Cape Town - The defence for triple murder accused Henri van Breda told the Western Cape High Court on Thursday that he would not call his client to testify "at this stage".
Defence advocate Piet Botha said: "The most difficult decision a defence can take is whether to call a client or not. The evidence by the State is circumstantial, we intend calling expert witnesses and lay witnesses to counter that."
In terms of the law, when the State closes its case, the defence must make its decision on whether it will call on the accused to testify. In this case, Botha wanted to make that decision only after the defence's expert witnesses had testified. Usually, an accused is called as the defence's first witness.
This would create the possibility that the accused could tailor his version based on what expert witnesses testified.
Forced to make the choice, however, Botha said he would not call Van Breda to testify. Botha is allowed to change the decision not to call him at a later stage, but it could have consequences if the court draws a negative inference. "If we change our mind we will have to live with any possible consequences or inferences your Lordship may draw," Botha conceded.
But Senior State prosecutor Susan Galloway said if Van Breda testified last it would prejudice the State. "He (Botha) says he wants to assess the veracity of what his experts say, is he trying to see how well they answer to points Van Breda must answer to, that is what his client must do. If he (Van Breda) testified last, we would not have the opportunity to cross-examine experts on Van Breda's testimony."
Botha said his client was innocent until proven guilty and had the right to remain silent and not to testify, but Galloway countered: "Similar to remaining silent, there are consequences to the accused not testifying."
Judge Siraj Desai said he would give judgment on these points on September 27. He is likely to confirm the section of the law that states that an accused must decide whether or not to testify when the State closes its case. And that while an accused can change their mind later, this could have a negative consequence.
Van Breda faces three counts of murder for the axe attacks on his parents and brother at their family home in the luxury estate de Zalze in Stellenbosch in January 2015.
He also faces a charge of attempted murder after his sister Marli, who was 16 years old at the time, survived the attack. He further faces a charge of defeating the ends of justice. He has pleaded not guilty to all the charges and claims a laughing, axe-wielding intruder wearing a balaclava, gloves and dark clothing was behind the attacks.
In his plea explanation, he also claimed there may have been more than one intruder and that he heard Afrikaans being spoken during the attacks.
Earlier in the trial, a DNA expert testified that "no unknown DNA" was found at the crime scene.
When the State closed its case last week, Galloway told the court that Marli had indicated she did not want to be a witness for the defence. She has retrograde amnesia and therefore has no recollection of the events of that night. Galloway confirmed that she still cannot remember what happened.
The trial will resume after court recess on October 9 when the defence with call their first witness.