After considering the papers filed of record and hearing
counsel, this Court issued the following order:
“It is ordered that:
1. The application for the trial of the applicant in case
number CRB 8/2000 to be permanently stayed be and is hereby dismissed.
2. The matter is remitted to the trial judge at the ...
After considering the papers filed of record and hearing
counsel, this Court issued the following order:
“It is ordered that:
1. The application for the trial of the applicant in case
number CRB 8/2000 to be permanently stayed be and is hereby dismissed.
2. The matter is remitted to the trial judge at the High
Court, Harare, for the reconstruction of the missing record, to include the
reasons for conviction, proceedings and findings on the question of extenuation
and thereafter for him to pass sentence.
3. The reasons for this order will follow in due course.
4. There be no order as to costs.”
What follows are the reasons for the above order.
Owing to the long and tortuous journey that this matter has
trudged, it is necessary to set out the background in some detail, as such
background explains, to a large extent, why this Court issued the above order.
FACTUAL BACKGROUND
In August 1998, the applicant and two other co-accused were
arrested on allegations of murder and armed robbery committed at Chiwaridzo
Bottle Store located at Chipadze Township, Bindura. They were placed on remand.
Their application for bail was dismissed. The applicant has been in custody
since then.
The criminal trial commenced sometime in September 2001
before JUSTICE HUNGWE and two Assessors. The applicant, who was legally
represented by pro deo counsel,
initially Mr Julian Colegrave, and,
thereafter, Mr Makuyana, pleaded not
guilty to two counts of murder. He, however, admitted taking part in the
robbery in the company of two others, one of whom was armed. Evidence was led
by both the State and defence. The defence case was closed on a date not known
but either in 2003 or 2004.
In July 2013, the applicant filed the present application
seeking a permanent stay of the criminal proceedings instituted against him,
and, as a corollary, an order releasing him forthwith from custody. He alleged
that the failure by the State to complete his trial, ten years after the
closure of the State case and fifteen years after his arrest, constituted a
violation of his rights enshrined in section 50 and section 69 of the current
Constitution.
PROCEEDINGS BEFORE THIS
COURT
In his founding affidavit, the applicant averred that the
record of the proceedings had gone missing together with the transcript of the
proceedings. Attempts to reconstruct the record by the Registrar were
unsuccessful. Owing to the lengthy delay in the finalisation of his trial, the
fact that the record of the proceedings had gone missing and the prejudice that
he stands to suffer were a trial de novo to
take place, he prayed for an order permanently staying the criminal proceedings
against him.
On 22 January 2014, this Court sat to hear submissions on
the application. The State advised the Court that it had not been possible to
obtain an affidavit from the Registrar of the High Court explaining the status
of the record of proceedings. By consent of both parties, the matter was
postponed sine die and an order made
for the Registrar of the High Court to file an affidavit, within thirty days,
to clarify the status of the record and, if lost, the effort made to
reconstruct the record. The Court also ordered the trial judge to furnish,
through affidavit, the reasons for the delay in the finalisation of the matter.
In response thereto, the Acting Registrar of the High Court
of Zimbabwe advised, by affidavit, that the record, as transcribed, and the
judge's note books, had gone missing. The cassette tapes used to record the
proceedings had been erased after the transcription and re-used in other cases.
Whilst a number of documents had been availed to assist in the reconstruction,
the record on the evidence led was not available.
In his response, the trial judge, also by affidavit, stated
that after the closure of the defence case and the hearing of closing
arguments, he convicted the applicant on two counts of murder and one of
robbery. One of the three accuseds had
passed on before judgment. He acquitted the remaining accused. After hearing
submissions on the question of extenuation, he made a finding that were no such
circumstances as both counts of murder had been committed in cold blood and in
the course of a planned robbery. On the record of the proceedings which has
gone missing, he expressed the view, without substantiation, that the
circumstances suggested collusion between the applicant and officers at the
High Court to ensure that the matter was not concluded.
The applicant, exasperated by what he considered were
unfounded allegations made by the trial judge against him, in a supplementary
affidavit, denied that he had ever been convicted and that the proceedings had
been postponed so that sentence could be pronounced. He stated that nothing
further had happened after the closure of the defence case. He denied the
suggestion that he may have had anything to do with the disappearance of the
record of the proceedings, citing lack of capacity on his part, owing to the
fact that he has always been in custody.
