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Citation
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Judgment date
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| December 2008 |
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Leave granted to serve a notice of appeal out of time where inadvertence was promptly remedied in good faith.
Court of Appeal — Rule 8 leave to serve notice of appeal out of time — requirement to show "sufficient reason" — inadvertence coupled with prompt remedial action and good faith — service ordered within seven days.
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31 December 2008 |
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A non‑party with a proprietary interest affected by a High Court order may obtain leave to institute revision out of time when no right of appeal exists.
Appellate procedure – extension of time to institute revision out of time – non-party with proprietary interest affected by High Court order – lack of right of appeal – justifiable cause – Halais Pro‑Chemie v Wella AG applied.
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19 December 2008 |
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A second appeal filed without statutory leave and outside the 14‑day period was struck out as incompetent.
Appellate procedure — second appeal under s.5(1)(c) Appellate Jurisdiction Act — mandatory leave to appeal — failure to apply within 14 days renders Notice of Appeal incompetent — power to strike out under Court of Appeal Rules (Rule 32).
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19 December 2008 |
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Second appeals under section 5(1)(c) require leave; failure to obtain leave within 14 days warranted striking out the appeal.
Appellate jurisdiction – second appeals under section 5(1)(c) Appellate Jurisdiction Act – statutory leave to appeal mandatory – failure to apply for leave within 14 days renders notice of appeal incompetent – Rule 82 Court of Appeal Rules – striking out for failure to take an essential step.
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19 December 2008 |
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A dismissal or an order setting aside a temporary injunction that confers no enforceable right is not capable of a stay of execution.
Civil procedure – Stay of execution – Whether a stay can be granted where the High Court dismissed the suit; Execution defined as enforcement of a judgment conferring rights; Dismissal or setting aside of temporary injunction not ordinarily capable of execution.
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16 December 2008 |
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PF3 expunged for lack of doctor cross‑examination but conviction upheld; High Court’s SOSPA sentence enhancement quashed and trial sentence restored.
* Criminal law — Defilement — Evidence — Complainant’s testimony — Voir dire and competency under s.127(2) Evidence Act — sufficiency to prove penetration and age.
* Criminal procedure — PF3/medical report — Requirement to summon doctor for cross‑examination — s.240(3) Criminal Procedure Act — failure renders PF3 inadmissible/expunged.
* Evidence — Admissions to private persons — admissibility and weight — credibility and reliability govern.
* Sentencing — Temporal application of statute — SOSPA inapplicable to offences committed before its operation; enhancement under non‑existent law void.
* Trial review — Compliance with s.312(1) Criminal Procedure Act in stating points, decision and reasons.
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4 December 2008 |
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Non-compliance with PF3 and child-witness statutory safeguards requires quashing the conviction for a sexual offence.
Criminal law – admissibility of PF3 – non-compliance with s.240(3) CPA; Evidence – child witnesses – mandatory requirement of s.127(2) Evidence Act; identification in night-time offences; prosecution must prove guilt beyond reasonable doubt.
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4 December 2008 |
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Reported
Convictions quashed for failure to consider defence, procedural breaches and weak identification.
Criminal procedure — duty to consider accused's defence; non‑compliance with s.231 CPA — fatal irregularity; Identification evidence — Waziri Amani safeguards; Weak identification from torchlight at night; Double standards in treatment of co‑accused; Appellate misdirection — reliance on extraneous/religious material; Remedy — convictions quashed and sentences set aside.
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4 December 2008 |
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Reported
Failure to consider defence, s231 non-compliance and weak night identification led to quashing of convictions.
Criminal procedure – non-compliance with section 231 CPA – right to be heard; Evidence – identification at night – adequacy of torch illumination and Waziri Amani principles; Appellate review – trial court's failure to consider defence; Misconduct in judgment – extraneous moral or factual assertions; Inconsistent treatment of co-accused undermining convictions.
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4 December 2008 |
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Conviction quashed: unreliable identification, untested confession and ignored alibi rendered verdict unsafe.
* Criminal law – Identification evidence – safety of conviction where prosecution witnesses give materially inconsistent accounts. * Evidence – Cautioned/confessional statement – voluntariness must be inquired into before admission (s.27 Evidence Act) – failure to conduct inquiry is incurable irregularity. * Criminal procedure – Alibi – court must consider alibi even if not previously notified; failure to do so can amount to miscarriage of justice. * Remedies – Conviction quashed where evidence unsafe; ancillary orders (seized money, compensation) set aside.
