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Citation
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Judgment date
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| December 2001 |
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Conviction for arson quashed where identification evidence was unreliable and prosecution did not support the conviction.
Criminal law – Malicious damage by fire (arson) – Identification evidence – reliability and circumstances (darkness, vantage point, delay in arrest) – insufficiency of evidence – conviction quashed where identification unsafe; release ordered.
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28 December 2001 |
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Robbery conviction quashed because identification and linkage of recovered tools to the appellant were inadequately proved.
Criminal law – robbery – identification of accused; identification of recovered property – requirement for distinctive marks or particularised description; credibility assessment of witnesses; benefit of doubt where proof is inadequate.
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28 December 2001 |
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Unresolved credibility and inadequate identification of common tools led to quashing the appellant's robbery conviction.
Criminal law - robbery - identification of stolen property; proof of ownership of common tools; witness credibility; benefit of doubt; appellate intervention where trial court fails to resolve material conflicts.
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28 December 2001 |
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Appeal dismissed: defendant defaulted to give evidence; trial court's decision on encroachment and injunction upheld, damages claim refused.
Land dispute — encroachment on neighbouring plot; default by defendant — judgment on strength of plaintiff’s uncontradicted evidence; locus in quo — no site visit where no request or evidence made; assessment of damages and costs — damages refused and costs awarded but not quantified.
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21 December 2001 |
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Appeal dismissed: prosecution witnesses found to have perjured themselves; evidence insufficient to overturn acquittals.
Criminal law – Threats to kill/injure (s.89(2)(a)) and malicious damage (s.326(1)) – Appellate review of acquittal – Credibility of prosecution witnesses – Allegations of witchcraft and prior dispute – Frame-up and perjury – Burden of proof beyond reasonable doubt.
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19 December 2001 |
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Appeal dismissed: appellant failed to prove ownership of disputed land or entitlement to seized timber; trial findings upheld.
Land ownership and proof — where claimant has title to a surveyed portion only, proof required for additional land; evidentiary inconsistencies and credibility findings — appellate court will not disturb trial court absent clear error; seizure of timber from land outside titled parcel may be lawful village action; locus in quo observations insufficient to overturn findings.
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19 December 2001 |
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19 December 2001 |
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Appeal dismissed: appellant failed to prove seized timber came from land beyond his surveyed 150 acres.
* Property law – disputed land ownership (surveyed 150 acres vs claimed 288 acres) – burden of proof to establish title beyond surveyed land.
* Evidence – credibility and consistency of pleadings and witness testimony – appellate review of trial court findings.
* Seizure – claim for restoration of timber and tools and sufficiency of proof of seizure.
* Civil procedure – limits on appellate interference with factual findings and reliance on in loco observations.
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16 December 2001 |
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16 December 2001 |
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Inchoate title from a letter of offer and proper administrative approval outweighs an oral claim; appeal dismissed with costs.
Land allocation – change of use – approval and procedural compliance; inchoate title (letter of offer and payment of duties) versus oral claim; necessity of joining approving/allocating authority; appeal dismissed for want of merit and non‑joinder.
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14 December 2001 |
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A District Court cannot assume jurisdiction to try a Primary Court case concerning customary land; such transfers require proper High Court authority.
Magistrates Courts Act – jurisdiction – transfer of proceedings from Primary Court – disputes over customary land – limits on District Court’s power to assume jurisdiction; section 64 proviso and GN No.320/1964 do not empower District Court to hear administration/customary land matters transferred from Primary Court; leave or action by High Court required for such transfers.
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14 December 2001 |
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District Courts cannot try or transfer suits concerning land under customary law without statutory jurisdiction or High Court leave.
• Civil procedure — Jurisdiction and transfer — Whether District Court may hear or transfer proceedings concerning land held under customary law — Magistrates Courts Act ss.63, 64 (provisos). • Customary law — Immovable property, inheritance — Primary court jurisdiction; High Court leave required for commencement elsewhere. • Engaging counsel does not confer jurisdiction on a court.
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14 December 2001 |
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Appeal dismissed as time-barred for failure to file within the 30-day limit under section 25 of the Courts Act.
Criminal procedure – appeal time limits – Appeal from District Court to High Court – section 25 Courts Act No. 2 of 1961 – requirement to file within 30 days; appeal filed out of time and dismissed.
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12 December 2001 |
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11 December 2001 |
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An appeal filed beyond the 30‑day statutory period under s.20(3) is incompetent, dismissed, and the trial court's decision upheld.
Appeal — Timeliness — Section 20(3) Magistrates' Courts Act 1984 — appeal from Primary Court must be filed within 30 days — appeal filed after statutory period is incompetent and liable to be quashed — subsequent appeal dismissed — costs awarded.
