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Citation
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Judgment date
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| December 2013 |
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A late service complaint is a factual issue and a jurat shown on record defeats a jurat-defect objection; both preliminary objections dismissed.
Civil procedure – preliminary objections – distinction between points of law and questions of fact; late service of written submissions under Rule 106(7) – Rule 106(9) inapplicable to late service; Court’s power under Rule 4(2) to cure procedural lacunae; affidavit jurat – requirement to show attesting officer’s name and burden to prove fraud if challenged.
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13 December 2013 |
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Identification corroborated by chase/arrest upheld despite PF3 and charge-sheet defects; appeal dismissed.
Criminal law – visual identification – weak opportunity but requires corroboration; corroboration by pursuit and arrest upheld. Evidence – PF3 admissibility – failure to comply with s.240(3) renders PF3 valueless and expunged. Procedure – defective particulars in charge sheet – curable under s.388 if no miscarriage of justice. Criminal Procedure – change of magistrate and s.214 rights – discretion to inform, record should show exercise, but no material prejudice found. Sentencing – Minimum Sentences Act applicable; 30-year sentence confirmed for armed robbery in company.
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13 December 2013 |
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Omission of the offence in a notice of appeal breaches Rule 68 and renders the appeal incompetent and struck out.
Criminal procedure – Notice of appeal – Court of Appeal Rules 2009, Rule 68(1),(2),(7) – Form B/Form B/1 – requirement to state offence of conviction – substantial compliance – competence of appeal – striking out defective notice – extension of time to file notice.
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13 December 2013 |
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An unnamed magistrate in a High Court transfer voids jurisdiction; trial proceedings quashed and file remitted for rehearing.
Criminal procedure – Transfer under s.256A(1) CPA – Transfer must specify named resident magistrate invested with extended jurisdiction under s.173(1); failure to name magistrate vitiates jurisdiction and renders proceedings nullity; defective notices of appeal; exercise of revisionary powers (s.4(3) AJA) to quash and remit.
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12 December 2013 |
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Applicants met timing but failed to show substantial loss or provide security; stay of execution denied.
Court of Appeal — Stay of execution — Rule 11(2)(b),(c),(d) Court of Appeal Rules 2009 — cumulative conditions — requirement to show substantial loss and to furnish security — timing of notice of appeal and stay application — subject property ordered sold cannot serve as security.
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12 December 2013 |
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A notice of appeal failing to substantially comply with mandatory Form B/Form B1 is fatally defective and renders the appeal incompetent.
Criminal procedure – Appeals – Notice of appeal – Substantial compliance with Form B/Form B1 under Rule 68(7) and Rule 75 – Fatally defective notice renders appeal incompetent and liable to be struck out; Rule 47 discretion to extend time in criminal matters requires a competent appeal and sound reasons; permission to raise point of law at hearing.
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12 December 2013 |
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Convictions based on unsafe visual identification and flawed evidence evaluation were quashed and sentences set aside.
Criminal law — Visual identification — sufficiency of light, distance and duration; failure to name suspects promptly; misapprehension of evidence — irregular admission of medical report (PF3) contrary to s240(3) CPA — effect of s178 Evidence Act — second appeal interference with concurrent findings of fact.
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12 December 2013 |
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Charge sheet failed to name victim and doctrine of recent possession was misapplied; conviction quashed.
Criminal procedure – defective charge sheet – failure to state victim against whom force was used – incurable defect; Doctrine of recent possession – requirements: possession by suspect, positive identification as complainant's property, recent theft and subject-matter of the charge – failure to prove elements renders conviction unsafe.
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12 December 2013 |
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Transfer to a magistrate must name the specific magistrate; failure renders ensuing trial a nullity and warrants quashing.
Criminal procedure – transfer under s.256A(1) Criminal Procedure Act – transfer must name the resident magistrate vested with extended jurisdiction under s.173(1); jurisdictional defect renders trial proceedings a nullity; defective notice of appeal (misidentification of trial court, wrong case number, pre-judgment date) invalid; appellate revision powers (AJA s.4(3)) to quash and remit for rehearing.
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10 December 2013 |
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Convictions based on unsafe visual identification—court quashed convictions and ordered immediate release.
Criminal law – Evidence – Visual identification – caution where convictions rest on identification; primary facts (time, distance, source of light) require direct evidence before favourable inferences are drawn; contradictions in prior acquaintance and absence of early identification to police undermine reliability; convictions unsafe and quashed.
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10 December 2013 |
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A notice of appeal that fails to substantially comply with the prescribed form is fatally defective and makes the appeal incompetent.
Criminal procedure – Notice of appeal – Substantial compliance with Form B/1 required by Rule 68(7) and Rule 75 (prisoners) – Failure to comply renders appeal incompetent and liable to be struck out. Discretion under Rule 47 to extend time in criminal matters – may be exercised only where a competent appeal or application exists.
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10 December 2013 |
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Victim's credible testimony and other evidence upheld rape conviction despite improper admission of PF3.
