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

[JudgeJudi]

Adv B: continues his argument, brushing over Judge Desai's question

Adv B: pointing out that there is reasonable prospect that another court, based on factual findings (some of them), may come to another conclusion based on the onus of proving his guilt beyond reasonable doubt

Judge Desai: I am trying to help you, if you say I misdirected myself then how and why, what did I do wrong that would result in another court coming to a different conclusion?

Adv B: I will come to that, your lordship says that it is the cumulative effect of the puzzle, the 11 grounds even if taken together, another court may find that it is not the only reasonable inference?

Judge Desai: this fits like a mosaic, a jig saw puzzle, it all comes together to the conclusion I reached, if not it is up in the air

Tracey Stewart (@Traceyams) | Twitter

 

[Fluffykins]

rsbm

I get the feeling that Desai would have preferred not to have imposed the mandatory sentences but was left with no choice. I find it very troubling (and confirmation of his deeds) that HvB has shown no grief whatsoever during this trial.

Hey, IB: if you should have the time or inclination to elaborate on why you feel Desai would rather not have imposed the mandatory sentences, I'd be very interested to hear your train of thought. But please don't feel obliged to respond if you'd rather not.

I agree Henri's lack of grief (or remorse) are straight up confirmation of his guilt. He is simply not sorry for what he did.

 

[JudgeJudi]

Adv B: Joubert said he could not say how Marli's blood was not found on the axe, Adv B argues that a court of appeal may attach a different weight to that evidence?

Judge Desai: may attach a different weight but would they come to a different conclusion? Adv B: another fact is the evidence of Rabie, a court of appeal may attach less weight to the hearsay of Marcia Rossouw?

Judge Desai- again interrupts, you have not dealt with the fundamental pillars of the states case, and these pillars make this case so strong, it really makes this case unassailable - Adv B- which pillar? Judge Desai: self inflicted wounds?

Adv B: but you yourself said that self inflicted wounds evidence cannot lead to conviction in isolation. Judge Desai: the self inflicted wounds were critical Adv B; not all of them were self inflicted

Tracey Stewart (@Traceyams) | Twitter

 

[JudgeJudi]

Adv B: the discrepancies in Henri's testimony you yourself said were not material? With respect there was evidence that he may have been in a post-ictal state when he gave his statement

Adv B: the court of appeal doesn't even need to believe my client, the question is, is his version reasonably possibly true? Judge Desai- it is for this court to decide this, the appeal court is only going to interfere if there is an irregularity

Adv B: regards to blood stains on his shorts and socks- from the word go he says that I was near my brother and father and not my mother and sister- is he the luckiest man to have known the evidence would support that version?

Desai: wrt sentence a life sentence 3 times over is a severe sentence, if there is any doubt about that, I will grant u leave but I asked u 2 advance any reason at all, I asked you for a peg to hang my coat, you gave me no peg, no real evidence in mitigation

Tracey Stewart (@Traceyams) | Twitter

 

[JudgeJudi]

Adv B: I hear what you are saying, but those are my client's instructions, my client says he did not do it, he cannot show remorse

Adv B: I have, with respect, abandoned the last ground. My argument is that the only evidence the state proffered, the peg to hang, is that the axe, somebody had to go fetch the axe

Adv B:Thats the only evidence of pre-meditation or not, another court may find that is not enough. It follows from that that the minimum of life may not be applicable

Judge Desai: would the sentence be different? To show that it was a disturbed individual? That would have helped- Adv B what was missing from the states case, what was the motive of my client? Perfectly happy family that evening, that was evidence

Tracey Stewart (@Traceyams) | Twitter

 

[Fluffykins]

rsbm

Sorry everyone, I had technical issues and it's long since over. Thank you IB for the link.

Oh ack JJ, what rotten timing for you. Did wonder where you'd got to. Sorry to hear it.

