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

[PrimeSuspect]

Hi Everyone :wave: Big shout out to JJ, presently having a nice rest up and recovery, bless her!

Lets have a nice moment outside and enjoy these treats! We're on the home stretch!

 

[PrimeSuspect]

https://twitter.com/pretorianews

(about Marli's blood not found on HvB)

During the trial, bloodstain analyst police captain Marius Joubert testified that “the absence of evidence is not evidence of absence”. He said it was possible to assault a person and not have a single drop of blood left on you, a point reiterated by Galloway yesterday.

.....
Galloway said Olckers merely criticised the process, and did not do any analysis of her own.

Judge Desai seemed to agree: “She didn’t say x, y and * were wrong. I’m not saying she isn’t entitled to give evidence. But there should be some limits on this.”

https://www.iol.co.za/pretoria-news/he-has-to-be-guilty-prosecutor-13255029

 

[PrimeSuspect]

https://twitter.com/ajnarsee



Defence is expected to deliver its closing arguments today.

 

[PrimeSuspect]

https://twitter.com/Traceyams

We are back in court with Judge Desai, Adv Botha raises and advises that he intends taking Judge Desai through most of his heads, he deems it NB that he present the argument as set out in his heads.

Adv Botha wants a bit longer to deal with the States heads of argument directly, Judge Desai says he can have until tea time tomorrow

Adv Botha: the state hasnt presented any evidence of eye witnesses, its circumstantial and we are in agreement with that. State hinges on 2 issues 1 no-one else could have commited the crime and the accused version not reasonably true

Adv Botha It boils down to whether it was the accused or an intruder

Adv Botha: the state say the estate was impenetrable, nobody had entered the estate, nothing appeared to be stolen, no motive for the attack, an argument heard from 10-12 that night, accused's injuries were very different


https://twitter.com/ajnarsee

Adv Botha asks for the courts indulgence, he wants to comment on the states heads of argument.
J Desai says he will allow

Botha: the entire states case hinges on two things- no one else could have committed the crimes and the accused version is not reasonably possible

Botha: effectively the court needs to decide the identity of the attacker...

J Desai: not the identity you mean the possibility of another person

 

[PrimeSuspect]

https://twitter.com/Traceyams

B: the wounds were self inflicted, his behaviour was improbable, stains o his shorts, DNA in the corner of the shower indicated dna profile of rudi and his brother and his mother, marlis hand had his hair

B: the axe had been hit in the wall with a controlled movement not thrown, rudi had been moved and so had his duvet, he lied about losing consciousness for 2 hours and used this time to manipulate the evidence to corroborate his version

Adv B: when determining the innocent or guilt of my client one can start to speculate, say the accused sat smoking whilst waiting for his sister to die, draw inferences not because only ones but because they suit your own narrative

Adv B: but if one has regard to all of the facts, this is a criminal matter, the onus is on the state not the accused, and one can draw inferences only if they are the only inferences to be drawn, then you cannot find him guilty

Adv B: the actual evidence, points the other way or at the very least, creates reasonable doubt and that is what we intend to do



https://twitter.com/ajnarsee

Botha is now summarising the states closing argument, the basis of which they claim #VanBreda committed the crimes

Botha: when determining have innocence of my client, one can start to speculate like what the state did- like putting the dog in the garage or smoking while his sister was dying- because they suit your narrative

Botha: if you look at all the facts of the case, the conclusion cannot be that the state proved its case beyond reasonable doubt

Botha: the actual evidence points the other way, or at the very least creates reasonable doubt

 

[PrimeSuspect]

https://twitter.com/Traceyams

Adv B: the circumstantial evidence does not warrant only one inference, the circumstantial evidence was so poor that in most cases it supported the accused and contradicted the states case- Accused should be acquitted

Adv B: accused family was close knit enjoyed time together boating water skiing and fishing and up until the time of the incident, family members had a close relationship, evidence is Andre van Breda, Du toit, james bianca

B: the accused testified- all the evidence is that this was a normal family, nothing was out of the ordinary according to bianca, she was speaking to the accused until 10pm that night

B: family had dinner, opened a bottle of wine etc- all the evidence of the accused wasnt even cross-examined. Went to bed and Rudi and the rest of the family was asleep- this we agree on

B: At 4h24 he tried to phone bianca, at 4h27 he tried to phone ambulance, then at 07h12 and then he phoned on the land line emergency services

B: during the call, he said Marli was still alive, he smoked 3 cigarettes while on the phone not while waiting for his sister to die


https://twitter.com/ajnarsee

Botha: evidence of the state could not be relied upon. The accused was a very good witness. And evidence in some instances contradicts the state

Botha: common cause points- the accused family was a close knit family. There were no serious disputes between them. Number of witnesses corroborated this

Botha: whatsapp Messages between James Reade-Jahn and Marli, also Henri #VanBreda and Bianca(his gf at the time) did not indicate anything out of the ordinary happened on that night

Botha: he smoked three cigarettes while he was on the phone with the emergency services... he was not smoking "while waiting for his sister to die"

 

[PrimeSuspect]

[video=youtube;GMUptBw7rkY]https://www.youtube.com/watch?v=GMUptBw7rkY[/video]

 

[Fluffykins]

Hi Everyone :wave: Big shout out to JJ, presently having a nice rest up and recovery, bless her!

