University of Botswana Law Journal - PULP

UNREPRESENTED ACCUSED IN BOTSWANA 91
accused to raise that point before his plea is taken or, as soon as the
evidence discloses duplicity in the charge or count, in cases where
duplicity is not immediately apparent. However, where, as is the
usual position here, an accused is not legally represented, the
Magistrate or Judge trying the case should examine the charge or
count and if he considers it to be defective on grounds of duplicity
or for any other reason it is his duty to raise the point and, if
necessary, have the charge or count amended or withdraw or to
refuse to accept it at all.” 36
4.2 Judicial enabling in Australia
In the case of Dietrich v the queen, 37 the High Court of Australia noted the
inherent unfairness characteristic of trials wherein accused persons are
unrepresented. The Court recognised the fact that lack of legal representation
places the accused at a disadvantage. The Court reiterated that a proper defence
of the accused requires a proper knowledge of the rules of evidence and
procedure. Highlighting the legal complexities faced by the unrepresented
accused and the need for professional guide, the Court had this to say:
“Skill is required in both the examination in chief and the crossexamination
of witnesses if the evidence is to emerge in the best
light for the defence. The evidence to be called on behalf of the
accused, if any, must be marshalled so as to avoid raising issues
which will be damaging to the case for the Defence. A decision
must be made whether the accused is to give evidence on oath, is to
make an unsworn statement or is to remain mute. Competence in
dealing with these matters depends to a large extent upon training
and experience. And, as Murphy J pointed out in McInnes, an
accused in person cannot effectively put some arguments that
36 Ibid at pp. 204-205; In Rabonko v The State [2006] 2 B.L.R. 166 Lesetedi J noted at p. 168C-D: “An
accused person has in terms of s 10(1) of the Constitution an entitlement to a fair trial. In my view, a fair
trial cannot be realised where an accused person does not understand the import of the criminal
proceedings which he is facing nor have a rudimentary idea as to how not only to present his case but to
conduct his defence by way of putting the essential elements of his defence to the prosecution witnesses.
That there is a duty upon a presiding judicial officer to assist an accused person who is unrepresented and
seems not to understand the court procedures, in the conduct of his defence has been expressed in a
number of cases.”; Lord Weir JA also remarked in Gare v The State op.cit. note 30 supra at pp. 148G-
149A that: “In any trial where the accused person defends himself, either because he chooses to do so or
because he cannot afford a legal representative, an onerous responsibility lies on the judge to ensure that
he receives a fair trial. There will be cases where the accused may be able to conduct his case with skill
and there will be cases in which the issues at the trial will be obvious to the meanest intelligence. In such
cases it will probably be unnecessary for the judge to intervene. On the other hand there will be cases
where the issues are not straightforward. In such situation the judge will have to be vigilant to ensure that
the defence case does not go by default because of lack of skill or comprehension on the part of the
accused. No hard and fast rules can be laid down as to when or to what extent a court should intervene on
behalf of accused persons. Each case depends upon its own circumstances.”
37 (1992) 177 CLR 292; see also R v Zorad (1990) NSWLR 91 at 95.