I may as well add the Defence's argument now.
THE DEFENCE’S ARGUMENT – ADV BOTHA
Desai: He never said at any stage that he went to help his sister. How does one reconcile that? Instinctively one would.
B: I will definitely address that in my heads.
Desai: Why was he wearing socks in summer?
B: Why would u deem that an important aspect?
B: Evidence about the security of the estate - its NB for the state. They say it is so secure, so impenetrable, not possible that there was an intruder. If those were the facts, then yes.
Desai: That’s not the point. The state’s point is that in order to get in and out and do what they did, it is so improbable. The argument is not that its impenetrable but very improbable, Ocean Elevens expertise would be required.
Desai: I did not understand that the case was this estate is Fort Knox, more that you can enter and some planning would be required.
B: But that wasn’t the evidence. In fact there were 2 breaches that night.
Botha refers to cameras only covering 35% of the fence. The remainder did not have coverage.
Desai: Assuming only 35% had cameras, then they must have known where the cameras are where the weaknesses are etc. That means the intruder came in through an area that wasn't covered by camera.
Desai: There is an affidavit that says who came in and out.
B: Only 3 vehicles.
Desai: Are you postulating that the access gate is a reasonable possibility of entry for the intruder into the estate that night?
B: Yes of course, and it is the state’s onus of proof, not the accused. I will present actual evidence that there was an intrusion into the estate that night.
Desai: Wyngaard testified that he checked the fence.
B: No. She said that she sent someone to check and nobody did. Cleared up and agreed he didn’t check the fence, he checked the video footage.
B: Wyngaard took 2 patrols. The second started at about 1 in the morning, each taking 1h30min to complete. There were no patrols at 01h40 for a few hours.
Desai: But then the intruder must have known when they patrolled.
Desai: How did he exit?
B: I don’t know, and I don’t bear the onus.
Desai: Postulating a tunnel under the fence, is that not unreasonable?
B: With respect, it is reasonably possible. Evidence before your lordship that it actually happened.
Desai: This was a very bloody scene, but beyond the stairs there was little blood. How do you explain this? The accused walked downstairs to the phone. There is no blood beyond that.
B: The two blood drops - one by the pantry door and one outside corroborate the possibility of an intruder.
B: Evidence of Op't Hoff neighbour - heard arguing for 2 hours between 10 till 12. The movie was Star Wars that my client says they were watching, was an action packed movie. The accused only said, ‘Well, if you heard something then it can only have been that movie’.
Desai: Whether Star Trek or Star Wars, it's different to that of noises coming from a fight.
Assuming that the neighbour is not mistaken, then the rest of the evidence falls into place. For the neighbour to come here, either she is mistaken or lying. Why do you run away from the inference of an objective witness who says she heard arguing for two hours? She was adamant what she heard, so then the only suggestion is that she was dishonest. Why would a total innocent bystander come and testify bias on a matter that does not concern her?
Desai: Why did your witness not simply take the DNA and test it?
B: Are you saying that in a criminal matter the defence must prove the state’s case?
Desai: I accept there was not compliance in certain aspects with procedure, but in every case Olckers comes on the scene and demands so many things, disrupts on procedure. As an expert she is required to enlighten the court. Why not do a DNA test.
B: My submissions are based on current case law.
B: If we do not have blood evidence, then the state’s case is gone.
Desai: There is a lot more than that in evidence.
Desai: Ok, they don't have accreditation. Now what must be done?
B: Good question, what must be done. Why haven't they managed to get accreditation for 16 years.
Desai: Dr Olckers got the raw data and did not disagree with Otto iro (in respect of) the mixture result.
Desai: How do you explain the lack of blood on his upper body?
B: I would have to speculate.
Desai also asks what about the lack of blood spatter on the wall behind Henri.
B: My client reminded me that it could have flaked off as it’s dry and he was far away, but also, if he was attacking Rudi, then surely he would have blood on his upper body. There was blood on the wall near his client.
Desai: Must the court accept DNA evidence to support the accused version?
B: This is my argument if the court does accept the DNA evidence.
B: With respect, the defence submit that the chances that the axe on the scene, exhibit 1, is the axe which was used to attack Marli are nil.
Desai says that there are other reasons for that, but on the Lockhard principle if there was an intruder then why do we not see the intruder’s DNA?
B: We will deal with that later, but Otto (the expert he has just told the court is biased, not proficient and trying to mislead the court) told the court that if the intruder’s face and hands were covered then they may leave without a trace.
Desai: the second axe issue is illogical.
B: I invite the state, in reply, to argue based on what evidence could there be any other inference made other than the one that Marli was attacked with a different axe. My version is that her DNA is absent despite her having been hit 8 times. It is absent on my client who was supposed to be the attacker.
Desai: I've been a Defence counsel for years. To base this on one witness who mistook the colour does not help your case. If you go to a braai, would you study the axe of your host unless you plan to murder them? You wouldn't remember such detail.
B: Don’t base your assumptions on what is not there, but if there is no blood stains, the person still could be the attacker. Shortly after the blood on the axe, he is already bleeding. We saw him later with blood still on him so he could not have washed himself.
Desai: But your client was there for 2hr40 min after the attacks. The second axe is such an improbable story.
B asks why he would say that given the absence of Marlis DNA on the axe.
Desai: It’s highly improbable that these two entered the premises carrying axes and then left with one of the axes. Why would someone enter a premises carrying an axe?
B: Just because we did not call Perumal, Galloway had conceded and confirmed the report so why would I call him? I never asked Perumal about self-inflicted wounds.
