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Citation
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Judgment date
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| October 2016 |
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A defendant's admission of intercourse confirms statutory rape conviction where the complainant is under eighteen, regardless of consent.
Criminal law – Rape – Statutory rape under section 130(2)(e) Penal Code – Consent irrelevant where complainant under 18; accused’s sworn admission/confession in defence admissible to bolster prosecution; Evidence Act s.127(2) voire dire and expungement considered.
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28 October 2016 |
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Omitted specification of rape paragraph was curable; identification and physical evidence proved rape; appeal dismissed.
* Criminal law – Rape – Charge must specify applicable paragraph of s.130(2) where relevant – omission may be curable under s.388 CPA if no prejudice to accused.
* Criminal procedure – Cure of defective charge – section 388 CPA applied where accused knew the case to meet.
* Evidence – Identification, victim’s account, physical evidence (torn clothing, semen) and arrest near scene support conviction for rape.
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26 October 2016 |
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Failure to swear an accused who elects to give evidence renders subsequent proceedings null and conviction quashed.
* Criminal procedure – Accused electing to give evidence on oath – mandatory swearing or affirmation under s.198 Criminal Procedure Act – unsworn evidence has no evidential value (except children of tender years).
* Trial irregularity – failure to follow procedure after finding accused has a case to answer – accused condemned unheard.
* Remedy – defect not curable under s.388 CPA; proceedings quashed under revisional powers (s.4(2) AJA) and conviction set aside.
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26 October 2016 |
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Failure to swear accused who elected to give evidence condemned him unheard; conviction quashed and matter remitted.
Criminal procedure – Accused electing to give evidence on oath must be sworn or affirmed (s.198 CPA); unsworn statements have no evidential value – Failure to follow plea/defence procedure condemning accused unheard – Revisional powers (s.4(2) AJA) to quash conviction and remit for proper taking of defence.
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26 October 2016 |
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Statutory rape: consent immaterial for intercourse with a person under 18; appellant's admission upheld conviction.
* Criminal law – Rape – statutory rape – sexual intercourse with a girl under 18 years – consent immaterial under section 130(2)(e) of the Penal Code. * Evidence – defence statement on oath amounting to admission/confession and capable of bolstering prosecution case. * Evidence Act – voire dire under section 127(2) – expungement issue rendered inconsequential by appellant's admission.
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26 October 2016 |
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Accused’s admission and statutory bar to consent for under‑18s upheld conviction and sentence.
Criminal law – Rape – Statutory rape under s.130(2)(e) – Consent immaterial if complainant under 18; Defence admission as confession – accused’s sworn statement may be used to strengthen prosecution’s case; Voir dire irregularity and expungement irrelevant where statutory offence established by accused’s admission.
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26 October 2016 |
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The appellant's unlawful possession conviction upheld; magistrate's questioning permissible; sentence reduced to five years.
* Evidence Act – s.176(1): court may ask questions to obtain proper proof; judicial questioning permissible where for clarification and not introducing new matters.
* Procedure – improper cross-examination by judge/magistrate – distinction between clarification and cross-examination; prejudice test.
* Jurisdiction – Written Laws (Miscellaneous Amendments) Act No. 2 of 2010 deleted s.19 of the Economic and Organized Crime Control Act; removal of DPP fiat and High Court first-instance requirement for arms and ammunition offences.
* Criminal law – credibility of witnesses and appellate restraint where trial court assessed demeanour and consistency.
* Sentencing – excessive sentence reduced under s.170(1) of the Criminal Procedure Act.
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26 October 2016 |
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Clarificatory judicial questioning was not prejudicial; conviction upheld, but sentence reduced to five years.
* Evidence — judicial questioning under section 176 Evidence Act — permissible for clarification; not to be equated with adversarial cross-examination. * Evidence — sections 146, 147 Evidence Act — procedural lapse curable where no prejudice or new matters arise. * Criminal procedure — Written Laws (Miscellaneous Amendments) Act No. 2 of 2010 deleted s.19 EOCCA: DPP fiat and High Court first-instance jurisdiction for arms/ammunition offences removed. * Credibility — appellate deference to trial court where witnesses’ demeanour and consistency were unimpeached. * Sentencing — thirteen-year term excessive; reduced to five years under s.170 CPA.
