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Citation
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Judgment date
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| July 2011 |
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Post-mortem and PF3 were irregularly admitted, but eyewitness evidence still proved murder; appeal dismissed.
Criminal law – Admissibility of exhibits – compliance with section 192(3) Criminal Procedure Act required before admission of post-mortem; PF3 must comply with procedural requirements – Mental illness report not admissible if not tendered – Evidence – sufficiency of eyewitness corroboration to prove murder and malice aforethought – Defence of insanity/intoxication burden on accused.
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27 July 2011 |
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Plea of guilty invalid where charge lacks particulars of penetration and was not explained to accused in a language he understood.
Criminal procedure – guilty plea – necessity to explain constituents of offence before accepting plea; Rape – particulars must allege penetration to prove sexual intercourse; Right to fair trial – charge and essential ingredients must be explained in a language the accused understands; Failure to employ interpreter renders plea equivocal and proceedings irregular – nullification and remittal appropriate remedy.
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23 July 2011 |
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A notice of appeal that fails to specify the decision appealed against is incompetent and will be struck out.
Criminal procedure – Notice of appeal – Rule 61(2) mandatory requirement to state nature of conviction/sentence/order – Failure renders notice invalid and appeal incompetent – Right to refile subject to limitation.
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14 July 2011 |
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An appeal from a Taxing Officer's taxation of costs is not competent to the Court of Appeal; relief lies to the High Court.
Taxation of costs — Appealability — Appellate Jurisdiction Act s.5(1),(2) — Advocates' Remuneration and Taxation of Costs Rules (GN 515/1991) Rule 5 — Remedy by chamber application to High Court — Jurisdiction — Striking out appeal.
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8 July 2011 |
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An out-of-time notice of appeal and an incurably defective trial decree render an appeal incompetent and lead to its striking out.
Civil procedure – competence of appeal – timeliness of notice of appeal under Rule 76(2) – extension of time orders – validity of decree – Order XX Rule 7 (signed and properly dated decree) – wrongful/dated decree renders appeal incompetent – incapacity of constitutional cure to validate non-existent appeal.
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8 July 2011 |
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Unaffirmed adult testimony and defective child evidence caused failure of justice; convictions quashed and retrial ordered.
* Criminal procedure – admissibility of evidence – requirement that witnesses be sworn or affirmed (s.198(1) CPA; Oaths and Statutory Declarations Act) – unsworn adult testimony to be discarded. * Evidence of children – compliance with s.127(2) Evidence Act and adequacy of voir dire. * Procedural irregularity – failure of justice test (s.388 CPA). * Revisional powers – quashing convictions and ordering retrial (s.4(2) Appellate Jurisdiction Act).
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8 July 2011 |
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Unaffirmed adult testimony and defective child evidence vitiated the trial, causing a quash of proceedings and ordered retrial.
Criminal procedure – non‑compliance with section 198(1) CPA (oath/affirmation) – inadmissibility of unaffirmed adult testimony; Evidence Act s.127(2) – improper voir dire for child witness – inadmissible child evidence; s.388 CPA – whether irregularity occasioned failure of justice; revisional powers s.4(2) AJA – quashing proceedings and ordering retrial.
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8 July 2011 |
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Unsworn adult testimony and improperly recorded child evidence amounted to a failure of justice, prompting retrial.
* Criminal procedure – requirement to administer oath or obtain affirmation of witnesses – s.198(1) Criminal Procedure Act and s.4 Oaths and Statutory Declarations Act – unsworn/unaffirmed adult evidence to be discarded.
* Evidence – child witness – adequacy of voir dire and s.127(2) Evidence Act – improperly recorded child evidence inadmissible.
* Criminal procedure – effect of irregularities – s.388 Criminal Procedure Act – irregularities causing a failure of justice warrant quashing of proceedings.
* Appellate jurisdiction – exercise of revisional powers – s.4(2) Appellate Jurisdiction Act – quash and order retrial.
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8 July 2011 |
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An equivocal plea cannot sustain conviction; a high court may not summarily dismiss such an appeal under s.364(1) CPA.
Criminal procedure – Plea of guilty – Equivocal plea must be treated as not guilty; trial court must read charge and obtain unequivocal plea; High Court’s summary rejection under s.364(1) CPA limited to appeals on weight of evidence or excessive sentence; failure to allege penetration vitiates rape conviction.
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5 July 2011 |
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Circumstantial and medical evidence upheld conviction for child rape; sentence amended to add mandatory corporal punishment and compensation.