 

[JudgeJudi]

Adv B: just as this court says that you cant attach discernible motive to an unknown intruder, another court may come to the finding that there is the same inability to attach a discernible motive to Henri

Adv B: argues for the matter being heard by the SCA not this court, he argues that there are many questions around how to deal with the issues which arose in the DNA evidence in this matter, as practitioners, courts we need the SCA to deal with this

Adv B closes his arguments. Adv Galloway starts and Judge Desai asks her to deal with the sentencing aspect first

Advocate Galloway submits that the court correctly foudn that the fact he had to go from upstairs to fetch the axe and the knife and then return and aim straight for the head of the deceased

Tracey Stewart (@Traceyams) | Twitter

 

[JudgeJudi]

There is no other finding than it was pre-meditated, in the alternative in a crime such as this in any event the most severe sentence would be warranted

Adv G: the defence is nit picking the circumstantial evidence and he is not seeing the wood for the trees, she quotes the SCA on this. Adv G: even if we exclude the DNA evidence the same finding would be made

Adv G: it was not the case that all was happy in that family that night. Deals with Op't hof's evidence, if she wanted to lie and make up a story she could have expanded and said she heard Henri and his father, she did not, it was clear independent evidence

Judge Desai: that could extend the climate of the later events and sets up the mosaic to fit together

Tracey Stewart (@Traceyams) | Twitter

 

[JudgeJudi]

Judge Desai: in fairness to you Mr Botha I am going to read your notice of appeal again and then I will hand down judgment on this matter on Friday 17 August 2018 at 10am

Tracey Stewart (@Traceyams) | Twitter

 

[JudgeJudi]

rsbm

Oh ack JJ, what rotten timing for you. Sorry to hear it.

Sorry Fluffy, I was logged in on another WS site and when I came to this thread it showed I wasn't logged on. So I logged in but it wouldn't accept my password even after 3 times. I had to reboot my PC before everything worked again.

 

[JudgeJudi]

I just lost my cursor - gremlins tonight. So I gave up and watched it instead. I loved the way Desai dealt with Botha. Did you notice his body language ... arms crossed and looking soooo over it all.

I'm not sure whether he'll:
1) deny leave and force Botha to petition the SCA directly, or
2) grant him leave knowing that the SCA will probably turn him down, but even if they don't and the appeal goes ahead, he'll lose the appeal.

I'm looking forward to Friday.

 

[JudgeJudi]

The static was terrible. There are always sound issues in SA.

 

[Interested Bystander]

rsbm


Hey, IB: if you should have the time or inclination to elaborate on why you feel Desai would rather not have imposed the mandatory sentences, I'd be very interested to hear your train of thought. But please don't feel obliged to respond if you'd rather not.

I agree Henri's lack of grief (or remorse) are straight up confirmation of his guilt. He is simply not sorry for what he did.

Hi Fluffykins. Desai has asked Botha a number of times for mitigating circumstances. I post below just one such instance. I don't have time to retrace all of Desai's comments but all along I have thought he had tried to be as 'fair' as possible as HvB is so young.

I am sure HvB is guilty and deserves his sentence but I do recall Desai saying at some stage that he had to impose the mandatory sentences because there was no mitigation and if there are no mitigating circumstances the sentence cannot be changed. Desai obviously knows HvB is guilty of the murders but there is no way HvB will admit anything because he is hoping, erroneously, to get away with murder.

"I am appealing to you to put forward to me some reason for the attacks," Desai told Botha.
'Put forward some reason for the attacks' – Judge Desai to Van Breda defence

 

[Interested Bystander]

Marli van Breda’s life will never be the same, state argues to ensure heavy sentence

“Desai said he wanted to at least consider any mitigating circumstances when considering the sentence, but Botha said he could argue nothing more than the youthfulness of the accused and the fact that he had no prior convictions, as his client still maintained his innocence.”

 

[PrimeSuspect]

Thank you JJ, tmar, Fluffykins, IB for the updates.

It would do HvB a lot of good if he just came clean, J Desai is giving him the opportunity to admit guilt and even motive, or an excuse, he was/is a disturbed individual.

A couple of points I'd like to highlight. J Desai saying the self inflicted wounds were critical and Botha replying, not all were self inflicted. Now, is this his assumption after hearing the dr's report she couldn't claim every single wound was self inflicted, even though it's accepted by the court that they were? Or, has HvB admitted he did scratch himself because....?

I like Galloway's rational thinking, Op't hof could have claimed she distinctly heard HvB and his father arguing, she did not, she was an honest ear witness who reported exactly what she heard, muffled raised male voices between the hours of 10pm and 12.05am. HvB didn't deny those voices but said they were a Star Trek fight scene, ridiculous young man that he is!!

I can't see an appeal happening.

