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

[PrimeSuspect]

https://twitter.com/Traceyams

Adv B: Marli and teresa's dna the fact that their DNA was found in the area that they were attacked is to be expected

Regarding the profile of Teresas dna being on the sock, it could have been drip onto the sock- the pool of blood on the top landing dripping off the stair or it could be blood dripping off the axe

Adv B: mixed dna profile, Otto testified that the dna profiles of accused rudi and teresa could be read into nails of accused, shorts and shower. In cross examination she conceded that it may only be Henri and Rudi

Adv B: now if the defence had not cleared this up then the court would have been completely mislead and this would have severely affected and prejudiced the accused

Adv B: if u have 2 males and a female DNA, you must have 2:1 ratio. Otto's evidence, she was aware of the importance of quantitative determinations, she explained it well in the touch dna profile of Marli/Henri & Rudi, so she knew

 

[Fluffykins]

rsbm

During the three month hiatus since Judge Desai reluctantly postponed proceedings [at the behest of Henri’s advocate Pieter Botha], Henri and his girlfriend have relocated yet again, while Marli continues to live with a teacher in an undisclosed location. Marli would also have received her matric results some time in early January.

This is just so sad. If Marli has only just received her matric results, that would make her, what, 17? 18? Just a kid, a school leaver. A girl all alone with no parents to throw her 18th or 21st party. Not there to celebrate her getting her driver's license, being accepted into a university course, graduating, getting engaged and all that would follow. No mum to plan her wedding, no daddy to walk her down the aisle, no mum there for all the reassurance and words of wisdom through the birthing of her children. Aunties and uncles are not mum and dad. Henri took all that away from her. I hope Judge Desai throws the book at him.

 

[PrimeSuspect]

https://twitter.com/Traceyams

Adv B: if she had reported on the female contributor in these mixtures then she would have had to exclude Teresa altogether, instead she included Teresa's profile in these mixtures

Adv B: showing extreme bias, but for Olckers this court would have been mislead

Adv B: we now know that if Otto had done what she should have done, we read these 3 but I must point out that it could also only be the 2 sons

Adv B: when we asked her about her proficiency test: she stated SOP's don't allow her to include female. In this matter she said her SOP's don't allow her to exclude the female- complete contradiction

Adv B: either she was grossly negligent or she kept mum, I am not sure which is worse

Adv B: if Olckers was not present in court when Otto gave evidence there would be no doubt that my client had his mothers dna on him and in the shower,

 

[PrimeSuspect]

https://twitter.com/Traceyams

Adv B: I can only imagine the field day my learned colleague would have had in cross examination with Henri- he would have said but I wasnt there and she would say but Otto placed you there near your mother

Adv B: Otto further testified that the DNA of Marli, teresa and rudi could be read in the touch DNA of the axe- this evidence stands utterly neutral. The touch could have been transferred at anytime

Adv B: my clients version was that he had not seen any axe at all

 

[PrimeSuspect]

https://twitter.com/Traceyams

Adv B: distinguish between evidence that places him on the scene between evidence that proves he is the attacker

Adv B: re the difference in the statement he gave to the police versus what he testified in court regarding his position in the bathroom

Adv B: Client's statement- he says standing in the toilet afraid to go out - it must mean that he remained in the bathroom and now wants to change his statement to account for the blood on his shorts

Adv B: in the next para he says I was still standing in the bedroom looking at what happened - so he places himself in the bathroom

Judge Desai: how do you explain the lack of blood on his upper body? Adv B: I would have to speculate - Henri taps and asks to speak to his client (his advocate?)

Desai also asks what about the lack of blood spatter on the wall behind henri

Adv B: my client reminded me that it could have flaked off as its dry and he was far away but also, if he was attacking rudi then surely he would have blood on his upper body

Adv B: says there was blood on the wall near his client

Various stains on Henri's shorts containing Martin and Rudi's DNA- Accused version I was close to martin and rudi when attacked I was not close to Teresa and Marli so DNA supports his narrative

Adv B: when he gave the version which is now corroborated by the DNA- it was months before the DNA evidence was tested

Adv B: he fabricated a version after knowing DNA results, or by sheer luck and coincidence his fabrication fits in perfectly with the DNA evidence

 

[PrimeSuspect]

https://twitter.com/Traceyams

Judge Desai- must the court accept DNA evidence to support the accused version Adv B: this is my argument if the court does accept the DnA evidence