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26 October 2016 |
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Magistrate’s clarificatory questioning did not vitiate trial; conviction upheld but sentence reduced to five years.
Criminal law – unlawful possession of ammunition; Evidence – judge/magistrate putting questions to witnesses – scope of s.176(1) Evidence Act; Jurisdiction – effect of deletion of s.19 EOCCA on DPP fiat and High Court first-instance jurisdiction; Sentencing – excessiveness and substitution under s.170 Criminal Procedure Act.
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26 October 2016 |
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Charge sheet defects (wrong sections, no dates, vague counts) rendered proceedings a nullity; convictions and sentences quashed.
Criminal procedure – Charge sheet defects – Citation of non-existent Penal Code sections – Failure to state dates/times – Vague allegation of "several intercourses" requiring separate counts under s.133 CPA – s.132 CPA – Nullity of proceedings – Retrial not appropriate where charge is incurably defective.
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25 October 2016 |
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UN organizations enjoy immunity from suit in Tanzania; domestic proceedings were quashed and ADR was recommended.
Diplomatic and Consular Immunities and Privileges Act; Convention on Privileges and Immunities of the United Nations; immunity from suit and legal process of UN organizations; scope of 'legal process' including enforcement measures; waiver of immunity reserved to UN Secretary‑General; alternative dispute resolution for private law claims against UN organizations.
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25 October 2016 |
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Application struck out for incorrect citation of the enabling provision; no order as to costs.
Court of Appeal procedure – Incorrect citation of enabling provision – Effect of procedural defect; Striking out application – Whether strike-out appropriate for wrong rule citation; Costs – No order where respondent incurred no expenses and is unrepresented.
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24 October 2016 |
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Application struck out for citing wrong enabling provision; no order as to costs where respondent not prejudiced.
* Civil procedure – Appeal proceedings – wrong citation of enabling provision – application struck out for incorrect legal citation; no order as to costs where respondent not prejudiced and did not incur expenses. * Court of Appeal Rules, 2009 – Rule 89(2) cited as correct enabling provision.
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24 October 2016 |
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Application struck out for wrong statutory citation; no order as to costs since respondent did not incur expense.
* Civil procedure – Appellate practice – Incorrect citation of enabling provision – Application struck out for procedural defect; * Costs – No order as to costs where respondent did not incur expenses and did not object.
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24 October 2016 |
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Procedural and evidential irregularities (no‑case finding, assessor cross‑examination, inadmissible statements) nullified the conviction.
Criminal procedure – no‑case and s.293(2) CPA: "consider" denotes prima facie assessment, not finding of guilt; Assessors’ role – may put questions (s.177 TEA) but not cross‑examine; Committal witness rule – s.289 CPA mandatory notice; Admissibility of cautioned statements – compliance with 4‑hour rule (s.50(1)(a) CPA); Trial‑within‑trial – evidence must be on oath (s.198(1) CPA); Revisional jurisdiction – nullify proceedings when fundamental irregularities destroy prosecution case.
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24 October 2016 |
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Procedural defects and inadmissible statements vitiated the murder conviction; proceedings were nullified and sentence quashed.
Criminal procedure — s.293(2) CPA: prima facie consideration vs finding of guilt; Assessors' role — s.177 TEA vs cross-examination; Committal procedures — s.289 CPA and admissibility of extra-judicial statements; Admissibility of cautioned statements — s.50(1)(a) CPA (four-hour rule); Trial-within-trial procedure — s.198(1) CPA (oath/affirmation); Revisional powers to nullify proceedings where procedural defects vitiate prosecution evidence.
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24 October 2016 |
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Cautioned statement expunged; convictions on three counts upheld based on properly received child testimony and medical corroboration.
Criminal law – sexual offences against children – admissibility of cautioned statements – duty to read caution statement; Evidence Act s.127(2) – requirements for unsworn evidence of child witnesses (sufficient intelligence and understanding duty to tell truth); s.127(7) – conviction on uncorroborated child evidence in sexual offences; corroboration by PF3 medical reports; dock identification issues.
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24 October 2016 |
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Conviction for unlawful possession of ammunition upheld; 13-year sentence reduced to five years for being excessive.
