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Citation
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Judgment date
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| November 2019 |
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Conviction quashed where night-time visual identification was inconsistent, unreliable and failed to exclude reasonable doubt.
* Criminal law – Visual and aural identification – Night-time identification –Necessity to consider duration of observation, distance, source and intensity of light, and prior acquaintance.
* Evidence – Credibility – Inconsistent witness accounts and failure to name the suspect at earliest opportunity undermine reliability of identification.
* Appeal – First appeal re-hearing – appellate court duty to re-evaluate identification evidence and quash unsafe convictions.
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8 November 2019 |
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Failure of a second magistrate to inform the accused of the s.214(2)(a) right amounted to a fundamental irregularity, warranting quashing and retrial.
* Criminal procedure – Trial conducted by more than one magistrate – Mandatory duty of second magistrate under s.214(2)(a) to inform accused of right to demand recall/re-hearing of witnesses – Non-compliance is a fundamental irregularity/nullity.
* Appellate jurisdiction – Revisional powers under s.4(2) AJA – Quashing proceedings, judgment and sentence founded on procedural nullity.
* Remedy – Retrial to proceed from point where first magistrate stopped or by another magistrate after compliance with s.214(2)(a); trial to be expedited where accused detained long-term.
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8 November 2019 |
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Failure to inform an accused of his s.214(2)(a) right when a new magistrate takes over renders proceedings a nullity and mandates retrial.
Criminal procedure – Trial conducted by more than one magistrate – Mandatory duty under section 214(2)(a) to inform accused of right to demand re‑summoning/re‑hearing of witnesses – Non‑compliance is a fundamental irregularity and nullity – Remedy: quash proceedings from date of takeover, set aside conviction and remit for retrial – Revisional powers under s.4(2) AJA.
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8 November 2019 |
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Conviction quashed where charge particulars omitted essential ingredients and were at variance with the evidence.
* Criminal law – Charge particulars – must disclose essential ingredients of the statutory offence; * Rape – variance between charge and evidence; * Fair trial – defective charge renders trial a nullity; * Appellate powers – s.4(2) AJA – quash conviction and set aside sentence.
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8 November 2019 |
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A review cannot substitute for an appeal; only obvious, patent errors or denial of hearing justify review under Rule 66.
* Appellate procedure – Review under Rule 66(1) – scope limited to manifest errors apparent on the face of the record or denial of hearing. * "Manifest error" – requires obvious, patent mistake; not a substitute for appeal. * Expunction of exhibits – does not automatically produce miscarriage of justice where conviction sustained on other valid evidence (circumstantial evidence/recent possession). * Right to be heard – absence of relief where accused were represented and defence considered.
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8 November 2019 |
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An appeal by the respondent against an acquittal is incompetent if notice or petition is filed outside statutory time limits.
* Criminal procedure – Appeal against acquittal by DPP – Time limits under section 379(1)(a) & (b) Criminal Procedure Act – Notice of intention to appeal must be properly lodged in the correct subordinate court – Petition of appeal must be filed within 45 days excluding time to obtain copies of proceedings/judgment.
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8 November 2019 |
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Amendment to section 127 removes mandatory voir dire; child’s promise to tell truth suffices for admissibility, appeal dismissed.
Evidence – section 127 Evidence Act (as amended) – witnesses of tender age may give unsworn evidence after promising to tell the truth; voir dire no longer mandatory; adequacy of trial record; second appeal competency to raise point of law.
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7 November 2019 |
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Appellate court upheld statutory rape conviction; penetration established by victim’s account and corroboration despite expunged medical report.
* Criminal law – Rape – statutory rape under section 130(1)(2)(e) Penal Code – victim under 18 years. * Evidence – proof of penetration – words such as "had sexual intercourse" and ejaculation sufficient to prove slightest penetration. * Evidence – corroboration – conviction based on victim and two independent witnesses; section 127(7) Evidence Act not engaged. * Procedure – improper admission of PF3/medical report without compliance with section 240(3) CPA – Exhibit P1 expunged.
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7 November 2019 |
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Failure to account for a four-year delay and to show good cause led to dismissal of an application for extension to seek review.
* Civil procedure – Extension of time – Rule 10 Court of Appeal Rules 2009 – Good cause required – factors: length and reason for delay, applicant’s conduct, existence of arguable case, prejudice to respondent – applicant must account for each day of delay.
* Review applications – allegation of manifest error – unsupported general assertions do not constitute good cause for extension.
* Evidence – assertions not pleaded in affidavit cannot be relied on as excuse for delay.