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4 December 2008 |
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Reported
Returning home to fetch a weapon negates 'heat of passion' provocation; murder conviction and sentence upheld.
Criminal law – Murder vs manslaughter – Dock brief and prejudice; Provocation (ss. 201–202 Penal Code) – requirement of suddenness and no cooling; Premeditation where accused procures weapon and returns; Assessors’ impartiality – allegation unsupported by record.
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3 December 2008 |
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Victim and eyewitness testimony sufficed to prove rape despite discounting the medical report; appeal dismissed.
Criminal law – Rape – Sufficiency of victim and eyewitness testimony; Identification in daytime; Non‑compliance with s.240(3) CPA – medical report discountable but not fatal where credible testimony proves penetration and lack of consent; Failure to call non‑eyewitness immaterial; Compliance with s.312(2) CPA; No necessity for sketch map.
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3 December 2008 |
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Convictions quashed where identification was unreliable and both trial and first appellate courts committed material misdirections.
Criminal law – armed robbery; Evidence – night identification and use of a borrowed torch; Evidence – standards for identification (Waziri Amani); Procedure – non-compliance with section 231 Criminal Procedure Act; Appeal – appellate misdirection and introduction of facts not in record; Double standards in conviction/acquittal; Remedy – convictions quashed, no retrial ordered.
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3 December 2008 |
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Reported
Failure to conduct proper voir dire and to allow cross-examination of the doctor vitiated the applicant's rape conviction.
* Evidence Act s.127(2) – voir dire for child witnesses of tender years – court must ascertain intelligence and understanding of duty to speak truth before receiving unsworn evidence.
* Criminal Procedure Act s.240(3) – accused’s right to have examining doctor summoned for cross-examination; failure requires expunging PF3.
* Appellate duty – first appellate court must re-evaluate trial evidence and make independent findings.
* Effect of non-compliance – conviction unsustainable if core evidence is inadmissible and no other sufficient evidence exists.
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3 December 2008 |
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Night-time identification lacked necessary specifics; prosecution failed to prove identity beyond reasonable doubt, conviction quashed.
* Criminal law – armed robbery – identification evidence – night-time identification – necessity to establish lighting, distance, time of observation, previous acquaintance and specific identifying features (Waziri Amani principles).
* Evidence – where identification is decisive, omnibus assertions by a witness are insufficient; particulars necessary to avoid mistaken identity.
* Appeal – conviction quashed where prosecution fails to prove identity beyond reasonable doubt.
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3 December 2008 |
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Court declared High Court proceedings a nullity for dismissing suit without addressing preliminary objections or hearing parties.
Civil procedure – Preliminary objection – Locus standi – Trial judge’s failure to hear parties and decide preliminary objections – Proceedings declared nullity – Ruling and orders set aside and file remitted.
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2 December 2008 |
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Reported
High Court orders set aside as nullity for failing to hear parties and to decide pre-filed preliminary objections.
Civil procedure — Preliminary objections; locus standi — failure to address objections and to hear parties — procedural irregularity — nullity of proceedings; appellate revisional powers — setting aside rulings and remitting matter for proper determination.
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2 December 2008 |
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Conviction for attempted rape quashed due to material contradictions, failure to prove statutory ingredients, and improper sentencing.
Criminal law – Attempted rape – Requirement to plead and prove specific acts under s.132(2) Penal Code; evaluation of witness credibility; material contradictions and implausibilities may invalidate conviction; mandatory sentencing provisions under s.132(3).
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2 December 2008 |
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Voir dire and failure to summon the doctor rendered key evidence unreliable; conviction quashed and retrial ordered.
Criminal law – Rape of a minor – Evidence of very young child – voir dire under section 127(2) Evidence Act: need to test intelligence and duty to speak truth – unsworn evidence – Medical evidence (PF3) – right to summon doctor for cross-examination under section 240(3) Criminal Procedure Act – PF3 expunged if right not explained – First appeal duties – necessity to re-evaluate trial evidence and make independent findings.
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2 December 2008 |
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Reported
Conviction quashed where voir dire of child was defective and medical examiner was not summoned, leaving insufficient evidence.