Lets have a nice moment outside and enjoy these treats! We're on the home stretch!

Thank you, Prime! Good to see those glasses of wine there - I think tonight we'll be needing them!

 

[PrimeSuspect]

https://twitter.com/Traceyams

Judge Desai: he never said at any stage that he went up to help his sister? B: true

Judge Desai: now how does one reconcile that, surely its instinctive B: I will address you on that in argument

B: the police found Henri and he appeared to be traumatised, police found Marli and mother at the top of ths stairs, Marli was taken to the hospital, her injuries were life threatening

B: the police took his grey sleeping pants which contained a large human stain on the crotch area

Judge Desai: why was he wearing socks in summer? Adv B: why would u deem that an important aspect?

Judge Desai not NB Adv B: I am father of teenagers and I most of the time cant explain why they do anything

Adv B: going through the evidence of Beneke interviewing the accused and taking the accused's statement which contained grammatical errors and various omissions

B: Accused was emotional when he saw his family, given a beer which he drank, later given a tranquiliser, later taken to the hospital etc


https://twitter.com/ajnarsee

Botha: although police took down the gist of what the accused said, it does contain some discrepancies

J Desai: he never said at any stage that he went to help his sister. How does one reconcile that? Instinctively one would.

Botha: I will definitely address that in my heads

 

[PrimeSuspect]

https://twitter.com/Traceyams

Adv B: now refers to case law "the test remains whether there is a reasonable possibility that the appellants evidence may be true, reasonable possibility whether it may be substantially true" Adv B quoting Desai's very own argument in a matter

Adv B: the court need not decide every single part of accused's version is true. on the whole substantially true, not based on improbabilities, it must be so improbable that it must be substantially untrue

Tripe law that the trial court must consider the totality of the evidence before an inference can properly be drawn

B: accused is bound to be convicted if the evidence is beyond reasonable doubt. Must be borne in mind that the conclusion reached must take into account all the evidence, some may be false, some unreliable, none may be ignored.

B: do not consider evidence on a piecemeal basis, it must be considered in its totality.

B: the court must carefully weigh the cumulative effect of all of them together. The crown must satisfy the court not that each separate fact reaches a conclusion but the evidence as a whole supports that in this matter, the evidence was so overwhelming hence the finding. But if one does a simple investigation and have regard to cases where Reddy principle was applied you find the following


https://twitter.com/ajnarsee

Botha: the court doesn't have to believe that everything about the accused version is true, it can only be rejected if it is regarded improbable

Botha: what must be borne in mind is the conclusion reached must account for all the evidence... some may be found to be false or unreliable

 

[PrimeSuspect]

https://twitter.com/Traceyams

Adv B: either accused did not testify or evidence was rejected as false or the evidence of accused was so fanciful it could not be accepted or not a single part of the evidence supported accused version

Adv B: fact that version of accused coincides with a version of the states witness does not corroborate what the witness has said

Accused version of undisputed facts cannot be used to corroborate a witnesses version on disputed facts

Adv B: Evidence of accused carries far more weight than that of an expert regardless of how experienced expert is

Adv B: decision said that of course scientific evidence has a certain measure of proof to support but when the court looks at versions of 2/3 conflicting experts, the court uses judicial manner of proof assessing it on probabilities

Adv B: defence expert in that matter could not say with absolute certainty that deceased dies of natural causes, not scientific certainty


https://twitter.com/ajnarsee

Botha: inferences must be drawn from facts...

 

[PrimeSuspect]

https://twitter.com/Traceyams

Adv B: where state proves accused guilt on result of scientific analysis, the testing process must be done with such care that at anytime later on it can again be tested again by another expert

Adv 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

Judge Desai thats not the point the states 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


https://twitter.com/ajnarsee

Botha: when the states case depends on scientific analysis, the testing processes have to be carefully carried out to be reliable

Botha refers to another case where another experts evidence was preferred over Col. Otto evidence

J Desai: it's not that the estate was impenetrable, it's that if someone entered they would have to enter and leave without being noticed, it would require "Oceans 11" expertise :lol:

 

[PrimeSuspect]

https://twitter.com/Traceyams

Adv B and Judge Desai debating the states point on it being fort knox or being improbable

Adv B: this is a very important point so we are going to spend time on this (OMG! NO!!)

