South Africa - Martin, 55, Theresa, 54, Rudi van Breda, 22, murdered, 26 Jan 2015 #2
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So why did Botha not call Beneke, having asked for him to be in court? Are we being led to believe that Malan did not do the interview and was only there for a short time? If that is the case, there might be a problem looming. I am hoping Desai can see through Botha's obstructive attitude and rule against him.
Not sure why all the fuss as HvB didn't complain about anything at the time which for me indicates he didn't feel as though he was being treated as a suspect rather than a witness. It looks as though he has made much more of the interview a long time after the event with Botha's encouragement and assistance.
Re Botha saying HvB said he was cold, didn't JJ post the temperatures that day which looked quite warm? dToit stated it was a hot day and he himself had a drink due to the weather? I cannot remember if the temperatures were for the Western Cape or more general.
This trial is turning into a farce but I do feel Desai knows what the truth is. If a technicality gets this murderer off there should be an outcry in SA but I doubt there will be.
Not sure why all the fuss as HvB didn't complain about anything at the time which for me indicates he didn't feel as though he was being treated as a suspect rather than a witness. It looks as though he has made much more of the interview a long time after the event with Botha's encouragement and assistance.
Re Botha saying HvB said he was cold, didn't JJ post the temperatures that day which looked quite warm? dToit stated it was a hot day and he himself had a drink due to the weather? I cannot remember if the temperatures were for the Western Cape or more general.
This trial is turning into a farce but I do feel Desai knows what the truth is. If a technicality gets this murderer off there should be an outcry in SA but I doubt there will be.
It was Sgt Adams who was in court IB, not Beneke.
I agree. Botha is throwing everything and anything at it to see what sticks.
If J Desai rules against the state tomorrow I won't bother with the rest of it. He's been making all the right noises though so I'm hopeful.
I agree. Botha is throwing everything and anything at it to see what sticks.
If J Desai rules against the state tomorrow I won't bother with the rest of it. He's been making all the right noises though so I'm hopeful.
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Thanks Tortoise.
JudgeJudi
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Ive taken the liberty of adding punctuation and used initials.
Tracey Stewart‏ @Traceyams · 2h2 hours ago
Desai to Galloway
JD: Section 35 is not applicable automatically - Judgments of Bozalek and S V Kahn on rights to suspect.
G: 1st argument was accused suspect when made statement? If so should he have enjoyed rights of sec 35.
JD: The content wasn't put to him only the grammatical errors.
G: The evidence on the accused's clothes are irrelevant.
JD: Assuming he wasn't dressed - so what?
JD: The clothing and food issue is not their case, its only to color their case in attempts to wear down witness with tactics.
JD: It isn't the case here that they did attempt to deprive the witness - Judge Desai doesn't see relevance in clothing issue
JD clarifies that if he finds in favor of state, its an interlocutory application, he could change his finding b4 end of trial
Desai to Botha
There is no evidence to challenge the evidence of Malan that he was not a suspect.
Its not your case that the statement was involuntary.
Sgt Malan says he wasn't a suspect, there is no other evidence to challenge that? His is the only evidence before me.
B: Why are we putting up this fight? Point is that we know what is to come, we know what the police then went and did with his statement. If my client knew what they were going to do with that he would have given them more.
JD: But there is no evidence of that before court.
B: I accept that. If suspect is deprived of rights of those afforded to accused person then suspect is deprived of the rights.
JD: This is qualified by deception. There is no allegation of deception before this court
B: Therein lies the danger, it opens the door for police to start using this as a way of investigating matters
JD: Can u say with any degree of certainty that that was the case here?
B: We know those officers went to fetch my client to take his blood? Called him a suspect.
JD: That would be compelling if your client told this court that Beneke said that.
B: But the onus is on the state?
JD: Refers to case law where available witness can take matter further.
B: Regarding Malan - no doubt that his version about the t-shirt was a lie.
JD: But uncle said he was wearing a t-shirt. How does that mistake impact on nature? Its not your case.
