If X is not legally represented he or she is normally at a severe disadvantage by comparison with the person who has a lawyer to represent him. X is usually completely unfamiliar with the law and with the rules of evidence and procedure. The formal legal environment will often be completely alien to him or her and he or she may be totally overawed by the atmosphere.
As he or she is facing criminal charges he or she will be anxious and apprehensive and may not be able to compose himself or herself and put forward a proper defence. He or she will often not know what he or she must do to defend himself or herself and what is relevant in relation to the charges he or she is facing. This will particularly be the case when the charges are complex and involve technical elements. Whereas X may be out of his or her depth entirely, the State is represented by a trained prosecutor who is schooled in the law.
Bearing all this in mind, the judicial officer is under an obligation to ensure that X receives a fair trial. The judicial officer must assist X to the extent that is necessary to ensure that justice is done. This is not to say that the judicial officer must assume the role of being X’s defence lawyer. He or she or does not have to conduct the defence. He or she does, however, have to try as far as possible to ensure that points which are pertinent to the defence case do emerge.
In Musindo 1997 (1) ZLR 395 (H) during the trial the magistrate wrongly delegated his responsibilities of explaining X’s rights and other aspects of the trial to the court interpreter. The interpreter’s explanation was not recorded. The High Court pointed out that X’s right to maintain his or her silence had been severely eroded by legislation. This inroad into X’s age-old privilege can be justified only where there is the strictest of explanations to him or her of the extent of his or her rights and by the clearest of cautioning to him or her of the consequences of failure to give an explanation where an innocent person may be expected to do so. The only person who can ensure that X understands the choices open to him or her and the consequences of the choice he or she makes is the presiding officer. Where he or she abrogates his or her responsibility and leaves the function of explanation to an interpreter, a court on review cannot repose any confidence in that magistrate.
What follows is a summary of the main obligations which judicial officers have at different stages of criminal proceedings to safeguard X’s interests.
At confirmation of statement proceedings:
- Explain that if X admits he or she made the statement freely and voluntarily, the statement is admissible on production at his or her trial;
- If X says it was not freely and voluntarily made, find out on what basis he or she is saying this.
- Whether or not X raised this, check that there is information which leads to a reasonable suspicion that he or she committed a crime and thus that there is a proper basis for a remand;
- Ensure that X is not kept on remand for unreasonably long periods;
- Where the State asks for a remand in custody, carefully probe the reasons for opposing bail in order to check that they have substance. (Do not automatically disallow bail whenever the State opposes bail.)
In trial proceedings:
- Ensure that the charge is properly and clearly formulated.
- Be extremely careful in checking a guilty plea before accepting it.
- If the case is complex and serious, consider whether X will only be able to receive a fair trial if he or she is legally represented. If this is the situation and X does not have the money to employ his or her own lawyer, certify that it is desirable in the interests of justice that he or she be assigned a lawyer paid for by the State.
- Carefully explain that failure to mention salient features of defence at the outset may lead to adverse inferences being drawn. Explain that this is because usually an innocent person would disclose these features right at the start to establish his or her innocence.
- Inform him or her of right to cross-examine State witnesses, explaining to him or her what cross-examination is for and the necessity for him or her to ensure that where he or she disagrees with their evidence his or her version must be put to them so that they can comment thereon. Make sure he or she understands that if he or she disagrees with any evidence they have given, he or she must challenge it in cross-examination. Failure to do so might be held against him or her.
- Where accused does not do so, ask pertinent questions of State witnesses so that lines of defence raised by X in his or her outline are explored with the State witnesses.
- At the close of State case, examine whether State made out prima facie case such as to require accused to be put to his or her defence. (Do this even where there is no application for discharge).
- Where X is put to his or her defence, explain to him or her that he or she has a right to call witnesses and to testify himself. (If he or she wishes to call witnesses and they are not present, adjourn so that they can be called).
- If X calls witnesses assist him or her in extracting relevant information from those witnesses and prevent prosecutor from exceeding the bounds of proper cross-examination.
- If X testifies but then refuses to answer questions carefully explain that adverse inferences may be drawn from refusal to answer questions which an innocent person would be expected to respond to.
- If X does not testify but questions are put to him or her which he or she refuses to answer, carefully explain to him or her that adverse inferences may be drawn as an innocent person would not refuse to answer such questions.
- X must be told of his or her right to sum up his or her case at the end of the trial.
In Musindo 1997 (1) ZLR 395 (H) the court criticized a magistrate who had made little inquiry into why there had been a delay of almost 7 years in bringing the matter to trial. It said that while X had not raised this issue, as he or she was undefended he or she was entitled to look to the magistrate to ensure that his or her rights were not infringed by the machinery of the State. In this case, the magistrate’s inquiry and the prosecutor’s explanation were brief and inadequate. A prima facie breach of X’s constitutional rights was left unexplained and constituted an irregularity.
