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Citation
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Judgment date
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| December 2009 |
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Taxing Master reduced respondent's bill of costs from Tshs. 2,403,000 to Tshs. 1,753,000 after reasonableness assessment.
Taxation of costs – assessment of instruction fees and attendance fees – reasonableness of amounts – reliance on ERV receipts for disbursements – written submissions and failure to file reply.
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31 December 2009 |
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A suo motu, ambiguous interim order made without hearing is void and contempt proceedings founded on it are quashed.
Judicial review – Interim orders – Sua motu order made without hearing – Natural justice – Ambiguous/uncertain injunctions – Enforceability – Contempt proceedings founded on void orders – Revisional powers to quash and remit.
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27 December 2009 |
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A conviction based on a single nighttime visual identification was unsafe; appeal allowed and conviction quashed.
* Criminal law – Identification evidence – Visual identification at night – single eyewitness – need for evidence to be watertight to exclude mistaken identity. * Robbery with violence – unsafe conviction where identification is unreliable and uncorroborated. * Burden of proof – prosecution must prove guilt beyond reasonable doubt.
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27 December 2009 |
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Failure to include security-for-costs proceedings in the record of appeal rendered the appeal incompetent and led to striking out.
Court of Appeal Rules – record of appeal; Rule 89(1)(k) mandatory items; Rule 92 supplementary record limited to curing minor deficiencies; Order XXV r.2 CPC – application for security for costs affects competence; Rule 89(3) – exclusion requires leave; failure to include vital documents renders appeal incompetent.
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23 December 2009 |
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Reported
Court dismissed appeal: Kenyan cautioned statements inadmissible, but credible visual identification sustained conviction.
Criminal law – admissibility of cautioned statements – section 27(1) Evidence Act – meaning of "police officer"; Corroboration – properties and bank deposits insufficient alone; Visual identification – opportunity, proximity and daylight support reliability; Alibi – failure to raise reasonable doubt where prosecution case accepted; Procedural law – late-raised extradition issues cannot be entertained; Appeal procedure – dismissal where appellant fails to prosecute and cannot be served.
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22 December 2009 |
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Extension of time granted where a still-valid notice of appeal and prompt remedial steps justified relief under Rule 8.
Court of Appeal — extension of time — Rule 8 application for leave to file appeal out of time — notice of appeal validity where record contains defective decree — citation of Rule 83(1) not fatal if enabling provisions cited — factors for granting extension (length and reasons for delay, prejudice, prospects, diligence).
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16 December 2009 |
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An interlocutory order imposing a fine or committal that finally determines the issue is appealable as of right.
Appellate jurisdiction — appealability of interlocutory orders — Act No.25 of 2002 amendment to section 5 — interlocutory orders that finally determine the suit — orders imposing fines or directing committal to civil prison (not in execution of a decree) appealable as of right.
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16 December 2009 |
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An appeal is incompetent and struck out where the record lacks a valid notice of appeal required by the Rules.
Court of Appeal procedure – validity and essentiality of notice of appeal – compliance with Rule 89(1)(j) – appeal rendered incompetent where the record contains an invalid/incorrect notice of appeal – previous struck-out appeal’s notice cannot institute fresh appeal.
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15 December 2009 |
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A notice of appeal filed after refusal of leave is incompetent without timely application for leave or extension.
* Civil procedure — Appeal — Where leave to appeal is required, a party must apply for leave to the Court of Appeal within fourteen days of High Court refusal or obtain extension of time; failure renders a subsequent notice of appeal incompetent. * Affidavits — Order XIX rule 3(1) CPC — Affidavits must state facts within deponent’s knowledge; in interlocutory matters statements of information and belief must show sources and grounds. * Court of Appeal Rules — Rule 43(b) and Rule 82 — procedure for seeking leave where High Court refused leave.
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15 December 2009 |
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14 December 2009 |
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Conviction quashed where cautioned statement was improperly admitted and witness evidence was contradictory and unreliable.
Criminal law – unlawful possession of firearm; admissibility of cautioned statement — objection and statutory enquiry; Evidence — contradictions, serial number and chain of custody; Burden of proof — prosecution must prove guilt beyond reasonable doubt; Conviction unsafe — quashed and sentence set aside.
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14 December 2009 |
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Night-time identification without description of lighting and with delayed reporting rendered the conviction unsafe.
* Criminal law – Armed robbery – Night-time visual identification – necessity to describe source, type and intensity of light – delay in identification and failure to name suspect at scene – Waziri Amani principles – conviction unsafe.
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14 December 2009 |
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Correction applications under Rule 40(1) are subject to a sixty‑day limitation; out‑of‑time application struck out.