The matter was again set down before this Court on 12 March
2014. It became clear from the submissions made during that hearing that there
was a dispute as to how far the matter had gone and whether it was still
possible for the record of the proceedings to be reconstructed. The State
however advised the Court that, at a meeting attended by both sides in the
trial judge's chambers, the latter had indicated that he was able to
reconstruct the record of proceedings using notes provided by the prosecution.
Following this revelation, this Court again postponed the matter and issued
another order directing the Registrar of the High Court to attend to the reconstruction
of the record, within thirty (30) days, with the assistance of both the State
and Defence counsel, the Assessors and other officials who had a role to play
in the criminal proceedings.
Following upon the above order of this Court, a number of
affidavits were filed:
14.1 Faith Rutendo
Matuku, a legal process transcriber who transcribed tape numbers 11 to 22
(tape numbers 1-10 having been transcribed by Miss Mufakose – now late) stated in her affidavit that, as far as
she recalls, the proceedings went as far as judgment and extenuating
circumstances.
14.2 Florence
Ziyambi, the trial prosecutor, stated that in 2003 the applicant and
another accused were convicted of murder with actual intent after which
submissions were made on the question of extenuation. The matter was then
postponed for a ruling on the question of extenuation and passing of sentence.
During the proceedings she took notes of all the proceedings. The notes were
contained in three note books, which she marked I, II and III. Following the
disappearance of the record, and, in order to assist with the reconstruction of
the record, she availed the notebooks to the Acting Registrar of the High
Court, a Mr Makomo. When she later requested for the notebooks, she received
only the first two. The third, which contained notes on the judgment and
submissions on extenuation, could not be located. She arranged for a
transcription of the first two notebooks. A copy of that transcript has been
filed with this Court.
14.3 Tatenda Mawere,
who was a partner in the law firm representing the applicant, stated that, at
the close of the State case, the applicant's counsel, Mr Makuyana, handed over the file to him as he was
leaving the country to work at their Botswana office. He too had to shuffle
between Zimbabwe and Botswana as he, like Mr Makuyana, was trying to make ends meet during the economic meltdown that
gripped the country before dollarization. He handed all the files, including
the applicant's, to a professional assistant working in the office. He stated
that, so far as he can recollect, he was never advised to come to court for the
verdict. Following the filing of this application and after diligent search,
the file could not be located in their office. He was unable to state
categorically whether there had been a conviction.
14.4 Munyaka Wadaira
Makuyana, who was the applicant's
legal practitioner during the trial, confirmed that the file opened by the law
firm in respect of the applicant had disappeared. He also confirmed that he had
gone through the transcript prepared using the notes taken by Mrs Florence
Ziyambi and that the transcript is a fair representation of what took place
during the State case.
14.5 Felix Makudza,
the Investigating Officer, confirmed that the transcript prepared using the
notes made by Mrs Ziyambi correctly reflects the evidence he gave in Court.
14.6 Zuze Zuze,
a State witness who gave evidence during the trial and was present at the time
of the commission of the offences, also confirmed that the transcript correctly
reflects the evidence he gave during the proceedings.
14.7 Tatenda Mawere,
in a supplementary affidavit, confirms that the transcript prepared using the
notes taken by Mrs Ziyambi is a correct reflection of what happened during the
accused's person's evidence in chief.
The application was then set down for hearing on 14
September 2014.
At the hearing, both parties were agreed that the record of
the proceedings transcribed with the assistance of the notes made by Mrs
Ziyambi was accurate. However, the parties were not agreed on whether or not
the applicant had indeed been found guilty of murder and robbery and what
remedy should follow.
At the hearing, the applicant submitted that a not guilty
verdict had been returned. In the alternative, that even if there was such a
verdict, a permanent stay would still be warranted as the record of the
proceedings remains incomplete and no-one can say with any degree of certainty
what transpired after the closure of the defence case.
The State opposed the grant of a permanent stay, pointing
out that the trial judge, the trial prosecutor, Assessor and transcriber had
all deposed to the fact that a verdict of guilty had been returned.
Whilst accepting that there had been some prejudice owing
to the delay in the finalisation of the matter, the State submitted that the
interests of justice would be seriously prejudiced were the applicant to be set
free, particularly in light of the fact that the trial judge had indicated that
he was in a position to reconstruct the remaining portion of the proceedings.
The State further submitted that the totality of the facts suggested that
someone had gone to great lengths to ensure that the record was destroyed and
that the only person who stood to benefit from the disappearance of the record
is the applicant. To release him in these circumstances would set a dangerous
precedent as it would encourage persons undergoing trial to arrange for the
disappearance of the record of proceedings in the belief that they would
ultimately get a permanent stay of the proceedings. In the circumstances, the
State submitted that the Court should order the trial judge to reconstruct the
missing part of the record and thereafter proceed to pass sentence.