Evidence — Evidence Act s.127(2): voir dire of child witness must establish sufficient intelligence and duty to speak truth before receiving unsworn evidence; Criminal Procedure Act s.240(3): right to have medical practitioner summoned for cross‑examination — PF3 improperly admitted if right not afforded — First appellate court’s duty to re‑evaluate evidence and make independent findings.
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2 December 2008 |
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An intended appellant's failure to seek the record or lodge the memorandum as required by Rule 83 renders the notice of appeal incompetent.
Appeal procedure — Court of Appeal Rules, 1979 — Rule 83(1)(a) (memorandum to be lodged within 60 days) — Rule 83 exception for timely application for High Court record within 30 days and service of such application — failure to comply renders notice of appeal incompetent.
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2 December 2008 |
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Reported
Provocation failed where accused cooled off, fetched a weapon and committed a deliberate killing; appeal dismissed.
Criminal law – murder versus manslaughter; provocation under sections 201 and 202 Penal Code – requirement of heat of passion and no time to cool; premeditation where accused returns, fetches weapon and strikes; role of charge determination resting with prosecution; assessors’ conference – necessity of record and prejudice.
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1 December 2008 |
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Provocation rejected where accused fetched a weapon and cooled off; murder conviction and death sentence upheld.
* Criminal law – Murder – Provocation – Sections 201 and 202 Penal Code – Requirement of sudden provocation and no time to cool off. * Criminal procedure – Charge selection – No prejudice where murder charge was read and evidence led. * Evidence – Eyewitness and post-mortem evidence establishing intentional fatal assault. * Trial irregularity – Alleged improper conference with assessors not supported and not material to outcome.
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1 December 2008 |
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Notice of appeal struck out where appellant failed to apply for proceedings or institute appeal within mandatory Rule 83 time limits.
Civil procedure — appeals — Court of Appeal Rules, 1979 — Rule 76 (notice of appeal) and Rule 83 (application for copy of proceedings and time limits) — mandatory compliance — failure to apply for record within 30 days and to institute appeal within 60 days renders notice of appeal incompetent — strike out with costs.
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1 December 2008 |
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Court sustains review for an obvious record error on director status but dismisses non-joinder-based review grounds.
* Civil procedure — Review of Court of Appeal’s own judgment — inherent jurisdiction limited to defined circumstances — error apparent on the face of the record leading to miscarriage of justice. * Company law evidence — company annual returns as definitive record of directors. * Civil procedure — non-joinder (Order 1 Rule 13 CPC) — objections must be raised timely; issues previously argued and decided are not grounds for review.
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1 December 2008 |
| November 2008 |
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Conviction quashed where unsafe night-time identification and unexplained delay in arrest undermined the prosecution case.
* Criminal law – visual identification at night – necessity to establish sufficiency of light, distance and duration for safe identification. * Criminal procedure – unexplained delay in arrest – effect on credibility of prosecution witnesses. * Evidence – reliance on uncorroborated visual identification – requirement to apply Waziri Amani principles.
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30 November 2008 |
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Appellate court quashed rape conviction after finding prosecution evidence fabricated and lower courts failed proper re‑evaluation.
* Criminal law – Rape – proof beyond reasonable doubt – credibility of complainant; unexplained delay and non‑production of material witnesses. * Criminal procedure – First appeal – duty to re‑evaluate entire evidence afresh. * Evidence – PF3 admissibility and section 240(3) C.P.A. * Burden of proof – impermissible shifting to accused; duty to consider defence witnesses.
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30 November 2008 |
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Reported
An impulsive killing after sudden provocation was reduced from murder to manslaughter; death sentence replaced with twelve years imprisonment.
Criminal law – Murder v Manslaughter – Provocation (ss.201–202 Penal Code) – Objective test of an ordinary person of accused's community – Assessors must represent accused’s community in provocation cases – Duty to direct assessors on prosecution's burden to disprove provocation – Summing up and misdirection.
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28 November 2008 |
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Reported
Leave to appeal refused where intended appeal lacked reasonable prospects on the critical evidential issue.
* Appellate procedure – leave to appeal – requirement that intended appeal have some merit or reasonable prospects of success before leave is granted; * Evidence – appellate interference in findings of fact and credibility limited where intended appeal is primarily evidential; * Civil procedure – execution to proceed where leave to appeal is refused.
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28 November 2008 |
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Reported
Leave to appeal refused because the intended appeal lacks reasonable prospects on the evidential issue of indebtedness.
