Cape Town - The State has argued that there is no evidence to suggest that Guatemalan murder accused Diego Novella did not have criminal capacity when he allegedly murdered his American marketing executive girlfriend Gabriela Kabrins Alban in July 2015.
Final arguments were being heard in the Western Cape High Court on Wednesday, but before they could get underway, Judge Vincent Saldanha insisted that Novella's lawyer William Booth clarify the defence's position on the issue of criminal capacity.
He said Novella's plea explanation argued that the accused had diminished responsibility because of substances he had ingested which had psychotic-like effects, whereas Booth's heads of argument suggested it was "simply intoxication" that caused his behaviour.
Booth was adamant that the substances his client took had indeed affected the accused's criminal capacity. "The accused's intake of cannabis, cannabis oil and sceletium caused him to be in a psychotic-like state and disinhibited. He said he observed a demon (the deceased) and the intake of those substances caused this effect on him. This, in a nutshell, this is his defence."
The 39-year-old Alban's body was discovered in the room she was sharing with Novella at an upmarket boutique hotel in Camps Bay on July 29, 2015. She had been strangled and had suffered blunt force trauma.
Her face was covered with chips and faeces and a note had been left on her body with the Spanish word “cerote” scrawled on it, which means piece of s***. A fingerprint expert has testified that Novella’s fingerprint was found on the note.
Novella was arrested the same day, a few hours after hotel staff found Alban’s body.
He has pleaded not guilty.
In his plea statement, Novella, who is from a prominent and wealthy family in Guatemala, claimed he had been in an abnormal mental state after having taken hallucinogenic substances.
These were listed as sceletium, dronabinol (a prescription drug) sometimes taken to treat cancer, and cannabis. “These substances had a disinhibiting effect on me, causing me to respond in an abnormal manner.”
Judge Saldanha repeatedly returned to the issue of criminal capacity, however, pointing out that psychiatrist Professor Sean Kaliski from Valkenberg mental hospital where Novella was initially sent for observation, was "of the view that the whole incident arose out of anger. He was motivated by anger and Kaliski doesn't buy for half a minute your defence's version that it was psychotic-like. He said the accused was motivated by anger alone, influenced by the intoxication".
State prosecutor Mornay Julius argued that both Kaliski and defence expert Dr Toviah Zabow believed the accused had criminal capacity at the time of the incident.
"We submit that the quantity and level of intoxication is very exaggerated by the accused, to make it worse."
He said the relationship Novella had with Kabrins was not an ordinary one, but had been characterised by "complexity that arises as a result of the deceased's medical condition".
Kabrins had been diagnosed with lymes disease and came to South Africa after Novella found a spiritual centre that he believed could help treat her condition.
The relationship had been rocky, and Kabrins had messaged her mother about its deterioration. Her mother had, however, encouraged her to go to South Africa to receive the alternative treatment as she felt it would be in her daughter's best interests.
Julius asked the court to admit the Whatsapp messages between the two as evidence, as they had only been provisionally accepted earlier in the trial.