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Citation
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Judgment date
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| December 2008 |
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Appellate court acquitted the appellant where unexplained two-year prosecution delay and absent investigator evidence raised reasonable doubt.
* Criminal law – Rape – conviction supported by victim testimony and medical PF3 but identity of perpetrator contested.
* Evidence – Unexplained prosecutorial/investigative delay – two-year lapse between report/treatment and charge.
* Evidence – Failure to call investigating officer – raises reasonable doubt about prosecution case.
* Identifications and date discrepancies – minor contradictions not necessarily fatal, but insufficient when combined with investigative omissions.
* Procedure – Appeal allowed; conviction quashed and appellant acquitted.
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29 December 2008 |
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Failure to conduct a full voir dire for a child complainant rendered the conviction unsafe; appeal allowed and conviction quashed.
* Criminal law – Child witnesses – Voir dire examination – Court must investigate and record that child possesses sufficient intelligence and understands duty to speak truth before receiving evidence – Failure to conduct/complete voir dire renders evidence unsafe and conviction vulnerable to quashing.
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17 December 2008 |
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Conviction under s.302 requires proof of false pretence and intent; unpaid debt is a civil, not criminal, matter.
Criminal law - obtaining money by false pretences (s.302 Penal Code) - elements: false pretence and intent to defraud - burden of proof; Distinction between criminal fraud and civil debt/breach of contract; Appropriate remedy for unpaid loan is civil proceedings.
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15 December 2008 |
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12 December 2008 |
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Conviction for unlawful possession upheld on evidence; forfeiture quashed because transfer proceedings required opportunity to be heard.
Criminal law – unlawful possession of firearm and ammunition – sufficiency of evidence; Arms and Ammunition law – completed transfer/registration versus temporary permits; forfeiture of property – requirements and right to be heard; sentence review.
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12 December 2008 |
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Conviction quashed because the court lacked DPP consent and evidence failed to prove appellant's possession.
Criminal law – jurisdiction – requirement of DPP consent under s.26(2) of the Economic and Organized Crime Control Act – absence of s.12 transfer certificate – trial nullity; Evidence – possession of government trophy – recovery in shared premises and lack of independent witness – insufficient proof; Discretion – retrial unnecessary where proceedings are nullity and evidence weak.
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11 December 2008 |
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Applicant’s conviction upheld on reliable night identification and recent possession; joined-count sentencing upheld.
Criminal law – identification evidence – single witness at night – reliability where moonlight, proximity and prior acquaintance exist; Criminal law – recent possession – hired bicycle found carrying stolen corrugated iron sheets; Criminal procedure – joinder of offences in one count – not fatal if accused clearly informed; Sentencing – separate consecutive terms upheld for storebreaking and stealing targeting a school.
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11 December 2008 |
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11 December 2008 |
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Conviction upheld where appellant found in recent possession of stolen property and failed to explain its provenance.
Criminal law – recent possession doctrine; possession of recently stolen property raises presumption of guilt absent satisfactory explanation; witness credibility and trial court’s factual findings; appeal in absence after discharge/untraceability.
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11 December 2008 |
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Whether circumstantial evidence and admitted custodianship sustain a stealing-by-agent conviction despite inadmissible spousal testimony.
* Criminal law – Stealing by agent (s.273(b) Penal Code) – agent received funds for crop purchases; safe intact but money missing; custodian of safe key implicated.
* Evidence – Circumstantial evidence – must be watertight and exclude reasonable hypotheses of innocence; collective circumstances can sustain conviction.
* Evidence – Spousal testimony – section 130 requires warning/caution; failure renders spouse’s testimony inadmissible.
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10 December 2008 |
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4 December 2008 |
| November 2008 |
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Conviction quashed where prosecution failed to prove appellant's knowledge or control of the firearm.
Criminal law – unlawful possession of firearm – constructive possession requires awareness and control – mere association/travel/cooking insufficient – identification parade and rejected caution statement inadequate to prove possession – conviction unsafe.
