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Citation
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Judgment date
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| November 2013 |
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Extension of time granted to file revision where delay was justified and condonation order was not finally determinative.
* Labour procedure – extension of time – Rule 56(1) Labour Court Rules – requirement of sufficient/good cause.
* Labour procedure – interlocutory orders – Rule 50 precluding revision/appeal of interlocutory orders that do not finally determine disputes (condonation orders).
* Procedure – effect of struck-out applications – striking out on technicality is not a final determination.
* Case law – application of established test for extension: delay not caused by dilatory conduct and reasonable explanations justify extension.
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20 November 2013 |
| August 2013 |
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Conviction based on weak visual identification and contradictory witness testimony was quashed for lack of proof beyond reasonable doubt.
Criminal law – armed robbery – visual identification – evidence of visual identification is weak and requires elimination of all possibilities of mistaken identity; witness contradictions and inconsistencies that go to the root of the case can justify appellate interference with concurrent findings; burden of proof on prosecution to establish guilt beyond reasonable doubt.
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6 August 2013 |
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Appeal allowed where appellant’s identification was unsafe and prosecution evidence was materially contradictory.
Criminal law – Armed robbery – Visual identification – Identification in dark conditions and without clear source of light is unsafe; contradictions in prosecution witnesses may vitiate conviction. Second appeal – interference permitted where misapprehension of evidence or miscarriage of justice.
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6 August 2013 |
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Applicants sought a rehearing via review; Court held Rule 66(1) limits review and dismissed the application.
Criminal appeal — Review — Rule 66(1) Court of Appeal Rules — Review limited to enumerated grounds; re-hearing not permissible; review jurisdiction exceptional.
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6 August 2013 |
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Reported
Court grants conditional stay of execution pending appeal; stay applies to decree/order, not the judgment.
Civil procedure – Stay of execution pending appeal under Rule 11(2) of Court of Appeal Rules; stay applies to decree/order extracted from judgment, not the judgment itself; requirements under Rule 11(2)(d) – substantial loss, no unreasonable delay, and security; bank guarantee as security; conditional stay pending appeal.
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6 August 2013 |
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A Rule 66(1) review cannot be used to re-argue an appeal; specific statutory grounds must be pleaded.
* Civil procedure — Review under Court of Appeal Rules, Rule 66(1) — restrictive grounds for review required and must be pleaded.
* Review vs appeal — review not a forum to re-argue factual, evidential or legal matters already decided.
* Finality of litigation — review jurisdiction to be exercised sparingly to protect certainty of judgments.
* Procedural compliance — requirement to specify grounds of review under Rule 66(3).
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6 August 2013 |
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An appeal from a Primary Court without a High Court certificate on a point of law is incompetent and struck out.
Criminal procedure – Appeals from Primary Courts – Requirement of High Court certificate on point of law under section 6(7)(b) Appellate Jurisdiction Act – Failure to obtain certificate renders appeal to Court of Appeal incompetent and liable to be struck out; remedy: apply to High Court for extension of time and certificate.
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6 August 2013 |
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Reported
Criminal appeals from Primary Courts require a High Court certificate on a point of law; absence makes the appeal incompetent.
Appellate Jurisdiction Act s.6(7)(b) – appeals from Primary Courts in criminal matters – requirement of High Court certificate on point of law – competence of appeal – failure to obtain certificate renders appeal incompetent – striking out – remedy: apply for extension of time and certificate in High Court.
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6 August 2013 |
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Reported
An appeal from a Primary Court is incompetent in the Court of Appeal without a High Court certificate that a point of law is involved.
* Appellate Jurisdiction Act s.6(7)(b) – appeals originating from Primary Courts – High Court certificate on point of law required.
* Competence of appeal – jurisdictional pre‑requisite – failure to obtain certificate renders appeal incompetent and liable to be struck out.
* Procedural remedy – application for extension of time to lodge notice of appeal and application for High Court certificate thereafter.
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6 August 2013 |
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A review application cannot substitute for an appeal; only Rule 66(1) grounds permit review, so the application was dismissed.
* Court of Appeal Rules, 2009 (Rule 66(1)) – grounds for review are exhaustive. * Review procedure – review cannot be used to re-argue or re-evaluate issues already decided; that would be an appeal. * Functus officio – once the Court has delivered judgment, it cannot re-decide the same appeal by way of review. * Criminal law – visual identification – appellate court may decline review where identification was considered and upheld in the original judgment.
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5 August 2013 |
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A review application cannot be used to re-hear an appeal; only the specific Rule 66(1) grounds permit review.