JD: You say he lied - lie is a harsh word. He was uncertain about dress. Lie isn't necessary. Not for me to make that finding.
It seemed obvious to me who won this argument.
https://twitter.com/traceyams?lang=en
Tracey Stewart‏ @Traceyams · 2h2 hours ago
Desai to Galloway
JD: Section 35 is not applicable automatically - Judgments of Bozalek and S V Kahn on rights to suspect.
G: 1st argument was accused suspect when made statement? If so should he have enjoyed rights of sec 35.
JD: The content wasn't put to him only the grammatical errors.
G: The evidence on the accused's clothes are irrelevant.
JD: Assuming he wasn't dressed - so what?
JD: The clothing and food issue is not their case, its only to color their case in attempts to wear down witness with tactics.
JD: It isn't the case here that they did attempt to deprive the witness - Judge Desai doesn't see relevance in clothing issue
JD clarifies that if he finds in favor of state, its an interlocutory application, he could change his finding b4 end of trial
Desai to Botha
There is no evidence to challenge the evidence of Malan that he was not a suspect.
Its not your case that the statement was involuntary.
Sgt Malan says he wasn't a suspect, there is no other evidence to challenge that? His is the only evidence before me.
B: Why are we putting up this fight? Point is that we know what is to come, we know what the police then went and did with his statement. If my client knew what they were going to do with that he would have given them more.
JD: But there is no evidence of that before court.
B: I accept that. If suspect is deprived of rights of those afforded to accused person then suspect is deprived of the rights.
JD: This is qualified by deception. There is no allegation of deception before this court
B: Therein lies the danger, it opens the door for police to start using this as a way of investigating matters
JD: Can u say with any degree of certainty that that was the case here?
B: We know those officers went to fetch my client to take his blood? Called him a suspect.
JD: That would be compelling if your client told this court that Beneke said that.
B: But the onus is on the state?
JD: Refers to case law where available witness can take matter further.
B: Regarding Malan - no doubt that his version about the t-shirt was a lie.
JD: But uncle said he was wearing a t-shirt. How does that mistake impact on nature? Its not your case.
JD: You say he lied - lie is a harsh word. He was uncertain about dress. Lie isn't necessary. Not for me to make that finding.
It seemed obvious to me who won this argument.
https://twitter.com/traceyams?lang=en
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https://www.wunderground.com/history/airport/FACT/2015/1/27/DailyHistory.html
Stellenbosch (Cape Town) temperatures for the 27th Jan 2015. The temperature was between 65F and 78F during the parts of the day in question. Very roughly between 18C and 25C.
Stellenbosch (Cape Town) temperatures for the 27th Jan 2015. The temperature was between 65F and 78F during the parts of the day in question. Very roughly between 18C and 25C.
Attachments
It doesn’t seem likely Judge Desai will conclude that Sgt. Malan thought Henri was a suspect.
Without Henri’s version of what happened that day, being before the court, I am doubtful that Judge Desai will find the statement to be inadmissible. He may apply less weight to the content based on the obvious paraphrasing but I don’t see him concluding whether Henri should have been read his rights, based on the actual evidence placed before the court in the ‘trial within a trial’.
- See more at: http://www.capetownetc.com/news/van...ized-trial-within-trial/#sthash.mGfqklQC.dpuf
ETA - That was yesterday's article from Tracey Stewart
Without Henri’s version of what happened that day, being before the court, I am doubtful that Judge Desai will find the statement to be inadmissible. He may apply less weight to the content based on the obvious paraphrasing but I don’t see him concluding whether Henri should have been read his rights, based on the actual evidence placed before the court in the ‘trial within a trial’.
- See more at: http://www.capetownetc.com/news/van...ized-trial-within-trial/#sthash.mGfqklQC.dpuf
ETA - That was yesterday's article from Tracey Stewart
The conflicting decisions around this matter have been heightened, with the defence relying on reference to S v Orrie, and the state highlighting an appeal decision in another, S v Kahn which conflicts Orrie.
