South Africa - Martin, 55, Theresa, 54, Rudi van Breda, 22, murdered, 26 Jan 2015 #2

[PrimeSuspect]

https://twitter.com/Traceyams

Adv G: the public will certainly take issue in NB evidence like this being excluded on what is seen to be a technicality

G: Accused did not give evidence in the trial within a trial - re request for clothes or intimidation

(YES!!)

 

[Tortoise]

She's covering all the main points. Showing Botha up for being obstructive I'd say.

 

[JudgeJudi]

He had not been forced and there is no evidence that he had no time to think about it.

Contents does not amount to confession or admissions - it is a witness statement, Galloway says.

Conduct of police was neither deliberate or flagrant . Their conduct was in line with normal police practice. According to Malan's evidence, he was never assaulted or intimidated.

Accused did not give evidence in trial-within-a-trial; he didn't say 'I asked for food, or I asked for clothes'.

Elected not to testify; this should be taken into consideration.

http://www.news24.com/SouthAfrica/News/live-van-breda-axe-murder-trial-day-21-20170531

 

[PrimeSuspect]

https://twitter.com/Traceyams

G: those aspects we only heard from Malan who says none of that occurred
G: only evidence by defense is that of uncle who only saw him after he gave the statement and didnt take matter further

G: cannot ignore that the accused chose not to testify on this matter

 

[Tortoise]

<snipped for focus>

Contents does not amount to confession or admissions - it is a witness statement, Galloway says.

http://www.news24.com/SouthAfrica/News/live-van-breda-axe-murder-trial-day-21-20170531

Exactly this! It's not as if he can say they obtained incriminating information from him under duress.

We've seen you Botha!

 

[PrimeSuspect]

She's covering all the main points. Showing Botha up for being obstructive I'd say.

She's doing a good job! and as she says, if it bothered HvB so much, why didn't he take the stand and give the Judge a word for word account of what happened?! Phfft

 

[PrimeSuspect]

https://twitter.com/Traceyams

G: Conclusion - statement made at time he was a witness and as such should be admitted as evidence.

G:Rights of sec 35 only pertains to arrested and accused persons and not to suspects

Botha hands up his heads of argument and bundles of case law
Botha - summaries challenge- he was a suspect when questioned and deposed to affidavit

Judge Desai - there is no evidence to challenge the evidence of Malan that he was not a suspect
Judge desai its not your case that the statement was involuntary

Adv B: authority for two approaches re question of whether state bore onus of proving
B: he who alleges carries onus, court held that we have to distinguish between 2 very distinct situations

These submissions I am taking notes of and will summarize in an article rather to provide a more accurate version

 

[Tortoise]

Hahaha, I'm reading the tweets, you can tell Botha is struggling because his arguments are not making sense.

 

[PrimeSuspect]

https://twitter.com/Traceyams

Desai -sgt malan says he wasn't a suspect there is no other evidence to challenge that? his is the only evidence before me

 

[JudgeJudi]

Adv Pieter Botha to now give his closing statement.

Accused should have been informed of the protection of his Constitutional rights, and failure to do that makes any reference to statement inadmissible.

Beyond doubt when we talk about confession, the onus is on the State to prove it was made freely and voluntarily.

The onus is on the state to prove beyond reasonable doubt that his statement was not obtained in a manner which went against his Constitutional Rights.

http://www.news24.com/SouthAfrica/News/live-van-breda-axe-murder-trial-day-21-20170531

 

[PrimeSuspect]

Botha :sos:

 

[Tortoise]

Botha :sos:

:giggle:

 

[JudgeJudi]

Botha plays the big tough guy with the witnesses but here he's addressing the judge, and Desai is clearly not impressed so far.

 

[Tortoise]

Has he dried up?

 

[PrimeSuspect]

https://twitter.com/Traceyams

B:your lordship should follow Orrie and Sebonjane
B:even if in agreement with our submissions u still retain discretion to allow unconstitutionally obtained evidence - trite law

Adv 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

Judge Desai: but there is no evidence of that before court. B I accept that

 

[PrimeSuspect]

https://twitter.com/Traceyams

B: crux of distinction of arrested or suspect. Suspect has not been placed on terms a suspect may have no qualms

continue to co-operate and trust. Suspect is in jeapardy of incriminating herself and in these circumstances should be afforded

To rely on whatever has been extracted in this time of deceptive safety is not consistent with a fair pre-trial proceeding


(i think Botha is testing the waters if he wins this one with J Desai...)

 

[PrimeSuspect]

https://twitter.com/Traceyams

Accused person knows the lines have been drawn and thats the basis of continuing interaction with police
Accused innocent until proven guilty. Onus is on the state accused has right to remain silence and needn't assist in supplying evidence and obtaining the accused's co-operation

If suspect is deprived of rights of those afforded to accused person then suspect is deprived of the rights

Judge Desai - this is qualified by deception. There is no allegation of deception before this court

B: theres no suggestion of threats but there lies the problem. The shrewd policeman would not do that in this position

Therein lies the danger, it opens the door for police to start using this as a way of investigating matters

Desai can u say with any degree of certainty that that was the case here?

B: we getting to the evidence now

Only Malan testified about large aspect of what happened- problem for state we know the states main witness wasn't present during questioning and interviewing of my client

No obligation on state to call any witness on the list and call witness which would be detrimental to the state - I accept that

B: but the negative evidence cannot be ignored- why didnt they call Beneke? Adams?

B: we know those officers went to fetch my client to take his blood? called him a suspect

Desai - that would be compelling if your client told this court that Beneke said that

 

[JudgeJudi]

Why are we putting up a fight over a statement with info on par with plea explanation?

We know what is going to come. What police then went and did with his statement. Had he been told, he would have asked for time and included aspects that were not there.

What was the evidence?

I concede there was only one person - Serg Malan - who testified. We know for a fact that the State's main witness was not present when he was questioned by Col Beneke and Sergeant Adams.

Negative inference made as Botha points out that Galloway didn't call Adams or Beneke to testify.

[And after hearing all this, why did HvB choose not to testify and refute it. Botha's talking ...]

 

[JudgeJudi]

http://www.news24.com/SouthAfrica/News/live-van-breda-axe-murder-trial-day-21-20170531

Link for above post.

 

[JudgeJudi]

With regards to Serg Malan, I submit there can be no doubt that his version of my client wearing a t shirt was a lie.

Desai says at worst, this was poor taste. Lie is a harsh word, he says.

Your client didn't testify to say that he was bare chested.

Botha says we know that at the scene he was wearing his underwear. It was common cause that when he arrived at the Dr rooms, Dr Albertse said that was what he was wearing. Malan said that he had the t-shirt on there.

http://www.news24.com/SouthAfrica/News/live-van-breda-axe-murder-trial-day-21-20170531