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11 December 2001 |
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An appeal filed beyond the statutory 30-day period is incompetent and dismissed; lower court judgment upheld with costs.
Civil procedure – Appeal time limits – Appeal from Primary Court to District Court must be filed within 30 days (Magistrates' Courts Act s.20(3)); late filing renders appeal incompetent and subject to dismissal; consequences for subsequent appeals; costs awarded.
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11 December 2001 |
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The applicant lacked title because a registered transfer deed conclusively vested the property in the transferee; appeal dismissed.
* Land law – transfer by indenture – registered transfer deed vests conclusive title.
* Evidence – documentary evidence – registered documents are conclusive and cannot be contradicted by oral evidence.
* Property/inheritance – omission from will consistent with lack of interest where title has passed by transfer.
* Genuine document – minor discrepancies in signing dates immaterial when document is registered.
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6 December 2001 |
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Appeal dismissed: defendant defaulted after plaintiff’s case; injunction for removal of encroachment upheld, appeal without merit.
Property law – boundary disputes and encroachment – injunction for removal of encroaching structure; Civil procedure – defendant abandoning defence by default after close of plaintiff’s case; locus in quo – no entitlement to site visit absent request; appellate review – credibility and contradictions must appear on record to overturn findings; awards of damages and costs – must be supported by trial record and quantified where necessary.
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5 December 2001 |
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Appeal dismissed: defendant’s inchoate title and approved change of use upheld; non-joinder of the allocating authority fatal to the claim.
Land law — Allocation of village land — Letter of offer and inchoate title — Change of use of allocated plot — Competent authority approval — Non-joinder of approving authority — Effect on justiciability of ownership dispute.
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5 December 2001 |
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Dispute over reallocated plot: defendant’s letter of offer and payment gave inchoate title; change of use and allocation upheld as lawfully approved.
* Land allocation – letter of offer – inchoate title where offer issued and dues paid – effect on District Allocation Committee control
* Change of land use – proposal by District land office and approval by headquarters – lawful reallocation from nursery school to mosque
* Admissibility and weight of witness evidence on administrative allocation procedures
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5 December 2001 |
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The defendant's late application for leave to defend in a summary suit was time‑barred and dismissed for failure to justify non‑appearance.
Civil procedure – summary suit – substituted service by publication – computation of time to apply for leave to defend (21 days); Order III – who may appear for a party (recognized agent or advocate only); letters/correspondence do not constitute appearance; time‑barred application dismissed.
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4 December 2001 |
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Plaint must state precise monetary amounts (Order VII r2); defective, ambiguous monetary claims may be struck out under Order VI r16.
Civil Procedure – Order VII r2 – requirement to state precise monetary amount where money is claimed; application to equitable reliefs such as specific performance; Order VI r16 – power to strike out pleadings that are embarrassing, prejudicial or liable to delay fair trial; subordinate courts’ pecuniary jurisdiction and the need for clear pleaded amounts.
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4 December 2001 |
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The plaint failed to quantify claimed monetary reliefs as required by Order VII rule 2 and was struck out as embarrassing.
Civil procedure – pleadings – requirement to state exact or approximate monetary amounts – Order VII rule 2, Civil Procedure Code; power to strike out embarrassing or prejudicial pleadings – Order VI rule 16; plaint struck out for failure to quantify claimed monetary reliefs.
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4 December 2001 |
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A time‑barred appeal is a nullity; appellate court orders made on such an appeal are quashed and the trial court judgment stands.
Civil procedure – appeals – statutory time limit for lodging appeals under s.20(3) Magistrates’ Courts Act 1984 – appeal filed out of time is a nullity – appellate court’s failure to dismiss time‑barred appeal renders its orders void – subsequent appeal incompetent where underlying appeal is invalid.
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3 December 2001 |
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An out-of-time Primary Court appeal is incompetent, voiding subsequent District Court and High Court appeals.
Appeals — Primary Court to District Court — statutory 30-day time limit (s.20(3), Magistrates' Courts Act) — appeal lodged out of time — incompetence and nullity of subsequent District Court decision — effect on further appeals to High Court.
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3 December 2001 |
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3 December 2001 |
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An appeal filed outside the 30‑day statutory period is incompetent, rendering subsequent appeals founded on it invalid.
Appeals — statutory time limits — Magistrates' Courts Act s.20(3) — appeal from primary court to District Court must be lodged within 30 days; appeal lodged outside time is incompetent and time‑barred — District Court decision founded on incompetent appeal is a nullity — subsequent appeal founded on a nullity is invalid — costs awarded to successful party.
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3 December 2001 |
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Failure to file court‑ordered written submissions amounted to failure to prosecute; appeal dismissed with costs.