Referring to the defences argument, Judge Desai felt that Judge Bozalek went too far in S V Orrie, when he extended the constitutional pre-trial rights afforded to arrested, detained and accused persons in section 35 of the constitution. He was inclined to agree with the appeal decision in S v Kahn rather, where the court found that the rights of suspects are adequately catered by application of the well established judges rules.
I do not minimise the necessity to abide by the constitutional rights of suspects. Equally however, it is important not to hamstring the police in their investigation of crime
This compelling quote, by Judge Magid, clarifies the importance of Judge Desais decision and puts into perspective the importance of considering the matter on the facts, balancing the interests of the accused as well as that of the public while keeping our justice system in mind.
- See more at: http://www.capetownetc.com/news/van...t-or-a-witness-at-first/#sthash.OkeDQL6q.dpuf
Tracey has done a very long write up about today, worth having a look at the full article.
Referring to the defences argument, Judge Desai felt that Judge Bozalek went too far in S V Orrie, when he extended the constitutional pre-trial rights afforded to arrested, detained and accused persons in section 35 of the constitution. He was inclined to agree with the appeal decision in S v Kahn rather, where the court found that the rights of suspects are adequately catered by application of the well established judges rules.
I do not minimise the necessity to abide by the constitutional rights of suspects. Equally however, it is important not to hamstring the police in their investigation of crime
This compelling quote, by Judge Magid, clarifies the importance of Judge Desais decision and puts into perspective the importance of considering the matter on the facts, balancing the interests of the accused as well as that of the public while keeping our justice system in mind.
- See more at: http://www.capetownetc.com/news/van...t-or-a-witness-at-first/#sthash.OkeDQL6q.dpuf
Tracey has done a very long write up about today, worth having a look at the full article.
L2L
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Thanks so much for the link, Tortoise! An excellent article from Tracy clarifying yesterday's proceedings. My guess : JD finds in favour of the State, possibly with conditions, and ... court adjourns till next Monday!
JudgeJudi
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Botha described HvB as a young man shivering in just underpants deprived of sleep hungry and traumatised at just having seen his parents and brother axed to death. He had a beer before going to hospital.
He wants HvBs statement given to the police on January 27 2015 to be disallowed as evidence in court.
Galloway argued
He was perfectly calm and was treated as a victim, not a suspect.
When he gave his statement he was perceived as the only surviving member of the family who was able to give an account of what happened.
There was no incriminating evidence, he was calm and was able to give an account of what happened.
At that point there was no incriminating evidence.
The testimony of Sgt Malan who took the statement was corroborated by Dr Albertse who had examined HvB and recorded him as a slagoffer and not a suspect.
Despite grammatical errors raised by the defence the content remained undisputed and it was immaterial if he had a T-shirt on or not when he gave the statement.
He was not a suspect when he made the statement. He read an electronic version of it and was sufficiently satisfied to sign off on an electronic version of it.
Only arrested detained or accused persons are made aware of their constitutional rights.
The police had acted within the law and nothing about the giving or taking of the statement was detrimental to the administration of justice.
Botha argued
That HvB was pinned as a suspect right from the beginning but was then denied his rights to silence or legal representation.
He was treated in a way that made it clear he was a suspect and that as such he was entitled to those rights and should have been informed of them.
There is no onus on the accused to prove that his rights had been contravened. The onus is on the state to prove that they werent.
The court heard a litany of evidence on slipslops board shorts bare chests sleepwear and various other contradictory imagery of HvB that morning.
HvBs outfit shows he was treated without sympathy.
I am not suggesting even remotely that he was tortured or deprived of sleep and food. But there is a difference between taking a person in pants and a shirt to a doctor and a police station and taking them in pants only.
The way in which they treated him shows they saw him as a suspect rather than a victim. Under the horrible circumstances of the crime if somebody would have had sympathy and seen him as a victim it should have been the police. He was bloodied injured and dressed only in his underpants.
http://www.timeslive.co.za/local/20...ce-statement-can-be-used-in-axe-murder-trial1
He wants HvBs statement given to the police on January 27 2015 to be disallowed as evidence in court.