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25 November 2008 |
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Appellant validly withdrew appeal after release on presidential clemency; appeal marked withdrawn and sentence left undisturbed.
Immigration law – sentence for unlawful presence – statutory alternative of fine under s.31(2) – sentencing discretion and mitigation; Appeal – withdrawal of appeal communicated from custody – validity and effect; Presidential clemency – effect on appellate proceedings and release orders.
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20 November 2008 |
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Conviction quashed where identification was inadequate and a repudiated police statement was improperly admitted.
Criminal law – burden of proof; identification of stolen property; admissibility of cautioned statements; procedure for tendering evidence in criminal trials; repudiated police statement inadmissible without inquiry (Masasila Mtoba principle).
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12 November 2008 |
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Appeal allowed: conviction quashed for insufficient identification evidence and improper admission of a repudiated cautioned statement.
* Criminal law – burden of proof – prosecution must prove guilt beyond reasonable doubt – identification of property in possession cases. * Evidence – identification of exhibits – necessity to establish distinguishing marks and corroboration. * Evidence – cautioned statements – repudiation requires the trial court to inquire into voluntariness before admitting as exhibit. * Procedure – improper tendering of exhibits after close of case and failure to assess prosecution evidence prior to convicting.
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12 November 2008 |
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An uncorroborated implication and mere suspicion cannot sustain a criminal conviction; appeal allowed and conviction quashed.
* Criminal law – standard of proof – prosecution must prove guilt beyond reasonable doubt; mere suspicion insufficient.
* Evidence – corroboration required where an accused is implicated by another suspect who does not give evidence.
* Conviction unsafe where no eyewitness evidence and no incriminating property is found in accused's possession.
* Procedural – State may decline to support conviction where evidence is deficient.
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10 November 2008 |
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10 November 2008 |
| September 2008 |
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Failure to notify court or client of counsel’s emergency does not constitute sufficient cause to set aside dismissal for non-appearance.
Civil procedure – restoration of dismissed application – sufficiency of cause for non-appearance; duty of counsel to notify court or client or arrange representation; dismissal for want of prosecution; distinction between procedural remedy for non-appearance and substantive jurisdictional challenges.
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24 September 2008 |
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Appellate court held Nyasa West Plot not matrimonial property, upheld custody, and remitted maintenance for rehearing.
* Family law – Division of matrimonial property – burden of proof and requirement to prove joint acquisition and extent of contribution (s.114 Law of Marriage Act; s.110 Evidence Act).
* Family law – Custody – welfare of the child paramount (s.125(2) Law of Marriage Act).
* Maintenance – appellate interference limited where the basis of an award is not on the record; matter remitted for fresh evidence and possible social welfare advice (s.136 Law of Marriage Act).
* Appellate procedure – issues not raised at trial are ordinarily not entertained on appeal.
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17 September 2008 |
| August 2008 |
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18 August 2008 |
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Conviction for attempted rape quashed due to unsafe identification and investigative gaps creating reasonable doubt.
Criminal law – Attempted rape – Identification evidence – Requirement for reliable identification and contemporaneous report to police – Failure to produce police testimony of immediate complaint creates reasonable doubt – Conviction unsafe and quashed.
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18 August 2008 |
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Possession of stolen movable property 19 days after theft insufficient to infer burglary; conviction reduced to receiving stolen property.
* Criminal law – Burglary and stealing – Doctrine of recent possession – Whether possession 19 days after the theft is sufficiently recent to infer guilt of burglary.* Appellate review – Interference with concurrent findings of fact – Court will rarely interfere absent good grounds.* Criminal law – Conviction substituted for lesser offence of receiving stolen property (s.311 Penal Code).
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11 August 2008 |
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Unrebutted eyewitness evidence and possession with attempted flight upheld a theft conviction and sentence.
