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Citation
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Judgment date
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| August 2017 |
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The applicant's unlisted exhibit was wrongly rejected without being heard, violating fair hearing; appeal allowed and exhibit admitted.
* Criminal procedure – Preliminary hearing under s.192 CPA – lists of exhibits – whether an exhibit not listed at preliminary hearing may be tendered at trial. * Right to fair hearing – audi alteram partem – obligation to afford parties opportunity to be heard before rejecting evidence. * Appellate jurisdiction – DPP's right to appeal interlocutory orders under s.6(2) AJA; prohibition on respondents' appeals under s.5(2)(d) AJA for interlocutory orders.
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31 August 2017 |
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Absence of DPP consent/certificate rendered trial of economic offences a nullity, prompting quashment and a limited retrial.
Criminal law – Economic and Organised Crime Control Act – jurisdiction to try economic offences – requirement of DPP's consent and certificate for non–Economic Crimes Court – absence/undocumented filing renders proceedings a nullity – revision under section 4(2) AJA – retrial limited to count 4 – credit for time served.
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31 August 2017 |
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Review dismissed: alleged irregularities unproven and new grounds not raised in the notice cannot be entertained.
* Criminal procedure – Review under Rule 66 TCA Rules 2009 – scope limited to correcting manifest errors or irregularities, not re‑hearing merits. * Procedural law – Grounds of review must be clearly set out in the notice of motion (Rule 66(3)); new grounds cannot be raised at hearing. * Right to be heard – allegation of denial must be substantiated on the record. * Allegations of fraud/perjury or nullity require demonstration on the record.
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25 August 2017 |
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Failure to convict before sentencing is fatal; identification and recent-possession evidence were insufficient.
* Criminal procedure – mandatory conviction before sentence – omission renders trial judgment a nullity.
* Evidence – visual identification – conditions of observation, light intensity and risk of mistaken identity.
* Evidence – variance between charge particulars and trial evidence – generally affects weight, not necessarily validity.
* Evidence – doctrine of recent possession – requirements: item proved to be complainant's, recently stolen, and the subject of the charge.
* Criminal appeals – cumulative insufficiency of evidence may justify quashing convictions and setting aside sentences.
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25 August 2017 |
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Conviction quashed: prosecution failed to prove rape or defilement; appellant ordered released.
Criminal law – charge and evidence – rape (s130(2)(c)) – consent while of unsound mind – defilement of an imbecile (s137) – requirement that accused knew victim was imbecile – failure to prove charge – acquittal; retrial not ordered where trial not defective.
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25 August 2017 |
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Cautioned statements taken beyond the statutory four‑hour period are inadmissible; recent possession misapplied, convictions quashed.
* Criminal procedure – admissibility of cautioned statements – statutory four‑hour limit under s.50(1)(a) CPA – statements taken outside period without extension inadmissible.
* Evidence – doctrine of recent possession – prerequisites: possession, positive identification by complainant, property must be subject of charge; conditions must be cumulatively satisfied.
* Evidence – distinction between admission of stealing and admission that property was stolen from the complainant.
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25 August 2017 |
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Cautioned statements taken outside the statutory four-hour period are inadmissible; recent possession was misapplied, convictions quashed.
Criminal procedure – admissibility of cautioned statements – statutory four-hour limit under s.50(1)(a) CPA; Recent possession doctrine – requirements: possession, positive identification by complainant, property must be subject of charge; Legal sufficiency of in-court defence statements as admissions.
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25 August 2017 |
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Trial was unfair where the magistrate self‑investigated corruption allegations; convictions quashed and retrial ordered.
* Criminal procedure – fair trial – allegations of bias and corruption against trial magistrate – recusal procedure required.
* Natural justice – nemo judex in causa sua – illegality of a judge/inquirer deciding his own complaint.
* Trial irregularity – proceedings vitiated where magistrate conducts inquiry without allowing prosecution response.
* Remedy – conviction quashed; retrial ordered before another magistrate; custody and credit for time served.
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24 August 2017 |
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Charge defective for omitting the person targeted by violence; convictions quashed and appellants released.
