Omotoso trial: Bar Council cannot discipline defence lawyer for alleged misconduct
24 October 2018
The General Council of the Bar (GCB) said that it would be inappropriate to deliver a verdict on whether the lawyer for rape accused Timothy Omotoso displayed misconduct when cross-examining rape victim Cheryl Zondi, as he is not an advocate.
Defence lawyer Peter Daubermann has been criticised widely for cross-examining Zondi in a manner considered to be "inappropriate" and "victim-insensitive".
Daubermann was slammed for asking her whether "she had a jolly time" during the alleged rape ordeal and "how many centimetres" she had been penetrated.
"The GCB's comments are twofold. First, we would like to correct the claim that Mr Daubermann is an advocate and member of the bar. He is neither. Mr Daubermann is an attorney from Port Elizabeth. The governing body of attorneys is the relevant Law Society and is soon to be the Legal Practice Council (LPC)," the GCB said in a statement.
"Secondly, while cross-examination is an important tool in the hands of a criminal defence lawyer, and a very powerful tool at getting to the truth, there are ethical constraints on its permissible use."
It added that while the GCB stands for the right of counsel to fearlessly advance his or her client's case, counsel must act within well-established limits.
Improper questions and arguments
"A defence lawyer's duty is one of zealous advocacy, but always within the bounds of legality, not zeal unbounded," read the statement.
"Most significantly, cross-examination is ethically limited by the requirement that it not be abusive or degrading and that it is respectful of the rules of ethics and evidence. Questions must have a good faith basis and they must explore matters that are relevant and admissible."
All participants in a rape trial must establish boundaries when defending people accused of rape, as the private nature of the crime makes the truth difficult to find.
"Defence lawyers need to refrain from asking improper questions or making improper arguments and when they do, prosecutors need to object to inappropriate cross-examination, and judges need to sustain those objections when defence lawyers go too far," the GCB said.
The bar explained that it had not investigated the complaints levelled against Daubermann's conduct as he is not an advocate nor a member of the bar.
"In conclusion, we stress that it would not be proper for the GCB to deliver a verdict as to whether in any specific pending matter counsel has exceeded the bounds of permissible conduct," the GCB said.
"It is for the presiding judge to ensure that witnesses are treated fairly and with dignity, particularly in matters such as this."
