Van Breda prosecutor sceptical over 'fortuitous' fit

“Fortuitous”. That is what state prosecutor Susan Galloway called the diagnosis of Henri van Breda’s juvenile myoclonic epilepsy in the twilight days of his trial in the High Court in Cape Town.

Until Van Breda‚ 23‚ was diagnosed with the condition two weeks ago‚ 2hr 40min was missing from the timeline he presented in his plea statement and court testimony about the events at the family home in Stellenbosch on the night of January 26‚ 2015.

But neurologist Dr James Butler‚ who appeared as the final witness in Van Breda’s defence‚ used the diagnosis to claim he had a seizure on the night of the attacks then suffered amnesia for nearly three hours as he lay on the staircase at 12 Goske Street‚ De Zalze.

Galloway told Judge Siraj Desai on Wednesday: “Given the defence’s case up until now and then the fortuitous diagnosis of a type of epilepsy just recently‚ the accused can now say‚ ‘Oh hang on‚ I now suddenly have an explanation for those missing two hours and 40 minutes’.”

Butler said that in all homicide cases‚ up to a third of defendants claimed they had amnesia — but these claims were usually made for the period of time in which the murders happened. Van Breda’s was the only case he knew of in which the alleged amnesia came after the attacks on his parents‚ Martin and Teresa‚ brother Rudi and sister Marli‚ who survived.

This proved he was not malingering — feigning illness for ulterior motives — in an attempt to be acquitted.

But Galloway said Van Breda had already put forward a story on how the attacks happened. “That is not the period of time he needs to account for‚ and it is therefore in his interests to claim amnesia after the attacks rather than during‚” she said.

She also took Butler to task over the claims that in a postictal (post-seizure) state)‚ Van Breda would not have been capable of deliberately trying to deceive anyone.

Since a person who has had a fit is not capable of planning deception‚ the evidence of his behaviour after the attacks showed that he had not in fact had a seizure‚ she said. “We have the undisputed evidence of two doctors who say the accused’s injuries were deliberately self-inflicted. You said yesterday that deception as a cognitive function falls away in a postictal state‚” said Galloway‚ again expressing doubt that a seizure had taken place.

Desai told Butler: “The seizure in and of itself is an assumption‚” but the neurologist insisted there had been a seizure since Van Breda had wet his pants and had allegedly not known he had done so or that he had a bruise on his face.

“That is if the accused is to be believed‚” said Galloway‚ who argued earlier this week that Butler’s diagnosis was primarily based on hearsay from the accused himself.

Desai also added that wet pants were “an inconsequential detail” in the context of a murdered family and in no way proved a seizure had taken place.

Butler said he felt there was “overwhelming” evidence‚ but said an “emphatic yes” to the possibility that Van Breda murdered the family then had the alleged seizure.

Galloway said: “The accused could be fabricating everything about this apart from the wet pants” (which appeared in a photograph of exhibits).

Before the case was postponed to February for closing arguments‚ Desai told Butler that he was “not questioning his integrity in any way” but that in terms of the Hippocratic oath‚ the diagnosis of a seizure almost three years later in the middle of a trial proved “highly controversial”.

Butler said it was “based on history”‚ but Desai added: “Yes‚ and history is a very uncertain thing.”