Khutlisi v R (C of A (CRI) 5 of 1989) [1990] LSCA 23 (26 January 1990)

C. of A. ( C R I) No.5 of 1989

IN THE C O U RT OF A P P E AL OF L E S O T HO In the m a t t er b e t w e e n:

P H O M O LO KHUTLISI A p p e l l a nt R e s p o n d e nt vs

R

EX

HELD AT MASERU C o r a m: S c h u t z, P. A a r o n, J. A. A c k e r m a n n, J. A. A c k e r m a n n, J. A.

J U D G M E NT A p p e l l a n t, a 19 y e ar old young man w a s, on his plea of g u i l t y, c o n v i c t ed of raping a 78 year old woman by the S u b o r d i n a te C o u rt of the First Class for the Maseru D i s t r i ct on t he 31st M a y, 1988 after the a p p e l l a nt had agreed with an o u t l i ne of the facts of the c a se by the Public P r o s e c u t o r. The trial M a g i s t r a te c o m m i t t ed t he a p p e l l a nt to the High Court for s e n t e n ce in terms of s.293 of the Criminal / P r o c e d u re ... - 2 - P r o c e d u re and E v i d e n ce A c t, Act No.9 of 1 9 8 1. B e f o re d o i ng so t he t r i al M a g i s t r a te a l l o w ed t he a p p e l l a nt to a d d r e ss him on m i t i g a t i on of s e n t e n ce and also q u e s t i o n ed t he a p p e l l a nt c o n c e r n i ng h is s t a te of s o b r i e ty at t he t i me of c o m m i t t i ng t he o f f e n ce as well as h is p e r s o n al c i r c u m s t a n c e s. C u l l i n a n, C. J. h e a rd t he m a t t er in the High C o u r t. The r e c o rd in t h is c a se i s, o n ce a g a i n, far from s a t i s f a c t o ry b e c a u se it o n ly c o n t a i ns a copy of t he C h i ef J u s t i c e 's j u d g m e nt but no r e c o rd of t he p r o c e e d i n gs b e f o re h i m. It is c l e ar from the n o t es in t he o r i g i n al f i le t h at both t he a p p e l l a nt as well as C o

u n s el for t he C r o wn a d d r e s s ed h i m. The C h i ef J u s t i c e, a f t er s a t i s f y i ng h i m s e lf from the r e c o rd of t he a p p e l l a n t 's g u i l t, s e n t e n c ed t he a p p e l l a nt to six (6) y e a r s' i m p r i s o n m e n t. The a p p e al w as b r o u g ht on a n u m b er of g r o u n d s. In d e a l i ng w i th t h e se g r o u n ds it is i m p o r t a nt to b e ar in m i nd t h a t, in t e r ms of s s . 2 9 4 ( 4) read with ss294(3)(1) of t he a f o r e s a id A c t, t he a p p e l l a nt m u st be deemed to h a ve been t r i ed and c o n v i c t ed for t he o f f e n ce b e f o re t he High C o u r t. It w as c o n t e n d ed t h at the M a g i s t r a te in r e f e r r i ng t he m a t t er to t he High C o u rt for s e n t e n ce lost s i g ht of t he f a ct t h at he was d e a l i ng with a m i n or and t h at both c o u r ts o v e r l o o k ed t he p r o v i s i on /of ... - 3 - of s.308 of t he Criminal P r o c e d u re and E v i d e n ce Act which gave the court p o w er to impose a s e n t e n ce of w h i p p i ng in lieu of any other p u n i s h m e n t. There is no m e r it in this s u b m i s s i o n. The age of the a p p e l l a nt was stated to be 19 y e a rs in t he charge sheet and it is u n c o n c e i v a b le that t he Chief Justice could have o v e r l o o k ed e i t h er this fact or the p r o v i s i o ns of

