Difference between revisions of "Zimbabwe Criminal Defense Manual - Defense Lawyer's Role and Responsibilities"

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(Created page with ' == General == The duty of the lawyer in a criminal case is a dual one. He must defend his client competently and conscientiously, but he must also uphold and advance the intere�')
 
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== General ==
 
== General ==
  
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The constitution also provides that every person charged with a criminal offence has a constitutional right to be represented at his or her own expense by a legal practitioner of his or her own choice. The denial of this right is a breach of a fundamental right [s 18(3)(b)] and a violation of this right is a ground for appeal. For example, in the case of Mushayandebvu 1992 (2) ZLR 62 (S) a woman had engaged a lawyer to defend her but he was unavailable on the day of the trial due to previous commitments. The prosecutor knew that she had engaged a lawyer who was unavailable for the trial but did not inform the court about this. The woman, who was unsophisticated, did not herself tell the court about this. She was convicted. The appeal court set aside the conviction on various grounds, one of which was that the woman's constitutional right to be represented by a lawyer at her own expense had been breached, as the prosecutor should have told the court that she had engaged a lawyer who was unavailable on the day of the trial; it was unfair to expect an unsophisticated accused to realise that she could bring to the court's attention this matter.
 
The constitution also provides that every person charged with a criminal offence has a constitutional right to be represented at his or her own expense by a legal practitioner of his or her own choice. The denial of this right is a breach of a fundamental right [s 18(3)(b)] and a violation of this right is a ground for appeal. For example, in the case of Mushayandebvu 1992 (2) ZLR 62 (S) a woman had engaged a lawyer to defend her but he was unavailable on the day of the trial due to previous commitments. The prosecutor knew that she had engaged a lawyer who was unavailable for the trial but did not inform the court about this. The woman, who was unsophisticated, did not herself tell the court about this. She was convicted. The appeal court set aside the conviction on various grounds, one of which was that the woman's constitutional right to be represented by a lawyer at her own expense had been breached, as the prosecutor should have told the court that she had engaged a lawyer who was unavailable on the day of the trial; it was unfair to expect an unsophisticated accused to realise that she could bring to the court's attention this matter.
 
  
 
== Duty to client ==
 
== Duty to client ==
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As regards the duty of the defence lawyer to apply for a postponement of a case where he has not had enough time to prepare the defence case properly, see under "Postponement of cases" in Section 2.
 
As regards the duty of the defence lawyer to apply for a postponement of a case where he has not had enough time to prepare the defence case properly, see under "Postponement of cases" in Section 2.
 
  
 
== Duty to court ==
 
== Duty to court ==
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Although the defence lawyer must not deliberately mislead the court this does not mean that he is under an obligation to volunteer all he knows about his client. If, for example, it becomes apparent that the State is not aware that X has a previous conviction, his lawyer is not duty bound to disclose that conviction. But he cannot say in his argument in mitigation that his client has no previous convictions whatsoever. He can simply not mention the matter at all or he may say that the State has not proved that his client has any previous convictions.
 
Although the defence lawyer must not deliberately mislead the court this does not mean that he is under an obligation to volunteer all he knows about his client. If, for example, it becomes apparent that the State is not aware that X has a previous conviction, his lawyer is not duty bound to disclose that conviction. But he cannot say in his argument in mitigation that his client has no previous convictions whatsoever. He can simply not mention the matter at all or he may say that the State has not proved that his client has any previous convictions.
 
  
 
== Conflicts of interest ==
 
== Conflicts of interest ==
  
 
In Banda HB-34-02 the legal practitioner placed himself in a position where he had a conflict of interests. The accused, a police officer, was charged with corruption. It was alleged that he had taken a bribe from three foreigners whom he had arrested on suspicion of car theft. A legal practitioner had interviewed the foreigners, and thereafter interviewed the accused. The same legal practitioner was called as a State witness during the accused's trial, at which he accused was represented by another member of the practitioner's firm. It was held that the practitioner's testimony was as a result of the privileged position he enjoyed from consulting the three foreigners and interviewing the accused.  He should have decided who to represent.  Representing the three foreigners and the accused was improper.  The conflict of interest in this matter culminating in the practitioner giving evidence against the accused amounted to an irregularity actually resulting in a substantial miscarriage of justice. The proceedings should be set aside.
 
In Banda HB-34-02 the legal practitioner placed himself in a position where he had a conflict of interests. The accused, a police officer, was charged with corruption. It was alleged that he had taken a bribe from three foreigners whom he had arrested on suspicion of car theft. A legal practitioner had interviewed the foreigners, and thereafter interviewed the accused. The same legal practitioner was called as a State witness during the accused's trial, at which he accused was represented by another member of the practitioner's firm. It was held that the practitioner's testimony was as a result of the privileged position he enjoyed from consulting the three foreigners and interviewing the accused.  He should have decided who to represent.  Representing the three foreigners and the accused was improper.  The conflict of interest in this matter culminating in the practitioner giving evidence against the accused amounted to an irregularity actually resulting in a substantial miscarriage of justice. The proceedings should be set aside.

Revision as of 09:20, 13 April 2010