* Criminal procedure – Review – Rule 66(1) Court of Appeal Rules 2009 – Review limited to specific grounds (manifest error on face of record; denial of hearing; nullity; lack of jurisdiction; illegality/fraud/perjury).
* Civil/criminal appeals – Review is not a re-hearing – an application that seeks re-evaluation of evidence is not cognizable under Rule 66(1).
* Jurisdiction – Review jurisdiction exceptional and to be sparingly exercised.
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5 August 2013 |
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A review application cannot substitute for an appeal; Rule 66(1) limits review to specified grounds.
Criminal procedure; review jurisdiction; Rule 66(1) Tanzania Court of Appeal Rules 2009; review limited to specified grounds (manifest error on face of record; denial of hearing; nullity; lack of jurisdiction; fraud/perjury); rehearing by review prohibited; dismissal of review application.
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5 August 2013 |
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Appellant's murder conviction reduced to manslaughter due to provocation and sudden loss of self-control.
* Criminal law – murder v manslaughter – whether conduct amounted to malice aforethought or was provoked leading to loss of self-control; * Provocation – availability where third party's conduct and deceased's actions in quick succession cause sudden heat of passion; * Appeal – when trial judge misapplies precedent and misapprehends facts, conviction may be reduced and sentence substituted.
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5 August 2013 |
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Provocation found to reduce the applicant’s murder conviction to manslaughter; five‑year sentence substituted.
* Criminal law – murder v. manslaughter – defence of provocation and heat of passion
* Assessment of facts – sequence and immediacy of provocative acts
* Misapplication of precedent where factual matrices differ
* Substitution of conviction and sentence on appeal
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5 August 2013 |
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Rape conviction quashed where identity was unproven, PF.3 expunged and alibi not properly considered.
Criminal law – rape – sufficiency of single witness testimony; Evidence – medical report PF.3 expunged for non‑compliance with s.240(3) Criminal Procedure Act; Identification – prosecution must prove identity beyond reasonable doubt; Evidence – failure to call material witnesses may attract adverse inference; Criminal procedure – alibi and s.194 obligations; Second appeal – reappraisal of factual findings where lower courts failed to address key defences.
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5 August 2013 |
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A review lacking specified Rule 66(1) grounds and seeking re-evaluation of evidence is dismissed.
* Criminal procedure — Review of Court of Appeal judgment — Application under Rule 66(1) of the Court of Appeal Rules, 2009 — Limited grounds: manifest error on face of record; deprivation of hearing; nullity; lack of jurisdiction; illegality/fraud/perjury. * Review will not be used to re-assess evidence or as an appeal in disguise. * Finality of litigation — Court cannot sit on appeal over its own judgments.
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5 August 2013 |
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Conviction quashed where material contradictions in prosecution evidence created reasonable doubt.
* Criminal law – Rape – contradictions in prosecution evidence and coherence of testimonies – effect on safety of conviction. * Evidence – credibility assessments – inconsistency between eyewitness account and accused’s cautioned statement. * Procedure – PF3 medical report and delay in medical examination as affecting proof beyond reasonable doubt. * Appeal – interference with concurrent findings where material contradictions exist.
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2 August 2013 |
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Review applications must rely on the exclusive grounds in Rule 66(1); mere complaint of overlooked identification is not a proper ground.
Court of Appeal — Review — Rule 66(1) Court of Appeal Rules, 2009 — Grounds for review are exclusive — Allegation of overlooked matters / identification not a ground for review — Reconsideration would amount to sitting on appeal — Functus officio — Review application dismissed.
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2 August 2013 |
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A review application not grounded on Rule 66(1) grounds cannot substitute for an appeal and is dismissed.
Court of Appeal — Review jurisdiction — Rule 66(1) limits review to specified grounds (manifest error; deprivation of hearing; nullity; lack of jurisdiction; illegality/fraud/perjury) — Review cannot be used as an appeal — Finality of litigation.
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2 August 2013 |
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Appeal allowed; conviction quashed due to material contradictions and failure to prove rape beyond reasonable doubt.
Criminal law – Rape – sufficiency of prosecution evidence – material contradictions among eyewitnesses and between witness testimony and cautioned statement; PF3 stating "probably she is raped" and delays in medical examination – appellate interference with concurrent findings where evidence lacks coherence.
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1 August 2013 |
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Visual identification and unvalidated parade evidence were insufficient to support conviction; appeal allowed and conviction quashed.
* Criminal law – identification evidence – visual identification by eyewitness; need for prior description and circumspection when witnesses are strangers to accused; parade evidence must be validated by police witnesses; absence of police testimony invites adverse inference. * Appeals – appellate scrutiny of credibility and cogency of identification evidence; unsafe convictions to be quashed.
