Has Henri van Breda suddenly got cold feet about testifying in his own trial?
He stands accused of killing his parents and brother with an axe‚ and attempting to murder his sister.
Earlier this week in the High Court in Cape Town‚ when the state wound up its case‚ his defence counsel asked for permission for the expert witnesses to testify prior to the accused‚ the opposite of what usually happens.
On Thursday Piet Botha‚ speaking for Van Breda‚ was supposed to make a formal application to secure the order of the testimony. Instead he sprung a surprise on the court and said it hadn’t yet been decided if Van Breda was in fact going to testify at all.
Botha said he first wanted to “assess the veracity of the expert witnesses” before advising Van Breda to testify or not.
According to the law‚ however‚ the decision around whether the accused testifies should be made directly after the state finishes leading its evidence in chief.
Presented‚ then‚ with this on-the-spot multiple choice‚ Botha said: “The only decision I can then make at this stage is to say that I will not be calling my client.”
He does wish‚ however‚ to exercise his right to change his mind at a later stage – after the expert witnesses have testified – even though this could lead to inferences being made by the judge about that decision.
State prosecutor Susan Galloway pointed the potential for such assumptions to Judge Siraj Desai.
“He can make those choices‚ but they all have consequences‚” she said‚ adding that the very reason why the accused is called first is to avoid him or her tailoring their testimony in line with the experts’ testimonies.
Botha said it was unfair that the state is not told in which order to call witnesses‚ whereas the defence is “hampered” by this‚ but Galloway hit back‚ saying that the law allows the accused to listen to each state witness‚ whereas those same witnesses are forbidden from hearing each other’s testimonies.
She expressed major concern at the idea that Van Breda could still have the option of being in the witness box after the defence’s experts have testified.
“We won’t have the benefit of cross-examining these witnesses based on a version of his events given in court if he testifies after them‚” she said‚ since a plea statement is not given under oath and therefore not permissible as evidence in court.
Judge Desai said it could put Galloway in a position where she was cross-examining the witnesses “blind”‚ but Botha called this a “red herring” and said it would damage his client’s credibility if his testimony differed from his plea statement.
Desai described it as an “unusual” situation and adjourned the case to September 27.