Galloway argued
He was perfectly calm and was treated as a victim, not a suspect.
When he gave his statement he was perceived as the only surviving member of the family who was able to give an account of what happened.
There was no incriminating evidence, he was calm and was able to give an account of what happened.
At that point there was no incriminating evidence.
The testimony of Sgt Malan who took the statement was corroborated by Dr Albertse who had examined HvB and recorded him as a slagoffer and not a suspect.
Despite grammatical errors raised by the defence the content remained undisputed and it was immaterial if he had a T-shirt on or not when he gave the statement.
He was not a suspect when he made the statement. He read an electronic version of it and was sufficiently satisfied to sign off on an electronic version of it.
Only arrested detained or accused persons are made aware of their constitutional rights.
The police had acted within the law and nothing about the giving or taking of the statement was detrimental to the administration of justice.
Botha argued
That HvB was pinned as a suspect right from the beginning but was then denied his rights to silence or legal representation.
He was treated in a way that made it clear he was a suspect and that as such he was entitled to those rights and should have been informed of them.
There is no onus on the accused to prove that his rights had been contravened. The onus is on the state to prove that they werent.
The court heard a litany of evidence on slipslops board shorts bare chests sleepwear and various other contradictory imagery of HvB that morning.
HvBs outfit shows he was treated without sympathy.
I am not suggesting even remotely that he was tortured or deprived of sleep and food. But there is a difference between taking a person in pants and a shirt to a doctor and a police station and taking them in pants only.
The way in which they treated him shows they saw him as a suspect rather than a victim. Under the horrible circumstances of the crime if somebody would have had sympathy and seen him as a victim it should have been the police. He was bloodied injured and dressed only in his underpants.
http://www.timeslive.co.za/local/20...ce-statement-can-be-used-in-axe-murder-trial1
PrimeSuspect
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I don't want to harp on about this, but I will. HvB was not arrested until 1 1/2 years later, so doesn't this mean his first statement wasn't crucial to him being accused of the crime? It wasn't a confession or incriminating as it doesn't vary significantly from his plea statement. Isn't it the evidence accumulated and witnesses interviewed led to his arrest?
Botha wants to win this trial within a trial as an indicator for himself whether his 'client' has a fighting chance at beating the charges, and basically, how to proceed from there on in.
Botha wants to win this trial within a trial as an indicator for himself whether his 'client' has a fighting chance at beating the charges, and basically, how to proceed from there on in.
JudgeJudi
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18 months is a long time to wait before charging him so there must have been some reason. Speculation, while it can be interesting for us, doesn't advance our knowledge.
I have a recollection that the defence contacted the NPA at some point and said if they were going to charge him they should do so because HvB couldn't move on with his life until he knew what was happening. I've searched but can't find the article.
Apart from the forensics person who will testify re the blood splatter, I'd love to know
* Did the State find evidence on HvB's phone that he had looked up the axe murder in the US
* Have the State subpoenaed any records from the drug rehab centre that HvB was allegedly in
* How he can explain away his fingerprints not being on the axe
JudgeJudi
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If Botha were to win this argument, how will it affect the outcome of the trial? What did he say that was so incriminating? Is there something we haven't heard yet?
PrimeSuspect
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Galloway says there wasn't anything incriminating, I think she can't understand Botha's motives either. Unless it's what Tortoise suggested, Botha is implying that HvB was always a suspect and the police fitted him up!
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Add to the above list
If HvB is found guilty, he's not entitled to share in the estate. Does this mean that all his legal fees will come out of the estate thereby reducing Marli's share. I know the estate is worth R200-million, but even so, it seems disgusting that she should be burdened by his legal fees after what he's done.
If HvB is found guilty, he's not entitled to share in the estate. Does this mean that all his legal fees will come out of the estate thereby reducing Marli's share. I know the estate is worth R200-million, but even so, it seems disgusting that she should be burdened by his legal fees after what he's done.
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