Adv B: also strong corroboration of 2 intruders. Its the states case 5 deep lacerations to her skull left ear laceration of upper arm, all caused by exhibits 1 found on scene

Marli's attack was the most vicious and she fought off the attacker- yet the entire axe - being exhibit 1- was extensively swabbed, we all heard about the Lockhard principle but not 1 single DNA profile of Marli on the axe blade

Adv B: with respect the defence submit that the chances that the axe on the scene, exhibit 1, is the axe which was used to attack Marli are Nil

Judge Desai says that there are other reasons for that, but on the Lockhard principle if there was an intruder then why do we not see the intruders DNA

Adv B: he will deal with that later but Otto (the expert he has just told the court is biased not proficient and trying to mislead the court) told the court that if the intruders face and hands were covered then they may leave without a trace

 

[PrimeSuspect]

https://twitter.com/Traceyams

Adv B: we are saying first attacker didn't voluntarily leave the axe behind my client took it from him. We are saying that James said this wasnt the same axe so we are saying the second attacker had another axe

Judge Desai: the second axe issue is illogical. Adv B: I invite the state, in reply, to argue based on what evidence could there be any other inference made other than the one that Marli was attacked with a different axe

Adv B: my version is that her DNA is absent despite her having been hit 8 times, it is absent on my client who was supposed to be the attacker


https://twitter.com/ajnarsee

J Desai: I've been a Defence counsel for years, to base this on one witness who mistook the colour does not help your case

J Desai: if you go to a braai, would you study the axe of your host, unless you plan to murder them? You wouldn't remember such detail


(Botha shouting again when J Desai disagrees, and Botha keeps interrupting the Judge, he has no respect!)

 

[PrimeSuspect]

https://twitter.com/Traceyams

Adv B: we are not even suggesting the black headed axe James referred to was the axe used on Marli we are simply saying that there is no DNA on the axe that was on the scene

Adv B: Capt Joubert referred to an article titled "the absence of evidence is not evidence of absence" - its a 22 year old article, please read that article it was handed up

Adv B: dont base your assumptions on what is not there but if there is no blood stains the person still could be the attacker

Adv B: shortly after the blood on the axe, he is already bleeding, we saw him later with blood still on him so he coudl not have washed himself

Judge Desai: But your client was there for 2hr40 min after the attacks

 

[PrimeSuspect]

https://twitter.com/Traceyams

Adv B: lets argue that- his blood was on the handle of the axe when it hit the wall so at that stage he was injured if he had washed himself he would not have the blood from his injuries later that morning

Judge Desai: the second axe is such an improbable story

Adv B asks why he would say that given the absence of Marlis DNA on the axe

Judge Desai its higly improbable- that these two entered the premises carrying axes and then left with one of the axes- why would someone enter a premises carrying an axe

Desai: I accept gratuitous violence happens all the time in this court, in this country we accept that

Adv B: Marli's dna not on Henri and the mothers DNA absence from his shorts and complete absence of Marli's dna from the head of the axe

Adv B: where does that leave the states case, they must prove their case

Adv B: we only raised the issue on the second axe because we knew the DNA we knew Marli's DNA was absent from the axe

Adv B: It is important to bear in mind the article " absence of evidence is not evidence of absence" - when it suits the states case this applies and when it doesnt suit them Lockhard principal applies, which one must apply?

Adv B: not a single bit of his DNA on Teresa, Marli, Rudi or Martin- completely absent yet he was supposed to have attacked them

Adv B: the moment a second weapon comes into play, Henri's version becomes reasonably possibly true

Adv B: the accused, from day one says there was more than one attacker, then this evidence is brought about and it corroborates his version of 2 attackers, is he the luckiest man in the world that this just fits in perfectly with his very first version?

 

[Interested Bystander]

I am sitting pondering all this and wonder why Desai does not bring up the complete lack of footprints, complete lack of DNA of any intruder and if the "felons" entered via scrambling under a fence or via the "water" route, surely there would have been "brush" on their clothes, ie stuck to their lower leg area, shoes, etc, and if they entered via the wet entrance they would have been covered in mud. Maybe he is saving this for his summing up.

