South Africa - Martin, 55, Theresa, 54, Rudi Van Breda, 22, Murdered, 26 Jan 2015 #5

[PrimeSuspect]

https://twitter.com/Traceyams

B: we will get to the evidence of Opt'Hof who heard a fight between 10 and 12, we will get to that.

Adv B: now wrt the most important aspect- defence called 2 experts, Mr Rabie and his evidence on the working of the fence and his evidence was not cross examined, only Rossouw testified on workings and conceded she was not an expert

B: Rabie's evidence stands untested and state failed to call these witnesses so we can only adduce that the evidence that would have brought would not assist the state

B: rabie said there is a fence, energiser and there is a voltage flowing through, if voltage drops below a certain level it triggers an alarm at the remote control office Thorburn in parow

B: they would then contact the guards who would go an investigate what triggered the alarm- it gives an audible sounds to controller in parow

Number of ways to have voltage drop: 1.someone touched those wires, could be a wet branch, anything that would short out the system

B: what is NB is that rabie explained that the energisers have back up batteries which would continue to supply uninterrupted energy

B: NB info received by control room would not state the reason the alarm went off, it would only record that voltage has dropped and guard must check the cause- this is undisputed

After this, you can touch climb etc until it has been reset, it will not trigger another alarm


https://twitter.com/ajnarsee

Botha: bare in mind that Mr Wyngaard testified that he passed the #VanBreda residence between 10 and 2pm without any suspicion. This is in contrast to the neighbour who heard disturbances.

 

[PrimeSuspect]

https://twitter.com/Traceyams

03h37am we have evidence that the alarm was activated, despite these activations both Wyngard and Afrika testified that they did not receive any calls to state alarm triggered nor did they go and check an alarm trigger

B: Nb the alarm does not record what caused it, it only records that it has gone off, barring an explanation (the state never called the control room) we can only infer that the control room simply did not contact the security guards

Judge Desai : what are you saying?

Adv B: the alarm could be reset from the control room- without anybody going to the fence. Judge Desai : does the alarm make a noise? Adv B: Only in the control room not at the estate

Adv B: that alarm went off twice that evening- objective fact- nobody went to check.

Adv B: my point is that on that evening an actual alarm was triggered on the fence twice that evening, if there was an intruder it makes my clients version probable

B: bearing in mind my client does not bear the onus of proof. I am saying you have evidence before you that one of those breaches 03h37 occurred very near to the time the attacks probably happened

Judge Desai: how did he exit? Adv B: I dont know and I dont bear the onus. With respect its not a possible version, it is the only version before your lordship. They could have exited the next day I don't know



https://twitter.com/ajnarsee

J Desai: if there was a breach wouldn't the alarm have gone off loudly?
Botha: no, it's a silent alarm

Botha: the only facts before the court is that the alarm went off twice but nobody went to check it.

Judge Desai: but isnt there a document that says it was a false alarm? Adv B: no the expert I called said that is not the case, it wasnt a dip in power

Botha: if there was an intruder, it makes it probable. On that evening the alarm was triggered very close to the time that attacks occurred

J Desai: how did the intruder leave?
Botha: it's not for the accused to prove that

Botha: the intruder could have left the next day

 

[PrimeSuspect]

https://twitter.com/Traceyams

Adv B: we have evidence of "anti-dig", they regularly had animals that burrowed under the fence, without being detected

Judge Desai: postulating a tunnel under the fence, is that not unreasonable? Adv B: with respect it is reasonably possible, evidence before your lordship that it actually happened

Adv B:implore you to have regard to evidence in parameter and the inspection of the parameter, Rossouw asked this to be done, these guards were not called

Adv B: boundary wall of the home, with respect I would submit even I would be able to jump over that wall

Adv B: in contrast to the other residents there was no internal alarm, no burglar bars and building was going on next door and access was there through black pedestrian gate

Adv B: we know from footage that every single window was open. Judge Desai clear indication that the vanbredas felt safe. Adv B: but also vulnerable everyone could see the windows open from the street back door open

Adv B: it was fairly easy to gain access to the property from outside and these actions would not have left any signs of entry, especially if person was wearing gloves

Adv B: there is the evidence of my client who say there were at least 2 unknown assailants. Is there other evidence of entry or exit?

Adv B: blood spatter marks 2 of them on inside of boundary wall and on the kitchen door. Either from blood spatter from the attack in boys room or blood deposited as drip from bloody clothing or hand

Judge Desai: this was a bloody scene- problem is that beyond the steps there was very little blood

Judge Desai after that accused walked down the stairs to the telephone, no blood beyond that? wouldnt one expect alot of blood down stairs?

