legal advice

legal advice

George Kleynhans

LEGAL ADVICE

Shakespeare taught us “Only a fool defends himself”.  In South Africa every second accused conducts his/her own defence, rejecting the legal assistance provided by the state. This chapter is dedicated to those unfortunate accused that don’t trust the legal-aid, this word of advice to avoid those legal traps and mistakes most people fall into appearing in court for the first time.

The natural reaction when confronted by the police for the first time is fright, fight, flight or freeze… most people will start singing like a canary (flight) giving the police all the information they need, thereby incriminating themselves, unaware of the danger that too much detail may expose you as a suspect, accomplice or even a witness.

You are obliged to give your correct name and address to any officer-of-law when asked for that, but for the rest of any confrontation you may remain silent, even during an arrest. Do not give any verbal or written statements as you may forget the contents thereof… the most important aspect of your defence is that your version of events remains the same during the long process of trial.

George was the founder of SA non-citizen Legal Protector, a close corporation registered for the soccer world-cup 2010, with the main goal to give legal assistance to all the visitors to South Africa. The criminal procedure of our legal system is applicable in most countries, internationally accepted.

On any arrest the police may detain you; however within 48hours you must be brought to a court-of-law to appear and exercise your rights as an accused. This time-frame is illegally used and abused by police to force a confession from the suspect; these arrests will be left to Thursday/Friday to include the weekend-time on the suspect. In most of these cases you find that the police promise the suspect to be released after his/her statement is made.

Do not panic during an arrest, you may suffer some discomfort at first but afterwards almost each and every accused will get bail… remain cool, calm and collective, you will demand the respect by the police that you deserve. You are entitled to full disclosure of the charge against yourself but remember your defence only starts at COURT proceeding… do not start your defence on arrest.

On your first appearance in court, you have the right to apply for your release on warning or bail. The amount of the bail should be set at the riskof  you standing trial, the seriousness of the crime, the interest  of the community and your personal circumstances will be considered.

On the second appearance at court, you may be asked how do you plea to the charge/s against you… guilty or not guilty… the latter requires from you to disclose the nature of your defence. Pleading not guilty covers you with a presumption of innocence until the state has proven a prima facie case against yourself, your duty will be to answer that, create a reasonable doubt by calling your own witnesses.

There is no burden of proof on your shoulders… so beware at this stage of pleading that your defence may include some admissions to the charge that you can’t withdraw, besides why help the state to prove its case while you may apply to be discharged after the prosecutor closes his case. The safest option will be to remain silent about the basis of your defence unless there is an obvious mistake in the charge against you that may lead to a withdrawal, this scenario should be negotiated before pleading.

Your best ammunition in any defence is the art of cross-examination: The golden rule of evidence is that any witness can only testify to facts that fall within his/her personal knowledge, in other words he/she can only testify about events that he/she saw with his/her own eyes or heard with his/her own ears, observed personally.

The way you conduct your cross-examination of state-witnesses is the fastest way to success or failure, the first witness called by the prosecutor is the most important one for evidence, usually the complainant. Crack or shake the evidence by this witness, the prosecutor may decide to close his case, not to waste the court’s time with other witnesses.

Always start with the background of every witness, learn as much as possible about the witness with short and direct questions about his/her ability to testify about facts in his/her evidence in court. The definition of the alleged crime should be studied before any cross-examination, know the requirements by law, statutory or common law and direct your questions towards non-qualifications thereof.

The so-called fishing expedition in cross-examination is mentioned when the same questions are put to the witness in different ways without any effect or result. The best result will come when you find a change in the version given by the witness to the prosecutor and the version given during cross-examination by yourself. Remember that each and every allegation by a witness against yourself will stand in evidence until contra versed by yourself to the witness.

A very effective way to get any witness to change his version of events is to direct questions around emotional feelings… religion, society and relationships. Most people will change their story during fear, anger or sympathy.

Once you have reached the stage in you trial where your evidence will be needed, you are probably in trouble already. Your version of events should be as short as possible, your evidence directed to those issues that can influence the outcome of the trial, your answers to cross-examination directly to the point without explanation on detail.

A final word of advice on conducting your own defence, is that time is on your side. The state usually has the difficulty to sub-poena witnesses; arrange their presence at each hearing and every postponement may cause a possibility that a witness will not be available at the next hearing. Do not run the risk of having a crime on your record, only because you were in a hurry to end the drama.

lawya@me.com

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