* Evidence — judicial questioning — distinction between clarification under s.176 Evidence Act and impermissible cross-examination (ss.146–147). * Criminal procedure — jurisdiction and prosecution fiat — effect of Written Laws (Misc.) Amendments Act 2010 deleting s.19 EOCCA; no DPP fiat required for arms and ammunition offences and subordinate courts have jurisdiction. * Credibility — identification and ownership of seized exhibit. * Sentencing — manifestly excessive sentence reduced under s.170 Criminal Procedure Act.
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24 October 2016 |
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Failure to have assessors hear the whole trial and to record written opinions renders land tribunal proceedings null and void.
* Land disputes – assessors – assessor absent for part of trial must not participate in determination; attendance for entire hearing required.
* Land Disputes Courts – Regulation 19(2) and section 23(2) – mandatory requirement that assessors give opinions in writing before chairman composes judgment.
* Procedural irregularity – failure to comply with assessor participation and written-opinion requirements renders proceedings null and void – retrial de novo ordered.
* Appellate jurisdiction – court may invoke revisional powers to quash defective proceedings and order fresh trial.
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24 October 2016 |
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Extension granted to file supplementary record after registry delay; affidavit objections dismissed.
Court of Appeal Rules – Rule 96(6) supplementary record – 14‑day limit; extension of time – sufficient cause where Registry delayed supplying missing record documents; preliminary objection – Mukisa Biscuits test for valid preliminary objection; affidavit – personal knowledge vs hearsay and verification.
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23 October 2016 |
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Court granted extension to file a supplementary record and submissions due to incomplete record and delayed documents.
* Civil procedure – Extension of time – Application to file supplementary record of appeal and written submissions – Rule 96(6) (14-day limit) – Incomplete record supplied by court – Delay by Deputy Registrar – sufficient cause for extension.
* Civil procedure – Affidavit challenges – personal knowledge and hearsay – when averments show deponent's knowledge of follow-ups affidavit not hearsay.
* Civil procedure – Preliminary objection – must raise pure point of law (Mukisa Biscuits test) to be valid.
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23 October 2016 |
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22 October 2016 |
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Defective charge sheet and failure to conduct a statutory voire dire of a child witness compelled quashing the conviction.
Criminal law – statutory rape – charge sheet must cite the specific statutory provisions (s135(a)(ii) CPA); Evidence Act s127(2) – voire dire for child witnesses – omission requires discounting unsworn testimony; defective charge and failure to conduct voire dire warrant quashing conviction.
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21 October 2016 |
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An appeal in a land dispute is incompetent without leave under s.47(1), regardless of which High Court registry heard the case.
Land law — Appeals — Requirement of leave under s.47(1) of the Land Disputes Courts Act; effect of Written Laws (Miscellaneous Amendments) Act No. 2 of 2010 — substitution of "High Court (Land Division)" with "High Court" — leave to appeal required even where matter heard at District Registry.
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21 October 2016 |
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21 October 2016 |
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Appeal from a High Court land dispute was struck out as incompetent for failure to obtain statutory leave to appeal.
Land law – Appeals from High Court in land disputes – Requirement of leave under section 47(1) of the Land Disputes Courts Act – Effect of Written Laws (Miscellaneous Amendments) Act No. 2 of 2010 removing exclusivity of Land Division – Incompetent appeal struck out for lack of leave.
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21 October 2016 |
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Conviction quashed where charge sheet failed to cite statutory provisions and child’s unsworn evidence was improperly received.
Criminal procedure – defective charge sheet – requirement under s.135(a)(ii) CPA to cite statutory provision creating the offence; Evidence – child witness – s.127(2) Evidence Act – necessity of recorded voire dire to test intelligence and duty to speak truth; improper reception of unsworn child evidence to be expunged; effect of expunged evidence on sufficiency of prosecution case.
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20 October 2016 |
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20 October 2016 |
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Unsworn evidence, inadequate voir dire and judge's opinion vitiated the appellant's murder conviction; retrial ordered.
* Criminal procedure – requirement to administer oath or affirmation to witnesses under s.198(1) CPA – unsworn testimony has no evidential value.