This Court then reserved judgment.
WHETHER THE APPLICANT
WAS FOUND GUILTY
Having considered all the circumstances of this case, the
Court was satisfied that the appellant had, indeed, been convicted and that
submissions on the issue of extenuation were made. Under oath, the trial judge
stated that he convicted the applicant of murder with actual intent and that,
following submissions by both parties, he found no extenuating circumstances.
In affidavits filed pursuant to an order of this Court, the legal process
transcriber confirmed that the matter proceeded to the extenuation stage and
that no extenuating circumstances were found. The trial prosecutor, Mrs
Ziyambi, also by affidavit, confirmed that there was a conviction for murder
although it appears she could not recall whether the issue of extenuation was
determined. Moreover, one of the Assessors, Mrs Shava, also confirmed that
indeed the applicant was found guilty of murder.
Having taken into account all these documents, we were
satisfied that the trial had indeed proceeded to the stage where the trial
court made a finding that there were no extenuating circumstances. For some
reason, which remains unclear, the actual sentence of death (which requires
certain formalities) had not been passed.
WHETHER THE REMAINING
PORTION OF THE RECORD CAN BE RECONSTRUCTED
All the parties were agreed that the transcript of the
proceedings that was prepared using Mrs Ziyambi's trial notes is correct. The
transcript captures what happened during the trial proceedings up until the
close of the defence case.
In submissions before this Court, the State indicated that,
at a conference held in the presence of both parties, the trial judge had
indicated that he was in a position to reconstruct the remaining portion of the
record of the proceedings.
This Court therefore accepted, as a fact, that
notwithstanding the various difficulties that had been encountered in trying to
reconstruct the record, such reconstruction was possible. Moreover, the
circumstances surrounding the commission of the offences were not seriously in
dispute. In the trial before the High Court, the applicant had admitted
undertaking a journey from Marondera, in the company of five others, to
Bindura, with the sole purpose of committing acts of robbery and theft. He
admitted going to Chiwaridzo Bottle Store in the company of one Evans and one
Bonga and that he was aware that Evans was armed with a pistol. He admitted
that, whilst in the company of Evans, he had participated in the robbery and
had told the patrons to lie down on the floor. He accepted that when the
deceased, Konje, confronted him saying the weapon they had was a toy and
following an assault on him by Konje with a beer bottle, Evans had then fired
the shot which killed the deceased. The applicant admitted that after this
shot, he jumped over the counter and seized a cash box containing the day's
takings.
A reconstruction of the remaining portion of the record is
therefore possible.
WHETHER THE APPLICATION
FOR PERMANENT STAY IS WARRANTED
The factors to be considered in an application of this
nature are settled. These are;
(a) The length of the delay;
(b) The reasons given by the State for such delay;
(c) Whether the applicant asserted his rights to a speedy
trial; and
(d) The prejudice to the accused caused by the delay.
In order to determine whether the delay is reasonable or
not, a Court must endeavour to strike a balance between these factors. In
general, no one factor can, on its own, justify an inference that the delay is
unreasonable. The balancing test involves balancing the conduct of both the
State and the accused on a scale –S v Banga
1995 (2) ZLR 297 (S); In re
Mlambo 1991 (2) ZLR 399 (SC)…,.
I proceed to consider each of the factors in turn.
THE LENGTH OF THE DELAY
At the time of the hearing of this application, the applicant
had been in custody for approximately fifteen and a half years. He had been a
convicted prisoner for about ten years. The delay was certainly inordinate and
both parties to this application are agreed that the delay was, as far as we
are aware, unprecedented and certainly presumptively prejudicial.
THE EXPLANATION FOR THE
DELAY
The reason for the delay has already been touched upon. The
original transcript of the proceedings went missing in mysterious circumstances
and the tapes used in the transcription were erased – also in unclear
circumstances. The trial judge's own handwritten record suffered a similar
fate. The applicant's legal practitioner's file containing the notes made
during the proceedings also disappeared without trace. When the Attorney–General's Office availed
three notebooks to the Acting Registrar, in 2013, to assist in the
reconstruction of the record, the third notebook – containing the notes on the
judgment and submissions and findings on extenuation, also went missing. It was
only after three orders of this Court that a transcript of the proceedings up
to the stage of the close of the defence case was made available by the
Registrar of the High Court and confirmed as correct by both the witnesses who
gave evidence during the trial and the applicant's erstwhile legal
practitioners. Whilst it is by no means clear on the record before us as to
when the transcript of the proceedings and the trial judge's notes went
missing, it is however apparent that the disappearance of the record largely
contributed to the delay.