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1 August 2013 |
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Review application dismissed for advancing appeal grounds instead of satisfying Rule 66(1) review criteria.
* Review jurisdiction – Court of Appeal – limited grounds under Rule 66(1) – manifest error on face of record; denial of hearing; nullity; lack of jurisdiction; judgment procured by fraud/illegality/perjury. * Distinction between review and appeal – Court will not entertain appeals through review. * Finality of litigation – public policy against reopening concluded appeals.
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1 August 2013 |
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Applicant's review asking reassessment of evidence dismissed for failure to invoke Rule 66 grounds and for undermining finality of litigation.
* Criminal procedure – Review of judgment – Court’s review jurisdiction confined to limited grounds under Rule 66(1) Court of Appeal Rules, 2009 – not a rehearing or appeal. * Procedure – Failure to specify grounds/particulars for review under Rule 66(3) fatal to application. * Principle – Finality of litigation; review powers to be exercised sparingly.
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1 August 2013 |
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A review requesting reassessment of evidence is an appeal in disguise and is therefore dismissed; sentence reduction not granted.
* Criminal procedure – Review – Grounds of review under Rule 66(1) Court of Appeal Rules, 2009 – Re-assessment of evidence is not a ground for review.
* Civil/criminal appeals – Finality of litigation – Review cannot be used as an appeal in disguise; Court will not re-open its own appeal judgment.
* Sentencing – Reduction of sentence not permitted via review in the present circumstances.
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1 August 2013 |
| July 2013 |
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31 July 2013 |
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Court exercised Rule 47(2009) discretion to extend time for filing a late notice of appeal due to prolonged detention.
* Civil procedure – Appeal deadlines – Notice of appeal must be filed within 14 days under Court of Appeal Rules 1979 (Rule 61(1)) – late filing renders no valid appeal.
* Criminal procedure – Court’s discretion under Court of Appeal Rules 2009 (Rule 47) to extend time or grant leave to appeal in the interests of substantive justice.
* Prisoner litigation – prolonged detention as a factor in granting extension of time.
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31 July 2013 |
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A review application must invoke Rule 66(1) grounds and cannot be used as a backdoor appeal.
* Criminal procedure – Review of Court of Appeal judgment – Rule 66(1) Court of Appeal Rules, 2009 – review limited to manifest error on face of record, deprivation of hearing, nullity, lack of jurisdiction, or judgment procured by fraud/perjury. * Procedural law – review cannot be used as a backdoor appeal; finality of litigation upheld.
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31 July 2013 |
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Court quashed High Court proceedings and granted the applicant 30 days to file a proper notice of appeal.
* Criminal procedure — appellate procedure — competence of notice of appeal — mandatory requirement to state nature of High Court decision appealed (Rule 61(2)).
* Appellate Jurisdiction Act (s.11(1)) — High Court power to extend time to give notice of intention to appeal.
* Court Rules — concurrent power and "second bite" to seek extension in Court of Appeal (Rule 44/47; Rule 8/10 of earlier/new Rules).
* Revisional powers (s.4(2)) — nullification and quashing of High Court proceedings wrongly instituted.
* Discretionary extension — Court may grant time to lodge notice of appeal in interests of justice.
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31 July 2013 |
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Court exercised Rule 47 (2009) discretion to extend time to file a late notice of appeal in the interests of substantive justice.
* Criminal Procedure – Appeal – Notice of appeal filed out of time under Court of Appeal Rules, 1979 (Rule 61(1)). * Discretion to extend time – Court of Appeal Rules, 2009 (Rule 47) – Court may grant leave or extend time in criminal matters even without prior High Court application. * Substantive justice – prolonged detention as a factor warranting extension of time.
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30 July 2013 |
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A review application must plead statutory Rule 66 grounds; re‑evaluating evidence is not a valid basis for review.
Criminal procedure – Review of judgment – Court of Appeal Rule 66(1) – Review limited to manifest error on the face of the record, denial of hearing, nullity, lack of jurisdiction, or illegal/fraudulent procurement – Re-assessment of evidence on review impermissible – Finality of litigation.
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30 July 2013 |
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A review application cannot be used to re-open an appeal or re-assess evidence; review is limited to errors apparent on the face of the record.
* Criminal procedure – Review application – limits of review jurisdiction – review not a rehearing of appeal; error apparent on face of record required. * Criminal law – sentence – reduction of sentence not available by way of review of Court’s own judgment in absence of appropriate jurisdictional basis.
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30 July 2013 |
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Review of an appellate judgment is permissible only on the narrow Rule 66(1) grounds, not to re-open or re-assess evidence.