* Evidence – competency of child witnesses – voir dire under s.127(2) Evidence Act must be properly conducted and recorded.
* Criminal procedure – trials with assessors (ss.265, 298(1) CPA) – trial judge must not express personal opinion when summing up; doing so vitiates trial.
* Remedies – procedural irregularities vitiating proceedings: conviction and sentence set aside; retrial ordered.
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19 October 2016 |
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Conviction quashed because charge was incurably defective; sentence set aside and appellant released.
Criminal procedure – Statement of offence must refer to statutory provision – s135(a)(ii) CPA; Charge amendments – court order, signature and date required – s234(1) & (2)(a) CPA; Defective charge renders proceedings a nullity; Subordinate court sentencing limits – s170(1)(a) CPA; Quashing conviction and setting accused at liberty.
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19 October 2016 |
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Unauthorised alterations to the charge sheet render proceedings void; conviction quashed and appellant released.
Criminal procedure – charge sheet requirements under s.135(a)(ii) CPA – necessity of statutory reference; alterations to charge – need for court order, date and signature under s.234(1) & (2)(a) CPA – unauthorised alterations render charge incurably defective and proceedings nullities; sentencing jurisdiction – limits under s.170(1)(a) CPA; remedy – quash conviction, set aside sentence, release of appellant.
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19 October 2016 |
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Appellant's conviction quashed where judge ignored assessors' unanimous views and prosecution failed to prove recent-possession elements.
Criminal procedure – assessors’ role – mandatory consideration and recording of assessors’ opinions (s.265, s.298(1) CPA); failure to consider or distortion vitiates trial. Doctrine of recent possession – requirements: (1) property found with accused, (2) property proved to belong to complainant, (3) property recently stolen from complainant, (4) stolen item is subject of charge; identification evidence essential.
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18 October 2016 |
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Trial judge’s disclosure of views and failure to explain alibi to assessors vitiated the trial; proceedings quashed and retrial ordered.
Criminal procedure – requirement for High Court trials to be conducted with the aid of assessors (s.265 CPA) – improper summing-up by trial judge disclosing personal views – failure to address assessors on alibi – proceedings vitiated and retrial ordered de novo.
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18 October 2016 |
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Trial was vitiated where the judge disclosed views and failed to address assessors on alibi, breaching s.265 CPA.
* Criminal procedure – Trials before High Court – Mandatory requirement to try with the aid of assessors (s. 265 CPA) – Presiding judge must not disclose personal views in summing up.
* Assessors – Role and participation – Judge must fairly summarize evidence and explain relevant law (including alibi) so assessors can form informed opinions.
* Irregularity – Failure to properly sum up and to direct assessors on alibi vitiates proceedings and amounts to miscarriage of justice – retrial ordered.
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18 October 2016 |
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Defective charge citing non‑existent provision and unrecorded magistrate change rendered proceedings a nullity; courts' proceedings quashed.
Criminal procedure — defective charge sheet — non‑citation of correct statutory subsection for statutory rape — failure to disclose victim’s age — denial of fair trial; change of magistrate — section 214(1) CPA — requirement to record reasons for reassignment — proceedings nullity; exercise of revisional powers — s.4(2) AJA — quashing proceedings and ordering release, no retrial.
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18 October 2016 |
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Rape conviction quashed where child witnesses testified without required s.127(2) voir dire and medical evidence alone was insufficient.
Criminal law – Evidence Act s.127(2) – Child witnesses of tender years must be subjected to voir dire before tendering testimony; failure to do so renders their testimony inadmissible; medical evidence is corroborative and not, by itself, sufficient to convict for rape.
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17 October 2016 |
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The appellant's challenge to visual identification failed; conviction upheld and appeal dismissed.
Criminal law – Armed robbery; visual identification — reliability factors: illumination (bright moonlight), proximity, prior acquaintance, naming at earliest opportunity; authorities: Waziri Amani, Raymond Francis, Marwa Wangiti; appeal dismissed.
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17 October 2016 |
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Visual identification was reliable given bright moonlight, proximity and prompt naming, so the appellant's appeal was dismissed.