WHETHER THE APPLICANT
ASSERTED HIS RIGHTS
There is evidence that the applicant complained to at least
three High Court judges about the delay after the year 2008. The first
complaint was made to a judge during a prison visit. The other two were made
during bail applications in the High Court. All were of the opinion that, since
this was a matter where all the evidence had been heard by HUNGWE J, the issue
of the delay was better dealt with by the trial judge. The referral of the
complaint by these judges to HUNGWE J did not produce any results. Thereafter, it was discovered that the
transcript of the record of the proceedings, as well as the judge's notes, had
both mysteriously gone missing.
The applicant had been represented by pro deo counsel during the trial proceedings.
It is common cause that his counsel thereafter left the country to work in
Botswana but left the file at the offices of the law firm. The file was then
re-allocated to a legal assistant in the law firm.
What happened to it thereafter is unknown.
Whilst I accept, as a general proposition, that a person
who seeks a permanent stay of the criminal proceedings in which he is an
accused, must assert his rights and that failure to do so will make it difficult
for him to prove that he was denied a speedy trial, I am not convinced in this
case that the applicant was in a position to do more than complain to the High
Court judges. His lawyer, representing him pro deo, never demanded that this
matter be determined. After the legal practitioner left the country, no other
legal practitioner from the firm pursued the matter.
It is moot whether the applicant received the best
representation possible in the circumstances from his erstwhile legal
practitioners….,.
In the above regard, it is important to bear in mind the
remarks of KRIEGLER J in Sanderson v Attorney–General, Eastern Cape 1998 (2) SA
38 (CC), 53 E-G that:
“…, one should not resort to the Barker test without
recognising that our society and our criminal justice system differ from those
in North America. Nor should one, for instance, adopt the “assertion of right”
requirement of Barker without making due allowance for the fact that the vast
majority of South Africans accused are unrepresented and have no conception of
a right to a speedy trial. To deny them relief under s 25(3)(a) because they
did not assert their right would be to strike a pen through the right as far as
the most vulnerable members of our society are concerned. It would be equally
unrealistic not to recognise that the administration of our whole criminal
justice system, including the law enforcement and correctional agencies, are
under severe stress at the moment.”
I am therefore of the view that although the applicant did
not assert his rights in the sense in which the term is used, one must remain
alive to the fact that he was represented by pro deo counsel who eventually left the country for Botswana and no legal
practitioner in the law firm considered it his responsibility to ensure that
the matter was concluded.
The failure by the applicant to assert his rights in these
circumstances is not one that should weigh heavily against him.
WHETHER THE APPLICANT
HAS BEEN PREJUDICED BY THE DELAY
The question of prejudice is to be assessed in the light of
the interests of the applicant which the speedy trial right was designed to
protect. Three such interests have been identified by this Court:
(a) To prevent oppressive pre-trial incarceration;
(b) To minimise anxiety and concern on the part of the
accused; and
(c) To limit the possibility that the defence will be
impaired.
See Barker v Wingo 407
US 514 (1972)…, cited with approval in Fikilini v Attorney General…, and in In re Mlambo 1991 (2) ZLR 399 (SC)…,.
The two questions of oppressive pre-trial incarceration and
the possibility of impairment of the applicant in conducting his defence do not
arise in the present matter. This is for obvious reasons. Once the applicant
was found guilty and no extenuating circumstances found in 2003 or 2004, the
question of oppressive pre-trial incarceration cannot therefore arise. So too
is the consideration that the applicant would be impaired in conducting his
defence, for there was no further evidence to be led or witnesses to be called.
That the applicant must have suffered considerable anxiety
for the duration of his incarceration cannot be doubted.
In his affidavit, the applicant says the church that he had
founded has collapsed, whilst two of his four wives have died of aids-related
illnesses as they had to engage in sexual immorality to fend for themselves in
his absence. His eldest son also committed suicide.
As GUBBAY JA stated in In re Mlambo 1991 (2) ZLR 399 (SC)…,.;
“The right, therefore, recognises that, with the passage of
time, subjection to a criminal charge gives rise to restrictions on liberty,
inconveniences, social stigma and pressures detrimental to the mental and
physical health of the individual.”