* Criminal law – Theft – Elements: taking without consent and intent to permanently deprive – possession of stolen property and flight as evidential facts; credibility assessment where accused gives no defence.
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6 August 2008 |
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Appeal dismissed: finding of theft upheld where possession, flight, and unchallenged witness evidence supported intent to permanently deprive.
Criminal law – Theft – Possession of allegedly stolen property and flight as evidence of unlawful taking and intent to permanently deprive; credibility of witnesses and deference to trial court's demeanour assessments; appeal against conviction and sentence dismissed.
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6 August 2008 |
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Conviction for theft quashed where prosecution failed to prove essential facts and omitted to call a material witness.
Criminal law – Theft – Burden of proof – Insufficiency of complainant’s particulars as to ownership and time of theft – Failure to call material witness (vehicle owner/driver) – Adverse inference and rule of caution – Conviction quashed.
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6 August 2008 |
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Failure to record a child’s intelligence in voire dire rendered the child’s evidence improper, undermining the rape conviction.
Evidence — Child witness: voire dire must record both that the child understands truth/lie and is possessed of sufficient intelligence (s.127 Evidence Act); improper voire dire renders testimony unreliable. Medical evidence (PF3) inconclusive — does not alone prove rape. Failure to call key witnesses permits adverse inference against prosecution. Proof of victim’s age and particulars of time are essential in sexual offence charges. Locus in quo visits must be properly recorded to add probative value.
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5 August 2008 |
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Conviction quashed where child’s evidence was improperly received, medical evidence inconclusive and key witnesses not called.
Evidence — Section 127 Evidence Act — Voir dire for child witnesses — court must record both that child understands duty to tell the truth and possesses sufficient intelligence; improper reception undermines credibility. Medical evidence — PF3 may be inconclusive and cannot by itself prove rape or identity of perpetrator. Prosecution duty — call material witnesses; failure permits adverse inference. Proof of age and particulars — essential ingredients must be proved and trial court should make specific findings. Locus in quo — visit must be properly recorded to add probative value.
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5 August 2008 |
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Appellate court upholds theft conviction based on credible circumstantial evidence and recovery of stolen property.
Criminal law – Theft – circumstantial and direct evidence – identification and possession; Confession and conduct – leading police to purchaser; Credibility findings – appellate review; Recovery of stolen property from third party; Admissibility of statements where torture alleged.
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5 August 2008 |
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Appellant found with stolen panels; theft conviction substituted to receiving stolen property, sentence upheld.
Criminal law – Possession of stolen goods – Doctrine of recent possession – when lapse of time precludes inferring guilt of theft – Substitution of conviction to receiving stolen property (s.311) – Value of property and sentencing – adequacy of circumstantial/community policing evidence.
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5 August 2008 |
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Possession of stolen goods proved, but lapse of time precluded proving theft; conviction substituted to receiving stolen property.
Criminal law – Possession of stolen property – Recent possession doctrine – Lapse of time defeats inference of theft – Conviction substituted to receiving stolen property (s.311).
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5 August 2008 |
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Housebreaking conviction quashed for lack of proof of breaking; theft conviction upheld on eyewitness and 'red‑handed' evidence.
Criminal law; housebreaking (s294(1)) — requirement to prove unlawful breaking/entry; theft (s265) — eyewitness/corroborative evidence and apprehension ‘red-handed’; hearsay vs direct testimony; failure to call alibi/witness.
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4 August 2008 |
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3 August 2008 |
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Conviction quashed where prosecution failed to prove property loss and requisite knowledge for neglect to prevent a felony.
Criminal law – offence of neglect to prevent a felony (s383, s35 Penal Code); insufficiency of proof – absence of inventory/stock evidence; absence of proof of knowledge or reasonable expectation of knowledge by watchmen; conviction quashed for failure to prove essential ingredients.
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1 August 2008 |
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Convictions for statutory rape and impregnating a schoolgirl quashed for failure to prove the victim's age and school status.