Criminal law – Robbery particulars – failure to state person against whom violence used – incurably defective charge; identification – insufficiency of evidence; recent possession – misapplication where goods found with third parties; admissibility of exhibits – need for descriptive marks and opportunity to be heard; retrial – discretionary and not ordered where interests of justice preclude it.
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24 August 2017 |
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Failure to serve the notice of appeal and to copy the records rendered the appeal incompetent and time‑barred.
Civil procedure – Appeals – Service of notice of appeal – Rule 84(1) Court of Appeal Rules 2009 – requirement to serve notice on all directly affected persons; Time limits for lodging appeal – Rule 90(1) and (2) – copying request for certified copies to respondents to benefit from proviso; Non‑compliance renders appeal incompetent and liable to be struck out with costs.
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24 August 2017 |
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Allegations of corruption and a magistrate-conducted inquiry rendered the trial unfair; conviction quashed and retrial ordered.
Criminal procedure – Fair trial – Allegation of bias and corruption against trial magistrate – Improper self-conducted inquiry – Nemo judex in causa sua – Trial nullity – Retrial ordered before another magistrate; credit for time served.
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23 August 2017 |
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Review application dismissed because grounds were appeal issues, not showing manifest error or denial of hearing under Rule 66(1).
Court of Appeal — Review jurisdiction — Application must be grounded in Rule 66(1) (manifest error, deprivation of hearing, nullity, lack of jurisdiction, fraud/perjury); Review is not an appeal — complaints about evaluation or credibility are ordinarily appeal grounds.
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23 August 2017 |
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Conviction quashed where charge cited a non‑existent section and child evidence was improperly admitted; no retrial ordered.
Criminal procedure – defective charge – requirement to cite correct statutory section and particulars per s.132 and s.135 CPA; Evidence – child witnesses – proper voir dire under s.127(2) Evidence Act; Evidence – re‑examination introducing new matter and right to further cross‑examination under s.147(3) Evidence Act; Retrial – discretionary, not ordered where interest of justice and evidential defects make retrial inappropriate.
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23 August 2017 |
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Conviction quashed for incurably defective charge; no retrial due to weak, procedurally flawed evidence.
Criminal law – Charge sheet requirements – charge must correctly cite the statutory provision and particulars (ss.132, 135 CPA); incurably defective charge invalidates conviction. Evidence – child witness voir dire must comply with s.127(2) Evidence Act; improper voir dire renders testimony of no evidential value. Evidence – re-examination introducing new matter without opportunity for further cross‑examination breaches s.147(3) Evidence Act. Retrial – discretionary; withheld where prosecution evidence is procedurally flawed and weak.
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23 August 2017 |
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Failure to serve the notice of appeal and to copy the request for records rendered the appeal incompetent and time-barred.
Civil procedure — Court of Appeal Rules, 2009 — Service of notice of appeal — Rule 84(1) — Requirement to serve intended respondents within 14 days; Civil procedure — Time limits for lodging appeal — Rule 90(1) & (2) — Effect of failing to copy request for certified records — appeal time-barred; Competence of appeal — non-compliance with procedural rules — striking out with costs.
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23 August 2017 |
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A rape charge must specify the particular subsection/paragraph; failure renders a guilty plea equivocal and conviction unsustainable.
Criminal law – Rape – Charge must specify the particular subsection/paragraph of section 130 and the appropriate provision of section 131; Plea of guilty – Equivocal plea where charge is not sufficiently particularised; Criminal Procedure Act – Sections 132 and 135 require charges to state offences with necessary particulars; Remedy – Quash conviction and set aside sentence, DPP may re-charge and time served to be considered.
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22 August 2017 |
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Review application dismissed because the grounds advanced were appeal grounds, not grounds under Rule 66(1).
Court of Appeal — Review — Rule 66(1) C.A. Rules 2009 — Review distinct from appeal — Review permissible only for manifest error on record, denial of hearing, nullity, lack of jurisdiction or judgment procured illegally/fraudulently.
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22 August 2017 |
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Primary Court lacked jurisdiction to try rape; conviction quashed, release ordered and DPP to decide on recharging.