* Appellate procedure – leave to appeal – requirement that intended appeal have reasonable prospects of success before leave is granted. * Evidence – indebtedness – sufficiency of oral evidence versus absence of documentary proof. * Execution – refusal of leave permits execution to proceed.
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28 November 2008 |
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Reported
Leave to appeal refused where the intended appeal lacked reasonable prospects on a central evidential issue.
Appellate procedure — Leave to appeal — Granting leave only where intended appeal has reasonable prospects; evidential disputes and balance of probabilities; refusal of leave where central issue is credibility and lower courts’ findings stand.
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28 November 2008 |
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Extension granted where delay in filing appeal was caused by prison authorities under Rule 68(3).
* Criminal procedure – appeals – notice of appeal lodged out of time – appeal dismissed as incompetent under Rule 65(5).
* Prisoners’ appeals – responsibility of prison authorities under Rule 68(3) of the Court of Appeal Rules to assist with filing formalities.
* Extension of time – delay attributable to prison authorities is excusable; applicant not blameworthy; discretion to grant extension.
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28 November 2008 |
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Words by the deceased amounted to sudden provocation; murder conviction reduced to manslaughter and death sentence set aside.
* Criminal law – Provocation – Application of section 201 Penal Code (heat of passion) – Objective test of provocation measured by an ordinary person of the accused's community (section 202). * Composition of assessors – necessity that assessors reflect the accused’s community when provocation is relied upon. * Trial direction – prosecutor’s burden to disprove provocation and proper directions to assessors; misdirection may occasion miscarriage of justice. * Remedy – substitution of conviction and sentence where trial was flawed.
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27 November 2008 |
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Proceedings and ruling by a magistrate improperly acting as High Court were a nullity; application struck out, costs to each party.
Jurisdiction — Regional Magistrate with extended jurisdiction — Improperly purporting to sit as High Court — proceedings and ruling nullity; Appeal procedure — no appeal/leave against a nullity; Remedies — revision to expunge invalid proceedings; Procedural competence — Court of Appeal single judge lacks power to substitute proper appellate/revisional procedure.
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27 November 2008 |
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Reported
Appellate court affirms conviction for unlawful firearm possession based on credible witness and ballistic evidence; appeal dismissed.
* Criminal law – unlawful possession of firearm and ammunition – sections 4(1) & 34(2) Arms and Ammunition Act
* Evidence – credibility of arrest/searching witnesses; corroboration by ballistic expert
* Evidence – identity/chain of custody of exhibit and material discrepancies
* Appellate procedure – scope and limits of second appeals on findings of fact
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27 November 2008 |
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Consent immaterial where complainant proved under eighteen; conviction for statutory rape upheld.
Criminal law – Rape – Statutory rape/strict liability – Sexual intercourse with a female under eighteen is an offence regardless of consent (s.130(2)(e) Penal Code); proof of age by oral evidence and baptismal certificate; sufficiency of evidence and absence of miscarriage of justice; challenges to cross-examination and trial judgment dismissed.
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26 November 2008 |
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Weak identification and pre-arrest PF3s created reasonable doubt, so the appellants' convictions and death sentences were quashed.
* Criminal law – Identification evidence – night-time identification, moonlight not described, and witness confusion undermining reliability – need for corroboration.
* Criminal procedure – Police Form No.3 (PF3) issued before arrest – indicia of pre-conceived prosecution affecting fairness of prosecution.
* Burden of proof – proof beyond reasonable doubt – combined weaknesses creating reasonable doubt requires quashing of convictions.
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25 November 2008 |
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Failure to serve notice and affidavits two clear days before hearing renders the application incompetent and struck out.
* Civil procedure – Court of Appeal Rules, Rule 52(1) – service of Notice of Motion and affidavits at least two clear days before hearing; non‑compliance renders application incompetent and liable to be struck out with costs.
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25 November 2008 |
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Reported
The applicant's rape conviction was upheld despite PF3 expunged; the child's testimony and corroboration sufficed.
Criminal procedure — section 240(3) CPA — PF3 inadmissible without calling its author; Evidence — sexual offences — child of tender years (s127(7) Evidence Act) — conviction may rest on child's testimony where credible; Relatives' evidence — not automatically discounted for relationship; Admission note — evidential weight; Second appeal — limits where concurrent findings of fact exist.
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25 November 2008 |
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PF3 expunged for non-compliance but child’s credible testimony and corroboration upheld the rape conviction.
