Defence advocate Pieter Botha hinted at this several times during his cross-examination, but Van Breda’s appearance in the witness box was confirmed this week by a source in his defence team.
Van Breda has pleaded not guilty to the murder of his mother Teresa, father Martin and brother Rudi van Breda, and the attempted murder of his sister Marli in their home in the luxury De Zalze Estate in Stellenbosch on January 27, 2015.
The State is expected to close its case on Monday after Botha completes his cross-examination of their veteran blood spatter expert, the convincing and knowledgeable Captain Marius Joubert, who has not blinked once under defence fire.
Once the State wraps up, Botha will have to play his hand which is most likely going be a request to the court that he call Van Breda only at the start of the new term on October 9 and not next week.
“Normally the accused testifies first,” said an informed source. “This prevents him amending his version of events once his experts have testified. But the defence can request that Henri doesn't testify first so long as they provide Judge Desai with compelling reasons for the change of order.”
Botha will probably choose this route as the second term ends on Thursday and he would not want a two-week interruption of his client’s crucial testimony. Experts say Botha would rather utilise the recess to rest and prep his client exhaustively without any distractions.
Van Breda’s testimony and cross-examination is expected to last at least five days.
If Desai allows Van Breda to take the stand in the new term, then it’s likely that Botha will lead with expert witnesses who do not address the merits of the case.
The possibility of Van Breda not taking the stand is remote. “If Botha doesn't call him then he has bigger problems than he will have if he does put him on the stand,” said a seasoned advocate who did not want to be named.
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“That’s the beauty of circumstantial evidence - the guilt of the accused does not have to be the only inference. It just has to be the only reasonable inference. If Henri does not give a reasonably possibly true alternative explanation for the incriminating circumstantial evidence then the court must accept the State’s interpretation of the circumstantial evidence that has been presented as the only reasonable explanation. So Van Breda has to testify to provide some sort of equally compelling explanation.”
Van Breda has already provided a version in his plea statement presented at the start of his high court trial. The source said: “But it’s important to remember that his statement has not been tested under cross-examination.
“So at this stage it’s simply a version of events. It was not made under oath so the court can’t take that version into account in his favour until he testifies under oath and the State has tested him on his version.”
Botha could call experts to counter the State’s interpretation of the circumstantial evidence, which includes some very incriminating testimony by State experts, but the problem for the defence is the court doesn't have to accept their versions or opinions.
“Expert opinion is only provided to assist the court in making decisions. Which is why it’s a no-brainer that Henri has to testify if he stands any chance of an acquittal.”
It seemed Botha would complete his cross-examination of Joubert on Thursday but the police expert put a spoke in his wheel when he confidently stepped out of the stand to demonstrate why, in his opinion, it was unlikely that Van Breda had thrown the axe at a fleeing murderer (played by the court orderly) when he was close enough to strike him directly in the back.
Clearly annoyed at Joubert’s demonstration and his proximity to the “attacker”, Botha boomed that Joubert was creating a false impression.
But Judge Desai quickly reminded Botha: “I will decide whether the impression is false or not.”
Additional challenges for the defence in the days ahead will be to counter Joubert’s convincing testimony that the blood splatter on Van Breda’s sleep shorts placed him close to his brother, father and mother when they were axed.
He had claimed in his plea statement that he was standing frozen at the doorway of the brother’s en-suite bathroom, several metres away, and witnessing the frenzied axe attack.
Once in the stand Van Breda will also be hard-pressed to explain why Joubert did not find any blood spatter on his naked torso, arms or legs consistent with the blood spatter found on his socks.