* Criminal procedure – jurisdiction – Primary Court lacked jurisdiction to try rape under Magistrates' Courts Act s.18(1)(c) and First Schedule; proceedings a nullity.
* Appeal – conviction quashed and sentence set aside where trial court lacked jurisdiction.
* Retrial – discretionary, governed by interests of justice; DPP to decide on recharging; credit for time served if reconvicted.
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22 August 2017 |
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A guilty plea to a rape charge that fails to specify the statutory category is equivocal and invalid.
* Criminal law – Rape – necessity to specify relevant subsection/paragraph of section 130 where multiple categories exist – charge particulars under ss.132 and 135 CPA.
* Pleas – guilty plea to defective charge – equivocal plea and pleading to non-existent offence.
* Procedure – defective charge vitiates conviction and sentence – remedy: quash conviction, set aside sentence, immediate release; DPP may re‑charge; time served to be considered.
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21 August 2017 |
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Primary Court lacked jurisdiction to try rape; conviction quashed, retrial left to prosecution, appellant released.
* Criminal law – jurisdiction of Primary Courts – section 18(1)(c) Magistrates' Courts Act and First Schedule – rape not triable by Primary Court. * Consequence – proceedings from a court without jurisdiction are a nullity; conviction quashed. * Retrial – discretionary, interests of justice, prosecutorial discretion; time already served to be set off if reconvicted.
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21 August 2017 |
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18 August 2017 |
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An appellate court will not disturb a sentence if the trial judge considered mitigation and the sentence is not manifestly excessive.
Criminal law — Sentencing — Appeal against sentence — Appellate interference only where sentence is manifestly excessive, inadequate, illegal, or based on wrong principles; omission to mention every mitigating factor does not prove non-consideration; seven-year sentence for manslaughter not excessive where maximum is life imprisonment.
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18 August 2017 |
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Conviction quashed where identification was unreliable and recent possession, ownership and chain of custody of the stolen motorcycle were not proved.
* Criminal law – Visual identification – Witness failed to give prior description or explain identification – Identification evidence not watertight (Waziri Amani principle).
* Criminal law – Recent possession – Requirements: property found with suspect, positively identified as complainant’s, recently stolen and subject matter of charge – not satisfied where item recovered from third party’s garage.
* Evidence – Ownership proof – Transfer documents in prior owner’s name and prior owner not called – ownership not proved.
* Evidence – Chain of custody – Chronological documentation of seizure, custody and transfer required (section 38(3) Criminal Procedure Act) – absent, creating doubt.
* Appeal – Second appeal interference permissible where concurrent findings produce unfair conviction or misapprehension of evidence.
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18 August 2017 |
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Successor magistrate must personally record reasons under s214(1) CPA; failure renders proceedings and subsequent judgments nullity.
Criminal procedure – Section 214(1) CPA – Successor magistrate must record reasons for taking over trial – Administrative reassignment by station in-charge insufficient – Non-compliance renders proceedings and consequent judgments a nullity – Remedy: quash proceedings and order retrial by competent magistrate (s.4(2) AJA).
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18 August 2017 |
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Non‑compliance with s214(1) CPA by the magistrate who took over rendered the trial proceedings and judgments a nullity.
Criminal procedure – Change of trial magistrate – Section 214(1) CPA – Requirement that magistrate who takes over must record reasons in proceedings – Administrative reassignment by station in‑charge does not satisfy statutory requirement – Non‑compliance renders subsequent proceedings and judgment nullity – Court’s revisional powers under s.4(2) AJA to quash and order rehearing.
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17 August 2017 |
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Failure to comply with Rule 48(1) (no cited rule or grounds) renders an application incompetent and liable to be struck out.
Court of Appeal procedure – Rule 48(1) TCA Rules 2009 – mandatory requirement to cite specific rule and state grounds in notice of motion – failure renders application incompetent; inability to engage counsel not an excuse; preliminary objections on time-bar and Rule 66(1) unnecessary once incurable defect found.
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17 August 2017 |
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Appeal struck out for omission of CMA proceedings from the record without seeking directions under Rule 96(3).
