DUTY OF LEGAL REPRESENTATIVE

S v DD 2015 (1) SACR 165 (NCK)

Legal practitioners — Duties of — Duty to court — Legal practitioner not entitled to accuse another person of being responsible for crime of his client wantonly or recklessly — Futile and unacceptable for counsel to try and hide behind client’s instructions in this regard.

Obstructing the course of justice — What constitutes — Accused sending police on wild-goose chase by claiming he and his family had been victims of farm attack whereas he was perpetrator — Circumstances indicating that substantive offence had been committed and not only attempt to defeat ends of justice.

 

The accused, a minor, was standing trial in the high court on charges of raping and murdering his younger sister, murdering his parents and of defeating the ends of justice. In the course of delivering judgment on the merits, the court commented on two submissions made by the accused’s counsel, in terms of their instructions, firstly, to the effect that if an incestuous relationship existed between the accused and his sister there would not have been any motive for the girl to report the prior sexual activity to her parents; and, secondly, that the injury to the young girl’s private parts could have been caused by her father.

The court remarked that it was futile and unacceptable for counsel to try and hide behind instructions which they purport were given to them on what argument to present. It was worth revisiting the practice and the law pertaining to the duties and responsibilities of an advocate or an attorney, inter alia, in that an advocate was not entitled in defending a client to attribute to another person the crime with which his client was charged wantonly or recklessly, unless the facts or circumstances given in the evidence or rational inferences drawn from them raised at least a reasonable suspicion that the crime may have been committed by the person to whom the guilt was so imputed. To impugn the character, dignity and the memory of the deceased parent at such a late stage and so unfairly was inappropriate, as it was hurtful to his family and friends.

As regards the count of defeating the ends of justice, counsel for the accused contended that at most the accused could be convicted of attempting to defeat the ends of justice. The state conceded this point but the court did not accept the concession and held that, in the circumstances, where the accused had rushed to the police to tell them that there had been a farm attack and a large police contingent, including a helicopter, was commissioned in order to look for the suspects; that the accused maintained the sham for a period of almost a week; that the accused implicated innocent people as potential perpetrators and alleged that a large sum of money had gone missing, these factors constituted the commission of the substantive offence of defeating the ends of justice.

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