 

[JudgeJudi]

Update re judgment:

Advocate Pieter Botha and Susan Galloway have come out of chambers. They say Desai will pass judgment on application for leave to appeal on Monday, not Friday as initially said in court.

 

[L2L]

Thanks, JJ & everyone else for updates. You are the best! See you all Monday.

 

[Fluffykins]

Hi Fluffykins. Desai has asked Botha a number of times for mitigating circumstances. I post below just one such instance. I don't have time to retrace all of Desai's comments but all along I have thought he had tried to be as 'fair' as possible as HvB is so young.

I am sure HvB is guilty and deserves his sentence but I do recall Desai saying at some stage that he had to impose the mandatory sentences because there was no mitigation and if there are no mitigating circumstances the sentence cannot be changed. Desai obviously knows HvB is guilty of the murders but there is no way HvB will admit anything because he is hoping, erroneously, to get away with murder.

"I am appealing to you to put forward to me some reason for the attacks," Desai told Botha.
'Put forward some reason for the attacks' – Judge Desai to Van Breda defence

Thanks for your reply, IB, that's very insightful of you. I guess that perceptiveness is the payoff from all your interested bystanding!

So given Desai has put it out there that he's looking for mitigating circumstances, that sounds like he's saying he'll do all he can for HvB short of accept his ridiculous story. I agree with Prime's comment above; I can't see Desai allowing an appeal.

Please accept my apologies for my very slow reply. We're keen gardeners and are doing a major garden reno, replacing a lot of shrubs and perennials with roses and the last few days have been flat out since the roses arrived, because we have to get them in the ground asap. Digging up dahlia tubers and gladiolus corms is such heavy work, it's been a case of come in when the light is fading, a few drinks, make dinner, have a shower, collapse into bed.

I am so looking forward to Monday when hopefully my roses are planted and Judge Desai gives HvB his overdue reality check.

 

[tmar]

Thanks for your reply, IB, that's very insightful of you. I guess that perceptiveness is the payoff from all your interested bystanding!

So given Desai has put it out there that he's looking for mitigating circumstances, that sounds like he's saying he'll do all he can for HvB short of accept his ridiculous story. I agree with Prime's comment above; I can't see Desai allowing an appeal.

Please accept my apologies for my very slow reply. We're keen gardeners and are doing a major garden reno, replacing a lot of shrubs and perennials with roses and the last few days have been flat out since the roses arrived, because we have to get them in the ground asap. Digging up dahlia tubers and gladiolus corms is such heavy work, it's been a case of come in when the light is fading, a few drinks, make dinner, have a shower, collapse into bed.

I am so looking forward to Monday when hopefully my roses are planted and Judge Desai gives HvB his overdue reality check.

Surely, ' no appeal'.
Fluff, you will be so proud of your beautiful garden.
The hard work will be worth it.

 

[JudgeJudi]

RSBM

A couple of points I'd like to highlight. J Desai saying the self inflicted wounds were critical and Botha replying, not all were self inflicted. Now, is this his assumption after hearing the dr's report she couldn't claim every single wound was self inflicted, even though it's accepted by the court that they were? Or, has HvB admitted he did scratch himself because....?

This is what Dr Tiemensma had to say in her EiC:

The wounds he sustained were superficial and typical of self-inflicted injuries.

The only injuries he was unlikely to have caused were those on his head, back, and leg.
[She also said that these injuries could be consistent with falling on the stairs.]

According to her findings, he had “regular and superficial” incisions on his chest, which were not life-threatening. The cuts had equal depth, origin and termination, were parallel and avoided sensitive areas such as the nipples.

“It is unlikely for a victim who is being attacked to stand still and not take defensive or evasive action to allow such multiple and uniform injuries to be executed,” she found.

She believed the cuts were in a “reachable” area for being self-inflicted. She came to the same conclusion regarding the wounds on his right forearm. HvB is right-handed.

“This is not a typical area where one would expect ‘defence wounds’ with sharp instrument attacks. Defence wounds are more likely to be found on the ventral/palmar aspect of the forearm or wrist, elbows, palmar surface of the hand in an attempt to grab the weapon, or on the backs of the hands or fingers from non-grasping movements in an attempt to ward off a weapon.”

Henri's wounds 'typical of self-inflicted injuries' - forensic specialist