* Criminal law – Rape of a child – Circumstantial and medical evidence – sufficiency to prove rape beyond reasonable doubt. * Evidence – Child witness testimony – non‑compliance with statutory procedure and effect of discounting that testimony. * Forensic/medical evidence – PF3 and medical examination confirming third‑degree vaginal tear and bruises. * Identification – accused as last person with victim and injuries on accused corroborating assault. * Sentencing – Mandatory corporal punishment and compensation under section 131 Penal Code – appellate substitution of sentence by Court of Appeal.
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5 July 2011 |
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Unsatisfactory child evidence and lack of proven penetration or medical corroboration made the rape conviction unsafe, so it was quashed.
Criminal law – Rape – Particularity of charge under s.130(2) Penal Code – Curability of defective charge under s.388 CPA; Evidence – Child witness – compliance with s.127(2) Evidence Act; Requirement that victim alleges penetration; Non‑medical corroboration insufficient without admissible victim or medical evidence; Conviction unsafe where essential elements not proved beyond reasonable doubt.
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5 July 2011 |
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Visual identification without prompt naming is unsafe; one appellant's conviction quashed, the other's conviction affirmed.
* Criminal law – Armed robbery – Visual identification evidence – Known suspect not named at earliest opportunity – reliability and caution required. * Criminal procedure – Appellate review – duty of first appellate court to re‑adjudicate and weigh conflicting evidence. * Evidence – Alibi – requirement to produce or identify supporting witnesses and plausibility assessment. * Identification parade – significance of inconsistent parade testimony in assessing identification.
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5 July 2011 |
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Visual identification is fragile; failure to name a suspect undermines conviction, but being caught with stolen goods can justify conviction.
Criminal law – Armed robbery – Visual identification evidence – Weak and to be approached with caution; failure/delay to name a known suspect undermines credibility; identification parade inconclusive – conviction unsafe. Appellate review – First appellate court must re-adjudicate and objectively weigh prosecution and defence evidence. Evidence – Presence at scene with stolen goods and credible prosecution evidence can sustain conviction; weak alibi and minor inconsistencies are insufficient to raise reasonable doubt.
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5 July 2011 |
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Delayed naming in visual identification can render a conviction unsafe; possession at scene can justify conviction.
* Criminal law – Armed robbery – visual identification – caution where witnesses delay or fail to name a known suspect.
* Criminal procedure – Alibi – need for credible contemporaneous support; afterthoughts undermine defence.
* Appellate review – second appeal limits; duty of first appellate court to re-adjudicate conflicting evidence.
* Evidence – possession of recently stolen property and arrest at scene can justify conviction if credible.
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5 July 2011 |
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Voir dire non-compliance and an improper magistrate change rendered the attempted-rape conviction unsafe.
Criminal law – sexual offences – attempted rape – reliance on child witnesses – compliance with voir dire under s.127(2) Evidence Act – expunging child evidence; Criminal procedure – improper tendering of PF3 and s.240(3) rights – admissibility if non-prejudicial; Trial procedure – change of magistrate during trial (s.214) – need to resummon witnesses where credibility is central; Sufficiency of evidence – variance between charge and testimony undermines conviction.
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5 July 2011 |
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Defective voir dire for child witnesses and change of magistrate caused material prejudice; conviction quashed and sentence set aside.
* Evidence — Relatives as witnesses — No rule discrediting relatives’ evidence; credibility assessed on merits. * Criminal Procedure — Section 240(3) — Non-compliance and admission of PF3 by non-author; expungement not required if not prejudicial. * Evidence Act s.127(2) — Voir dire for child witnesses — court must investigate and record child’s intelligence and understanding; failure requires expunging child’s evidence. * Criminal procedure s.214(1)-(2) — Change of magistrate mid-trial — failure to resummon key witnesses may materially prejudice accused. * Proof — Variance between charge and evidence and insufficiency of remaining evidence after expungement undermines conviction.
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5 July 2011 |
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Voir dire non-compliance and change of magistrate led to quashing a conviction for attempted rape due to insufficient admissible evidence.
Criminal law – sexual offences – attempted rape – sufficiency of evidence; Evidence Act s.127(2) – voir dire for child witnesses – requirements and consequences; Criminal Procedure Act s.240(3) – tendering PF3 and calling its author; change of magistrate during trial – s.214(1)-(2) and potential prejudice to accused.
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5 July 2011 |
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1 July 2011 |
| June 2011 |
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Conviction quashed and retrial ordered where PF3 was admitted without complying with s240(3) and medical author was not summoned.
* Criminal law – Rape – Requirement to prove penetration under section 130(4) of the Penal Code – Corroboration by medical evidence (PF3).
* Criminal procedure – Admissibility of medical report (PF3) – Compliance with section 240(3) Criminal Procedure Act – right of accused to have report’s author summoned for cross-examination.
