Over the weekend, some media reported that Henri’s “appeal” resumes today, Monday. It doesn’t. A hearing where the Judge will decide whether to grant Henri leave to appeal will be heard tomorrow, Tuesday August 14th.  This date was agreed upon on June 25th, two weeks after Henri was sentenced to three life sentences on June 7th.

Judge Siraj Desai will hear arguments from both counsel on why his findings ought to be appealed. If the defence are able to field a reasonable amount of “new information”, and if the Judge feels there’s a reasonable prospect of success, or a reasonable case to be heard, then he’ll grant an appeal. What the court wants to avoid is simply rehearing the same case, retrying Henri effectively.

In America this is known as Double Jeopardy. According to Wikipedia’s description:

Double jeopardy is a procedural defence that prevents an accused person from being tried again on the same (or similar) charges and on the same facts, following a valid acquittal or conviction. As described by the U.S. Supreme Court in its unanimous decision one of its earliest cases dealing with double jeopardy, “the prohibition is not against being twice punished, but against being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial.”

In the Oscar Pistorius case the Judge granted an appeal on her verdict of culpable homicide, the Supreme Court of Appeal [SCA] then came to a different outcome, Dolus Eventualis [murder with indirect intent]. The SCA sent the case back to the court a quo for sentencing on their verdict. Masipa then sentenced Oscar to a “light sentence”. The state again asked for leave to appeal – just the sentence – but in the second instance, Masipa refused to grant leave. So the state took the case directly to the SCA. The SCA decided to grant the appeal, heard it, and sentenced Oscar accordingly – an effective prison term of 15 years for murder.

In my view, Desai will grant the defence an appeal simply in the interests of hearing a case “to completion”. To his credit, Desai’s trial exhausted very many avenues of legal argument though, so an appeal, if it happens will be very limited in scope.

So what new evidence, and perhaps new witnesses, will the defence bring forth? We’ve already seen one of them:

Another potential witness might be Henri’s girlfriend Danielle Janse van Rensburg. Remember it was Danielle who effectively introduced the Epilepsy Narrative. She apparently was talking to Henri when he had a seizure, she then called her father, a GP, and the next thing the court was informed that Henri had epilepsy. All of this happened right at the end of the trial in November, when Desai was hoping to pronounce his verdict.

Advocate Pieter Botha left the court and the public with this cliffhanger to ponder on over the holiday season when the courts went into recess.

So the Epilepsy Narrative is likely to be fielded, I believe, as new evidence. As I tweeted in May, I believe this evidence was intentionally withheld as a defence strategy, allowing them a back door – a legal loophole – to take the case to trial. It was clear throughout most of this trial that Botha was losing this case for his client.

What do the defence hope to gain through the Epilepsy Narrative? It’s unclear. According to Henri, he blacked out after the crimes were committed. If the defense can persuade the court that epilepsy was there to begin with [something I’ve maintained throughout my book series], then this may have an impact of his memory and theoretically on his culpability.

It’s a weak defence in my view, but who knows, the court may feel curious in the face of “no motive” to find out more. Personally I think this would be a poor reason to rehear the case, but legalities aside, more might be revealed.

What’s interesting to note, over the past few weeks and days leading up to the leave for appeal hearing, we’ve seen a PR Narrative emerge. We’ve seen a Twitter account pop up “Support For Henri”, although if anything, this account shows how little support Henri has amongst the public. To date Henri’s support on Twitter stands at a meagre 17 souls.

We’ve seen a big effort to get the “Henri’s Innocent” narrative into the media, via Henri’s key Apologists, his aunt Leenta Nel [the sister of the murdered mother, Teresa van Breda] and Henri’s girlfriend.

According to Danielle, and what she told 60 Minutes Australia, Henri told her “everything”. Well, then why didn’t she testify in his defence at trial? Why is she talking to the international media instead? But rather than eye-opening insights during the 60 Minutes “world exclusive”, all Danielle basically did was stand by her man. She didn’t field a detailed, evidentiary argument about why he was innocent, except to use sentiment, saying the Henri she knew didn’t like to cause pain to anything. Well, his entertainment choices seemed to suggest otherwise.

