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Citation
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Judgment date
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| November 1990 |
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A mandamus based on unsworn submissions and untendered documents is void; essential factual proof is required.
Administrative law – mandamus — court may not grant mandamus absent proof of essential facts; Civil procedure – unsworn submissions and untendered documents are not evidence; Court of Appeal Rules (Rule 34) – additional evidence cannot cure total absence of evidence at first instance; Procedural law – correct form and intitulation for ex parte leave to apply for mandamus.
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30 November 1990 |
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Court restored withdrawn notice of appeal and granted leave and time extensions due to mistake-induced withdrawal.
Appellate procedure — restoration of withdrawn/abandoned notice of appeal — Court’s power under Rule 3(2) and inherent jurisdiction — Rule 84 (deemed withdrawal) — extensions of time under Rule 8 — service and copy requirements (Rule 83/Rule 44) considered.
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30 November 1990 |
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Contractor negligent for inadequate diversion; no contributory negligence; special damages largely upheld, funeral expenses limited.
Tort—Negligence by contractor for inadequate road diversion and warnings at uncompleted bridge; contributory negligence rejected; proof and apportionment of special damages; recovery limits where claimant is not deceased's personal representative; assessment of non-user (loss of use) damages.
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30 November 1990 |
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Failure to properly direct assessors and reliance on conjectural findings rendered the murder conviction unsafe.
Criminal law – murder – defence of mistake of fact (s.11 Penal Code) – duty to charge assessors on available defences – unsafe conviction where trial judge’s findings rest on conjecture and contradict autopsy/witness evidence.
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30 November 1990 |
| June 1990 |
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23 June 1990 |
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Appeal dismissed: evidence did not establish provocation or lawful justification for the killing; trial court’s credibility findings upheld.
Criminal law – Murder – Appeal – Whether provocation or arrest/necessity justified killing – Assessment of witness credibility and inferences from evidence – Excessive force.
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22 June 1990 |
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Appellant's claim of arrest or self-defence rejected; evidence of pursuit and multiple slashes shows intent to kill, appeal dismissed.
Criminal law – murder – mens rea and intent inferred from pursuit and multiple slashes – defence of arrest/self-defence/provocation rejected – witness credibility and corroboration considered.
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22 June 1990 |
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Appellant’s deliberate return armed to seek revenge established malice aforethought; murder conviction and appeal dismissed.
* Criminal law – Murder – Malice aforethought v. sudden passion/provocation – Whether returning armed to seek revenge establishes malice. * Evidence – Credibility of extrajudicial statements and assessors’ findings. * Appeal – Reassessment of findings of fact and conclusion that conviction valid.
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22 June 1990 |
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Conviction for murder quashed where interested witness evidence, lack of corroboration and investigative gaps created reasonable doubt.
Criminal law – Murder – proof beyond reasonable doubt – reliability of interested witnesses – need for corroboration; post‑mortem evidence only proving assault not identification of assailants; effect of delayed arrest and investigative gaps; trial judge’s improper academic treatment of alternative verdicts.
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22 June 1990 |
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Appeal against murder conviction dismissed: minor inconsistencies in witness accounts did not make conviction unsafe.
Criminal law – Murder – Identification evidence – Contradictions between prosecution witnesses – Materiality of discrepancies – Credibility assessment by trial judge – Failure of accused to call witness or prove alibi.
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22 June 1990 |
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Appeal allowed and conviction quashed because material contradictions and prosecutorial omissions made the identification evidence unsafe.
* Criminal law – Identification and credibility – contradictions between prosecution witnesses regarding arrival times, presence of third parties and circumstances of arrest – effect on reliability of identification evidence.
* Criminal procedure – Prosecution duty to call material witnesses – failure to call other participants in arrest may weaken case.
* Appeal – Trial judge’s evaluation of witness credibility – appellate review where material contradictions are left unexplained.
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22 June 1990 |
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Court of Appeal held High Court exceeded supervisory jurisdiction by improperly quashing a local cattle-inquiry without sufficient legal basis.
* Administrative law – supervisory jurisdiction of High Court over local authority decisions – limits of judicial interference (legality not substitution).
* Procedural law – institutional/local inquiries into cattle rustling – lawful relationship between inquiry and seizure of stock.
* Evidence – requirement of clear proof of bias or procedural illegality before quashing local authority proceedings.