If X is found guilty, inform him or her of his or her right to call evidence in mitigation of sentence and to address in mitigation. If he or she does not know what sorts of factors are salient in regard to sentence, tell him or her what sort of things may constitute mitigation.
The duties of the judicial officer to safeguard the rights of undefended accused are set out above. It is the duty of the judicial officer to explain in a simple and understandable way what rights the undefended accused has at the different stages of a criminal case. What follows are some suggestions as to how these explanations can be formulated so as to ensure that X understands what it is that he or she must do during criminal proceedings.
The judicial officer must first read out the brief allegations against him. These will be found in the preamble to the warned and cautioned statement.
Regarding the statement itself the judicial officer should say these things to X:
- If you admit that you made this statement freely and voluntarily, the statement will be confirmed by me and it can be produced in evidence at your trial.
- You now have a chance to tell me about how this statement came to be made. You must tell me if you made this statement and if you made it freely and voluntarily. You must tell me if the police did or said anything to you to force, pressure, induce or trick you into making the statement? If you fail to mention relevant details about how you were forced or induced to make this statement and you only tell the court about these things when you are on trial, the court may end up disbelieving these details.
If accused says the statement was not made by him or her but was concocted by the police and he or she was
then forced to sign it:
You have told me that the police forced, tricked or induced you to sign a statement which was concocted by the police and not made by you. What exactly did the police do to force or induce you to sign this statement? Who did these things to you and when were they done? Do you know the names and ranks of the police officers concerned or can you describe them to me if you do not know their names?
If accused says he or she made the statement but it was not made freely and voluntarily:
You have told me that you did not make this statement freely and voluntarily. You must tell me why you are saying this. You must tell me exactly what happened which caused you to make a statement when you did not want to do so. Who did these things to you and when were these things done? Do you know the names and ranks of the police officers concerned or can you describe them to me if you do not know their names?
If X alleges that he or she was assaulted:
What injuries did you sustain as a result of these alleged assaults? Do you still have any injuries or marks on your body which show that these assaults were in fact committed? If yes, please show me these injuries.
If the judicial officer intends to have a medical examination carried out on X, the judicial officer should tell X what is going to happen and why.
When X pleads guilty:
You have pleaded guilty to the charge. I will now ask you a series of questions so that I can satisfy myself that you are properly admitting to this charge.
The judicial officer must then ask a series of questions to satisfy himself or herself that X is admitting to all the essential elements of the crime and to the material facts upon which the charge is based and that he or she has no defence to this charge. In particular, questions must be asked to clarify points such as the intent in cases of assault with intent to do grievous bodily harm and the nature of possession in rhino horns and ivory cases. The question “Why did you do it?” will often reveal a defence such as provocation, intoxication or self-defence.
- You have pleaded not guilty to the charge. You have heard the summary of the State case against you. You now have the opportunity to outline your defence and state the basis upon which you deny these allegations. When you make this statement you must refer to every important fact upon which you rely for your defence. If you fail to mention an important fact, the court may hold this failure against you.
- What I need from you at this stage is only a summary of your defence. You should tell me what your defence is to the charge/charges (why you say you are not guilty) and the main facts upon which this defence is based. Later in the proceedings after the State has produced its evidence against you will be able to present your own evidence in detail.
Note. Although X is supposed only to outline his or her defence at this stage, if X wants to give full details of his or her defence rather than simply a summary, he or she should be allowed by the judicial officer to do so. He or she may not be able to understand the difference between a summary and a full presentation of his or her defence at the outset. If he or she wishes to describe his or her defence in detail it is in the interests of justice that he or she be allowed to do so.
Before any extra-curial statement allegedly made by X to the police or to anyone in authority over him, such as his or her employer, is produced in evidence, the judicial officer must ask X:
Did you make this statement and did you make it freely and voluntarily and without undue influence being used?
If he or she says “No” a further enquiry and possibly a trial within a trial will have to follow.
You have a right to call witnesses to testify on your behalf. Do you have any witnesses whom you want to call?
In Musindo 1997 (1) ZLR 395 (H) the court criticized a magistrate who, when the accused indicated that he wanted to call a person who at been summoned as a State witness but not called by the State, the magistrate acted in so hectoring and minatory a fashion as to result in the accused failing to call the witness.
- Listen carefully to the evidence of the State witnesses. After the prosecutor has asked them questions, you will be given the opportunity to ask them questions. If a witness says anything which you think is untrue or with which you disagree you must ask the witness questions about these things. If you do not ask questions about the things which you disagree with the court may assume that you do not disagree with these things.
