Having chosen to testify after other defence witnesses, triple murder accused Henri van Breda potentially draws a negative inference to his testimony in the Western Cape High Court.
This is according to legal experts, who said that in a normal legal situation, an accused would testify first, followed by witnesses.
“If an accused’s witness testifies before him, it means he listened to evidence and their cross-examination,” said criminal law expert William Booth.
“That’s the legal rationale.”
Booth conceded, however, that one could bring an application before the court to hear other witnesses first if there was sufficient justification.
“I suppose you can’t say an accused will make up a story around what an expert will say. And the court can’t stop his lawyers from calling for an accused to testify at any time,” said Booth.
However, a court was entitled to take this into account when deciding if Van Breda’s testimony was credible.
“This can draw a negative inference – and the court can ask how much weight [to] attach to this testimony when he was already in court when the defence witnesses testified.
“His evidence may not be regarded as credible as it would have been if he testified in the beginning, not knowing what other defence witnesses were saying.”
Criminal defence attorney Cliff Alexander agreed, adding that everyone had made “much ado about the fact that Van Breda did not testify prior to the defence witnesses”.
“The judge cautioned his legal representatives that [the court] could draw a negative inference if he testified after other witnesses,” said Alexander.
Van Breda was also bound to his initial plea explanation, added Alexander, and the only way the judge would be justified to see adverse inference would be if he deviated from what was placed on record.
“Adverse inference can also be drawn on the demeanour of the witness in the box,” added Alexander.
Van Breda is accused of murdering his parents and brother in 2015. – firstname.lastname@example.org