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6 November 2019 |
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Conviction quashed where child testimony lacked s.127(2) promise and PF3 was improperly tendered, leaving no proof beyond reasonable doubt.
Criminal law — Evidence Act s.127(2) — child witnesses must promise to tell the truth on record; non‑compliance renders their testimony inadmissible; PF3 must be tendered by its author; credibility of mentally ill witness and need for corroboration; interference with concurrent findings where misapprehension causes miscarriage of justice.
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6 November 2019 |
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Whether the prosecution proved armed robbery by theft, use of a knife as a dangerous weapon and recent possession.
* Criminal law – armed robbery – elements: theft, use of dangerous or offensive weapon, threat to person; * Recent possession – requirements: property found on accused, positive identification as recently stolen from complainant, temporal and factual link to charge; * Evidential practice – failure to cross-examine leaves evidence unchallenged; * Knife held to be a dangerous/offensive weapon under section 287A Penal Code.
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6 November 2019 |
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The appellant's recent possession of the stolen motor cycle justified conviction despite absence of the victim's visual identification.
Criminal law – Armed robbery – Doctrine of recent possession – Requirements: property is subject of charge, found with accused, positively identified – Burden of proof on prosecution – Identification evidence and arrest at scene – Effect of failure to cross-examine.
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5 November 2019 |
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Second appeal confined to points decided on first appeal; identification, medical evidence and unchallenged confession upheld conviction.
Criminal law – rape of a child – identification evidence; Evidence Act s.127 – unsworn child testimony and corroboration; second appeals – Rule 72(2) (limits on grounds); corroboration by medical evidence and unchallenged confession; appellate interference with concurrent findings of fact.
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4 November 2019 |
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Applicant failed to show good cause for extension of time; single Justice’s refusal was upheld.
Civil procedure – extension of time under Rule 10: requirement to show good cause and account for each day of delay; evidential proof of illness must be authentic and explanatory; documents not placed before single Justice cannot be raised on reference under Rule 62(1)(b).
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4 November 2019 |
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Conviction based on inadmissible hearsay was quashed because the victim’s in-court testimony raised reasonable doubt.
Evidence — Hearsay inadmissible; victim’s in-court testimony is best evidence in sexual offence cases; prosecution must prove guilt beyond reasonable doubt; appellate interference permitted where there is a complete misapprehension of evidence leading to miscarriage of justice.
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4 November 2019 |
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Non-compliance with s.214(1) CPA voids successor magistrate proceedings; retrial ordered where interests of justice require it.
Criminal procedure — change of trial magistrate — section 214(1) CPA — requirement to record reasons and invite accused to request recall of witnesses; non-compliance renders successor proceedings a nullity; remedy depends on interests of justice — retrial not automatic.
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4 November 2019 |
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Appeal dismissed: corroborated eyewitness evidence proved attempted robbery; other grounds struck out or previously expunged.
* Criminal law – Attempted robbery – burden of proof beyond reasonable doubt – conviction supported by victim and two independent eyewitnesses.
* Appellate procedure – Second appeal cannot raise grounds not argued and decided in the first appellate court.
* Evidentiary issues – PF3 expunged by first appellate court; challenge to its reception improperly re‑raised.
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4 November 2019 |
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Review dismissed as an impermissible re‑argument; no manifest error on the face of the record.
* Criminal procedure — Review under Rule 66(1)(a) — scope limited to manifest/patent errors on the face of the record causing miscarriage of justice.
* Evidence — Chain of custody — Distinction from cases involving easily transferable items; missing seizure receipt does not automatically vitiate conviction absent patent error.
* Appellate procedure — Review is not an appeal in disguise; finality of litigation.
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4 November 2019 |
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Conviction unsafe where visual identification was unreliable and a cautioned statement was not read after admission.
Criminal law – Visual identification: requirement to state source/intensity of light, distance, duration, familiarity and description; Cautioned statements: exhibit must be read in court after admission; Conviction unsafe where identification and un-read cautioned statement are unreliable.
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4 November 2019 |
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Appeal allowed: conviction quashed due to unsafe visual identification and a cautioned statement not read in court.
* Criminal law – Visual identification – requirements: proximity, source and intensity of light, duration, prior familiarity and description – failure to provide particulars renders ID unsafe. * Evidence – Cautioned statement admitted but not read in court – must be read; omission renders it inadmissible/expunged. * Conviction unsafe where identification and key documentary evidence are unreliable or invalid.
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4 November 2019 |
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Application for review dismissed: alleged manifest errors and denial of hearing were unfounded; review not a rehearing.
