Judgement declared null after plea bargain was ignored

A Sudanese man jailed for three-and-a-half years after he was found carrying five grams of cannabis has had the judgement declared null on appeal after a magistrate ignored his plea bargain.

Adil Hassan Mohammed, 27, had filed his appeal shortly after the judgement in November last year in which he argued that the prosecution and defence counsel had agreed on a jail term of one year and then ended up getting three times that.

Lawyer Jose Herrera told Mr Justice Michael Mallia that the plea bargain was noted down in the acts of the proceedings and that the surprise of receiving considerably more jail term was counter productive to the justice system.

It was not fair on the lawyers because they would have advised their client on what was the best way to proceed, especially when considering that it was only a minor amount of drugs involved.

Mr Justice Mallia said that while the magistrate had the right by law not to follow or agree with the plea bargain, the magistrate had to inform the parties this was the case so that the lawyer could further advise his client.

"The courts are not there to catch one side or the other on the wrong foot or to take advantage of this and then with a surprise mete out a punishment that either party is not expecting", the judge said.

The judge declared the judgement null and ordered that the proceedings are heard from the beginning.

In a statement, lawyer Jose Herrera said that he has been bringing up the issue before parliament for more than 12 years and his efforts were conducive for the relative amendments to be included in the criminal code and this by article 453A of Act 111 2002.

He added that "as usual and unfortunately so the law finally introduced was half baked. Amazingly for no reason what so ever; the amendment in the law did not refer to the proceedings before the Courts of Magistrates. I emphasise amazingly since 98% of all criminal cases are dealt with before the inferior courts.

"I must reiterate that as logic would have it the vast majority of our magistrates in a de facto manor have embraced plea bargaining. On the other hand, however, and amazingly so a minority of Magistrates refuse outright to give any value to plea bargaining", he said.