RECORD LOST IN APPEAL

S v SCHOOMBEE AND ANOTHER 2017 (2) SACR 1 (CC)

 

Appeal — Record — Lost, destroyed or incomplete — Where adjudication of appeal on imperfect record does not prejudice appellant, conviction need not be set aside solely on basis of error or omission in record or improper reconstruction process.

The applicants were convicted in the High Court of murder and were sentenced to life imprisonment. When they attempted to appeal, they discovered that the record of their trial proceedings had been lost. The registrar, however, gave them a record that had been reconstructed by the trial judge based on his extensive notes. Despite their having not participated in the reconstruction, they chose to proceed on appeal. The full court dismissed the appeal and the Supreme Court of Appeal refused further leave to appeal. In the present proceedings, they sought direct access to challenge the sentence of the first applicant, and both conviction and sentence in respect of the second applicant, on the basis that the proceedings were fundamentally flawed as the reconstructed record that served before the full court was inadequate. They contended that this amounted to a violation of their constitutional right to a fair trial.

Held, the court did not need to decide whether the applicants’ decision to proceed with the appeal on the basis of the record as reconstructed amounted to a waiver, because they had had a fair trial, including a fair appeal. Although the record of the trial was improperly and imperfectly reconstructed, it was still more than adequate to ensure that the applicants were able to exercise their constitutional right of appeal. The judge’s notes were unusually full and detailed and contained a complete narrative of the evidence including the cross-examination.

Held, further, that where adjudication of an appeal on an imperfect record did not prejudice the appellants, their convictions did not need to be set aside solely on the basis of an error or omission in the record or an improper reconstruction process (see [29]).

Held, further, that this, however, did not detract from the magnitude of the lapses that had taken place in reconstructing the record. The High Court failed to ensure that the reconstruction process involved both parties, as was required of it. The loss of trial records was a widespread problem and raised serious concerns about endemic violations of the right to appeal. When reconstruction was necessary, the obligation lay not only on the appellant, but primarily on the court, to ensure that the process complied with the right to a fair trial. It was an obligation that had to be undertaken scrupulously and meticulously in the interests of criminal accused as well as their victims (see [38]). The application for leave to appeal was dismissed.

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