* Criminal procedure – Review of Court of Appeal judgment – inherent jurisdiction limited and sparingly exercised; Rule 66(1) grounds are exhaustive – manifest error on face of record; denial of hearing; nullity; lack of jurisdiction; judgment procured by fraud/perjury/illegality. * Review cannot be used to re-assess evidence or re-hear appeals. * Applicant’s bare allegation that the court 'overlooked' matters is insufficient to ground review under Rule 66(1).
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30 July 2013 |
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Court permitted withdrawal of a criminal appeal under Rule 4(2)(a) where no objection was raised by any party.
* Criminal procedure – Appeal – Withdrawal of appeal – Application under Rule 4(2)(a) of the Court of Appeal Rules, 2009 – Granting leave where no objection raised.
* Procedural law – Effect of respondent’s absence at hearing of application to withdraw appeal.
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30 July 2013 |
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A High Court strike‑out for incompetence is not a "refusal" under Rule 45(b); appeal application was premature.
Civil procedure – Appeals – Rule 45(b) Court Rules – application for leave to appeal to Court of Appeal; High Court striking out an application for incompetence does not constitute a "refusal" of leave; premature application to Court of Appeal; proper procedure requires leave application be determined by High Court on merits before invoking Rule 45(b).
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30 July 2013 |
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Child’s evidence and PF3 improperly admitted; conviction quashed, no retrial, immediate release ordered.
Criminal law – Evidence of child of tender years – mandatory voir dire under s.127(2) Evidence Act; Admission of PF3 – accused’s right under s.240(3) Criminal Procedure Act to call examining doctor; Hearsay evidence insufficient to sustain conviction; Improper summary rejection of appeal under s.364; Quashing conviction and declining retrial due to prolonged unlawful detention and victim’s trauma.
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29 July 2013 |
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Trial without DPP consent and transfer certificate rendered the appellant's convictions void; he was ordered released.
* Criminal procedure – Economic and Organized Crimes Act – jurisdictional requirements – mandatory DPP consent (s.26(1)) and certificate of transfer (s.12(3)) for subordinate courts to try economic offences – failure renders proceedings a nullity.
* Appeal – powers of Court of Appeal under s.4(2) Appellate Jurisdiction Act – quashing convictions and setting aside proceedings.
* Discretion – retrial need not be ordered where interest of justice and time served make it unjust.
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29 July 2013 |
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Trial without DPP consent and transfer certificate rendered proceedings void; convictions quashed and appellant released.
* Criminal procedure – Economic Crimes Act – jurisdictional requirements – mandatory consent of DPP (s.26(1)) and certificate of transfer (s.12(3)) – absence renders trial and convictions nullities.
* Criminal appeal – discretionary refusal of retrial where convictions quashed for jurisdictional defects and appellant has largely served the sentence.
* Right to legal representation – significance in identifying and protecting procedural rights in serious criminal matters.
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29 July 2013 |
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Court struck incompetent appeal, quashed irregular High Court proceedings, and granted 30 days to lodge a proper notice of appeal.
* Criminal procedure – appeal competence – mandatory contents of notice of appeal and memorandum under Rule 61(1) & (2) – failure renders appeal incompetent.
* Appellate jurisdiction – no inherent right of appeal – extensions under s.11(1) Appellate Jurisdiction Act and concurrent powers under Court Rules (Rule 44/47).
* Court discretion – "second bite" to Court where High Court refused extension – power to grant extension despite no prior High Court application.
* Revisionary powers – nullification and quashing of High Court proceedings improperly brought under wrong statutory provisions.
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29 July 2013 |
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Review dismissed: re-assessing evidence is not a permitted ground under Rule 66(1), and would be an appeal in disguise.
* Criminal procedure – Review applications – Scope of review under Rule 66(1) of the Court of Appeal Rules, 2009 – Grounds in Rule 66(1) are exhaustive; expressio unius est exclusio alterius applies. * Review v. Appeal – Re-assessment of evidence already considered on appeal amounts to re-opening the appeal and is impermissible as a ground for review.
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29 July 2013 |
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Notice of appeal struck out where appellant failed to institute the appeal or serve Registrar's copy request, breaching Court Rules.
* Civil procedure – Appeal procedure – striking out notice of appeal for failure to institute appeal within prescribed time – Rule 89(2) and Rule 90(2) Court of Appeal Rules.
* Appeal time-limits – obligation to file record/memorandum of appeal – essential steps required to prosecute appeal.
* Extension by request for copies – proviso to Rule 90(1) inapplicable where request to Registrar was not served on opposing party.
* Failure to file affidavit in reply – adverse inference and non-prosecution of appeal.
