RIGHT TO LEGAL REPRESENTATION; BIAS BY PRESIDING OFFICER

Hewitt v Regional Magistrate and another (NW as interested party)
[2015] 3 All SA 183 (KZP)

Criminal procedure – Criminal proceedings – Accused’s right to legal representation – Sentencing – Right to legal representation is not limited to a trial stage but exists during the whole of the legal process – Court should ask the accused whether he wishes to have an opportunity of instructing another legal representative; and if he does not seek an opportunity, he should be asked whether he is ready to undertake his own defence.
[2] Criminal procedure – Criminal proceedings – Bias by presiding officer – Irregularities – Review – Judicial officer must conduct the trial open-mindedly, impartially and fairly, and such conduct must be apparent to all those who are concerned in the trial especially the accused – Test for bias – A suspicion that the administrator might be biased; the suspicion must be that of a reasonable person in the position of the person affected and must be based on reasonable grounds.

The present application was for the review and setting aside of criminal proceedings in which the applicant, charged with indecent assault, was convicted by the first respondent and sentenced to 15 years’ imprisonment. According to the applicant, his review application was aimed specifically at the first respondent’s conduct throughout the criminal proceedings. He alleged that the first respondent had become subjectively involved in the proceedings and was biased in favour of the complainant. That was said to have resulted in gross irregularity vitiating the proceedings and nullifying the applicant’s right to a fair trial.
Some of the matters complained of were that the complainant had been allowed to testify through an intermediary although she was over the age of 18 years; that the first respondent had made representations to the review court requesting that the proceedings be confirmed as being in accordance with justice; and that the first respondent had refused an application for the adjournment of the sentence proceedings pending an application for review of the first respondent’s decision.
Held – A judicial officer must conduct the trial open-mindedly, impartially and fairly, and such conduct must be apparent to all those who are concerned in the trial and its outcome, especially the accused. The test for bias is that there must be a suspicion that the administrator might – not would – be biased; the suspicion must be that of a reasonable person in the position of the person affected; the suspicion must be based on reasonable grounds; and the suspicion must be one which the reasonable person would – not might – have.
The first respondent had stated to the applicant that he did not require legal representation during the sentence proceedings. That was a serious irregularity. The right to legal representation is not limited to a trial stage but exists during the whole of the legal process. Upon the withdrawal of the accused legal representative from the case, the court should ask the accused whether he wishes to have an opportunity of instructing another legal representative; and if he does not seek an opportunity, he should be asked whether he is ready to undertake his own defence.
The magistrate also failed to give the applicant an opportunity to address the court on the contents of the Probation and Correctional Officer’s reports before imposing sentence. That constituted an irregularity. The right to address court at the conclusion of evidence is of such a fundamental nature as not to be departed from unless expressly waived by the parties.
The Court found that the applicant had succeeded in discharging the necessary onus of proving bias by the first respondent. The irregularities tainted the entire trial and that the convictions and sentences could not be allowed to stand. The review application succeeded, and the convictions and sentence were set aside.

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