* Court of Appeal Rules — Rule 40(1) (correction of errors) — limitation of time; Rule 8 — Court may impose time limits by decision; sixty‑day limit applied by analogy to review/revision precedents. * Procedural law — preliminary objection — time‑barred applications — refusal to enlarge time for excessive delay.
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11 December 2009 |
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Court granted extension under Rule 8 and stay, holding sufficiency of reasons depends on circumstances.
Civil procedure – extension of time under Rule 8 – discretion to extend time; sufficient reason – factors: length of delay, cause, prospects of success, prejudice; jurisdictional challenge and illegality of decision as potential sufficient reason; stay of execution.
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11 December 2009 |
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Applicants failed to prove prima facie success, irreparable harm, or favourable balance of convenience to justify a stay.
Court of Appeal — stay of execution under Rule 9(2)(b); requirements: prima facie appeal prospects, irreparable harm, balance of convenience; jurisdictional objection must be supported by the record/affidavit; oral submissions cannot substitute for affidavit evidence.
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11 December 2009 |
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An application supported by an unverified or defective affidavit is not maintainable and will be struck out.
Civil procedure — extension of time — affidavit verification — defective affidavits — preliminary objection — chamber application struck out — FOUM v Registrar of Cooperative Societies (1995) T.L.R. 75 applied.
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11 December 2009 |
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11 December 2009 |
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Cumulative procedural defects and failure to record assessors' opinions rendered the trial a nullity; retrial ordered.
Civil procedure – duty to frame issues (Order XVI Rule 1(5)); Judgment contents – concise statement, points for determination, findings and reasons (Order XXIII Rule 3(2)); Preliminary objection – necessity to decide time-bar and to examine prior judgment for res judicata; Labour law – mandatory requirement to seek and record assessors' opinions (Labour Relations Act s.83(4)–(5)); Trial nullity – cumulative procedural defects warrant retrial de novo.
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11 December 2009 |
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Unexplained gaps in chain of custody for seized drugs create reasonable doubt and warrant quashing of conviction.
Criminal procedure – narcotics – chain of custody – failure to document seizure/handling of exhibits permits inference of possible tampering and undermines reliance on forensic analysis; appellate intervention justified where material non-direction on evidence exists.
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10 December 2009 |
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Conviction quashed because visual identification and an irregular identification parade rendered the prosecution case unsafe.
* Criminal law – identification evidence – visual identification at scene – reliability and dangers of mistaken identity; applicability of Waziri Omar guidelines.
* Criminal procedure – identification parade – compliance with Police General Order No. 232 (informing accused of purpose, right to friend/advocate, timing) and effect of irregularities on admissibility/weight.
* Appeal – interference with concurrent findings where verdict is demonstrably unsafe.
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8 December 2009 |
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7 December 2009 |
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Conviction upheld despite improperly recorded deaf-mute complainant’s evidence; independent eyewitness and medical evidence decisive.
Criminal law – rape – credibility and sufficiency of eye-witness evidence; evidence law – competence and examination of deaf and dumb witnesses; requirement for sworn interpreter/voir dire; Children and Young Persons Act procedural requirement; charge-sheet defects curable under s.388 Criminal Procedure Act.
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4 December 2009 |
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A decree dated differently from the judgment date renders an appeal incompetent; 'open court' depends on public access.
Civil procedure — appeal — record of appeal must include decree bearing date of judgment (O XX r.7 CPC); variance fatal — appeal incompetent. Judgment delivery — Order XX r.1 requires pronouncement in "open court"; "open court" determined by public access, not merely room designation. Presumption of validity where no evidence public was denied access.
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3 December 2009 |
| November 2009 |
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Identification evidence at night involving intoxication was insufficient to prove the appellant committed rape beyond reasonable doubt.
* Criminal law – Rape – Identification evidence – Visual identification at night and involving an intoxicated complainant – single/uncertain eyewitness – need for "water tight" identification; burden of proof remains on the prosecution.
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30 November 2009 |
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28 November 2009 |
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Identification defects in single-witness testimony can render a conviction unsafe; unequivocal guilty pleas bar appeals against conviction.
* Criminal law – sexual offences – identification by single eyewitness – cautionary approach where face covered and accounts inconsistent. * Criminal procedure – plea of guilty – unequivocal plea and acceptance of facts bars appeal against conviction (section 360(1)); criteria for interfering with plea.
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27 November 2009 |
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An interim order made suo motu, ambiguous and without hearing parties is void and cannot support contempt proceedings.
Interim orders – suo motu orders made without hearing parties – breach of audi alteram partem – ambiguity and uncertainty of orders – void orders (void ab initio) – contempt proceedings founded on nullities – revisional powers to quash and remit.
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27 November 2009 |
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27 November 2009 |
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Conviction based solely on weak night-time visual identification was unsafe; appeal allowed and conviction quashed.