Criminal law – Review of appellate judgment – Scope of review limited to patent errors on face of record – Review is not a rehearing – Rule 66(1)(a),(b) – Right to be heard and Rule 80(2) where appellant is represented by advocate.
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4 November 2019 |
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The applicant's conviction for rape of a 12-year-old upheld due to reliable visual identification, medical corroboration and his admission.
* Criminal law – Sexual offences – Rape of a minor – Visual identification by recognition – Conditions for reliable identification (prior acquaintance, close range, good lighting, earliest naming).
* Evidence – Sexual offences – Best evidence from the victim (section 127(6)) and medical corroboration (hymenal perforation, bleeding).
* Appeal – Concurrent findings – High Court and trial court concurrent findings should not be disturbed absent misapprehension of evidence or error of law.
* Proof – Standard of proof beyond reasonable doubt – conviction supported by victim’s credible testimony, medical evidence and appellant’s admissions.
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4 November 2019 |
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Unsworn witness testimony in a criminal trial is no evidence and can vitiate a conviction.
Criminal procedure — requirement of oath or affirmation under section 198(1) Criminal Procedure Act; unsworn testimony amounts to no evidence and must be discarded; valuation/expert evidence insufficient to connect accused to possession; appellate revisional powers — exercise under section 4(2) Appellate Jurisdiction Act to quash conviction and set aside sentence.
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4 November 2019 |
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Firm, enforceable undertaking or security is required for a stay of execution; mere statements of ability in submissions are insufficient.
Civil procedure – stay of execution pending appeal – Rule 11(5) Court of Appeal Rules – requirement for security or firm undertaking – firm undertaking must be an unequivocal, enforceable promise and properly pleaded – statements of financial ability or undertaking only in submissions insufficient.
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4 November 2019 |
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A mere assertion of ability does not satisfy Rule 11 security/firm undertaking requirement; stay application dismissed.
* Civil procedure – Stay of execution – Requirements under Rule 11(5) – Substantial loss, no unreasonable delay, and security/firm undertaking for due performance – Firm undertaking may substitute for security but must be clear and made in the Notice or affidavit; mere assertions of ability or reliance on submissions are insufficient.
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4 November 2019 |
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Applicant failed to show good cause or corroborative evidence for extension to file a review; application dismissed.
* Criminal procedure – extension of time – application under Rules 10 and 66(3) of the Court of Appeal Rules, 2009 – requirements for granting extension (reason for delay, accounting for days, diligence, apparent illegality). * Prisoners – procedural delays – need for corroborative affidavit from prison officers when delay attributed to prison transfer or late supply of judgment. * Review procedure – requirement that, on extension, intended grounds under Rule 66(1) be shown by affidavit.
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1 November 2019 |
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Visual identification lacking particulars and an unread cautioned statement rendered the conviction unsafe; appeal allowed.
* Criminal law – visual identification – necessity of stating proximity, source and intensity of light, duration of observation and prior acquaintance before relying on identification evidence.
* Criminal procedure – exhibits – an admitted document (including a cautioned statement) must be read out in court; failure renders it inadmissible/expungeable.
* Conviction unsafe where primary identification and statement evidence are unreliable or invalid.
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1 November 2019 |
| April 2019 |
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Reported
A credible victim’s testimony can sustain a rape conviction despite other child evidence and documentary irregularities.
Criminal law – Rape – Evidence of tender-age witnesses – s.127(2) Evidence Act; promise to tell truth mandatory where no oath/affirmation – inadmissibility of evidence lacking promise – Victim’s testimony as best evidence in sexual offences (s.127(6)) – corroboration by bystanders and clinical officer – irregular documentary admission (contents not read) and expungement – appellate restraint on disturbing concurrent credibility findings.
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1 April 2019 |
| March 2019 |
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Review dismissed where applicant failed to particularize manifest error, perjury or that the judgment was a nullity.
Review – Court of Appeal Rules, Rule 66(1) – requirements for review; manifest error on face of record; allegations of perjury/fraud must be particularized; review is not an appeal; dismissal for failure to state grounds.
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5 March 2019 |
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Appeal dismissed; charge error curable, police statements not mandatory, child witnesses competent, life sentence for offence against under-18 restored.
* Criminal law – Unnatural offence – conviction based on child witness evidence and medical report – corroboration and production of police-recorded statements under s.166 Evidence Act.
* Criminal procedure – Medical report and accused’s right under s.240(3) Criminal Procedure Act – medical officer's oral testimony renders complaint moot.
* Criminal procedure – Competence of child witnesses – voire dire under s.127(2) Evidence Act.