* Evidence – Child complainant – failure of voir dire – when medical author becomes necessary witness.
* Appellate jurisdiction – Revisional powers under section 4(2) – retrial ordered where trial was fundamentally defective and miscarriage of justice resulted.
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30 June 2011 |
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Failure to address provocation and fight context warranted quashing a murder conviction and substituting manslaughter.
Criminal law – Murder v. manslaughter – Provocation – duty to address assessors – objective test whether ordinary person would have been provoked – deaths in fights attract manslaughter not murder.
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30 June 2011 |
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A criminal appeal is incompetent and struck out if the notice of appeal fails mandatory Rule 61(2) requirements.
* Criminal appeals – competence – notice of appeal – mandatory compliance with Rule 61(2) – requirement to state nature and particulars of conviction/sentence/order being appealed.
* Notice invalidity – inconsistent particulars or reference to non-existent decision renders appeal incompetent.
* Preliminary objection – Court will sustain objections based on Rule 61(2) non-compliance and strike out appeal.
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30 June 2011 |
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Failure to state the nature of the decision appealed renders a notice of appeal incurably defective and the appeal incompetent.
* Criminal procedure – Appeal – Notice of appeal – Requirement under Rule 61(2) to state nature of conviction/sentence/order/finding of the High Court – Non‑compliance renders notice incurably defective and appeal incompetent – Appeal struck out; liberty to refile subject to limitation.
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30 June 2011 |
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A Principal Resident Magistrate (Extended Jurisdiction) lacks authority to determine High Court s.361(2) enlargement applications; such orders are quashed.
Criminal procedure – extension of time to lodge High Court appeal under s.361(2) Criminal Procedure Act – jurisdictional limits of a Principal Resident Magistrate with Extended Jurisdiction under s.45 Magistrates' Courts Act – proceedings and orders made without jurisdiction are void – revision under s.4(2) Appellate Jurisdiction Act.
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29 June 2011 |
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Conviction quashed where prosecution failed to prove penetration and prove the charged date of the alleged rape.
* Criminal law – Rape – Proof of penetration required even to the slightest degree to sustain conviction.
* Criminal procedure – Particulars of offence – Prosecution must prove the specific date pleaded or amend the charge and recall witnesses.
* Evidence – Variance between charge and testimony invalidates conviction if not remedied by amendment.
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27 June 2011 |
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A resident magistrate with extended jurisdiction cannot hear a High Court enlargement application; transfers must comply with section 45(2).
Criminal procedure – section 361(2) CPA – enlargement of time applications filed in High Court; Magistrates' Courts Act s.45(2) – transfer applies to appeals, not incidental chamber applications; lack of jurisdiction vitiates proceedings; revision under s.4(2) AJA; remand to High Court to determine extension before hearing appeal.
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27 June 2011 |
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24 June 2011 |
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Admitting PF3 without summoning its author breached s240(3) and caused a miscarriage, prompting quashal and retrial for the applicant.
Criminal law – Evidence – PF3 (medical report) – section 240(3) Criminal Procedure Act – necessity to summon medical author for cross-examination – child witness failing voir dire (section 127 Evidence Act) – proof of penetration (section 130(4) Penal Code) – retrial under section 4(2) Appellate Jurisdiction Act where procedural irregularity causes miscarriage of justice.
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24 June 2011 |
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A notice of appeal that fails to name the trial judge is fatally defective and renders the appeal incompetent, therefore struck out.
* Criminal procedure – Appeal – Notice of appeal must comply with Rule 61 and Form B – must identify the High Court judge whose decision is complained against. * Notice of appeal is mandatory to institute an appeal; omission of judge’s name is fatal. * Preliminary objection on competence upheld; appeal struck out.
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24 June 2011 |
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A guilty plea is invalid if the charge omits essential elements and is not explained in a language the accused understands.
Criminal procedure – Plea of guilty – Necessity to explain every constituent element of the offence before accepting a plea; Rape – essential element of penetration must be pleaded and proved; Duty to explain charge in a language understood by the accused – employment of interpreter where necessary; Irregular proceedings – nullification and remittal for fresh plea.
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23 June 2011 |
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Convictions quashed where identification, recent possession, PF3s and cautioned statement were unreliable or improperly admitted.
* Criminal law – Visual identification – necessity of identification parade where witnesses are strangers and there is delay before arrest. * Criminal law – Doctrine of recent possession – requirements: possession, property identification, recent theft, and that seized item is subject of the charge. * Criminal procedure – Cautioned statements – statutory interviewing time-limits (s.50 CPA) and admissibility. * Criminal procedure – Medical reports (PF3) – reception in evidence and duty under s.240(3) CPA to call or advise right to call the author. * Evidence – Proof of rape requires clear evidence of penetration; corroboration rules for repudiated confessions.