Adv B: the states case was that targeting the van breda home was unfathomable which is not true

Judge Desai asks why he has used the word contrived when referring to the states case, Adv Botha retracts and directs Judge Desai's attention to the paragraph he is referencing



https://twitter.com/ajnarsee

Botha: I need to show your lordship and the assets that it was quite easy to break in or get into the estate

 

[PrimeSuspect]

https://twitter.com/Traceyams

Adv B: the state said that is what they are going to prove, Judge Desai isn't that what they did, they showed us the fence, the river, the cameras the security guards thats a secure estate

Adv B: the state started saying what we have here is almost a fort knox, Kleyhans said when I arrived there in my police uniform they are so secure they told me to go to another gate to sign in

Adv B: the evidence showed that was a blatant lie, he only went to one entrance and was allowed in within a few minutes

Judge 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. Adv B: but that wasnt the evidence in fact there were 2 breaches that night

Adv B: only 35% had cameras, Judge Desai- assuming only 35% had cameras then they must have known where the cameras are where the weaknesses are etc

Adv B: I get your point that is why we spent alot of time on this

Adv B: you will remember we asked witnesses, those that broke in previously that stole etc. Judge Desai: they were internal staff and builders etc Adv B: no with respect that wasnt the evidence, less than 20% were ever solved


https://twitter.com/ajnarsee

J Desai whips out his phone and googles the term "contrived" which means artificial or unrealistic".....

Botha: what the state started out with was to convince your lordship that you couldn't get through the estate, but the evidence said something else

Botha: there was evidence of other crimes in the estate. How did those people get in?

J Desai: but those were internal people?

Botha says only in 20% of the cases

 

[PrimeSuspect]

https://twitter.com/Traceyams

Adv B's voice has been raised substantially on this point he is frustrated with the questioning from Judge Desai the defence don't like the security point thats for sure

Adv B: what was provided of the video footage- only some of the footage was actually shown some of the 35%

Judge Desai, the intruder must have known the camera is not working? Adv B: no I am not suggesting its not working there was only one thermal camera at the time, 65% of the fence didnt have any camera


https://twitter.com/ajnarsee

Botha now refers to camera only covering 35% of the fence, the remainder did not have coverage.

J Desai: that means the intruder came in through an area that wasn't covered by camera

 

[PrimeSuspect]

Thank you, Prime! Good to see those glasses of wine there - I think tonight we'll be needing them!

We will, I'm nearly tearing my hair out each time Botha says he's going to spend a lot of time on the fences and security!

 

[PrimeSuspect]

https://twitter.com/Traceyams

Judge Desai: then the intruder must have known the areas where there are no cameras Adv B: well there was a 65% chance of there being no cameras thats probable even if it was a random attempt

Adv B: the footage of the thermal camera regularly jumped and skipped periods of time, extensive periods of time, that specific evening

Adv B: access control in the estate gates, Wyngaard said that evening he was in control of the gates, visitors going in and out, Marcia Rossouw could not explain how various vehicles went in and out there

Judge Desai: there is an affidavit that says that who came in and out, Adv B: Only 3 vehicles

Judge Desai are you postulating that the access gate is a reasonable possibility of entry for the intruder into the estate that night

Adv B: Yes of course and it is the states onus of proof not the accused

Adv B: all we saying is that from the very beginning that day, he nailed his colours to the mask - unknown assailant, that was the case the state had to answer, they had 2 years to answer to

Adv B: I will present actual evidence that there was an intrusion into the estate that night


https://twitter.com/ajnarsee

Botha: the limited coverage of the surveillance camera was identified as a vulnerability

Botha: security manager spoke about unknown vehicles entering and leaving the estate

J Desai: this was explained in an affidavit

J Desai: must the states evidence exclude every possibility?

Court adjourns for tea time

 

[Fluffykins]

https://twitter.com/Traceyams

Adv B: either accused did not testify or evidence was rejected as false or the evidence of accused was so fanciful it could not be accepted or not a single part of the evidence supported accused version

Adv B: fact that version of accused coincides with a version of the states witness does not corroborate what the witness has said

Accused version of undisputed facts cannot be used to corroborate a witnesses version on disputed facts

Adv B: Evidence of accused carries far more weight than that of an expert regardless of how experienced expert is

Adv B: decision said that of course scientific evidence has a certain measure of proof to support but when the court looks at versions of 2/3 conflicting experts, the court uses judicial manner of proof assessing it on probabilities

Adv B: defence expert in that matter could not say with absolute certainty that deceased dies of natural causes, not scientific certainty


https://twitter.com/ajnarsee

Botha: inferences must be drawn from facts...

BIB: that first statement about undisputed facts and disputed facts, that just has my head spinning.

As for the next statement about the evidence from the accused carrying far more weight than the evidence of an expert, where on earth is he getting that from? :dunno:

I suppose you have to give him credit for doing his best for his client ... painful though it may be. ullhair:

 

[PrimeSuspect]

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

 

[PrimeSuspect]

https://twitter.com/Traceyams

Adv B: regarding the patrols, we heard evidence of how patrols were carried out.

Judge Desai: Wyngaard testified that he checked the fence Adv B: no she said that she sent someone to check and nobody did. Cleared up and agreed he didnt check the fence he checked the video footage

Adv B: Wyngaard and Afrika testified on how they tested the perimeter fence- last one was at 02h50

B: wyngaard took 2 patrols the second started at about 1 in the morning, each taking 1h30min to complete. there was no patrols at 01h40 for a few hours - Judge Desai but then the intruder must have known when they patrolled

B: the vehicle is so well lit at night it would be very easy for someone to see it approaching

B: bear the states narrative in mind, Wyngaard passed the VB residence between 10pm and 11h30pm and between 1am and 2h30am without hearing anything from the home