S v Tshubane (260/2008) [2008] ZAFSHC 118 (11 September 2008)

S v Tshubane (260/2008) [2008] ZAFSHC 118 (11 September 2008)

The court found that the complete absence of a trial record, confirmed by both the transcription service and the magistrate, made it impossible to review the conviction and sentence. Reconstruction was not feasible, and ordering a new trial would subject the accused to double jeopardy, as he had already served part of his sentence and been released on parole. In these circumstances, the only just course was to set aside the conviction and sentence and expunge the criminal record.

Citation
[2008] ZAFSHC 118
Parties
Applicant: The State; Respondent: Teboho E. Tshubane
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
11 September 2008
Case Number
260/2008
Procedural Posture
Criminal Review / Automatic Review After Conviction and Partial Sentence Served
Outcome
Conviction and sentence set aside; criminal record expunged.
Judges
M B Molemela, M H Rampai
Legal Topics
Record Reconstruction, Double Jeopardy, Expungement of Criminal Record
Criminal Law Civil Procedure Record Reconstruction Double Jeopardy Expungement of Criminal Record

Case Brief

Summary, issues, holding and outcome

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Parties

The State

Applicant

Teboho E. Tshubane

Respondent

Procedural Posture

Criminal Review / Automatic Review After Conviction and Partial Sentence Served

Legal Issues

  1. 1 Whether the absence of a trial record precludes review of the conviction and sentence.
  2. 2 Whether a trial de novo may be ordered when the accused has already served part of the sentence and been released on parole.
  3. 3 Whether the conviction and sentence should be set aside and the criminal record expunged.

Ratio Decidendi

The court found that the complete absence of a trial record, confirmed by both the transcription service and the magistrate, made it impossible to review the conviction and sentence. Reconstruction was not feasible, and ordering a new trial would subject the accused to double jeopardy, as he had already served part of his sentence and been released on parole. In these circumstances, the only just course was to set aside the conviction and sentence and expunge the criminal record.

Court Disposition

Conviction and sentence set aside; criminal record expunged.

Orders

  • The conviction and sentence are set aside.
  • The Head Personnel of SAPS Criminal Record Centre in Pretoria is ordered to forthwith expunge the accused person’s criminal record in respect of his conviction on two counts of assault with intent to do grievous bodily harm as effected by the Clocolan Magistrate’s Court on 2 August 2007 under case no 144/2007.