 

[PrimeSuspect]

https://twitter.com/Traceyams

Adv B: Dr Anthony confirmed that Martins injuries were consistent with the manner described by Henri-lunging toward the attacker

Adv B: just because we did not call Perumal, Galloway had conceded and confirmed the report so why would I call him

Adv B: I never asked Perumal about self inflicted wounds- Judge Desai: that is the second time that you are telling me that you have limited the ambit of your experts mandate

Judge Desai: that could have helped your case tremendously, you have an expert pathologist who knows about injuries and you do not use her

Judge Desai: Your answer is flabbergasting because you are saying that you did not ask him to give evidence on the self inflicted wounds AdvB: we called him on one aspect

Judge Desai: but he was hanging around the court here and you never discussed this with him

Judge Desai: this is the third time you are using finances,
Adv B its not a secret

Judge Desai: but you are using it as a defence? You had him brought here for 2 days from Durban and didn't consult with him on that aspect

 

[PrimeSuspect]

https://twitter.com/Traceyams

Adv B: must I disclose what we consulted on? Client Privilege

Judge Desai: no you said it was finance that was the reason, but lets leave this issue for now

Adv B: Captain Joubert conceded that the absence of blood underneath his socks means Henri could not have moved his brother around on the bedroom floor

Judge Desai asks that the defence doesn't place too much on the hair evidence. Advocate Galloway says she will start her reply immediately after Adv B has finished

We adjourn for the day, Adv Botha is not finished with his argument, he has spent alot of time debating with Judge Desai today back same time tomorrow

( I hope J Desai sticks by his word and ensures Botha wraps up by tea time tomorrow, no matter if Botha protests!)

 

[PrimeSuspect]

I am sitting pondering all this and wonder why Desai does not bring up the complete lack of footprints, complete lack of DNA of any intruder and if the "felons" entered via scrambling under a fence or via the "water" route, surely there would have been "brush" on their clothes, ie stuck to their lower leg area, shoes, etc, and if they entered via the wet entrance they would have been covered in mud. Maybe he is saving this for his summing up.

J Desai has been arguing more than I ever thought possible, I think he will bring up your points at summing up time.

 

[Interested Bystander]

Brilliant job Prime. Thank you so much.

 

[Fluffykins]

Brilliant job Prime. Thank you so much.

Just seconding what IB said, and I hope you're sitting back with a big glass or cup or mug of whatever will help you wind down after that amazing effort!!

 

[Interested Bystander]

http://www.capetownetc.com/news/van-breda-back-and-bald-in-court/

This is Tracey Ann Stewart’s write up for today for Cape Town Etc (Traceyams on Twitter). As usual she covers the days proceedings well.

 

[bleuboy]

What I can't understand is, if this burglary was so planned out that they knew the weaknesses of the electrified fence, tunneled under amongst other things. Why not start collecting valuables as soon as they entered the house. Don't forget Henri claims there were two people. Why would any of them collect the knife and axe and go upstairs. While one was attacking upstairs why wasn't the one downstairs not ransacking the house for valuables or at least the things out in the open.
If it was thieves there would be no need at all to go upstairs. If they was expecting to kill the people who lived in the house they were breaking in, surely they would have brought their own weapons.
Its all a load of bull.

 

[Interested Bystander]

What I can't understand is, if this burglary was so planned out that they knew the weaknesses of the electrified fence, tunneled under amongst other things. Why not start collecting valuables as soon as they entered the house. Don't forget Henri claims there were two people. Why would any of them collect the knife and axe and go upstairs. While one was attacking upstairs why wasn't the one downstairs not ransacking the house for valuables or at least the things out in the open.
If it was thieves there would be no need at all to go upstairs. If they was expecting to kill the people who lived in the house they were breaking in, surely they would have brought their own weapons.
Its all a load of bull.

Very good point. Why, when everyone is in bed, and the "goodies" were on display downstairs ripe for the taking, would they bother to disturb and then kill the occupants, none of whom had left their bed and attempted to go downstairs to remonstrate with them and no alarm being tripped to alert the sleeping family. Definitely a load of BS.

 

[ApplesInMyBra]

In my opinion, Adv. Botha was all over the place, and it seems as though Desai called him out on several occasions, arguing with him. Adv. Galloway was very strong in her arguments, and Desai underscored several of her arguments, agreeing with her.
Fingers crossed!

 

[bleuboy]

The way Botha kept shouting loudly and interrupting judge Desai thought was so rude. I kept asking myself why the judge was allowing it. I agree Botha was all over the place and Desai called him out on quite a bit.