Unrepresented defendants who are convicted and imprisoned may seek the duty solicitor’s assistance to appeal and apply for bail until the appeal is determined. It is important for the duty solicitor to give assistance in these cases. The following procedure may assist:
- Obtain a notice of appeal form from the registrar and assist the defendant to fill it out stating broad grounds of appeal, such as “The sentence imposed by the Learned Stipendiary Magistrate was manifestly excessive” or “The Learned Stipendiary Magistrate erred in failing to give sufficient weight to the appellant’s personal circumstances”. More precise grounds may be added at a later stage if warranted [see Notice of Appeal Precedent].
- Have the defendant sign the appeal notice him or herself. Do not sign on their behalf as ‘solicitor for the appellant’. A practitioner who does so has conduct of and responsibility for the matter from then on. This is not the duty solicitor’s job.
- Ask the registrar to list the matter immediately before a different Magistrate for a bail application (sometimes there is no other Magistrate available, for example when on circuit, so the matter will have to be listed before the same Magistrate).
- Apply for bail in the normal manner.
- Whether successful or not, refer the matter immediately to your manager or a senior practitioner for advice on the merits of an appeal, together with an application for legal aid if the defendant appears to be eligible. Even if the defendant is not eligible for legal aid, they can still pursue the appeal unrepresented if desired.
|ASSISTING UNREPRESENTED PERSONS|
The duty solicitor should be familiar with the case of Cooling v Steel (1971) 2 SASR 249, which refers to matters a Magistrate should bring to the attention of an unrepresented person pleading guilty. In particular the Magistrate should indicate that a sentence of imprisonment may be considered and that the person is entitled to seek legal advice before the plea is entered. Where those matters are not raised by the Magistrate, at least by general intimation, there may be grounds to appeal against conviction and sentence.
The duty solicitor must not offer any advice as to the merit of an appeal unless you were actually present during the Magistrate’s sentencing remarks. Senior counsel opinion on the merits of an appeal should be sought. If senior counsel later finds there is no merit in the appeal it can be discontinued unless the defendant wishes to pursue it unrepresented.
If the sentence of imprisonment ordered is relatively short (for example two to four weeks) the defendant will have served that time in custody before legal representation is arranged, unless the duty solicitor immediately assists or arranges for an experienced practitioner to attend on them in custody in the next few days.