s.308 of t he A c t. It was f u r t h er c o n t e n d ed that the court had no g u i d a n ce as to t he personal c i r c u m s t a n c es of the a p p e l l a n t. There is l i k e w i se no m e r it in this p o i n t. The Chief Justice took into account the fact that the a p p e l l a nt was a first o f f e n d er and had before him the record of the p r o c e e d i n gs b e f o re the S u b o r d i n a te Court from which t he personal c i r c u m s t a n c es of the a p p e l l a nt a p p e a r. T h e re is no e v i d e n ce or s u g g e s t i on that the Chief J u s t i ce did not inform h i m s e lf of these facts or indeed q u e s t i on t he a p p e l l a nt h i m s e lf as to his personal c i r c u m s t a n c e s. The a r g u m e nt w as advanced that t he a p p e l l a nt was a s t a m m e r er and t h at t h e r e f o re t he p r o v i s i o ns of s s. 1 7 1 ( 2) which p r o v i de that "any accused w ho in the opinion of the court requires the a s s i s t a n ce of another person m a y, with the p e r m i s s i on of t he c o u r t, be so a s s i s t e d" o u g ht to h a ve been invoked. There is nothing on record to indicate that the a p p e l l a nt is or was a / s t a m m e r er ... -- 4 - s t a m m e r er or t h at in any o t h er r e s p e c ts he w as a p e r s on such as is e n v i s a g ed in t he s e c t i o n. It w as s u b m i t t ed t h at t he Court e

r r ed in a p p l y i ng the M i n i m um S e n t e n c es O r d er of 1 9 8 8. This p o i nt is g r o u n d l e ss for t he s i m p le r e a s on t h at t he C h i ef Justice did n ot a p p ly t he a f o r e m e n t i o n ed o r d e r. In p a r a g r a ph 5 of t he N o t i ce of Appeal r e f e r e n ce is m a de to t he a p p e l l a n t 's i m p e d i m e n ts of s p e e c h, his i n a d e q u a te d e v e l o p m e nt and t he f a ct t h at he did not get a f a ir t r i al as he p l e a d ed g u i l ty u n d er d u r e ss when he w as i n n o c e nt of t he s u s p e c t ed c r i m e. T h e re is a b s o l u t e ly n o t h i ng on t he r e c o rd to s u p p o rt t h e se c o n t e n t i o ns w h i ch can t h e r e f o re n ot p r e v a i l. In a p p e l l a n t 's h e a ds of a r g u m e nt a point was raised f or t he f i r st t i me t h at i n a s m u ch as a p p e l l a nt was l e g a l ly u n r e p r e s e n t ed both b e f o re t he Subordinate- Court as w e ll as t he High C o u rt and had not been in- f o r m ed of his r i g ht to legal r e p r e s e n t a t i o n, he did not h a ve a f a ir t r i a l. In t he c o n t e xt of and on t he f a c ts of t he p r e s e nt c a se t h is is a g o u nd w h i ch o u g ht to h a ve b e en r a i s ed in t he N o t i ce of Appeal a n d, h a v i ng regard to t he a b s e n ce of a full record of t he p r o c e e d i n gs b e f o

re t he C h i ef J u s t i c e, it o u g ht p e r h a ps more properly to h a ve b e en b r o u g ht by way of r e v i e w. In any e v e nt it seems to me t h a t, on t he p r e s e nt record and on the f a c ts of t h is c a s e, t he p o i nt c a n n ot s u c c e e d. /It i s, ... It is, for r e a s o ns which will e m e r g e, not a p p r o p r i a te to deal in any c o m p r e h e n s i ve manner in this judgment with e i t h e r: (a) the right of an accused to be legally represented at his t r i a l; (b) the right of an a c c u s e d, w ho wishes to be legally represented but does not have the means to engage a legal r e p r e s e n t a t i ve : h i m s e l f, to free legal r e p r e s e n t a t i on from the C r o w n; or (c) The right of an accused to be informed at the c o m m e n c e m e nt of a trial of the a b o ve r i g h t s. I would e m p h a s i se however the i m p o r t a n c e, in the fair a d m i n i s t r a t i on of j u s t i c e, of an accused being informed at the c o m m e n c e m e nt of the trial of his rights in regard to legal r e p r e s e n t a t i o n, a matter which was referred to by Lehohla J. in L. Pulumo v Rex C R I / A / 2 7 / 88 ( u n r e p o r t e d) at p . 1 6, The following remarks of Goldstone J. in S. v R a d e b e, S. v Mbonani 1988(1)SA 19(T) at 196 G-J are instructive and a p p o s i t e: /"If there ... - 6 - " If there is a duty

