In rough terms, the sequence of events of a criminal proceeding and the part played by your defence counsel:
The police or public prosecutor is informed that a crime has been committed and takes up the investigation. The investigation consists of gathering all types of information which will either confirm or refute the charge, or will make it appear unlikely.
This will your defence counsel do: Your lawyer will explain to you the sequence of events of the proceedings and your rights, and recommend how you should best respond. He will apply for access to the records, discuss with you the incriminating information against you in the official investigation file, check whether there is any exonerating evidence and whether the charge is legal. Armed with this information your defence counsel will then work out a defence strategy with you.
The public prosecutor evaluates the information gathered during the investigation and makes a decision whether the matter should proceed and if so, what form it should take. There are three basic options to decide from:
- The charge is withdrawn.
- The public prosecutor applies for the issue of a summary sentence (a summary sentence is the suggestion of a verdict without going to trial).
- The public prosecutor brings in a formal charge.
This will your defence lawyer do: Before the public prosecutor decides on any of the three options, your lawyer will check the results of the investigation to date from a legal and content point of view. If the matter is ready for a decision to be made, your defence counsel will work towards having the charge against you withdrawn.
As it is easier to make a decision than to reverse a decision which has already been made, it is very important that a defence counsel is engaged as soon as possible. Only in this way can he succeed in influencing the public prosecutor’s decision. If punishment should prove to be unavoidable, the lawyer will investigate whether a favourable summary sentence would be preferable to a court case. Where appropriate your defence counsel will negotiate with the public prosecutor about a summary sentence and what this should be.
If you only engage a defence counsel after a summary sentence has been served, he will lodge an objection within the legal time limit of two weeks after the summary sentence has been served, will apply for access to the records and will discuss with you the next course of action or defence strategy.
If the public prosecutor is set on bringing a charge, your lawyer will try to ensure that this happens in front of the lowest court possible (local court rather than regional court), so that firstly the penal power of the court invoked is as low as possible, and secondly, there is the possibility of an appeal.
Formal charges have been laid and a court hearing will be held.
This will your defence lawyer do: Your lawyer will prepare you for the trial and discuss your defence strategy. During the court hearing he will ask the relevant questions in an effort to check the credibility of, or to shake witness statements.
Where possible your defence counsel will present evidence to exonerate you such as witnesses or documents, and where appropriate will make applications to exonerate you. If by way of an exception only a confession can lead to a lighter sentence, your defence counsel will watch for the most convenient time for a confession.
If for any reason during the proceedings it makes sense for you to issue a statement, your defence counsel will check whether you should submit this verbally yourself, or whether it would be preferable that your defence counsel reads out a written statement from you, or submits a verbal statement on your behalf.
When summing-up (address by counsel) your lawyer will assess the conclusions of the hearing of evidence to your advantage and will try to convince the court to acquit you or at least to give you the lightest possible sentence.
You are not satisfied with the verdict.
This will your defence lawyer do: Your lawyer will discuss with you prospects of success of a legal remedy (appeal on an issue of law or general appeal) and where appropriate will lodge the most promising legal remedy on your behalf.