential to a just decision of this case.

There is also the possibility of real prejudice to the State's case if the accused testifies and his version differs from what is already on record. The State will not be in a position to question the experts in respect of the new inconsistencies.

Probably realising that he may have significant problems with regard to good cause as contemplated by S.151 (b) (i) Mr Botha subsequently revised his application. He now indicates, somewhat unusually, that the accused has not yet made a final decision whether to testify or not. He effectively asks that the accused be allowed to decide whether to testify or not at a later stage, and not at the close of the State's case.

I am not at liberty to compel or order the accused to make a final decision at this stage. Nor can the court inform the accused what to do.

The statutory framework is clear in this regard. In terms of S.151 of the CPA the court must simply ask the accused if he intends to give evidence. If her answers in the affirmative, he shall testify first except where he shows good cause that the court should allow otherwise. If the accused indicates that he does not intend giving evidence but decides to testify after other evidence has been led, the court may draw inferences from the accused's conduct as may be reasonable in the circumstances. At this stage of the proceedings the accused must simply say whether he intends giving evidence or not. If he requires more time to decide whether he wishes to testify or not, the defence may bring an application to that effect.

Although the issue of the constitutionality of S.151 (b) of the CPA was raised during the course of argument, Mr Botha expressly indicated that the court was not required to make a finding in that regard. I accordingly venture no view in respect thereof.

In the result the court finds the accused has not shown good cause why he should be allowed to call the expert witnesses before testifying himself. The application as such in terms of S.151 (b) (i) is dismissed.

P Botha: As the court pleases my lord. But as I have indicated in the course of my argument and your lordship will no doubt recall, my client has now placed on record to the effect he'd made a decision that at this stage he does not intend to testify, and we will attend on 9th with your lordship's leave to call the witnesses that we intend to call.

(HvB hotfoots it out the door.)
 
Interested Bystander said:
I think they have adjourned until 9th October, the new Term.
Click to expand...
Thanks IB for keeping us informed.
Now for next sitting.
I would imagine Botha will be up to his usual 'poor tactics', which we are all aware of by now.
 
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