Civil procedure – compliance with court orders – written submissions – failure to file within prescribed time – constitutes failure to prosecute – late submissions without leave not acted on – appeal dismissed with costs.
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3 December 2001 |
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Re-allocation during Operation Vijiji and excessive delay extinguished the applicant's land claim; appeal dismissed.
Land law – re-allocation of village land during Operation Vijiji (1974/75) – effect on title; Prescription and limitation – delay in bringing land claim extinguishing title; Civil procedure – weight of locus visit and witness evidence; Effect of criminal trespass proceedings on civil title dispute.
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3 December 2001 |
| November 2001 |
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Concurrent credibility findings upheld; appellant failed to prove ownership so appeal dismissed with costs.
* Property law – ownership dispute over dwelling after dissolution of marriage – assessment of title by testimony and evidence of development.
* Evidence – credibility and evaluation of witnesses – deference to trial court findings as court of first instance.
* Civil procedure – appellate interference with concurrent findings of fact – intervention only where clear misdirection or lack of evidence.
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23 November 2001 |
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The appellant failed to prove ownership; appellate court will not disturb concurrent credibility-based findings.
* Family law – Matrimonial property – dispute over ownership of premises following dissolution – proof of proprietary rights.
* Evidence – Assessment of credibility – trial court’s advantage as first instance fact-finder – appellate restraint.
* Civil procedure – concurrent findings of fact – when appellate court may interfere.
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23 November 2001 |
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Leave to sue a company in liquidation is premature unless claims are proved to the liquidator; application struck out with no order as to costs.
Companies law – liquidation – Companies (Winding Up) Rules, 1929 – proof of debts to liquidator required before suits proceed; Premature claims against a company in liquidation; Leave to sue specified company; Employment law – costs exemption under Employment Ordinance s.143.
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23 November 2001 |
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A criminal court may advise civil action where land ownership is disputed, but such advice is not enforceable and does not bar criminal prosecution.
* Criminal law – trespass – dispute as to ownership – where ownership in issue criminal court should advise complainant to institute civil proceedings but such advice is not binding on complainant.
* Civil procedure – relationship between criminal and civil remedies – criminal prosecution does not bar defendant from instituting civil action; defendant cannot force complainant to sue.
* Appeals – interim directions in criminal proceedings – limited appealability; Director of Public Prosecutions has proper locus to challenge such orders.
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23 November 2001 |
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The appellate court dismissed the appeal and remitted the matter for the District Court to resume the trial from where it stopped.
* Appeal – appellate review – appeal dismissed for lack of merit; matter remitted to trial court to resume proceedings.
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23 November 2001 |
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Guilty pleas accepted without narrated facts are not unequivocal; convictions quashed and appellant discharged.
* Criminal procedure – guilty plea – necessity of narrated factual basis when accepting plea; * Road Traffic Act – dangerous driving – need for facts establishing nature of driving, vehicle condition, and causal link to death/injury; * Conviction vitiated where plea is not unequivocal; * Retrial vs discharge where procedure defective.
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23 November 2001 |
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A guilty plea without a narrated factual basis is not unequivocal and will render the conviction unsafe; appeal allowed.
Criminal procedure – guilty plea – requirement that prosecution narrate sufficient facts to establish elements of offence; dangerous driving – necessity to put facts as to manner of driving, vehicle condition and causation; failure to provide factual basis renders plea equivocal and conviction unsafe; retrial permissible.
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23 November 2001 |
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Unauthenticated birth extract and unsupported circumstantial evidence cannot prove paternity or sustain an adultery damages claim.
* Family law – adultery – proof of extra‑marital relationship – necessity of direct or cogent circumstantial evidence to establish adultery.
* Evidence – documentary evidence – authenticity and admissibility of birth register extract – requirement for proof of statutory search/payment under Births and Deaths Registration law.
* Civil procedure – burden of proof – inability of unverified documents and unsupported circumstantial assertions to sustain a claim for damages.
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22 November 2001 |
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Hearsay insufficient to deny citizenship; appellant entitled to citizenship under s.1(1) and passport restored.
Immigration offence – unlawful presence and false declaration – conviction based on hearsay – prosecution duty to call primary sources – evidence inadmissible if third‑hand – Citizenship Act s.1(1) – citizenship by operation of law where a parent born in Tanganyika – restoration of passport.
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19 November 2001 |
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Conviction for giving false information upheld but two-year sentence quashed as exceeding statutory maximum; appellant released.
Criminal law – Giving false information to public servant (s122 Penal Code) – sufficiency of evidence – fabrication to implicate others – sentence exceeding statutory maximum – illegal and quashed.