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22 June 1990 |
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Non-compliance with the statutory requirement to allow assessors to question witnesses renders a High Court trial a nullity and warrants retrial.
Criminal procedure — Section 25 Criminal Procedure Act — Requirement of trials in the High Court with the aid of assessors — Assessors must be afforded opportunity to put questions to accused and witnesses — Non-compliance renders trial a nullity — Quashing of proceedings and ordering of retrial.
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21 June 1990 |
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Failure to afford assessors the opportunity to question witnesses or the accused breaches s.235 and can render a High Court trial a nullity.
Criminal procedure – requirement for High Court trials to be conducted with the aid of assessors (s.235 Criminal Procedure Act) – assessors must be afforded opportunity to put questions to accused and witnesses – failure to do so may render trial a nullity.
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21 June 1990 |
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An accused relying on an alibi must adduce evidence raising reasonable doubt; failure to do so warrants dismissal of the appeal.
* Criminal law – alibi – burden and standard of proof – accused need not prove an alibi but must adduce evidence sufficient to raise a reasonable doubt. * Criminal procedure – assessment of credibility – trial judge entitled to reject alibi evidence that does not create reasonable doubt. * Appeal – misdirection – absence of misdirection when correct legal test applied by trial judge.
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20 June 1990 |
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Appellant’s uncorroborated alibi, admitted without notice, failed to raise reasonable doubt; conviction and sentence affirmed.
* Criminal law – Murder – sufficiency of evidence – credibility of eyewitnesses and accused’s conduct (flight, concealment) as corroboration.
* Criminal procedure – Alibi – requirement of notice under s.194(4)–(5) and court’s discretion under s.194(6) to admit alibi without notice.
* Evidence – burden regarding alibi: accused need not prove it but must adduce evidence sufficient to raise reasonable doubt.
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20 June 1990 |
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20 June 1990 |
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Proceedings under s.221 cannot lead to death and misdirection that misleads the defence requires nullification and retrial.
Criminal procedure – fitness to stand trial (s.221) – misdirection and prejudice where defence believed proceedings under s.221 but trial proceeded ordinarily – s.221 cannot result in death sentence; distinction from s.219 (insanity at time of act). Expert evidence – psychiatrist’s report relying on out‑of‑court statements – maker should be called or offered to defence to allow testing by cross‑examination. Sentencing – multiple murder convictions: death sentence should ordinarily be imposed on one count only.
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20 June 1990 |
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Appeal dismissed: self‑defence and intoxication defences rejected; evidence supported conviction for murder.
Criminal law – murder – self‑defence – credibility of competing accounts; criminal law – intoxication – effect on specific intent – whether intoxication negates mens rea; appellate review – assessment of witness credibility and assessors’ advice.
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20 June 1990 |
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Failure to allow assessors effective participation invalidates trials, requiring quashing of convictions and retrials.
Criminal procedure — trials with assessors — assessors must be given opportunity to question witnesses — failure to comply with statutory requirements renders trial a nullity — convictions quashed and retrial ordered.
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18 June 1990 |
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No basis for psychiatric inquiry; excessive force meant murder conviction reduced to manslaughter.
* Criminal law – insanity – mere description as "dull" or "mentally dull" does not establish legal insanity or psychosis warranting inquiry under s.220. * Criminal procedure – s.220 Criminal Procedure Act – court should order psychiatric inquiry only where record shows signs of mental illness or inability to form intent. * Homicide – provocation/self-defence – excessive force negates complete justification and may reduce murder to manslaughter.
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18 June 1990 |
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A trial is not "with the aid of assessors" if assessors are prevented from effectively questioning witnesses and aiding the judge, which may nullify the trial.
Criminal procedure – role of assessors – requirement that High Court trials be "with the aid of assessors" – assessors may put questions under s.177 Evidence Act and give opinions under Criminal Procedure Act – exclusion of assessors from effective participation may render trial a nullity – cross‑examination provisions (ss.290/294) not applicable to assessors.
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16 June 1990 |
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Failure to address assessors and consider an alibi under s194 constitutes a miscarriage of justice, requiring a new trial.
Criminal law – Alibi – Requirement to give notice and particulars – s194(4)-(6) Criminal Procedure Act – Trial judge’s duty to address assessors and consider alibi – Failure to do so vitiates trial and warrants retrial.