 

[PrimeSuspect]

https://twitter.com/Traceyams

Adv B: for blood to have been transferred to the wall from the boys' room, wind must have played a role- versus someone simply walking passed and dropping blood

The evidence by the state would not refute Henri's version it corroborates his version. The other version requires blood drops to miss the lamp the window hit the wind and land there

Evidence of Op't Hoff neighbour- heard arguing for 2 hours between 10 till 12. The movie was star wars that my client says that they were watching, was an action packed movie

Adv B: the accused only said well if you heard something then it can only have been that movie

Judge Desai: lets assume that it is correct- then the rest of the evidence falls in place, argument the night before?



https://twitter.com/ajnarsee

J 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

Botha: the two blood drops- one by the pantry door and one outside corroborate the possibility of an intruder.

Botha: #VanBreda neighbour testified that she heard argument. It was put to her that it was the soundtrack of Star Trek 2. The accused says it was an action packed movie

J Desai: whether Star Trek or Star Wars, it's different to that of noises coming from a fight

J Desai: 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

Botha: Opt'hof says she heard noises from 10-12, unabated arguing....longer than a rugby match. That cannot be

J Desai: that's stretching it

 

[PrimeSuspect]

https://twitter.com/Traceyams

Adv B: she may have constructed. In this court room we have been sitting here for 2 hours, now thats a long time to hear constant fighting 30 min longer than a football game

Adv B: just before 10 and then again after 23h11 Wyngaard went passed there and did not hear anything

Adv B: Taljaard said I am a light sleeper and I did not hear a thing

Adv B: we have the evidence of james and marli who exchanged messages till around 10 that night

Adv B: we know there was a family altercation a few weeks prior, if this fight was going on what are the probabilities that marli would not have told James- highly improbable

Adv B: also henri and bianca exchanged whatsapp messages till 10 that night, no indication of a fight

Judge Desai: either she was lying or she was mistaken, she was adamant what she heard so then the only suggestion is that she was dishonest


https://twitter.com/ajnarsee

Botha: security guard Wyngaard said that he did not hear any noise during his patrol. He drove past twice

Botha: neighbour who lived a house away says she didn't hear a thing

Botha: James and Bianca exchanged messages with #VanBreda and Marli till 10pm, didn't talk about any arguing. What are the probabilities that she wouldn't have messaged James if there was a fight going on?

Botha: Opt' Hof's windows and curtains were closed. She conceded that it would be difficult to distinguish between talking and arguing... she couldn't tell us how many voices, who they were or the language they used

Opt' Hoff- conceded that she was not directly opposite the house. She could only gauge the gender, the mood and the direction, she couldnt say who, what was said nor could she gauge the language

Adv B is it not possible that it came from another house altogether

J Desai: why do you run away from the inference of an objective witness who says she heard arguing for two hours? Either she was mistaken or lying

Botha: I'm not saying she is deliberately lying. But I will come back to her about her bias

 

[PrimeSuspect]

https://twitter.com/Traceyams

Adv B: she also said out of the ordinary her son, a sound sleeper actually woke up at 4 that morning, now that fits in with the time of what my client said, that the attacks took place

Judge Desai- I am not attaching undue weight to a child waking at 4 in the morning, a number of issues which may disturb a babies sleep

Rudi was asleep when he was attacked, other family members were in sleeping attire so they must have been sleeping


https://twitter.com/ajnarsee

Botha: she says her son, who is a light sleeper,woke up after 4am that morning. She says it was strange that he woke up

J Desai: what's so exceptional about that? Because the child woke up when a murder was taking a place

J Desai: I'm not attaching undue to weight
Botha: I'm saying she was mistaken

Botha: we also know Rudi was asleep and the family were in their sleepwear

J Desai: but who says Rudi was asleep?
B: my client and Captain Joubert

 

[PrimeSuspect]

https://twitter.com/Traceyams

Judge Desai: who said Rudi was asleep? Adv B: my client- also the evidence that he had not fought back

Judge Desai : I am just saying that it is a possibility

Adv B: my client was a good witness and he said they all went to bed, the evidence supports this, even if there was a fight, they all went to bed before the attacks

On the evidence of the scene in the photos from the next morning, DVD on the table, cushions moved, we see a picture of 3 people watching television

Adv B: if she heard an argument for 2 hours why did she not call security? Judge Desai: she didnt want to interfere, family problems- the way I was raised we would have rushed over but some people wouldnt