* Sentencing – Offence against a person under eighteen – mandatory life imprisonment (Law of the Child Act amendment).
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5 March 2019 |
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A defective omission of the sentencing subsection is curable if particulars and evidence gave clear notice and no miscarriage occurred.
Criminal law – Rape of a child – Identification and corroboration – Evidence of victim, eyewitness and medical examiner; Criminal procedure – Charge particulars – omission of specific sentencing subsection (s.131(3) Penal Code) – curable defect under s.388 CPA where no prejudice; Appellate review – defects considered case‑by‑case; inadmissibility of raising issues not advanced on earlier appeal.
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5 March 2019 |
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Court upheld conviction, finding identification reliable and summing-up to assessors proper; appeal dismissed.
* Criminal law – murder – visual identification – reliance only where mistaken identity reasonably excluded (Waziri Amani principles).
* Criminal procedure – summing up to assessors – required directions on identification and alibi; assessors need not be informed of preliminary hearing proceedings.
* Evidence – relatives as witnesses – admissible; weight depends on credibility, relevance and legal obtainment of evidence.
* Evidence Act, s.143 – no fixed number of witnesses required; credibility is determinative.
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1 March 2019 |
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Applicant’s prompt withdrawal of a defective review and indication of manifest error justified granting an extension to file review.
Court of Appeal — extension of time under Rule 10 — good cause requires promptness and adequate explanation; Rule 66(1) — review grounds must be indicated; manifest error on the face of the record (Rule 66(1)(a)); withdrawal of timely but defective review and prompt subsequent application supports extension; prisoner’s status and diligence relevant.
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1 March 2019 |
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Pre-defence judicial remark complied with s.293(2); voluntary intoxication did not negate intent—appeal dismissed.
* Criminal procedure s.293(2) CPA requirement to inform accused of rights at close of prosecution and whether such remarks amount to pre-conviction.
* Criminal law intoxication (s.14 Penal Code) voluntary intoxication generally no defence; exceptions and incapacity.
* Murder malice aforethought and causation inference from words, weapon, conduct and autopsy findings.
* Right to fair trial prejudice from judicial remarks and proper exercise of s.293(2) safeguards.
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1 March 2019 |
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Review application dismissed for failing to particularize Rule 66(1) grounds; re-assessment of evidence is not reviewable.
Review of Court of Appeal judgment – Rule 66(1) requirements – manifest error on face of record, nullity, perjury – need for particularisation – re-assessment of evidence is not a ground for review.
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1 March 2019 |
| February 2019 |
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Proceedings before a Resident Magistrate (Ext. Jur.) on a High Court appeal without a formal transfer order are a nullity.
Magistrates' Courts Act s.45(2) – Appeals instituted in the High Court – Requirement of formal High Court transfer to Resident Magistrate with extended jurisdiction – Proceedings and judgment without transfer are a nullity – Remedy: set aside and remit for rehearing.
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28 February 2019 |
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Employee resigning from fixed‑term contract entitled to subsistence under s.43(1) ELRA irrespective of remaining at workplace.
* Employment law – fixed‑term contract – terminal benefits under s.43(1) ELRA – entitlement to transport, repatriation and subsistence allowance.
* Statutory interpretation – s.43(1) ELRA – subsistence allowance not conditional on employee remaining at place of employment.
* Civil procedure – competence of appeal – service of documents, missing record items, and failure to file written submissions; omissions not necessarily fatal where record adequate.
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28 February 2019 |
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A defective statutory citation is curable if particulars prevent prejudice; a credible child’s testimony can sustain a rape conviction.
Criminal law – Rape of a child – Defective charge – Curability under section 388(1) CPA where particulars disclose offence, date, place and victim; Evidence – Child witness of tender years – voir dire and section 127(7) Evidence Act; Medical evidence – admissibility and tendering by medical practitioner; Expungement of improperly tendered medical report; Concurrent findings of fact.
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28 February 2019 |
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DPP’s appearance in High Court without statutory notice vitiates proceedings from a primary court for denial of right to be heard.
Criminal procedure — Appeals from primary courts — Service and joinder of the Director of Public Prosecutions — Section 34(1)(b) Magistrates' Courts Act — Notice requirement — Right to be heard — Irregular joinder vitiates proceedings — Revision under s.4(2) Appellate Jurisdiction Act.
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27 February 2019 |
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Incorrect statutory citation in rape charge is curable where accused understood charge and suffered no prejudice; factual findings upheld.
Criminal law – Rape – Wrong statutory citation in charge sheet – curable error under section 388 CPA where no prejudice; appellate review limited to questions of law; concurrent factual findings on consent and penetration ordinarily binding; PF3 admission procedure and tendering of police statements – procedural defects not amounting to miscarriage of justice; cautioned statement expunged.