Or she simply used words to say she didn’t agree with certain findings, but wasn’t able to provide real insight as to why it made sense that her knowledge was more authoritative or credible.

We also know that Stefan van der Westhuizen, his former best friend, described Henri taking him at the throat when he told Henri Marli was having second thoughts about Henri’s innocence [prior to the trial].

Stefan van der Westhuizen, who cried in court when Henri was convicted on all charges,  has gotten engaged in the meantime.

Missing from the roll is Marli. If Marli testified in Henri’s appeal, that would be something, especially if she testified as part of his defence. That Marli hasn’t participated, and all indications are that she will not, speaks volumes. Think about the credibility of a girlfriend testifying in support of her beau, while a close family member who was not only at the scene of the crime, but the only survivor of the axe attack, maintains her silence. All this while millions hang in the balance.

The Drug Narrative is unlikely to be fielded in an appeal, not by the defence at any rate. Conceivably, it could be introduced as a mitigating factor, but also as an aggravating factor. Curiously, some journalists have accepted Danielle’s “rumor control” that Henri’s drug use is all a myth [and throw in a giggle for good measure]. If Danielle says it, it must be true, right?

The Drug Narrative might be fielded by the prosecution, in the event that Desai grants the appeal. Personally I wasn’t surprised, I was shocked when the Drug Narrative was completely excised out of the court case. The fact that Henri and Danielle were arrested on drugs, Henri spent the night in jail as a result, and attended a court hearing on drugs, and yet despite this, never a word about this was whispered in court beggars belief.

Interestingly, Danielle also plays a key role in this area. When the two were arrested for dagga possession, Danielle took the rap for it. The drugs were hers, she said.

I entered into a discussion with Anthony Molyneaux about the Drug Narrative on Twitter, but I see he’s muted/removed it. Molyneaux was effectively calling the entire drug story a myth, simply because Danielle [on the eve of the leave to appeal hearing] said so.

To be fair, there’s not a lot of absolutely clear and verifiable evidence that Henri was a drug addict, not beyond a few tabloid articles, rumors and suggestions that he attended a drug rehab in Bellville. No drugs were found in Henri’s blood sample either, nor alcohol.

But is the absence of evidence an absence of evidence? Sometimes, often, the absence of evidence is evidence.

I’ve dealt with this aspect in detail in my books about the case. The Drug Narrative being so neatly excised from the trial narrative raises red flags, but even if Henri used dagga, that doesn’t make him a druggie. Of course, it doesn’t mean he isn’t one either. One might say, in light of “no evidence” there is no evidence.  Again, that’s the lazy approach to this case.

The Amanda Knox case also involved an extremely brutal and bloody murder inside her home, a burglar narrative, and so on. The Drugs Narrative was also neatly excised from that case, even though it was well-known Knox was using marijuana regularly, and Perugia was a hotbed for much harder drugs, like heroin and coke. In Knox’s memoir she wrote about sleeping with a coke dealer on her first train trip into Perugia.

Coming back to Van Breda, what we know is he was expelled from university, he wasn’t on a Gap Year quite as voluntarily as he claimed. We also know that because of his record, he couldn’t get into local universities either. Julian Jansen in his book refers to Henri’s university mates nicknaming him “Druggie” [page 61]. If this information wasn’t credible, the Van Breda’s could theoretically sue Jansen/Naspers for defamation. So why haven’t they? On the contrary, the Van Breda brothers are in regular and close contact with Jansen, often granting him and Media24 exclusives. If they disputed Jansen’s knowledge, some of which cites “anonymous family sources” or friends of family, surely they’d cut him off and not grant further interviews.

And yet they haven’t.

And why would anyone come up with a rumor like that in the first place? Creative license?

According to Jansen Henri “clashed repeatedly with authorities” [in Mebourne, Australia] over drug use. The drugs appeared to be the reason Henri was sent home. Jansen also cites “great discord” in the Van Breda household over drug use. What else could cause severe discord in a wealthy family? Why else would university studies be permanently suspended for an otherwise intelligent kid from a well-to-do family?