upon judicial o f f i c e rs to inform u n r e p r e s e n t ed accused of their legal r i g h t s, then I can c o n c e i ve of no reason why the right to legal representation should not be one of them. Especially where the charge is a serious one which may merit a sentence which could be m a t e r i a l ly prejudicial to the a c c u s e d, such an accused should be informed of the seriousness of the c h a r ge and of t he p o s s i b le c o n s e q u e n c es of a c o n v i c t i o n. A g a i n, depending upon the complexity of the c h a r g e, or of the legal rules relating t h e r e t o, and the seriousness t h e r e o f, an accused should not only be told of this right but they should be encouraged to e x e r c i se it. He should also be informed in a p p r o p r i a te cases that he is entitled to apply to the Legal Aid Board of a s s i s t a n c e. A failure on t he part of the judicial officer to do t h i s, having regard to the circumstances of a p a r t i c u l ar c a s e, may result in an unfair trial in w h i ch there may will be a c o m p l e te failure of j u s t i c e. I should make it clear that 1 am not suggesting that the /absence ... absence of legal representation per se or the a b s e n ce of the suggested advice to an accused person per se will necessarily result in such an irregularity or an unfair trial and the failure of j u s t i c e. Each case will

depend upon its own facts and peculiar c i r c u m s t a n c e s ." I need hardly add that the question as to w h e n, or under what c i r c u m s t a n c e s, an impecunious accused is entitled to free legal representation might be answered differently in different c o u n t r i e s. The duty to provide free legal representation in a wider range of cases m a y, for a variety of r e a s o n s, be greater in the United State of America than in the Republic of South Africa and greater in the latter than in the Kingdom of Lesotho. It is important, for the proper administration of justice, n o n e t h e l e s s, that an unrepresented accused, at the c o m m e n c e m e nt of his t r i a l, be informed of his legal r i g h t s, in regard to legal r e p r e s e n t a t i o n, and, if he is indigent and desirious of legal re- presentation, what avenues are open to him in this regard. The d i f f i c u l ty facing the appellant in the present case on this issue is the paucity of facts.. There is no e v i d e n ce that the appellant's rights in this regard were not explained to him. There is indeed no evidence that the appellant was anaware of - 8 - his rights concerning legal r e p r e s e n t a t i on n o r, if he had been informed o f, his rights that he would have wanted legal r e p r e s e n t a t i o n. Consequently I am not satisfied that the appellant has established any

pro cedural irregularity in this r e g a r d. I turn finally to the submission t h a t, considering all t he circumstances of the a p p e l l a n t, the sentence imposed was so grossly e x c e s s i ve that it warrants in- t e r f e r e n ce with on a p p e a l. The facts of the offence- appear from the record. Without any p r o v o c a t i o n, a young man of 19 raped an old woman of 78 four times in t he most b r a z e n, brutal and contemptuous m a n n e r. Under t h e se c i r c u m s t a n c e s, and n o t w i t h s t a n d i ng the fact t h at the appellant is a 19 year old first o f f e n d er the sentence of six y e a r s' imprisonment cannot in any regard be considered i n a p p r o p r i a t e. The appeal is accordingly d i s m i s s e d. Signed : I a g r e e: S i g n e d: I agree S i g n e d: L. W. H. Ackermann

JUDGE OF APPEAL W . P. Schutz

PRESIDENT S. Aaron

JUDGE OF APPEAL Delivered at MASERU this 26th day of January, 1990.