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16 June 1990 |
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Failure to consider an accused's alibi in summing-up and judgment rendered the trial a mistrial; retrial ordered.
Criminal law – Defence of alibi – Duty to give notice and particulars under s.194(4)–(6) Criminal Procedure Act – Trial judge’s duty to take alibi into account – Failure to address assessors and omit alibi in judgment amounts to mistrial – Conviction quashed and retrial ordered.
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16 June 1990 |
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Conviction for theft upheld, but sentence reduced because the trial court failed to account for time already served.
Criminal law – theft and conspiracy to defraud the government; evidential sufficiency of delivery notes, accounting entries and admissions; sentencing – relevance of previous convictions vs. other mitigating factors; failure to account for time already served justified reduction of sentence.
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16 June 1990 |
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Trial conducted with assessors but denying them participation in witness examination vitiates proceedings; conviction quashed and retrial ordered.
Criminal procedure – Trials with assessors (s.265 Criminal Procedure Act) – necessity for assessors to participate in examining witnesses – denial of that right vitiates proceedings – conviction and sentence quashed; retrial ordered.
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16 June 1990 |
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Procedural exclusion of assessors and failure to direct them on provocation vitiated the trial; conviction and sentence quashed, retrial ordered.
Criminal procedure — Role of assessors — Assessors must be allowed to question witnesses and give opinions; judge must direct assessors on material issues (e.g., provocation) — Failure to allow meaningful assessor participation vitiates proceedings.
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16 June 1990 |
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Failure to allow assessors to question witnesses deprived the judge of their aid; the trial was a nullity and conviction quashed.
Criminal procedure — Trials with assessors — Assessors must be afforded opportunity to question witnesses and accused — Denial of that opportunity is a fatal irregularity rendering trial a nullity; conviction quashed.
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16 June 1990 |
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Dying declaration and flight, without corroboration, insufficient to prove murder beyond reasonable doubt; conviction quashed.
Criminal law – murder – sufficiency and reliability of dying declaration – need for corroboration – flight as evidence – prosecution must prove guilt beyond reasonable doubt.
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16 June 1990 |
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Appellant's murder conviction reduced to manslaughter for lack of proof of specific intent to kill.
* Criminal law – Murder v Manslaughter – requirement of specific intent to kill or cause grievous bodily harm
* Causation – post-mortem evidence linking assault to death (skull fracture, intracranial haemorrhage)
* Credibility – resolving disputed identity of assailant on witness assessments
* Intoxication and spontaneous provocation – effect on capacity to form murderous intent
* Appeal – power to quash conviction and substitute a lesser offence and sentence
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16 June 1990 |
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Close-range eyewitness credibility supports murder conviction; mere presence in a chase does not establish common intention.
Criminal law – murder – evaluation of eyewitness credibility (distance and perception) – malice aforethought inferred from warning and act – common intention requires active participation, mere presence insufficient.
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16 June 1990 |
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First appellant’s murder conviction upheld for intentional stabbing; second appellant’s conviction quashed for insufficient proof of common intention.
Criminal law – Murder: malice aforethought may be inferred from words and conduct (warning, pursuit and stabbing). Evidence – eyewitness credibility at night and the weight to be given to cautioned/conflicting accounts. Criminal law – Common intention: mere presence or brief pursuit insufficient to convict a co-accused without proof of participation.
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16 June 1990 |
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Court found trial court lacked jurisdiction because the offence was created after the alleged conduct; conviction could not stand, DPP to act.
Jurisdiction — Temporal application of criminal statutes — An offence created by later amendment cannot be applied retroactively to conduct before enactment; conviction entered by a court lacking jurisdiction is invalid; remedy left to Director of Public Prosecutions.
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9 June 1990 |
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Appeal against convictions for diversion of hospital drugs and use of false consignment documents dismissed for lack of merit.
Criminal law – corruption/diversion of public hospital drugs – admissibility and weight of telephonic orders and consignment documents – evaluation of witness credibility – appellate review of trial court findings.
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9 June 1990 |
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Possession of recently stolen cattle, movement permit and identification upheld convictions for cattle theft and firearm use.
Criminal law – cattle theft – recent possession of stolen property raises presumption of guilt; movement permit and identification by marks as corroborative evidence; extension of presumption to infer participation in armed theft; admissibility of section 34A statement.
