From what Desai said in court, a successful appeal seems unlikely.
“This case fits like a mosaic, pieces of a jigsaw puzzle … everything fits together,” he said. He seemed unconvinced by the arguments put forward in HvB’s application for leave to appeal his conviction and sentence. “One rarely gets a case as strong as this against the accused”.
Botha argued that HvB had been convicted and sentenced based on circumstantial evidence. “We are faced with a very young person spending the rest of his life in jail with only circumstantial evidence against him.” He said there was a reasonable prospect that another court would come to a different conclusion. But Desai countered, “Most criminal trials rely on circumstantial evidence,” and pointed out that the defence was not relying on “an irregularity” but rather saying “the onus was not discharged”.
Botha argued that a court of appeal may give more weight to concessions made by the blood spatter expert who testified that the fact that Marli’s blood had not been found on the axe was “inexplicable”. “It doesn’t require a quantum leap that a court of appeal may find differently.”
He also argued that another court may give more weight to the defence’s expert witness who testified about flaws in security at the De Zalze Estate.
Furthermore, more weight could be attached to defence witness Dr Butler’s testimony and diagnosis of juvenile myoclonic epilepsy.
“My client’s version from that morning to the end of his testimony remained the same in essence.”
Desai conceded that the three life sentences he handed down had been severe but said he had not been given any mitigating factors to deviate from minimum legislation. “I asked you to give me a peg to hang my coat. You gave me no peg.” “The sentence could have been different if this had been a product of a broken mind.” But Botha said he could not argue that HvB had been remorseful as he had pleaded not guilty. He also said HvB had no motive and evidence showed the family had been “close knit with no problems”. Desai shot back, “The flip side of that is what was the motive of an unknown intruder?”
Desai said a key aspect of the case were HvB’s “classic” self inflicted injuries which “were a fundamental pillar in the case”.
Galloway dismissed the defence’s argument that the State had not proved premeditation. “He had to go from upstairs to downstairs to fetch the axe and knife. When he attacked his brother he aimed for the head. There cannot be another inference that it was premeditated.” She said the defence was “nitpicking” and was “missing the wood from the trees”. All had not been “happy families”. She said the defence’s criticism of the neighbour’s testimony had been unfounded. Op’t Hof had testified about hearing an argument and loud voices coming from the house from 10pm until midnight and had been “objective and honest”.
Unsympathetic Desai means a successful appeal for Van Breda unlikely