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23 June 2011 |
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Rape conviction quashed where prosecution failed to prove penetration and the specific date alleged in the charge.
* Criminal law – Rape – Proof of penetration required, even to the slightest degree.
* Criminal procedure – Particulars of offence – Prosecution must prove the specific date pleaded or amend the charge; material variance warrants acquittal.
* Defence – Alibi – rejection solely for lack of supporting defence witnesses is insufficient where prosecution case is defective.
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22 June 2011 |
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A defective charge omitting the use/threat of violence vitiated an armed robbery conviction, warranting quashal and release.
* Criminal law – Armed robbery – Essential elements under s.287A: stealing, being armed and use or threat of actual violence – These elements must be pleaded in particulars of charge. * Criminal procedure – Charge particulars – Requirement to allege facts essential to the offence to enable fair trial and meaningful cross-examination. * Appeals – Second appeal – Court may interfere with concurrent findings of fact where they are unreasonable, perverse or occasion a miscarriage of justice. * Remedy – Defective charge causing prejudice warrants quashing conviction; substitution with lesser offence is inappropriate where doubt remains.
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22 June 2011 |
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Convictions quashed where identification, recent-possession, PF3 and cautioned statement were unreliable or improperly admitted.
Criminal law — Visual identification and need for identification parade; Doctrine of recent possession — elements and requirement that the property be subject of the charge; Admissibility of medical reports (PF3) — mandatory compliance with s.240(3) Criminal Procedure Act; Cautioned statements — voluntariness, statutory interviewing periods (s.48–51/ s.50) and need for corroboration; Proof of rape — requirement of clear proof of penetration.
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21 June 2011 |
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High Court erred in dismissing prisoner's extension application for lack of prison officer affidavit; Court of Appeal granted extension.
Court of Appeal rules – memorandum of appeal must correspond with Notice of Appeal; Criminal procedure – extension of time for prisoner to file appeal – reasonableness of requiring prison officer affidavit; Evidentiary practice – unchallenged affidavit evidence stands where no counter‑affidavit filed; Appellate jurisdiction – exercise of revisional powers under section 4(2) AJA to quash High Court order and grant extension.
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20 June 2011 |
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Appellant’s conviction quashed because nighttime visual identification was unreliable despite section 192 omission.
Criminal law – armed robbery – visual identification in darkness – need for particulars of illumination and distance; caution in reliance on identification evidence; non‑compliance with s.192 CPC affects preliminary hearing only; unexplained delay in naming suspect undermines witness veracity.
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17 June 2011 |
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Unsafe nighttime visual identification and unexplained delay in naming the suspect led to quashing the conviction.
Criminal law – visual identification at night – necessity of specifying intensity/extent of illumination and distance; Criminal procedure – section 192 preliminary hearing – non-compliance affects only preliminary proceedings, not trial per se; Delay in naming suspect – impacts witness credibility and safety of identification evidence.
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17 June 2011 |
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16 June 2011 |
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Circumstantial and medical evidence upheld rape conviction; sentence varied to add mandatory corporal punishment and compensation.
* Criminal law – Rape of a child under ten – circumstantial and medical evidence – admissibility of evidence of child of tender years under s.127(2) Penal Code – identification of perpetrator – mandatory sentencing under s.131 Penal Code – appellate substitution of sentence under s.4(2) Appellate Jurisdiction Act.
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6 June 2011 |
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An equivocal plea and failure to properly take plea render a rape conviction unsafe; High Court erred in summary rejection.
Criminal procedure – Plea of guilty – requirement that charge be read and each ingredient explained; ambiguous plea ("I was a bit confused") treated as not guilty; summary rejection of appeal under s.364(1) CPA to be sparingly exercised and not where plea construction is in issue; rape charges must expressly allege penetration.
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1 June 2011 |
| February 2011 |
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Delay caused by prison typist breakdown constituted good cause; Court granted extension and quashed High Court ruling.
Criminal procedure – extension of time to appeal – section 361(2) Criminal Procedure Act – "good cause" – delay due to prison typist/typewriter malfunction – weight of certified affidavit where no counter‑affidavit filed – duties of officer‑in‑charge under Rule 75 – Court of Appeal discretion under Rule 47 to grant extension.
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28 February 2011 |
| January 2011 |
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Delay caused by a prison typist/typewriter malfunction constituted good cause; High Court erred in dismissing the extension application.
Criminal procedure — Extension of time to appeal — "Good cause" under section 361(2) — Delay due to prison typist/typewriter malfunction — High Court must consider reasons; Court of Appeal may exercise discretion under Rule 47 to grant extension.
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28 January 2011 |