* Criminal procedure – PF3 (medical report) – compliance with s.240(3) Cr.P.C. – necessity to call author/doctor if document not read to accused. * Evidence – child complainant – s.127(7) Evidence Act permits conviction on child’s uncorroborated evidence if court records satisfaction of truthfulness. * Witnesses – evidence of relatives not automatically discredited. * Appellate review – concurrence of findings of fact not disturbed absent misdirections.
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25 November 2008 |
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Cautioned confessions were expunged but a voluntary extra‑judicial confession plus corroborative circumstantial evidence upheld the murder conviction.
Criminal law — admissibility of confessions — cautioned statements expunged for procedural breaches of CPA ss.50(2),57(4); extra‑judicial statement by Justice of the Peace held voluntary and admissible; corroboration by circumstantial evidence; conviction upheld.
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25 November 2008 |
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Appellants' convictions quashed: uncertain identification and uncorroborated co-accused confessions could not sustain robbery convictions.
Criminal law – robbery – visual identification evidence – necessity to prove source, position and intensity of light enabling recognition – inconsistencies in witnesses’ accounts – prosecution’s duty to call material witnesses/respondents to alarm – adverse inference for failure to call – confessions of co-accused – section 33(1) and mandatory bar in section 33(2) against basing conviction solely on co-accused confessions – requirement for independent corroboration.
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25 November 2008 |
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Conviction for rape quashed where penetration was not proved and identification by torchlight was unreliable.
Criminal law – Rape – requirement of proof of penetration; Identification – reliability of identification by torchlight at night in an incomplete mud house; Appellate review – interference with concurrent findings where there is misdirection or non-evaluation of material evidence.
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25 November 2008 |
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Reported
Nighttime misidentification and pre‑arrest PF3s created reasonable doubt, so convictions and death sentences were quashed.
Criminal law – identification evidence at night – insufficient description of lighting and witness confusion undermining ID; corroboration required where identification conditions not ideal; procedural impropriety – PF3s issued prior to arrest indicating possible preconceived prosecution; convictions unsafe and quashed.
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25 November 2008 |
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Reported
Weak nighttime identification and pre-arrest PF3s raised reasonable doubt, so convictions and death sentences were quashed.
* Criminal law – identification evidence – night-time conditions – reliability and need for corroboration; * Criminal procedure – Police Form No. 3 (PF3) issued before arrest – implication of preconceived prosecution and bad faith; * Appeal – convictions unsafe where identification is weak and prosecution documents suggest pre-arranged charges.
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25 November 2008 |
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25 November 2008 |
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An omnibus robbery charge violating section 133 prejudiced the appellants, warranting quashing and retrial.
Criminal procedure – indictment/charge – s.133 Criminal Procedure Act – requirement that separate offences be pleaded in separate counts; robbery – necessity to specify and prove nature of violence/threat against each victim; omnibus counts – duplicity and prejudice; right to fair hearing and confrontation; remedy – quash conviction and order retrial.
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25 November 2008 |
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An omnibus count charging multiple distinct robberies violated s.133 CPA; convictions quashed and retrial ordered.
Criminal procedure – charging multiple offences – section 133 CPA – requirement for separate counts for separate robberies; Robbery (ss.285,286 Penal Code) – necessity to state and prove nature of violence/threat against each victim; Right to fair hearing – confrontation and prejudice where several complainants did not testify; Omnibus count – duplicity and fatal irregularity leading to quashing and retrial.
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25 November 2008 |
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The appellant's failure to comply with appeal procedure and an invalid supplementary delay certificate rendered the appeal incompetent.
Civil procedure — Appeal competence; Rule 77(1) mandatory service of notice of appeal — failure fatal; Rule 83(1) institution period and registrar's certificate of delay — only one valid; supplementary certificate of delay invalid; trial court lacks jurisdiction to extend time after notice filed; appeal struck out.
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24 November 2008 |
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Nighttime visual identification was reliable where witnesses knew the accused, lighting was good, and observation was close and prolonged.
* Criminal law – Armed robbery – Visual identification – Nighttime identification assessed by duration of observation, distance, lighting and prior acquaintance.
* Evidence – Identification – Reliability where witness not threatened, scene well illuminated and observations prolonged.
* Appeal – First appellate court’s evaluation of identification evidence upheld.
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24 November 2008 |