Adv B: her bias- when it comes to any deduction made by her in relation to the events, she displayed it quite clearly

Adv B:she heard something, took her kids to school came back and heard of the attack heard that they took my client away and then later heard all the bad things on social media about my client and then testified

Adv B: she thought she heard the attack, she did not think it was the argument Judge Desai disagrees she heard what happened after

Judge Desai: why would a total innocent bystander come and testify bias on a matter that does not concern her

Adv B: When asked by not reported she said I did not know the sounds related to him attacking his family? clearly connecting the attack to the sounds and thus showing bias

Adv B: all she heard was loud voices at some stage, in her statement she does not say for 2 hours, until she testified thats all she heard loud voices at some stage I have no issue with that and I need to move to my next point

 

[PrimeSuspect]

https://twitter.com/Traceyams

Adv B moves on to DNA. Evidence of Dr Olckers I will deal with the remarks that you gave yesterday- I accept that the evidence on procedure was not entirely correct you neednt argue that

Judge Desai: why did your witness not simply take the dna and test it

Adv B: are u saying that in a criminal matter the defence must prove the states case?

Adv B: but for the evidence of Dr Olckers we would think that the dna of my client his mother and brother was under his nails, in his shower and on his shorts

Adv B: we say with reference to case law, courts have said repeatedly, not only the DNA but the steps leading up to that result is of utmost importance

Judge 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

 

[PrimeSuspect]

https://twitter.com/Traceyams

Judge Desai: as an expert she is required to enlighten the court why not do a dna test. Adv B: my submissions are based on current case law

Judge Desai: I am just pointing out my experience in a number of cases where Olckers has appeared in this court

When testing the tests from the scene should not be done together. If there is any contamination it is immediately detected as its so foreign.

Adv B: but Otto says we got a good result what is the problem? the comparison is that I am stopped driving and blood is drawn to check alcohol, the question is it scientifically valid, if not drawn in 2 hours u cant rely on it

Adv B: you cant rely on the end point, but we have a result, does not matter what matters is how you arrived at the result to ensure it is correct

Adv B: if we do not have blood evidence, then the states case is gone Judge Desai there is alot more than that in evidence

Adv B: Dr Olckers testified about the scientific validity and told the court how it is achieved, the SOP's the competency of the analyst then you get a valid result

Judge Desai he is saying that you must make sure the procedures are followed

Adv B: yes and we know they werent. 216 samples were taken and we received the results of 135

 

[PrimeSuspect]

https://twitter.com/Traceyams

Adv B: they did test 116 all at the same time so that leaves 23 samples in terms of which they followed their own SOP'S

Adv B: if they are not followed the case law says you cannot have regard to that

Adv B: now refers to the accreditation of the lab. We have a body that carries out the accreditation of these labs, authenticated by means of a standardised audit

Adv B: in 2001 the high court brought to the attention of the forensic lab, the importance of the accreditation process Evident that FSL realised the importance of accreditation then

Judge Desai: ok they don't have accreditation now what must be done? Adv B: good question, what must be done, why haven't they managed to get accreditation for 16 years

Adv B:the question is not why they have been seeking accreditation the question went unanswered, they have been incapable of obtaining accreditation and her view is that the purpose of accreditation is to stop advocates from asking to many questions in cross examination

 

[PrimeSuspect]

Botha's shouting is so annoying!! Can't wait to see the back of this man! /rant

 

[PrimeSuspect]

https://twitter.com/Traceyams

Adv B:the question is not why they have been seeking accreditation the question went unanswered, they have been incapable of obtaining accreditation and her view is that the purpose of accreditation is to stop advocates from asking to many questions in cross examination

Adv B: otto then concedes that accreditation is to get better results

Adv B: we are saying that if your Lordship is with us on this point then you cannot rely on this evidence

Adv B: the evidence is that the FSL got the answer wrong when they participated in an audit- 3 out of 126 gave the wrong answer

Adv B: We have SOP's not followed, we have a lab not accredited and we have an analyst that didn't pass the proficiency test

Judge Desai: Dr Olckers got the raw data and did not disagree with Otto iro the mixture result

Adv B: Dr Olckers said I only get raw data and I can see what procedures they must follow to get this answer and I can see they did not follow those steps

Adv B: for us to have test my client would have been on pro bono legal representation long ago


Court adjourns for lunch

 

[LouP1209]

Thank you for updates Prime, and best wished to JJ for a speedy recuperation,

:jail:

 

[Interested Bystander]

Thank you very much for the updates. I started watching the court proceedings and had to give up because that little man Botha infuriated me with his presentation. He is so aggressive.