Civil procedure — Appeal from High Court in appellate jurisdiction — Record of appeal must include record of proceedings (Rule 96(2)(c)) — Exclusion of documents only by direction on application (Rule 96(3)) — Omission without application renders appeal incompetent — Appeal struck out.
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16 August 2017 |
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Notice of intention to appeal given in time; child evidence upheld; out-of-time cautioned statement and compensation order set aside.
* Criminal procedure – notice of intention to appeal – distinction between giving notice (prison-certified written intent) and formal lodging/filing – compliance with s.361(1)(a) CPA. * Evidence – child witness – voire dire under s.127(2) Evidence Act – tests operate alternatively; oath suffices. * Evidence – cautioned statement obtained outside s.50/51 CPA time limits is inadmissible and must be expunged. * Sentencing – compensation order must be grounded in charge sheet (s.131(1) Penal Code); omission renders compensation order invalid.
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16 August 2017 |
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Notice of appeal is 'given' when declared in writing within ten days; child’s oath sufficed and conviction, minus compensation order, is upheld.
Criminal law – appeal notice – 'giving' notice under s.361(1)(a) distinguished from filing; child witness – voire dire on oath suffices if child understands oath; cautioned statement obtained beyond statutory custody period inadmissible and expunged; charge sheet must state statutory basis for compensation; no legal duty to medically examine accused to prove penetration.
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16 August 2017 |
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Conviction upheld: reliable identification and recovery evidence outweighed chain-of-custody irregularity; appeal dismissed.
* Criminal law – Identification evidence – Visual identification at night – reliability where complainant knew accused, had adequate light, time and no effective cross-examination.
* Criminal law – Recovery of stolen property – Possession of recently stolen property and role (and limits) of doctrine of recent possession.
* Evidence – Chain of custody – irregular transfer of exhibit; admissibility where no prejudice or objection shown.
* Appeals – Second appeal scope – intervention where misdirections/non-directions warrant re-appraisal of evidence.
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14 August 2017 |
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Conviction for unlawful possession of ammunition upheld; 15‑year sentence quashed as ultra vires and appellant released.
* Criminal law – Arms and Ammunition Act s.4(1) – possession of ammunition constitutes offence under same provision as firearms.
* Appellate procedure – Second appeal – concurrent findings of fact not to be disturbed absent misdirection or miscarriage of justice.
* Criminal Procedure Act s.170(1) – sentencing limits of subordinate courts; custodial term not exceeding five years unless statute prescribes minimum sentence.
* Revisional jurisdiction – quash of ultra vires sentence and substitution resulting in release.
* Procedural irregularity – omission to acquit under s.230 CPA curable under s.388 CPA.
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11 August 2017 |
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Victim identification and police recovery linked the accused to the stolen motorcycle; appeal dismissed.
* Criminal law – visual identification – principles in Waziri Amani applied where victim knew accused, had adequate light and time to observe. * Evidence – recovery of stolen property – direct evidence of seizure by police and corroboration by independent rider sufficient to link accused to offence; doctrine of recent possession not necessary where recovery is direct. * Evidence – chain of custody – break in custody does not automatically exclude exhibit where no prejudice and absence of objection. * Appeals – second appeal may re-examine factual findings where there are misdirections or non-directions affecting fairness.
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11 August 2017 |
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Whether the applicant was correctly identified, found in possession of stolen property, and prejudiced by chain-of-custody defects.
Criminal law – Identification at night – Waziri Amani factors; Recovery of stolen property – possession and applicability of doctrine of recent possession; Evidence – chain of custody of exhibits and prejudice; Credibility of prosecution witnesses and evaluation of defence on second appeal.
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11 August 2017 |
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Review application dismissed for seeking rehearing of merits and failing to meet Rule 66(1) review grounds.
Criminal procedure — Review jurisdiction — Rule 66(1) Court of Appeal Rules — Review not a rehearing of merits; review only where record shows manifest error, denial of hearing, nullity, lack of jurisdiction, or fraud/perjury; disguised appeals by way of review are impermissible.