- If you think that the witness knows things favourable to your defence but which he or she has not told the court about, you should also ask him or her questions to draw out these things. [It sometimes helps to offer X a pen and paper to make notes on the points he or she wants to challenge.]
After X has finished cross-examining the witness, the judicial officer should draw X’s attention to “damaging” aspects which have not been canvassed by him or her and invite him or her to ask questions on those aspects.
The judicial officer should also put to State witnesses any points contained in X’s initial outline of his or her defence which he or she has not raised during cross-examination.
Right to produce evidence:
You have heard the evidence against you from the State witnesses. You now have the opportunity to produce evidence in your defence. You yourself may give evidence. If you wish to testify yourself, you must take the oath and swear that that you will tell the truth. If you testify the prosecutor will be able to ask you questions about what you have said. If you decide not to give evidence on oath yourself, the prosecutor and the court may still put questions to you. If you refuse to answer these questions the court may hold this failure against you. You may also call any witnesses whom you think will support your defence and help to disprove the State case.
If X wishes to give evidence himself as well as calling witnesses the judicial officer should state:
You should give your own evidence first before you call your witnesses. If you have any reason for wanting your witnesses to give evidence before you testify, you should tell me what those reasons are and if I think that they are good reasons I will permit you to call your witnesses first before you testify. [In terms of the proviso to s 188(5) CPEA X must normally give his or her testimony before he or she calls his or her witnesses.]
Accused persons should normally give evidence from the witness box and not from the dock. Sometimes, however, accused persons do not want to give evidence from the witness box, possibly because they think that this is “the enemy camp”. In such cases magistrates should not insist that they take the witness stand. They can give sworn evidence from the dock.
In a proper case X should be allowed to sit while giving evidence.
When first defence witness is called tell X:
You can put questions to your defence witnesses to draw out their evidence but you must not put questions to them which suggest the answers they are to give. You must let them tell their own stories and you must not put words in their mouths.
Re-examination of defence witnesses:
You can now ask the witness further questions but you may only now ask him or her questions on new matters which have come up in response to the questioning of the witness by the prosecutor. You must not question him or her about things which you questioned him or her about previously unless new matters have come up on these points in response to questions from the prosecutor.
You have refused to answer the questions which have been put to you. I must tell you that this refusal may lead the court to form an unfavourable impression and to hold this refusal against you because the allegations made by the State against you, through the its witnesses, will then be uncontradicted and unexplained by you.
You now have the right to sum up your case. You should highlight the important points in your defence case and point out what you consider to be the weaknesses of the State case and any serious contradictions in the evidence of the State witnesses.
I have already found you guilty of the crime of … Before I impose sentence upon you, you have a chance to give evidence in mitigation of sentence. You must tell me anything about this case which you think serves to lessen your moral blameworthiness. You should also tell me anything about your personal circumstances at present which you think may persuade me to impose a more lenient sentence.
Guilty plea: Where X has pleaded guilty, the court must investigate the motive of X in the commission of the crime to find out whether the motive was something like dire economic need which would amount to a mitigating factor.
Not guilty plea: Where X had pleaded not guilty, any factors of a mitigatory nature which have emerged during the trial must be taken into account by the court even if X does not raise them at the time of mitigation.
- Are you married? How many children do you have and how old are they?
- What do you pay each month for food, accommodation and travel and what other expenses do you have?
Where the judicial officer is contemplating imposing a fine, he or she should ask these sorts of question:
- Are you employed and what is your take-home pay?
- You have told me that you are not in regular employment. Do you have any source of income at all? [i.e. does he or she work in the informal sector?] What is the amount of your average weekly earnings?
- Do you have any savings? How much? [This question should be asked whether or not X is employed.]
- You have told me you are unemployed and have no savings, Do you have any possessions which you could sell to raise money? Do you have any friends or relatives who would be prepared to lend you money to pay a fine which I might impose?
- Do you have money on your person to pay a fine?
- Can you pay a fine in weekly or monthly instalments and what amount of instalment can you pay? (I cannot give you more than 12 months to pay the full amount of the fine I impose.)
Where X’s actions have caused damage or pecuniary loss
The judicial officer should ask X these sorts of questions:
- (If this has not been canvassed in evidence:) Do you agree that X suffered damage or loss?
- It is in your interests that you make good the loss caused by the offence which you committed. If you make restitution or pay compensation the court may take this into account in your favour when it imposes sentence upon you.
- Do you wish to make good the damage or the loss?
- How will you do this and when?
In cases of malicious injury to property involving the destruction of a hut:
• Are you willing to rebuild the hut and, if you are, over what period of time will you do this?