A court may quite properly infer or presume prejudice,
where such is not proven - In re
Mlambo 1991 (2) ZLR 399 (SC)…,.
In the Canadian case of R v Askov [1990], 2 S.C.R 1199, 1232, CORY J remarked that there is a:-
“…, general, and in the case of very long delays an often
virtually irrefutable presumption of prejudice to the accused resulting from
the passage of time.”
In Mills v The Queen [1986]
1 SCR 863,919…, another Canadian case, the concept of security of the person
was said to encompass protection against:
“Overlong subjection to the vexations and vicissitudes of a
pending criminal accusation” which include:
'stigmatisation of the accused, loss of privacy, stress and
anxiety resulting from a multitude of factors including possible disruption of
family, social life and work, legal costs, uncertainty as to outcome and sanction.
These forms of prejudice cannot be disregarded nor minimised when assessing the
reasonableness of delay.'”
THERE MUST BE GOOD
REASON FOR A STAY TO BE GRANTED
A further general principle that must be borne in mind in a
case of this nature is that, whilst each case must be decided on its merits,
the grant of a permanent stay is an exceptional remedy – Clipsal Australia
(Pty) Ltd v Gap Distributors (Pty) Ltd 2009
(3) ALL SA 491 (SCA); 2010 (2) SA 289 (SCA).
In Wells v Queen [2010] VSCA 100, the Supreme Court of
Victoria (Australia) accepted that it is only in an exceptional or extreme case
that a court would grant a permanent stay on the basis that such proceedings
constituted an abuse of process and that the test to be applied is:
“'Whether, in all the circumstances, the continuation of
the proceedings would involve
unacceptable injustice or unfairness', or whether the continuation of the
proceedings would be 'so unfairly and
unjustifiably oppressive' as to constitute an abuse of process.”
The power to stay proceedings permanently may be exercised:
“Where either the foundation of the prosecution or the
bringing of the accused to justice is tainted with illegal action or gross
violation of the rights of the individual making it unacceptable for justice to
embark on its course.”
ICC 01/04-01/06-772, (Appeals Decision) para 30-31, The
Prosecutor v Thomas Lubanga Dyilo (International
Criminal Court), 14 December 2006.
In Attorney General's Reference (No.2 of 2001) [2003] UKHL
68, LORD WOOLF stated:
“…, if there has been prejudice caused to a defendant which
interferes with his right to a fair trial in a way which cannot otherwise be
remedied, then of course a stay is an appropriate remedy. But, in the absence
of prejudice of that sort, there is normally no justification for granting a
stay.”
In Police v Sherlock 2009 SASC 64, a decision of the
Supreme Court of South Australia, the court cited with approval remarks that:
“The justification for staying a prosecution is that the
Court is obliged to take that extreme step in order to protect its own
processes from being used for purposes alien to the administration of criminal
justice under law. It may intervene in this way if it concludes from the
conduct of the prosecutor…, that the Court processes are being employed for
ulterior purposes or in such a way…, as to cause improper vexation and
oppression. The yardstick is not simply fairness to the particular accused. It
is not whether the initiation and continuation of the particular process seems,
in the circumstances, to be unfair to him. That may be an important
consideration. But the focus is on the misuse of the Court process by those
responsible for law enforcement. It is whether the continuation of the
prosecution is inconsistent with the recognised purposes of the administration
of criminal justice and so constitutes an abuse of the process of the Court.”
The Court further added that:
“The power will be used only in most exceptional
circumstances to order that a criminal prosecution be stayed.”
SOCIETAL INTEREST
There will also always be the interests of society to be
taken into account in any “balancing” of the factors that have been cited with
approval by this Court since Fikilini v Attorney-General…,.
In In re Mlambo
1991 (2) ZLR 399 (SC), GUBBAY CJ cited with approval the remarks of CORY J in R
v Askov [1990], 2 S.C.R 1199, 1232…,
that:-
“…,. It can never be forgotten that the victims may be
devastated by criminal acts. They have a special interest and good reason to
expect that criminal trials take place within a reasonable time. From a wider
point of view, it is fair to say that all crime disturbs the community and that
serious crime alarms the community. All members of the community are thus
entitled to see that the justice system works fairly, effectively and with
reasonable dispatch. The very reasonable concern and alarm of the community
which naturally arises from acts of crime cannot be assuaged until the trial
has taken place. The trial not only resolves the guilt or innocence of the individual,
but acts as a reassurance to the community that serious crimes are investigated
and that those implicated are brought to trial and dealt with according to the
law.”