* Criminal law – Statutory rape – proof of victim’s age is an essential ingredient; absence of age evidence invalidates conviction.
* Criminal law – Offence of impregnating a schoolgirl – prosecution must prove school attendance (e.g., evidence from teacher/parent).
* Evidence – duty to elicit and present specific proof of elements constituting statutory offences; failure to do so requires quashing of conviction.
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1 August 2008 |
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Burglary conviction quashed for lack of proof of breaking and nighttime entry; stealing upheld on recent possession evidence.
* Criminal law – Burglary – requirement to prove forcible breaking and that entry occurred at night; lack of such evidence defeats burglary conviction.
* Criminal law – Stealing – recent possession of recently stolen property identified to the owner; absence of reasonable explanation permits inference of guilt (doctrine of recent possession).
* Evidence – identification of recovered property and temporal proximity to theft; sufficiency of evidence to sustain conviction on stealing.
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1 August 2008 |
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Burglary conviction quashed for lack of proof of breaking and night; stealing conviction upheld under recent possession doctrine.
* Criminal law — Burglary — elements: breaking, entry and night-time commission — requirement of proof of forceful entry and scene verification; * Criminal law — Stealing — recent possession doctrine — recovery of identified items shortly after theft supports inference of guilt absent reasonable explanation; * Evidence — identification of property and timing of recovery; recent possession as basis for conviction.
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1 August 2008 |
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A variance between the charge and particulars rendered the trial a nullity and the appellant’s conviction and sentence were quashed.
Criminal law – variance between charge and particulars – charging cattle theft while particulars allege possession of suspected stolen property (s.312(1)) – defective charge causing miscarriage of justice – nullity of trial; conviction unsafe where defence corroborated by prosecution evidence; mischaracterisation of minimum sentence.
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1 August 2008 |
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Defective charge (theft vs possession) and insufficient evidence led to quashing of conviction and ordered release.
Criminal law – defective charge: inconsistency between charge and particulars (theft vs possession of suspected stolen property under s.312(1)) – causes prejudice and nullity; conviction against weight of evidence where defence partly corroborated; sentence passed on incorrect view of statutory minimum.
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1 August 2008 |
| July 2008 |
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Delay by court registry in supplying judgment can justify extension of time to file an appeal.
• Civil procedure — Extension of time — Section 14(1) Law of Limitation Act — Court’s discretion to extend time for appeal — Requirement to exercise discretion judicially after hearing parties. • Civil procedure — Delay in supply of copy of judgment by court registry — May constitute reasonable or sufficient cause for extension. • Appeals — Court not obliged to assess likelihood of success of intended appeal when granting extension under s14(1).
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31 July 2008 |
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Rape conviction quashed where trial court failed to properly assess sole complainant’s credibility and prosecution evidence was insufficient.
* Criminal law – Sexual offences – Sufficiency of evidence – Reliance on single complainant’s testimony – Trial court’s duty to give reasons for credibility findings. * Criminal procedure – Importance of investigator and supporting witnesses’ evidence to link accused to offence. * SOSPA – Victim’s evidence may be received without corroboration, but conviction on single witness requires the court to be fully satisfied of the witness’s truthfulness.
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29 July 2008 |
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The appellant’s rape conviction was quashed as the prosecution evidence was insufficient and credibility findings were unsupported.
Criminal law – rape and grievous harm – sufficiency of evidence; credibility findings – duty to give reasons; absence of investigator and neighbour testimony; evidential weight of PF3; effect of SOSPA on corroboration rule.
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28 July 2008 |
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Conviction quashed where identification was unsafe due to poor visibility, intoxication, and lack of corroboration.
* Criminal law – robbery with violence – identification evidence – conditions of visibility and complainant’s intoxication affecting reliability of identification.
* Criminal procedure – second appeal – interference with concurrent findings where there are misdirections or misapprehension of material facts.
