FAILURE OF COURT TO EXPLAIN RIGHT TO LEGAL REPRESENTATION AN IRREGULARITY

S v GR 2015 (2) SACR 79 (SCA)

Trial — The accused — Accused not legally represented — Magistrate failing to explain to accused who was facing sentence of life imprisonment that he was entitled to legal representation — Evident from record that accused an unsophisticated person who had difficulty cross-examining — Failure to explain accused’s rights amounting to irregularity in circumstances vitiating entire trial — Conviction and sentence set aside.

The appellant was tried in a regional court on a charge of the rape of an 11-year-old girl. He was not legally represented at the trial which was brief and resulted in his conviction. The case was then transferred to the High Court for sentencing purposes where the appellant was legally represented but the legal representative did not dispute the fairness of the earlier proceedings. Although the appellant had indicated when he first appeared in court that he wanted legal representation, there was no indication when he changed his mind and decided to waive his rights to legal representation. Neither did the trial magistrate inform the appellant of the consequences of proceeding with the trial without the assistance of a legal representative, nor did the magistrate encourage him to obtain the services of one before he was made to plead to the charge. The magistrate did, however, explain to him after he had pleaded, that, if convicted, the matter would be transferred to the High Court and he could face a sentence of life imprisonment but this was merely communicated to him as a matter of fact and not with a view to encouraging him to obtain legal representation owing to the seriousness of the charge.
Held, that it was clear that if a judicial officer believed that an accused was aware of his rights, the right to legal representation nevertheless had to be properly I explained to him in open court. If the accused chose not to have legal representation in serious cases, it was incumbent on the presiding officer to inform the accused of the seriousness of the charges and advise him to make use of a legal representative. It could safely be assumed in any case where the possibility of imprisonment was real, an injustice would result if an accused did not have legal representation. For such explanation to be effective it had to be done prior to the commencement of the trial, which meant prior to the accused pleading to the charges.
Held, further, that from the record it was clear that the appellant was an unsophisticated person with no understanding of the law or the legal processes and this was evident if regard were had to his ineptitude when cross-examining the complainant. It was unfair to allow cross-examination of an undefended, unsophisticated accused on his failure to cross-examine, and that should not have been held against him. It was apparent furthermore that there were incongruities and other matters where proper legal representation might have made a difference in the presentation of the appellant’s defence.
Held, further, that the failure to explain the appellant’s right to legal representation constituted an irregularity and this had prejudiced the appellant in the presentation of his case and it therefore vitiated the entire trial. The conviction and sentence accordingly had to be set aside.

Advertisements