Interesting he is bringing up the accreditation of the lab; we knew that was inevitable. Fairly obviously PB would never have had anything tested because the risk was it would have confirmed Otto's findings and he then would have been unable to argue non-validity. Surely that won't go over Desai's head.

The nature of Desai's interruptions makes me think he has already made up his mind.

 

[Fluffykins]

Thank you very much for the updates. I started watching the court proceedings and had to give up because that little man Botha infuriated me with his presentation. He is so aggressive.

Interesting he is bringing up the accreditation of the lab; we knew that was inevitable. Fairly obviously PB would never have had anything tested because the risk was it would have confirmed Otto's findings and he then would have been unable to argue non-validity. Surely that won't go over Desai's head.

The nature of Desai's interruptions makes me think he has already made up his mind.

Agreed IB - it struck me last night that Desai already had his mind made up and his comments tonight have only served to confirm that.

What beats me is Botha going on about the estate security - it seems he's trying to introduce new evidence. How on earth does he get away with doing that? :dunno:

Wish JJ was here for all this.

 

[PrimeSuspect]

https://twitter.com/Traceyams

Judge Desai: before Botha begins, refers to a statement in a report that Botha handed up

Judge Desai : we can't ignore that report you handed it up, Adv B: we arent saying that you must ignore it we are just saying that Rabie explained what it means

Adv B: The issue around Rudi being asleep, they say he was probably asleep when he was attacked the state confirms this

Adv B: now addressing you on the assumption that you accept the results of the DNA. Adv B the single DNA profile of martin could have been read into 50 stains on shorts and one on his sock

Adv B: its common cause henri was close - the evidence is that he was 1.5m -2m away. This doesnt take anything further

Adv B: Rudi;s blood on the walls, duvet, floor, duvet covers clothes worn by Henri and on the adjacent wall of neighbouring property

Adv B: the fact that his DNA was found in his immediate surrounding doesnt take the matter further, it is to be expected

Adv B: the fact that Rudi's blood on Henri just places henri at the scene of the blood shedding event and that has been Henri's version

Adv B: clear from Joubert's evidence that excludes the possibility that Henri was wearing shoes which he later took off, because there was impact spatter on his socks

 

[PrimeSuspect]

[video=youtube;06GyVBAHGl4]https://www.youtube.com/watch?v=06GyVBAHGl4[/video]

 

[Interested Bystander]

So PB is claiming tests were not done because Henri was pro bono at that time. What rubbish. The only reason money was likely to have run out is because PB extended the trial unnecessarily with his argument OR did he extend the trial intentionally to give him the argument that money had run out and therefore tests could not be carried out? Wouldn't surprise me.

 

[PrimeSuspect]

https://twitter.com/Traceyams

Joubert also testified that the impact spatter was on the left heel it was actually on the right heel. According to Joubert on the left heel, at the back it would have been impossible for him to make contact with his back left heel

B: while he was attacking his brother. Joubert said it could be a drip from the axe that dripped onto his left heel- either version does not support the state and rather supports Henri's version

Adv B:in cross examination evidence of Capt Joubert- I said if those were stains made by someone tramped in blood and stepped into the bathroom that excludes my client cause we know his socks had no blood underneath

Adv Botha: we know for a fact that Const Martin did stand in blood as we found 2 blood stained foot marks so we know people were walking in and out

Adv B: the marks in the bathroom, cant be said to be shoe prints and we accept that, we do not know what caused those marks.

Adv B: in the photo Kleynhans took is the very clear green EMS bag so all we are saying is that there are many other inferences to be made from the mark in the bathroom

 

[PrimeSuspect]

https://twitter.com/Traceyams

Adv B: the swabbing under Henri's finger nails was dna- not blood dna, we dont know what dna- not unusual to find dna of family members on each other because daily family activities they transfer dna

Adv B: Rudi being capable of physical activity, the blood on the knife could have happened in the blood shedding event or when Rudi moved so blood of Rudi on the knife does not incriminate henri

Adv B: hardly surprising that his dna was on cigarettes he smoked, common cause he bled as a result of injuries result in the profile on his shorts and socks and he admitted he handled the axe after being stabbed

Adv B: He used right hand to remove the knife from his side it confirms that he handled the axe after he was injured but shortly after the attacks on Rudi- the blood on the axe had not congealed yet, still liquid enough to form flow pattern