* Criminal law – Visual identification – Night-time identification and moonlight – Single witness evidence – Requirement that identification be ‘‘absolutely water tight’’ before convicting. * Evidence – Proof beyond reasonable doubt – Testing single-witness identification with greatest care. * Robbery with violence – unsafe identification renders conviction unsustainable.
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27 November 2009 |
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Unexplained arrest delay and inadmissible co-accused confession created reasonable doubt, so conviction was quashed.
Criminal law – robbery – identification evidence – reliability of visual ID at scene; admissibility of co-accused’s cautioned statement – voluntariness must be tested; unexplained delay in arrest and arrest for unrelated matter raises reasonable doubt; conviction cannot be founded on alleged weakness of defence.
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27 November 2009 |
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Reported
Conviction quashed where lone eyewitness identification at night was unsafe and prosecution failed to prove guilt beyond reasonable doubt.
* Criminal law – Identification evidence – Visual identification at night by a single witness – Necessity for evidence to be ‘water tight’ and to exclude possibility of mistaken identity; conviction unsafe where circumstances unfavour identification.
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27 November 2009 |
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Sole nighttime visual identification was unreliable; conviction quashed and sentence set aside.
* Criminal law — Identification evidence — Visual identification must be watertight; single-witness identification at night requires greatest care — Possibility of mistaken identity renders conviction unsafe.
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27 November 2009 |
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Victim’s night identification unreliable, but recent possession and ballistic evidence upheld conviction and 30-year sentence.
* Criminal law – Identification evidence at night – reliability and dangers of spontaneous identification. * Criminal law – Recent possession – recovery of stolen property as linking accused to robbery. * Evidence – contradictions in prosecution witnesses – gist/essential consistency test. * Evidence – ballistic report admitted at trial but absent from appeal record – absence not fatal where witness testified and trial court admitted it. * Criminal procedure – use of separate unlawful-possession plea/conviction to corroborate connection to weapon.
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27 November 2009 |
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Stay granted because sale of immovable farm would cause irreparable injury pending appeal.
Court of Appeal — stay of execution under Rule 9(2)(b) — clerical misnaming in judgment not fatal; irreparable injury from sale of immovable property; requirement to particularize irreparable loss for movables; respondent’s solvency relevant; balance of convenience governs discretion to stay.
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27 November 2009 |
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Robbery conviction quashed where identification and co-accused statement were unreliable and trial magistrate misdirected.
* Criminal law – Robbery – identification evidence – reliability affected by unexplained delay in arrest and circumstance of arrest.
* Criminal procedure – admissibility of cautioned statement – voluntariness must be tested; improperly admitted statement to be disregarded.
* Criminal law – benefit of reasonable doubt – accused entitled to acquittal/release where prosecution fails to dispel doubt.
* Trial error – misdirection by convicting because defence appeared weak rather than on proof beyond reasonable doubt.
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27 November 2009 |
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Appeal allowed: conviction quashed due to improbable eyewitness conduct and adverse inference from non-called witnesses.
* Criminal law – sexual offences – safety of conviction where eyewitness testimony is internally inconsistent and husband witness' conduct is improbable; * Criminal procedure – medical report (PF3) and s.240(3) C.P.A. – non-compliance does not automatically require expungement if report is not prejudicial to accused; * Evidence – failure to call available witnesses attracts adverse inference; conviction unsafe.
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27 November 2009 |
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Court upheld rape conviction on child’s uncorroborated testimony despite PF.3 anomaly, curing sentencing omission by equity.
* Criminal law – Rape – Evidence of child of tender years – Competence under s.127 Evidence Act and corroboration not mandatory; * Medical report (PF.3) tainted by non‑compliance with s.240(3) Criminal Procedure Act – exclusion does not automatically defeat prosecution if other evidence suffices; * Procedural irregularity – sentencing without recording conviction – equity may treat conviction as done to prevent injustice; * Second appeal – appellate restraint on findings of fact.
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27 November 2009 |
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Conviction quashed where nighttime visual identification lacked safeguards and raised reasonable doubt.
Criminal law – Sexual offences – Gang rape established by complainant evidence; Identification – Visual identification at night without indication of light or descriptive particulars unsafe; Prosecution must prove identity beyond reasonable doubt; Conviction quashed where identification evidence is unreliable (Waziri Amani principles).
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27 November 2009 |
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Single-witness identification under unfavourable conditions was unsafe, so the appellant's rape conviction was quashed and sentence set aside.
* Criminal law – rape – sufficiency of identification evidence – cautionary approach to single eyewitness identification made under unfavourable conditions.
* Evidence – evaluation of witness credibility – duty of trial and appellate courts to analyse contradictions and shortcomings.
* Burden of proof – prosecution must prove identity beyond reasonable doubt; conviction cannot rest on unsafe identification.
