Judgment No. CCZ 13/2015 18 Const. Application No. CCZ 56/13 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. …” [52] In considering whether or not a permanent stay is warranted, this Court takes note of the following: 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; that all that remained was the pronouncement of sentence; 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; that the disappearance of the record largely contributed to the delay; that the circumstances surrounding the commission of the offence were largely admitted by the applicant during the trial and finally that the trial judge is in a position to reconstruct the missing part of the record. [53] 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 (supra); Wells v R [2010] VSCA 100; Wells v R (No 2) [2010] VSCA 294; Aydin v R [2010] VSCA 190; S v Tandiwe Sibanda HH 80/91. [54] The lengthy delay experienced in the completion of this case, occasioned almost entirely by the suspicious disappearance of the record of the proceedings, cannot