No proof of rape: Griquatown lawyer
Kimberley - Northern Cape High Court Judge President Frans Kgomo on Tuesday refused to reopen the triple murder and rape trial of a 17-year-old accused and dismissed any further attempts to delay the trial.
The accused is charged with the murders of Deon Steenkamp, 44, his wife Christel, 43, and their daughter Marthella, 14. They were shot dead on their farm Naauwhoek near Griquatown on April 6 2012. He also faces a charge of raping Marthella and has pleaded not guilty to all the charges.
Kgomo on Tuesday postponed the case until March 25 for closing arguments. He reserved the reasons for his decision and stated that it would be incorporated in his main judgment.
He questioned whether the application to reopen the trial had arisen because the “shoe was pinching” and stressed that the court process should not be abused.
In December last year Kgomo reluctantly agreed to postpone the case shortly before judgment to allow for the accused’s newly appointed legal representative, Riaan Bode, to prepare for the case.
This came after the legal services of the previous defence team, consisting of instructing attorney Stoffel de Jager, Advocate Willem Coetzee and Advocate Sharon Erasmus, were terminated.
The defence on Tuesday requested the court to reopen the trial in order to call an expert witness to testify on the rape charge.
Bode argued that, according to an independent forensic pathologist they consulted with, a Dr Steve Naidoo from Durban, Marthella’s genital injuries were not as a result of forced sexual penetration.
The prosecution put it to the court that the accused committed the murders in order to conceal the fact that he had raped Marthella.
Bode highlighted how no expert witnesses had been called by the former legal team while a pathologist, a Professor Loftus, who had consulted with the former defence team and had drawn up a forensic report of Marthella’s injuries, was never called to the stand.
He indicated that according to Dr Naidoo, the genital injuries sustained could have been “self-inflicted by scratching”.
Bode was of the opinion that Dr Naidoo could contribute valuable evidence as a “qualified expert who independently delivered his findings”.
He also stated that the possibility of the accused having consensual sexual relations with Marthella was never taken into consideration during the trial.
“No DNA or other clinical evidence was handed in by the state to support the rape charge.”
He also believed that experts should have been called in by the defence to lead further evidence that Marthella’s injuries could indeed have been caused by horse riding or the use of sanitary products.
He pointed out that the motivation to reopen the case had nothing to do with the legal competencies of the previous legal team.
“Something terrible must have happened to disturb the usual tranquillity of the household when the tragedy unfolded. The state already argued that it was not a typical farm attack.”
Bode highlighted the need to protect the accused’s rights as a minor, as he was 15 years old at the time of the murders.
“As such a young child, he would not have had the same knowledge of his legal rights as an adult. The accused has a right to a fair trial and it can be argued that he was aware of the possibility that other expert witnesses could be called to testify. The child’s best interests is of paramount importance.”
Kgomo pointed out that various possibilities were presented to the court, including allegations regarding the possibility that Deon had raped his daughter (Marthella).
He added that the accused had never raised complaints over the capabilities of his legal team.
“His guardian was at his side and he was represented by a qualified legal team who followed their client’s instructions.”
Kgomo stated that it was the legal representatives’ decision not to call Professor Loftus and that he was willing to avail himself to the court.
“The minor was represented by competent legal professionals who would not have willy nilly taken a decision that was not principled, when they elected not to call the professor to testify.”
State Advocate Hannes Cloete objected to the application and pointed out that Advocate Sharon Erasmus thoroughly cross-examined the forensic pathologists, Dr Lemaine Fouche and Dr Frederick Els, regarding Marthella’s genital injuries.
“Dr Els gave his opinion that there was sexual penetration without consent and indicated that her injuries could not have resulted from an infection as it was concentrated on a specific area.”
Cloete added that his medical findings were confirmed by Dr Fouche who also ruled out the possibility of an infection.
He pointed out that the state had not relied solely on penile sexual penetration.
“Sexual penetration encompasses any penetration of the mouth, vagina or anus and Dr Els and Dr Fouche testified that it was not necessarily penile sexual penetration.”
Cloete questioned Dr Naidoo’s experience in performing sexual assault forensic investigations as he said no mention was made of his history in dealing with such cases.
“His report is a draft report which implies that his findings are not complete, while no reasons were furnished for it not being finalised. Dr Naidoo dangerously based his findings on photographs that were not confirmed by a pathologist. Nor did he consult with Dr Fouche to corroborate his conclusions.”
Cloete indicated that Dr Naidoo had drawn the conclusion that an excessive vaginal discharge was caused by an infection.
“Without substantiation, he was led to believe that Marthella scratched herself. This is despite Dr Els’ testimony that he was unable to detect any vaginal infection and the autopsy report that did not make any indication of a vaginal discharge.”
He reminded the court that Marthella’s nails were short and could not possibly have caused the injuries that were sustained.
Cloete added that in contrast, the evidence of Dr Els, who had completed more than 3 000 sexual assault investigations, was confirmed by Dr Fouche, who was also trained in the field of gynaecology.
“The pathologist who performed the autopsy would be in the best position to make the necessary findings. Dr Fouche and Dr Els concluded that Marthella’s injuries were sustained during forced sexual penetration. There is no way that Dr Fouche’s evidence can be discredited as blatant lies. She specifically examined the deceased for any signs of an infection but could not detect anything.”
He stated that the rape was not the accused’s only motivation for committing the crimes, as he had also enthusiastically spoken about obtaining his inheritance that was bequeathed to him by the Steenkamp family, following their deaths.
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