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2 June 1990 |
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Possession shortly after cattle theft, corroborated by permits and marks, justified conviction and inference of participation in armed theft.
Criminal law – cattle theft – recent possession as ground for presumption of guilt – extension of presumption to infer participation in armed theft; admissibility of injured complainant’s prior statement under s.34A Evidence Act; movement permits and identification marks as corroborative evidence; sentence – consecutive terms upheld.
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2 June 1990 |
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Identification, motive and surrounding circumstances made the conviction for murder safe; appeal dismissed.
* Criminal law – Murder – Identification evidence – eyewitness recognition at scene and prior sightings in the same fortnight. * Relevance – motive from prior dealings (Kiloleni rocks) admissible to establish intent and context. * Alibi – evaluated against identification and surrounding circumstances. * Assessors – dissent does not automatically invalidate conviction.
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2 June 1990 |
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Appeal allowed due to inadequate inventory/valuation by the court broker; inquiry and compensation for the appellant recommended.
* Civil procedure — Attachment and sale — Duty of executing officer (court broker) to prepare itemized inventory with values under Attachment and Sale (Brokers and Fees) Rules — Failure to comply undermines validity of execution.
* Evidence — Ownership and identification of goods recovered from closed cupboards — importance of proper handling and record-keeping at attachment.
* Remedies — Inquiry, suspension/revocation of court broker’s appointment and recovery of bond to compensate affected party.
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2 June 1990 |
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Unresolved contradictions in visual identification evidence made the applicant's murder conviction unsafe, warranting quashing of the conviction and sentence.
* Criminal law – Visual identification – Court must eliminate all possibilities of mistaken identity – Consideration of timing, lighting, distance, duration of observation, prior acquaintance and consistency of witness accounts. * Appellate review – unresolved contradictions in witness evidence can render conviction unsafe. * Alibi/evidence of presence elsewhere – may create reasonable doubt where timelines conflict.
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2 June 1990 |
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Appellant’s mistaken-identity defence rejected; neighbours’ immediate visual identification upheld, appeal dismissed.
Criminal law – Murder – Visual identification evidence – Reliability of identification at or after sunset – Mistaken identity/alibi – Failure to call corroborating witnesses – Circumstantial evidence and credibility assessments.
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2 June 1990 |
| April 1990 |
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Voluntary confession corroborated by surrounding facts upheld; conviction for murder and death sentence affirmed.
Criminal law – murder – extra‑judicial confession – voluntariness and admissibility – corroboration by surrounding facts (visit to witchdoctor) – credibility of alternative bandit defence – sufficiency of circumstantial evidence.
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30 April 1990 |
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Eyewitness identification plus admissions and corroborating circumstances upheld convictions for murder and related attacks.
* Criminal law – murder – night-time housebreaking and attack – eyewitness identification by single witness; dangers and salutary warnings. * Confessions and admissions – reliability and corroboration by circumstantial facts and conduct. * Circumstantial evidence – inferences from conduct (time, forced entry, flight) to establish participation with malice aforethought.
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30 April 1990 |
| March 1990 |
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Appeal from murder conviction struck out for lack of High Court certificate that a point of law was involved.
* Criminal law – murder – malice aforethought – whether injuries and fractured skull established intent or could result from assault and fall. * Appellate jurisdiction – appeals from proceedings originating in a primary court – requirement of High Court certificate under s.5(2)(c) of the Appellate Jurisdiction Act. * Civil procedure – competence of appeal – effect of failure to comply with time limits and certification; limits on Court of Appeal’s discretion to cure such defects.
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13 March 1990 |
| January 1990 |
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Oral dispositions of Rights of Occupancy lacking statutory approval are void; purchaser in possession may recover compensation for improvements.
* Land law – Right of Occupancy – Dispositions of Rights of Occupancy – Regulation 3(1), Land Regulations 1948 – oral or unapproved dispositions void ab initio.
* Civil procedure – Order 7 r.3 – requirement to specify title number – rule of convenience, not automatically fatal if property identity clear.
* Specific performance – unenforceability where statutory approval required for disposition.
* Restitution/compensation – purchaser in possession under void contract entitled to compensation for improvements (Contract Ordinance s.65).
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1 January 1990 |