S v CHAERERA 1988 (2) ZLR 226 (SC)

Flynote

Criminal procedure — trial — unrepresented accused facing mandatory minimum sentence — need for trial court to explain to accused what minimum sentence was and meaning of special circumstances — legal aid — when court should consider granting of — whether lack of representation infringes constitutional right to a fair trial.

Headnote

The appellant had been convicted of possessing rhinoceros horns and sentenced to pay a fine of $2 000. The penalty section under the Parks and Wild Life Act 1975, as amended, in fact provided for a mandatory minimum sentence of a fine of $15 000 or five years' imprisonment, so on review the case was remitted to the magistrate for sentencing afresh. At the resumed hearing, the magistrate, after asking the appellant if he had any special reasons why the mandatory sentence should not be passed and receiving a negative reply, proceeded to pass that sentence. The appellant, who was unrepresented at both hearings, appealed.

Held, remitting the case to the magistrate again for a hearing on the question of special circumstances, that the magistrate should have gone much further than he did in advising the appellant why the case had been remitted, what the minimum penalty was, how that penalty could be avoided only by proof of special circumstances, and what special circumstances were. He should also have asked the appellant whether he had considered legal representation.

Held, further, that in cases of this nature, and in cases where the accused person cannot afford legal representation, it may well be that the court should consider the granting of legal aid.

Quaere, whether the provisions of s 18 of the Constitution, which relate to the right to a fair trial, were infringed by the fact that the appellant was unrepresented.