Criminal law – Rape – Best evidence from the victim – penetration and lack of consent essential elements. Evidence – Medical report (PF3) – admissibility and section 240(3) Criminal Procedure Act – right to elect to call medical witness. Evidence – Failure to call witnesses – drawing adverse inference where witnesses were traced but declined to cooperate. Appeal – Second appeal – deference to concurrent findings of fact unless miscarriage of justice.
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10 December 2013 |
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Court upheld child rape conviction despite expunging improperly admitted PF3, finding complainant’s testimony sufficient.
Criminal law – Rape of a child – child competency and voir dire; admissibility of PF3 and exhibits – compliance with s.240(3) Criminal Procedure Act; proof of penetration by inference from circumstances and pain; identification and alibi; curable defect in charge under s.388(1) CPA.
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6 December 2013 |
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A criminal notice of appeal with an incorrect judgment date is incurably defective and the appeal is struck out.
Criminal procedure – Notice of appeal – Requirement to comply with Rule 68(2) and Form B/B1 (correct judgment and signature dates); defects in those particulars treated as incurable; Rule 2 interpretative only; Rule 4(1) relief requires showing of injustice; footnote entries for prison officer cannot amend the notice.
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6 December 2013 |
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A stay application is incompetent if not accompanied by a valid notice of appeal identifying the transferred case's new registry number.
Civil procedure — Court of Appeal Rules 2009: Rule 11(2)(b) stay of execution requires a valid notice of appeal; Rule 83/Form D — contents and formal requirements of notices of appeal; High Court Registries Rules — effect of transfer on case identity and requirement to file documents under the new registry number; procedural non-compliance — omission of transferred case number fatal to competence of stay application.
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6 December 2013 |
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Conviction for receiving stolen property quashed where prosecution failed to prove ownership required for recent possession doctrine.
Criminal law – Receiving stolen property – Doctrine of recent possession – Requirements: possession with suspect; positive proof of complainant's ownership; subject matter of charge. Evidentiary proof – Receipts and identifying particulars (serial numbers) necessary to link recovered property to complainant. Burden of proof – Prosecution must prove ownership before expecting explanation from accused.
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5 December 2013 |
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Conviction for receiving stolen property quashed where prosecution failed to prove ownership of recovered items.
Criminal law – receiving stolen property – doctrine of recent possession – requirements: possession, positive proof of ownership, subject-matter of charge. Evidentiary proof – identification and documentary evidence – importance of serial numbers/distinctive particulars to link exhibits to complainant. Burden of proof – prosecution duty to prove ownership before shifting burden to accused.
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5 December 2013 |
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Convictions quashed because identification evidence was unreliable and in-court identification lacked a prior identification parade.
Identification evidence – adequacy of visual identification in crowded public place; dock identification inadmissible or unreliable without prior identification parade; hearsay from bystanders naming suspects inadmissible; failure to call those witnesses merits adverse inference; appellate intervention appropriate where lower courts misapprehend evidence.
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5 December 2013 |
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The respondent's notice of appeal was struck out for failure to take essential steps; no order as to costs.
Civil procedure – striking out notice of appeal for failure to take essential steps in time; practice of hearing incidental procedural applications first; disputed jurat of attestation on affidavits; costs — discretion to make no order.
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4 December 2013 |
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Failure to conduct a voir dire for a child witness and omission to enter conviction rendered the conviction unsafe and set aside.
Criminal procedure – necessity of entering conviction before sentence (section 235(1) Criminal Procedure Act) – omission renders judgment a nullity. Evidence – child witness – voire dire requirement under section 127(2) Evidence Act – failure to conduct/record makes testimony inadmissible and expungible. Evidence sufficiency – medical evidence and secondary witnesses may be insufficient without detailed, direct corroboration. Appellate powers – revision under section 4(2) Appellate Jurisdiction Act to quash proceedings where conviction cannot safely be entered.
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3 December 2013 |
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Appellant’s conviction quashed for denial of fair hearing when adjournment for illness was refused.
Criminal procedure — Right to fair hearing — Refusal of adjournment for medical reasons — Procedural double standard; Identification evidence — identification without parade; Second appeal — interference where there are misdirections/non-directions on evidence.
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3 December 2013 |
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Appellate court upheld armed robbery conviction, finding eyewitness corroboration and no misdirection by lower courts.
Criminal law – Armed robbery – Credibility of eyewitnesses – Corroboration by responding witness – Concurrent findings of fact – Appellate interference only for misdirection or non-direction – Failure to call investigator not fatal per se.
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2 December 2013 |
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Post‑mortem improperly admitted but eye‑witness and circumstantial evidence proved murder with malice aforethought; appeal dismissed.
Criminal law – murder – proof of death, causation and malice aforethought; visual identification and corroboration; inadmissibility of post‑mortem where s.291(3) CPA rights not observed; assessors’ participation; raising intoxication defence at plea stage.
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2 December 2013 |
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Conviction quashed where prosecution failed to prove false pretence and intent to defraud.
Criminal law – obtaining money by false pretences – requirement to prove false pretence and intention to defraud – personal loan arrangement without proven misrepresentation – civil dispute vs. criminal deception – insufficiency of evidence warrants quashing conviction.
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2 December 2013 |