In R v Askov [1990],
2 S.C.R 1199, 1232…, CORY J discussed the “community or societal interest” in
the following terms:-
“Community interest has a dual dimension. First, there is a
collective interest in ensuring that those who transgress the law are brought
to trial and dealt with according to the law. Second, those individuals on trial
must be treated fairly and justly. Speedy trials strengthen both those aspects
of the community interest.”
DISPOSITION
Whilst accepting, as one must, that the applicant has been
in custody for an unconscionably lengthy period of time, it is clear, from what
has been said before, that this was due mainly to the fact that the record of
the proceedings mysteriously went missing and subsequent attempts to
reconstruct the record were further frustrated after the documents that were to
be used in such reconstruction also went missing. The record was only reconstructed using two
of three notebooks supplied by the trial prosecutor.
The delay is clearly not the fault of the State.
It is apparent that some unknown person, possibly with the
assistance of persons working in the system, went to great lengths to ensure
that the record of the proceedings was irretrievably lost. Whilst it will be
unfair to suggest, as did the trial judge, that the applicant had anything to
do with such disappearance it is, however, clear that the only person who
stands to benefit from a situation where the record is irretrievably lost is
the applicant.
The facts of this case illustrate, as observed by GUBBAY CJ
in In re Mlambo 1991 (2) ZLR 399 (SC), that the system has shortcomings…,.
The disappearance of the record could not have been avoided, and, though
occasioned by the activities of some unknown persons but who were obviously
intent on making sure the record was permanently lost and that it could not be
reconstructed, constituted a systemic delay.
Indeed, in In re Mlambo 1991
(2) ZLR 399 (SC)…, GUBBAY CJ cited with approval the remarks by POWEL J in Barker
v Wingo 407 US 514 (1972) that:
“…,. Finally, a valid reason, such as a missing witness
should serve to justify appropriate delay.”
In Police v Sherlock 2009 SASC 64, the Supreme Court of
South Australia accepted that obstacles to a fair trial may be encountered and
that it is not always possible to achieve a perfect trial. The Court cited with
approval remarks by MASON CJ in Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR, 23 that:
“Obstacles in the way of a fair trial are often encountered
in administering criminal justice. Adverse publicity in the reporting of
notorious crimes…., revelations in a public inquiry…., absence of competent
representation…., or the death or unavailability of a witness, may present
obstacles to a fair trial; but they do not cause the proceedings to be
permanently stayed. Unfairness occasioned by circumstances outside the court's
control does not make the trial a source of unfairness. When an obstacle to a
fair trial is encountered, the responsibility cast on a trial judge to avoid
unfairness to either party but particularly to the accused is burdensome, but
the responsibility is not discharged by refusing to exercise the jurisdiction
to hear and determine the issues…,.”
In considering whether or not a permanent stay is
warranted, this Court takes note of the following:
(i) That the applicant was convicted of murder committed
with actual intent in the course of an armed robbery and that no extenuating
circumstances were found to exist;
(ii) That all that remained was the pronouncement of
sentence;
(iii) That the record of the proceedings up to the close of
the defence case has, fortuitously, been reconstructed using note books
provided by the trial prosecutor;
(iv) That the disappearance of the record largely
contributed to the delay;
(v) That the circumstances surrounding the commission of
the offence were largely admitted by the applicant during the trial; and,
finally
(vi) That the trial judge is in a position to reconstruct
the missing part of the record.
Case law authority is agreed that it will be in rare cases
where the destruction or disappearance of evidence will justify a permanent
stay. The court must endeavour to reconstruct the record on the evidence
available, despite any loss of documents or death of witnesses –see R v Edwards (2009) 83 ALJR 717; Hodder v Public
Transport Authority [2009] WASC 293; Police
v Sherlock 2009 SASC 64; Wells v R [2010]
VSCA 100; Wells v R (No.2) [2010] VSCA 294; Aydin v R [2010] VSCA 190; S v Tandiwe Sibanda HH80-91.
The lengthy delay experienced in the completion of this
case, occasioned almost entirely by the suspicious disappearance of the record
of the proceedings, cannot justify the grant of a permanent stay of the
proceedings, particularly in light of the fact that such record of proceedings
can be reconstructed.
In light of the above, this Court was of the view that this
was a proper case for the matter to be referred back to the trial court for the
reconstruction of the missing part of the record and thereafter for sentence to
be passed.
Consequently, the court issued the order
reflected in paragraph 1 of this judgment.