In my own family, I had a close relative who was a junkie. This person stole some of my personal possessions. You can see from the way I’ve written this, that I’d rather not identify this person, or reveal whether it’s a he or a she. Why? Because there’ a huge stigma around it, and because of our family relationship, I’d rather not worsen things for this person. So there’s a reason drug use is difficult to see; there’s a collective effort to hide it away. Family are complicit in this. Do I have evidence that this person close to me was a junkie? Like Henri, this person also spent a single night as I recall in jail when this person was caught for possession. This person also used a lot of a dagga in public, and heroin in private. This person eventually had a near death experience due to a heroin overdose; I know because I saw the tubes down the throat, and the ventilator firsthand.

As much as Molyneaux disparages the “tabloid media”, in the September 22 2016 edition of YOU magazine, reporters photographed a donkey cart driver interacting with Henri in front of Henri’s digs. This was just nine months after the incident, and prior to his arrest. When they interviewed him, the man admitted to supplying Henri with dagga on a few occasions. Here he was coming to the guy’s house in broad daylight! The tabloid admitted the man may have been lying.

But why would a tabloid purposefully make up a rumor like that, complete with a photo, in the first place? Creative license?

Some of those renting out accommodation to Henri said the rooms looked like a pigsty.

But why would the Weekend Argus purposefully make up a rumor like that, complete with a photo, in the first place? Creative license?

For me the clearest signs of the Drug Narrative are from Henri himself. Like the family member I mentioned, Henri smokes a lot of cigarettes, and in his own version, drinks a fair amount of alcohol. In his version of the crime, he has himself drinking and staying up until 03:00 while everyone else is asleep.

After the crime he chain smokes three cigarettes, he has a beer at a friend’s home, and later on asks for his father’s whisky when his uncle chaperones him through the crime scene.

The cops on the scene say Henri smelled of alcohol.

While none of this is evidence, it’s clear that even as a young 20-year-old, Henri was particularly fond of substances, including addictive substances. This isn’t absolute evidence, but it’s getting there.

I interviewed a few people who said they had witnessed Henri’s erratic behavior. He apparently removed his clothes in a parking lot, and was singing in a mall. He appeared high or intoxicated to the people who saw him. According to Molyneaux, this is hearsay I guess.

I also discussed the impacts of various drugs on criminality. I’d done similar research in the Knox case. Because I have limited experience with drugs, I wanted to know which drugs were more or less likely to cause criminal behaviour. The sources I spoke to said dagga is the least likely to spark criminal action because of its “mellowing” effect. Alcohol was cited as a good candidate, especially for it’s tendency to remove inhibitions and compromise judgement. Cocaine was seen to be another possibility, especially if mixed with alcohol, thereby inducing paranoia, but also an extraordinary clearheaded arrogance that once the crime had been committed, it could be “handled”.

It might be hearsay and speculation, but sometimes when you dig, more is revealed. Sometimes when you dig, it goes nowhere and you quickly encounter contrary evidence, such as an interest in sport, or healthy eating, or healthy relationships with clean living folks, or an affirming approach etc. You don’t get that here. You have a pattern. Drug addicts are also notorious and habitual liars. Drug addicts are used to living a lie. We saw that in the Knox case too.

If the Drug Narrative mirrors the Epilepsy Narrative, then there’s also the Psychopath Narrative. This disturbs Danielle the most – the impression that Henri is emotionless. I think there’s a reason Henri tries so hard to hide his emotions. It’s because those same emotions empower the Drug Narrative. Some hole has to be soothed*, and so, having committed a crime, those giveaway emotions must be hidden or the real Henri will be exposed. This is why there is not one Henri in this case, but two. The Henri we see, and the Henri we don’t see.

Henri himself intuits two axe murderers, two phantoms, in his version of what happened. One he sees, and one he doesn’t see. These psychological breadcrumbs speak volumes. People who know true crime through and through, know the gold isn’t to be found at the level of what’s visible, but what’s hidden.

Perhaps an appeal will expose some of that.

 

*I describe the source of Henri’s pain in Diablo, available here.