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27 November 2009 |
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The applicant's unequivocal guilty plea supported by admitted facts precludes challenge to conviction; only sentence is appealable.
* Criminal law – Plea of guilty – When a plea is unequivocal and supported by admitted facts, conviction on that plea is proper. * Criminal procedure – Appealability – Section 360(1) C.P.A.: plea of guilty bars appeal against conviction, only sentence challenge permitted. * Plea review – Laurent Mpinga criteria for interfering with pleas: imperfection, mistake/misapprehension, no offence disclosed, or admitted facts not constituting offence. * Sexual offences – Attempted rape – admitted facts establishing attempt.
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27 November 2009 |
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PF3 admitted in breach of s.240 was expunged; remaining hearsay and circumstantial evidence insufficient to sustain rape conviction.
Criminal law – rape of a minor; evidence – PF3 (medical report) inadmissible where accused not informed of s.240 right to call doctor; child’s out‑of‑court statements constitute hearsay if child not produced; circumstantial evidence insufficient to support conviction.
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27 November 2009 |
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27 November 2009 |
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Admission of a medical report without complying with section 240 and reliance on hearsay rendered the rape conviction unsafe.
* Criminal procedure – Admission of medical report (PF3) – Section 240 Criminal Procedure Act – accused must be informed of right to require doctor to be called; non-compliance renders PF3 inadmissible and subject to expungement.
* Evidence – Child complainant – out-of-court statements/hearsay – child not called to testify; such statements cannot identify accused.
* Evidence – Circumstantial evidence – insufficiency to convict where alternative suspects had access to complainant and no direct identification.
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27 November 2009 |
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Conviction based solely on unreliable night-time visual identification by torchlight was unsafe; conviction, sentence and compensation quashed.
* Criminal law – visual identification – night-time identification by torchlight – requirement to detail source and intensity of light, distance and duration of observation. * Identification evidence – Waziri Amani principle – convictions unsafe without elimination of mistaken identity. * Appeal – conviction quashed where identification evidence was weak.
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26 November 2009 |
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Appeal struck out because the decree’s date and signature did not comply with Order XX Rule 7, rendering it invalid.
Civil procedure – Decree – Order XX Rule 7 CPC – decree must bear date of judgment and be signed by trial judge or successor; decree signed by deputy registrar and dated differently is invalid; invalid decree renders appeal incompetent under Court of Appeal Rules (Rule 89(1)(h)).
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25 November 2009 |
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Applicant's delay and procedural negligence, not established illegality, justified refusal to extend time or grant leave to appeal.
Civil procedure – Extension of time under Rule 8 – Requirement of sufficient reason; illegality as ground for extension only when clear nullity or breach of fundamental right shown – Distinction between technical delay and delay due to procedural negligence and slumber – Cheques and E.R.V. factual dispute: mixed question of fact and law.
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25 November 2009 |
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Reported
The appellant’s rape conviction upheld on credible eyewitness identification despite PF3 procedural irregularity.
* Criminal law – Rape – Proof of rape and sufficiency of penetration; * Identification – Daytime identification of a known neighbour and reliability of eyewitnesses; * Evidence – Admissibility/weight of PF3 where doctor not called under s.240(3) CPA; * Appeal – Appellate restraint in disturbing concurrent findings of fact.
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20 November 2009 |
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Reported
A notice of appeal delivered to prison authorities within time is deemed received by the Registry under Rule 68.
Criminal procedure – extension of time – Rule 44; Prisoners' appeals – Rule 68 – notice of appeal delivered to prison authorities deemed received by Registry; time taken by prison authorities excluded from limitation; main registry vs sub-registry filing.
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20 November 2009 |
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The applicant's rape conviction was quashed due to evidential inconsistencies and PF3 admitted without the required s.240(3) procedure.
Criminal law – rape; evidential inconsistencies and contradictory witness accounts; admissibility of PF3 and non-compliance with s.240(3) Criminal Procedure Act; s.127(7) Evidence Act – warning and need for corroboration; benefit of doubt; duty of Judges-in-Charge to ensure Magistrates' compliance with s.240(3).
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20 November 2009 |
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A defective or omitted voir dire for child witnesses, failing section 127(2) requirements, is a fatal irregularity rendering conviction unsafe.
* Evidence — Children as witnesses — Voir dire — Section 127(2) Evidence Act — requirement to establish and record that child understands oath, has sufficient intelligence, and understands duty to tell truth; failure is fatal. * Criminal law — Sexual offences — Uncorroborated child evidence — need for corroboration where voir dire omitted or defective; interplay with section 127(7) permitting convictions on uncorroborated evidence in certain circumstances. * Procedural irregularity — defective voir dire — remedy and retrial considerations.
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20 November 2009 |