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11 August 2017 |
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Review application dismissed because applicant failed to establish the narrow grounds for review under Rule 66(1).
* Criminal procedure – Review of Court of Appeal judgment – Limited to grounds in Rule 66(1) (manifest error on face of record, fresh evidence, nullity, lack of jurisdiction, illegality/fraud).
* Civil procedure – Review is not an appeal in disguise; appellate complaints cannot be cured by review.
* Evidence – Allegation that DNA ought to have been ordered does not, by itself, constitute a ground for review under Rule 66(1).
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10 August 2017 |
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Conviction unsafe: unreliable night-time identification and inadmissible cautioned statements led to quashing of sentences.
* Criminal law – visual identification – night-time sudden attack; need to exclude mistaken identity and establish conditions enabling reliable identification. * Criminal procedure – cautioned statements – inadmissible if taken beyond statutory time limits (Ss.50,51 CPA) and not read over. * Evidence – requirement to administer oath/affirmation (S.198(1) CPA); unsworn testimony has no evidential value. * Offences – armed robbery incorporates force and resultant injury; improper to split into separate counts of grievous harm.
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9 August 2017 |
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9 August 2017 |
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Review application dismissed: Rule 66 review limited to manifest error or denial of hearing; evidential issues are appellate matters.
* Criminal procedure – Review jurisdiction of Court of Appeal – Rule 66(1) – review confined to manifest error on face of record or denial of hearing – review sparingly exercised. * Procedural law – Distinction between appeal and review – evidential and factual complaints are for appeal, not review. * Criminal evidence – doctrine of recent possession an evidential matter not ordinarily reviewable under Rule 66.
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9 August 2017 |
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Unreliable night-time identification and unlawfully obtained cautioned statements led to conviction quashed.
• Criminal law – Visual identification – night-time ambush; requirements for reliability and earlier opportunity to identify.• Criminal Procedure – Cautioned statements – inadmissible if obtained in breach of statutory time limits; reading over does not cure illegality.• Evidence – witness evidence must be given on oath/affirmation; unsworn evidence has no evidential value.• Criminal pleading – splitting single armed robbery into separate grievous harm and armed robbery counts improper.
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7 August 2017 |
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A seven-year manslaughter sentence was not manifestly excessive; omission to list all mitigation does not prove non-consideration.
Criminal law – sentencing – appellate interference with sentence – manifestly excessive or inadequate sentence; mitigation – omission to recite each mitigating factor does not prove non-consideration; manslaughter sentencing (maximum life imprisonment).
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7 August 2017 |
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A charge of armed robbery is incurably defective if it fails to name the person subjected to violence or threat.
Criminal procedure; armed robbery – particulars of charge – necessity to name person on whom violence or threat was directed – omission renders charge incurably defective; not cured by section 388 CPA; Court’s revisional powers under section 4(2) AJA to quash proceedings and set aside sentences.
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7 August 2017 |
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An appeal is incompetent and struck out where the notice of appeal is filed late and not served on the respondent.
* Civil procedure — Appeal — Notice of appeal — Rule 83(2) — Time limit of 30 days; notice filed after 20 months is time-barred.
* Civil procedure — Appeal — Service of notice — Rule 84(1) — Failure to serve respondent renders appeal incompetent.
* Preliminary objection — Competence of appeal — procedural compliance mandatory.
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4 August 2017 |
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Review dismissed: review not for re‑hearing; post‑offence sentencing amendment cannot benefit a 16‑year‑old offender.
Criminal procedure — Review applications — Rule 66(1) — review is not rehearing of appeal; Juvenile sentencing — age below 18 — non‑retroactivity of statutory amendment; Interpretation of Laws Act s73 — penalty at time of commission.
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3 August 2017 |
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Review dismissed: cannot reargue evidence or rely on unsupported perjury allegations under Rule 66(1).
Criminal procedure — Review under Rule 66(1) — Review limited to manifest error on face of record, lack of jurisdiction, nullity, deprivation of hearing, illegality (fraud or perjury); not a forum to re-evaluate evidence or compel DNA testing.
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3 August 2017 |
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2 August 2017 |