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19 November 2001 |
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Appellant's conviction quashed because identification evidence was unreliable and uncorroborated.
Criminal law – Evidence – Identification evidence and corroboration; reliability of witness testimony; insufficiency of evidence to sustain conviction; fear of arrest not proof of guilt.
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19 November 2001 |
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Conviction based on uncorroborated single-witness identification and hiding was unsafe and set aside.
* Criminal law – conviction based primarily on single-witness identification – need for corroboration; credibility of identification evidence. * Evidence – identification parade and witness conduct – weight and reliability. * Criminal law – hiding/fear of arrest is not proof of guilt.
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19 November 2001 |
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Conviction upheld but two‑year sentence quashed as it exceeded the statutory maximum under section 122; appellant ordered discharged.
Criminal law – Sentencing – Legality of sentence – Section 122 Penal Code prescribes maximum of six months' imprisonment or fine of one thousand shillings; sentence exceeding statutory maximum quashed; effect of time already served considered.
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19 November 2001 |
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Conviction for giving false information upheld; two‑year sentence quashed as exceeding s.122 Penal Code maximum; appellant discharged.
* Criminal law – Giving false information to a public servant – s.122 Penal Code – Elements and sufficiency of evidence establishing fabrication and false report. * Sentencing – Legality of sentence – statutory maximum under s.122 and quashing of excessive sentence. * Relief – Discharge where time served exceeds lawful maximum sentence.
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19 November 2001 |
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Rape conviction of a 14‑year‑old upheld; lack of sperm or trauma did not undermine corroborative circumstantial evidence.
* Criminal law – Rape – Sexual intercourse with a 14‑year‑old constitutes rape as the child cannot consent; slight penetration sufficient. * Medical evidence (absence of sperm or trauma; prior ruptured hymen) is not dispositive. * Circumstantial and corroborative evidence (closing door, forced entry, accused found on victim) can sufficiently establish guilt.
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16 November 2001 |
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An appeal was struck out because the appellant gave notice of intention to appeal outside the mandatory ten-day statutory period.
* Criminal procedure – Notice of intention to appeal – Time limit under section 361(a) Criminal Procedure Act, 1985 – Failure to give notice within ten days renders appeal incompetent and liable to be struck out.
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16 November 2001 |
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Unlawful firearm possession is an economic offence requiring DPP consent and High Court jurisdiction; appellant’s convictions quashed.
* Criminal law – unlawful possession of firearm – reclassified as an economic offence under Economic and Crime Control Act – triable in High Court unless transferred by DPP certificate. * Criminal procedure – requirement of prior consent of the Director of Public Prosecutions for prosecution of certain economic offences – absence of consent renders proceedings jurisdictionally defective. * Consequence – convictions and sentences quashed for want of jurisdiction; incidental property destruction order maintained.
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16 November 2001 |
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Unlawful firearm possession is an economic offence requiring DPP consent and High Court jurisdiction; convictions quashed.
Criminal law – Unlawful possession of firearm – Reclassified as economic offence – Requires DPP consent and triable in High Court unless transferred by DPP certificate – Convictions in subordinate court void for want of jurisdiction.
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16 November 2001 |
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Whether nighttime identification and possession of traced stolen goods sufficed to sustain convictions for armed robbery and receiving stolen property.
* Criminal law – armed robbery – identification evidence at night – adequacy of contemporaneous description to police and circumstances of observation.
* Criminal law – receiving stolen property – possession of traced goods and inference of guilty knowledge.
* Evidence – search and seizure – tracing, recovery and chain of custody of stolen property.
* Sentencing – mandatory minimum punishment for armed robbery and appellate scrutiny of sentence safety.
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16 November 2001 |
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Night identification and uncorroborated co-accused evidence insufficient; possession plus admission can sustain receiving-stolen-property.
* Criminal law – Identification evidence – Night-time observation – Necessity for reliable description and adequate opportunity to observe.
* Criminal law – Evidence – Testimony/statement of co-accused requires independent corroboration before it can ground conviction of another.
* Property offences – Receiving stolen property (s 311(1)) – Possession of stolen goods plus admission can suffice for conviction.
* Sentencing – Minimum sentence for armed robbery quashed where conviction unsafe; compensation order set aside.
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16 November 2001 |
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Weak night identification and lack of corroboration quash one appellant's conviction; the other's receiving-and-concealing conduct sustains conviction.
* Criminal law – Identification evidence – Night-time identification – adequacy of description to police and duration of observation required for reliability. * Criminal law – Evidence – Testimony or statement of one accused against co-accused requires independent corroboration before supporting conviction. * Criminal law – Receiving stolen property – conduct of receiving, concealing and surrendering stolen goods can sustain conviction.
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16 November 2001 |