Law:

Section:

Appeal (Criminal)--- ----Fair trial---Appeal against conviction---Incomplete trial record---Complete record of evidence recorded by Trial Court missing and not sent to the Appellate Court---Appellate Court convicting accused despite missing evidence---Question as to whether right of accused to a fair trial was infringed---Accused was alleged to have assaulted the deceased which allegedly caused the latter's death---Evidence of the main witness before whom the accused confessed to the assault was critical in the prosecution case---Trial Court acquitted the accused of assault but found him guilty of murder---Accused appealed to the High Court against his conviction and sentence---State failed to deliver a full record to the High Court---Attempts to reconstruct the record of Trial Court failed---Part of the evidence missing from the record included the main witness's evidence in the Trial Court before whom the accused allegedly confessed to the assault---High Court held that the absence of the transcript of main witness's evidence in the appeal record was not such that the High Court could not fairly determine the appeal, therefore, it upheld the conviction of murder and rejected the accused's argument that in the absence of the missing evidence he could not have had a fair trial; Per Zondo, JUSTICE(Majority view): Main witness's evidence in Court was critical to his conviction by the Trial Court and without the transcript of that evidence, there could be no fair appeal for the accused---Witnesses' account before the police and her evidence before the Trial Court differed vastly---Version narrated by the witness before the police when she was in a romantic relationship with the accused did not implicate him in murder but what she told the Trial Court three years later when they had broken up seriously, implicated him in murder---Trial Court appeared not to have considered such discrepancy in her evidence---In the absence of a transcript of the trial proceedings or any reconstruction of the record of the trial proceedings, an appeal court could not know whether the witness ever explained the discrepancy and how she explained it---Without knowing whether the witness…

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