* Criminal law – Evidence – Visual identification – Whether lighting, proximity, duration of observation and prior acquaintance rendered identification safe; immediate naming at scene as assurance of reliability. * Appeal – Conviction based primarily on visual identification – safety of identification and sufficiency of evidence.
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17 October 2016 |
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A material variance between charge particulars and evidence on who was threatened vitiated the armed robbery conviction; conviction quashed and appellant released.
Criminal law – Armed robbery – Particulars of charge must disclose actual violence/threat and identify the person targeted; material variance between particulars and evidence is fatal; failure to amend a defective charge vitiates conviction; retrial discretionary where time served and weak evidence.
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17 October 2016 |
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Variance between charge particulars and trial evidence on who was threatened rendered the armed robbery charge fatally defective.
Criminal law – Armed robbery – Particulars of charge must disclose essential elements including the person threatened; Variance between charge particulars and evidence is fatal if not amended; Fatal defect may justify quashing conviction and setting aside sentence without ordering retrial.
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17 October 2016 |
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Non-compliance with committal and confession rules led to expungement of evidence and quashing of conviction.
Criminal procedure — Committal proceedings — Section 289 CPA — Witness statements or substance not read at committal; inadmissibility without written notice.; Criminal procedure — Post-mortem report — Section 291(3) CPA — Duty to inform accused of right to require author for cross-examination; failure renders report inadmissible.; Criminal procedure — Cautioned/confession statement — Section 50(1) CPA — Recording within prescribed time and judicial scrutiny of voluntariness; delay without explanation renders statement inadmissible.; Evidence — Doctrine of recent possession — Requirements: property found with suspect, positively belonging to complainant, proven stolen and recently stolen; failure to prove any element defeats reliance on doctrine.; Result — Cumulative procedural and evidential defects may lead to expungement of evidence and acquittal for lack of proof.
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15 October 2016 |
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A trial judge’s disclosure of personal views and failure to properly address assessors on alibi vitiated the trial, requiring retrial.
* Criminal procedure – Assessors – Section 265 CPA – Mandatory requirement that High Court trials be with aid of assessors – Proper summing up and explanation of law (including alibi) to assessors – Trial judge must not disclose personal views to assessors – Failure to comply vitiates proceedings and warrants quashing and retrial.
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14 October 2016 |
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Court granted extension to file a notice of address for service, finding promptness and diligence sufficient good cause.
Extension of time – Application under Rule 10 – Whether promptness and diligence constitute 'good cause' – Court's discretion to extend time to file Notice of Address for Service – Respondent's lack of objection.
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13 October 2016 |
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13 October 2016 |
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Promptness and diligence after receiving instructions constituted good cause to extend time to file a notice of address for service.
* Civil procedure – Extension of time – Rule 10 Court of Appeal Rules – Good cause – Promptness and diligence after receipt of instructions constitute sufficient ground to extend time.
* Filing requirements – Notice of Address for Service – Court may grant extension where delay is explained and respondent does not object.
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13 October 2016 |
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The applicants' convictions were unsafe due to unreliable visual identification and a broken chain of custody for the exhibit.
* Criminal law – visual identification – contradictions in identifying witness's evidence; failure to describe lighting and conditions; identification unsafe. * Criminal law – recent possession – chain of custody – exhibit moved from police custody to owner without documentation; doctrine inapplicable. * Appeal allowed; convictions quashed; sentences set aside.
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13 October 2016 |
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12 October 2016 |
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12 October 2016 |
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A Notice of Appeal omitting the mandatory "intends to appeal" is fatally defective; amendment and appeal struck out.
Civil procedure – Appeal procedure – Notice of Appeal must substantially comply with Form D and Rule 83(6); omission of "intends to appeal" is fatal; amendment application under Rule 111; distinction between enabling provisions and procedural/prescribing rules (Rules 48(1) and 50(1)).
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12 October 2016 |
| April 2016 |
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Appeal allowed: High Court erred in deciding merits while committal court had a pending reserved ruling; record remitted for proper determination.
Criminal procedure — Committal proceedings — Magistrate taking over partly heard case — Requirement to record reasons under s.214(1) CPA — Irregular assumption of jurisdiction — High Court revision — Limits: High Court should not decide merits while predecessor's reserved ruling pending.
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29 April 2016 |