“Although Judge Siraj Desai has said enough in court to indicate that he’s unlikely to grant Van Breda leave to appeal on Monday, I’m convinced after reading the defence’s papers that they stand a decent chance of getting a Supreme Court hearing,” said Phelps, also a published researcher who was the legal analyst for CNN during the Oscar Pistorius trial and subsequently a member of his legal team.
“And it’s not unthinkable the Supreme Court could be swayed into acquitting him.”
In June, Desai handed down three life sentences for Van Breda’s murder of his mother, father and brother, 15 years for the attempted murder of his sister and one year for obstructing the course of justice.
Phelps said she was not saying the State had a weak case. “Their argument is strong, but the defence’s is equally so. This case is not as open and shut as the public have been led to believe.” She said to understand the complexity of the trial, it was important to grasp the distinction between circumstantial and direct evidence. “Direct evidence supports the truth of a claim directly. For example, if a witness saw an accused shoot and kill the deceased, this testimony is direct evidence of the guilt of the accused.
“Circumstantial evidence relies on an inference. For example, if a witness saw the accused run into a room with a gun, then she heard a shot go off and then she saw the accused run out of the room with blood spatter on his clothes, this is circumstantial evidence from which a court can infer the accused’s guilt.”
This distinction is important because a court must treat circumstantial evidence differently from direct evidence.
“The burden of proof in a criminal trial is beyond a reasonable doubt and rests on the State. This is a necessary safeguard against the arbitrary deprivation of innocent citizens’ liberty. In a case like the Van Breda trial, which relies only on circumstantial evidence, his guilt must be the only reasonable inference that the court can make and it needs to be consistent with all the proved facts of the trial.
“After reading the defence’s appeal application it’s clear that another reasonable inference may be able to be drawn. And if the Supreme Court is persuaded then Henri van Breda will walk free.”
A good example, said Phelps, is the way the defence challenged the State’s persuasive argument that De Zalze’s security was not penetrated.
“Van Breda’s lawyers refer to unrefuted testimony that real alarms went off on the night in question, which were never explained by the State.
“Furthermore, they point out that the majority of the fence was not covered by cameras and there were in fact 191 prior incidents of crime reported to the police. This clearly shows that the security is not impenetrable.”
Phelps said while the State’s case was compelling enough to secure a conviction, it nevertheless provided no motive as it is not a legal requirement in South African law.
“However, motive is an important persuasive tool as it adds plausibility to the State’s case. So why did Van Breda just decide out of the blue one morning to axe his family to death? It beggars belief it’s deeply implausible. “The State provides a compelling narrative but no context to drive it. They did not put forward a shred of evidence to explain why Henri would have murdered almost his entire family. Ultimately, the lack of motive might sway the Supreme Court.”