* Evidence – absence of immediate disclosure, corroborative exhibits or witnesses undermines identification-based conviction.
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28 July 2008 |
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The appellant’s conviction, based on mere suspicion and opportunity, was insufficient and therefore quashed.
* Criminal law – Theft – Sufficiency of evidence – Conviction cannot rest on mere suspicion, proximity or opportunity alone; proof beyond reasonable doubt required. * Evidence – Circumstantial and hearsay evidence – Ambiguous or speculative testimony insufficient to establish guilt. * Appeal – Conviction quashed where prosecution case is compatible with innocent explanations.
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28 July 2008 |
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Conviction quashed where prosecution failed to prove burglary or possession amid material contradictions and missing witnesses.
* Criminal law – Burglary – proof of break-in – need for corroborated specific evidence establishing break-in.
* Criminal law – Theft/possession of stolen property – requirement that possession be proved or accused found with stolen items.
* Evidence – contradictions in recovery evidence and failure to call expected witnesses undermine prosecution case.
* Appellate review – state’s refusal to support conviction is significant where evidential gaps exist.
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28 July 2008 |
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Conviction for possession quashed where police evidence was materially inconsistent and lacked independent corroboration.
Criminal law – Possession of stolen property – Sufficiency of evidence – Single police witness – need for independent corroboration – material contradictions in prosecution evidence – failure to summon defence witnesses – unsafe conviction.
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28 July 2008 |
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Appellant’s conviction quashed for admitting cautioned statement without trial-within-trial and unreliable identification.
* Criminal law – robbery with violence – visual identification at dawn – adequacy of identification evidence and risk of mistaken identity. * Evidence – testimony of near relatives – no automatic discredit; credibility assessed on merits. * Criminal procedure – cautioned statement/confession – requirement for trial-within-a-trial (voir dire) to determine voluntariness and admissibility; failure is a fundamental irregularity. * Conviction quashed where procedural breach and weak identification render prosecution case unsafe.
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28 July 2008 |
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Conviction for statutory rape quashed for failure to prove victim's age and that the offence occurred on the charged date.
* Criminal law — Statutory rape — Proof of victim’s age — birth certificate or parental testimony required where available;
* Criminal law — Necessity to prove commission of the offence on the date charged;
* Evidence — Importance of calling available corroborative witnesses (parents, teacher) in age disputes;
* Appeal — Conviction unsafe where essential ingredients of offence are not proved beyond reasonable doubt.
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25 July 2008 |
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Failure to arraign accused and to give reasons for judgment nullified convictions and sentences, which were quashed.
Criminal procedure – Arraignment and plea – Failure to read charge and take plea renders proceedings nullity; Judgment requirements – s.312(1) – must state points, decision and reasons; Contempt/resisting court order – court taking cognizance must frame and read charge and give accused fair opportunity to reply.
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23 July 2008 |
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The appellants' convictions were quashed for lack of arraignment and a defective statutory judgment.
* Criminal procedure – Arraignment – requirement to state substance of charge and take plea – mandatory under s.228(1).
* Criminal procedure – Judgment – requirements of s.312(1): points for determination, reasons and signed dated judgment.
* Natural justice – accused must not be condemned unheard; failure to arraign is incurable irregularity (Masumbuko Rashidi).
* Contempt/resisting court order – court may not bypass arraignment and conviction formalities even where accused obstruct proceedings.
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23 July 2008 |
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Statutory rape conviction quashed where prosecution failed to prove the victim's age, an essential element of the offence.
* Criminal law – Statutory rape – Essential element: proof of victim's age – conviction unsustainable without specific finding on age.
* Criminal procedure – Alibi – accused bears no burden to prove alibi; prosecution must prove guilt beyond reasonable doubt.
* Evidence – Duty of investigators and prosecutor to elicit and present age evidence in statutory rape cases.
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23 July 2008 |