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27 February 2019 |
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An unequivocal guilty plea bars appeal; absence of sperm or bruising in PF3 does not vitiate conviction for unlawful anal penetration.
* Criminal procedure — plea of guilty — when a plea is unequivocal and bars appeal under s.360(1) CPA; * Sexual offences — unlawful anal penetration, however slight, suffices; * Evidentiary value of PF3 — absence of bruises/spermatozoa not fatal; * Particulars of charge — victim's age established in facts read in court.
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27 February 2019 |
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A clear guilty plea barred appeal under s.360(1) CPA; PF3 absence of bruises/spermatozoa does not negate admitted penetration.
Criminal procedure – Plea of guilty – Unequivocal plea – s.360(1) Criminal Procedure Act – appeal barred except as to sentence; Sexual offences – proof of penetration – absence of bruises/sperm in PF3 not fatal; Particulars – victim's age in facts suffices when read and admitted in court.
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27 February 2019 |
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Cautioned statement taken outside statutory time and improper disposal of perishable trophies made convictions unsafe; appeal allowed.
Criminal procedure – admissibility of cautioned statements – recording beyond statutory period (s.50(1), s.51(1) CPA) – expunction; Wildlife law – disposal of perishable government trophies – distinction between police investigatory procedures (PGO) and court orders under s.101 WCA – accused’s right to be present/heard; Evidence – necessity of physical exhibits or proper inventory/photographs; Variance between charge particulars and witness evidence on weapons and hunting undermines prosecution case.
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27 February 2019 |
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Delay in identification and procedural/documentary defects led to quashing of the applicant’s conviction.
* Criminal law – admission of cautioned statements – requirement to read such statements in court; expungement if not read. * Evidence – identification – delay in naming suspect affects credibility. * Medical evidence & PF3 – contradictions in contents and improper dating vitiating probative value. * Second appeal – intervention warranted where both lower courts misapprehended evidence.
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26 February 2019 |
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A charge-sheet citation error is curable if no miscarriage of justice occurred; concurrent factual findings on rape upheld.
Criminal law – Rape – Charge-sheet defects – Curability under section 388 CPA where no failure of justice; Evidence – proof of penetration and consent; Admission of PF3 – requirement to invite objections under section 240(3) CPA; Section 166 Evidence Act – tendering prior police statements; Appellate jurisdiction – limited interference with concurrent factual findings on second appeal.
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26 February 2019 |
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The appellant's guilty plea was unequivocal and admitted penetration; absence of semen in PF3 did not invalidate the conviction—appeal dismissed.
* Criminal procedure – Plea of guilty – Effect of plea; appeal barred by section 360(1) CPA except in limited circumstances (ambiguous plea, mistake, charge not disclosing offence, or facts insufficient in law).
* Criminal law – Unnatural offence – Essential element is penetration, however slight; admission of penetration suffices.
* Evidence – PF3 findings (absence of sperm/bruises) do not necessarily negate penetration or the prosecution case.
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26 February 2019 |
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Unreliable identification and lack of corroboration rendered the rape conviction unsafe; appeal allowed and convictions quashed.
Criminal law – visual identification – failure to name or describe perpetrator at earliest opportunity renders identification unreliable; inconsistent witness accounts and absence of police testimony cannot cure the defect; medical evidence insufficient without corroborating identification; importance of accurate court records.
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26 February 2019 |
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Failure to read an admitted retracted statement to assessors invalidates it, but compelling circumstantial evidence can still sustain conviction.
* Evidence — Cautioned/extra-judicial statement — Contested statement admitted at trial must be read over to accused and assessors in trials with assessors; failure renders it invalid. * Evidence — Retracted confession — requirement for corroboration and compliance with procedural safeguards; but invalidity may be dispositive. * Criminal law — Circumstantial evidence — last-seen person doctrine and medical evidence can be sufficient to sustain conviction. * Procedure — Non-reading of admitted statement to assessors may amount to serious irregularity, but conviction can stand if other evidence is overwhelming.
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21 February 2019 |
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Victim's credible account proving penetration and facilitation sufficed to convict for gang rape; appeal dismissed.
Criminal law – Gang rape (s.131A) – Requirement to prove penetration and lack of consent; aiding/abetting by others suffices for gang rape conviction; Victim's testimony as best evidence; Identification parade not required where prolonged contact enabled reliable identification; Trial judgments should explicitly state the word "convict."
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21 February 2019 |
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21 February 2019 |