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29 July 2013 |
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Notice of appeal struck out where respondent failed to institute appeal within time and did not prosecute it.
* Civil procedure – striking out notice of appeal – Rule 89(2) Court Rules – failure to take essential steps to institute appeal.
* Time limits – Rule 90(2) – sixty days to institute appeal; proviso to Rule 90(1) inapplicable where request for proceedings not served.
* Procedural consequence – non-attendance and failure to file affidavit or submissions construed as concession; notice struck out with costs.
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29 July 2013 |
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Child’s unsworn evidence received without voir dire vitiated conviction; appeal allowed and retrial refused.
Evidence Act s.127(2) — voir dire requirement for child witnesses; Criminal Procedure Act s.240(3) — right to have examining doctor called when PF3 tendered; Criminal Procedure Act s.364 — limits on summary dismissal of appeals; Expungement of incompetent evidence; Retrial considerations — delay and victim trauma.
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26 July 2013 |
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Convictions quashed where burglary particulars were defective and identification evidence was unsafe; appellant ordered released.
* Criminal law – Burglary – particulars of charge must disclose essential ingredients (dwelling, entry); defective particulars vitiate conviction.
* Criminal procedure – Sufficiency of charge – a charge that does not disclose an offence cannot be cured under s. 388 CPA.
* Evidence – Identification – conviction based on a single, inconsistent identification and a delayed statement is unsafe.
* Evidence – Delay in recording witness statement reduces its evidential value, especially where the witness is absent at trial.
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26 July 2013 |
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Conviction quashed because voice and visual identification were unsafe given night-time conditions and covered face.
* Criminal law – identification evidence – voice identification is inherently weak and requires proof of familiarity and conditions excluding mistake. * Identification – visual identification at night with face covered and no evidence of lighting is unsafe. * Conviction unsafe where identity is not established beyond reasonable doubt.
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26 July 2013 |
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A review cannot be used to re-assess evidence or re-open an appeal; only Rule 66(1) grounds apply.
Criminal procedure – Review applications – Scope of review confined to Rule 66(1) grounds; re-assessment of evidence is not a ground for review and constitutes re-opening an appeal in disguise.
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26 July 2013 |
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Leave to appeal to the Court of Appeal is premature where the High Court struck out, rather than refused, the leave application.
Appellate procedure – leave to appeal – Rule 45(b) Court of Appeal Rules 2009 – High Court must refuse leave before Court of Appeal entertains application – striking out for incompetence is not a refusal.
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26 July 2013 |
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A retracted confession and improperly admitted child evidence vitiated the applicant's trial, warranting quashing and retrial.
* Criminal procedure – Confessional statements – Requirement to inquire into voluntariness (trial-within-trial/inquiry) before admitting a retracted confession (Evidence Act and authorities).
* Evidence – Child witnesses – Section 127(2) Evidence Act and necessity of a full voire dire to determine competence to give unsworn evidence.
* Criminal appeal – Effect of expunging key evidence – insufficiency of remaining evidence and vitiation of trial; quash and order retrial.
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24 July 2013 |
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Retracted confession and improperly admitted child evidence rendered the conviction unsafe; trial quashed and retrial ordered.
* Criminal law – confession – retraction of confession; requirement for inquiry/trial within a trial to determine voluntariness (s.27(2) Evidence Act).
* Evidence – child witness – competence and voire dire under s.127(2) Evidence Act; necessity to determine sufficient intelligence before receiving unsworn evidence.
* Criminal procedure – fundamental irregularities vitiating trial; expunction of improperly admitted evidence leading to quashing of conviction and retrial.
* Admissibility and sufficiency – medical evidence alone (presence of sperm) insufficient without reliable witness evidence.
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23 July 2013 |
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A revision application is incompetent if s.4(2) is misapplied and the impugned record is not produced.
Appellate Jurisdiction Act s.4(2) – revisionary powers exercisable in context of appeals – revision generally exercised suo motu; Requirement to file proceedings, ruling and orders of lower court when moving for revision; Competence of proceedings – failure to supply impugned record renders application incomplete and liable to be struck out.
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1 July 2013 |
| March 2013 |
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First and third appellents’ convictions upheld; second appellant’s in‑absentia conviction set aside for non‑compliance with s.226(2).
Criminal law – Armed robbery – Identification and arrest at the scene – credibility of eyewitnesses; Criminal procedure – Conviction in absentia – Duty to bring apprehended convict before trial court under s.226(2) Criminal Procedure Act; Right to be heard – fair trial under Article 13(6)(a); Authorities – Marwa Mahende v R; effect of non‑compliance with s.226(2).
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4 March 2013 |