Desai: That is the second time that you are telling me that you have limited the ambit of your expert’s mandate. That could have helped your case tremendously. You have an expert pathologist who knows about injuries and you do not use him. Your answer is flabbergasting because you are saying that you did not ask him to give evidence on the self-inflicted wounds.
B: We called him on one aspect.
Desai: But he was hanging around the court here and you never discussed this with him.
Desai: This is the third time you are using finances.
B: It’s not a secret.
Desai: But you are using it as a defence. You had him brought here for 2 days from Durban and didn't consult with him on that aspect.
Desai: Security inspected the perimeter fence and found no breach or anything wrong. Listen to the tape. It is clear evidence that he inspected the entire fence the next day. Would this person be hell bent in finding a certain family member or just murdering the whole family?
B: I don't know but the onus is not on the Defence to prove this.
Desai: Let’s speculate. Either a killer that just wants to kill, or he hates the family, or carrying out a vendetta, or fortuitously there and looking for another house?
B: Ok, let’s look at it. People come on the estate. They don’t know about the estate. They find a house that’s easy to enter - van Breda house. The windows are open. You can see it from the street. Easy access. They go in. The drawers and cupboard was open, so they look through the drawers. One goes upstairs. He comes across the first bedroom, looks in and he sees Rudi in his bed. Maybe Rudi wakes up. He starts attacking him.
Desai: in this situation here, nobody makes a noise, or shouts or makes a scene?
B: Rudi would not shout for help because he was asleep. My client shouted for help. His mother made some noise - my client conceded that.
Desai: Why didn't the second attacker come to the help of the first one? They came to "soek n gelukkie" [translation – look for a lucky one] but left without it, killing everyone. It's unprecedented. So the unknown assailant was on a killing mission to kill everybody?
B: We don't know. On my client’s version he was on a mission to attack in the beginning.
Desai: Let’s speculate for a second. Here is a deranged killer on a mission or he dislikes the whole van Breda family. Tell me what are the probabilities? Why wouldn’t even the first attacker call for help from the second attacker? Is it probable assailant comes there, everyone is attacked, nobody calls for help? Your version postulates them searching the drawers but they don’t take anything from the house.
B: But they needed to get out?
B: It’s not our version there was no cry for help. He cried for help. He can't recall if mother cried for help. Thinks that she likely did.
Desai: In a family of 4, the first person who was attacked would shout, but this didn't happen.
B: He never said that. My client cried for help. That’s exactly what he did, but its not for the defence to prove that version. It is for the state to prove that version is not reasonably possibly true.
Desai: But if the version is not reasonably possibly true then that causes problems.
B: Butler did not inform him of his suspicions as a result of his bias. When monitoring him, he then saw a slight jerk of the thumb, and says its a myclonic seizure.
Desai: Myoclonic is a very fancy term. All we saw on the video is a slight twitch. That's a lot of weight attached to a slight twitch of the finger.
Botha then tells a story of an evening HvB drank a lot and didn’t sleep much and had a seizure.
Desai: What is the point?
B: If he had a seizure during that time, that explains the 2hr40 min my client cannot remember.
Desai: Mr Botha cut to the chase. What does he say about your client, assuming Butler is right?
B: It explains the time lapse of 2h40mins. Based on my client’s version and the blood smear on the steps, he was lying on he stairs during that period of time in a tonic clonic state.
Desai: He can only postulate it as a medical possibility and not a fact.
Botha: Butler listened to the emergency phone call, and his dull appearance is consistent with a post ictal state.
Desai: His evidence is that he spoke slowly so as to not stutter. So he did not say that he was in this post ictal state. His evidence is that he elected to speak slowly.
B: My client didn't know this.
Desai: But your client was coherent and able to reason. How do you explain his failure to react? He was thinking logically. Speaking on the phone he makes rational decisions.
Desai: The problem is that the Dr testified after the accused so the accused could not be cross- examined.
B: The state could have asked to recall him? They did not.
Desai: It's almost as if they were killed in a frenzy, in anger. What concerns me is the highly personalized nature of the attack. The person did so with definite intent.
B: Crimes in SA display gratuitous violence. Just because it was violent, it does not mean that it was my client. Andre van Breda, Andre Du Toit said there were no problems in the family.
Desai: In our law motive is not required.
B: But motive is important here. Everyone asking why would someone attack this family.
B: It is the state’s obligation to prove beyond reasonable doubt that his injuries were self- inflicted. It is not the defence's obligation to prove that they were.
Desai: What if the court finds they were self-inflicted? All we are saying is that only the cuts could be, and it would only be part of all the other circumstantial evidence.
B: We submit that Dr Tiemensma is not a neurologist and she was not prepared to concede. She had an inherent informational bias. She was asked to look at these photos - are they self- inflicted.
Desai: Her evidence was supported by Dr Dempers and she did make concessions. How do you explain that this was text book self-inflicted?
B: One must have regard that these experts normally deal with fatal self-inflicted wounds. They are pathologists.
Desai: Why can we not consider the probability that there was a struggle with one of the victims? If your client was involved in a massacre of this scale, would you not expect some injuries to be inflicted on the perpetrator?
B: Are you suggesting an injury by another family member? You may be correct.
GALLOWAY’S REPLY
G: It was evident that Dr Perumal had consulted with counsel on the self-inflicted wounds as Dr Perumal had referred counsel to the text book which Tiemensma had the updated version of.
Desai: In all my years I have never heard of limiting an expert’s mandate, especially in incriminating evidence.
Isn't it amazing when you compare the State v the Defence. This gives me more hope that Desai sees it as clearly as I/we do.
