Sexual offenders must have legal counsel too, says lawyer

PETALING JAYA: A lawyer has proposed that unrepresented child sexual offenders who wish to plead guilty to multiple charges be assigned counsels to prevent any miscarriage of justice.

Salim Bashir said the appellate court could order an acquittal or retrial if there were any defects before the trial judge.

“It is time that such offenders who are unrepresented be given a counsel to mitigate before the court imposes a punishment,” he told FMT.

Salim said sexual offenders charged with several counts would be staring at long prison terms which could also amount to natural life jail terms.

He was responding to reports that a 38-year-old man who pleaded guilty to 623 counts of sexual offences against his 15-year-old daughter was now seeking a retrial.

The High Court in Kuala Lumpur last week reduced the man’s jail term from 48 to 40 years and maintained the 24 strokes of the rotan he would receive.

However, lawyer Rajesh Nagarajan said an appeal would be filed in the Court of Appeal as the accused claimed he pleaded guilty to the charges after being assaulted by prison officers.

Rajesh said his client was confused as the charges were framed under various sections of the Penal Code and the Sexual Offences Against Children Act 2017.

The man was unrepresented when he was given the initial charge before a Special Court in Putrajaya last year. He was convicted of 591 counts of sodomy, 30 counts of physical sexual abuse, one charge of rape and one of sexual assault.

Salim said Section 172 (B) of the Criminal Procedure Code allowed the court to take proactive steps to ensure that the accused engaged a lawyer of his choice or received a counsel from the National Legal Aid Foundation (YBGK) or the Malaysian Bar’s legal aid bureau.

“No plea of guilt should be taken without the presence of a lawyer as justice is not only for the victim but also for the accused person,” he said.

He added that a conviction could be set aside if the accused did not understand the nature and consequences of an offence or if the plea of guilt was given involuntarily.

“The plea of guilt must be taken in a language that the accused is comfortable with,” he said, adding that it would be an injustice for the court to merely acquit the accused on technical grounds.

“It would also be a waste of time and resources if the court orders a retrial.”

Lawyer Sreekant Pillai agreed that the court should step in to assist the accused if he was without a lawyer.

“The judge should personally or through an interpreter ask the accused whether he intends to get a lawyer before the sentence is passed. In some instances, this is not done.”

He added that a lawyer must be made available as the court was entitled to impose a jail term that could run either consecutively or concurrently.

“This is where the presence of counsel is important to mitigate on behalf of the accused while the prosecutor will request for a deterrent sentence on public interest.”

However, he said he was against the court assigning sexual offenders with a lawyer as the sentence did not carry the death penalty.

“The accused must be given adequate time to look for a counsel of his choice or engage a lawyer from YBGK or the legal aid bureau. He must have access to justice even when admitting to the crime,” he said.