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Citation
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Judgment date
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| December 2022 |
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Applicant’s application for leave to appeal out of time and stay dismissed for delay, insufficent reasons, and lack of merit.
Civil procedure — application for leave to appeal out of time and stay of execution — discretion under Order XIII r.3(1) — requirement of sufficient reasons for extension — non‑compliance with time limits — application dismissed.
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30 December 2022 |
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Stay of execution dismissed for failure to show prior application to the lower court under required procedural rule.
Civil procedure – Stay of execution – Requirement to first apply to the High Court – Order XIII Rule 12 – Failure to prove prior stay application – Dismissal with costs.
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30 December 2022 |
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A renewed stay application is misconceived where the lower court has already granted a conditional stay; challenge conditions by appeal.
Civil procedure — Stay of execution pending appeal — discretionary remedy; conditional stay; security for costs as condition; interlocutory applications to single judge; challenge to conditions by appeal.
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30 December 2022 |
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An administrator cannot mortgage estate property without authority; a lender is bound by constructive notice from occupation.
Intestate succession — powers of administrator — equitable mortgage; constructive notice and occupation — lender's duty of due diligence when title in deceased's name; administrator prohibited from deriving pecuniary benefit from estate.
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29 December 2022 |
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Issuing a writ of fieri facias before court-ordered assessment of amounts due is irregular and may be set aside.
Civil procedure — Execution — Writ of fieri facias issued prematurely before assessment — Assessment of amounts due by Registrar/accountant required — Risk of unjust enrichment — Execution set aside for irregularity.
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29 December 2022 |
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Application for security for costs and stay dismissed where appellant is resident, traceable and has already paid into court.
Civil procedure – Security for costs – Order X Rule 8(1) Court of Appeal Rules – security for past and prospective costs – discretion to order security – domicile and traceability of appellant – risk of stifling litigation – taxation of costs – guidance from Isaac Lungu v Mbewe Kalikeka.
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29 December 2022 |
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An administrator cannot mortgage estate property; lenders must conduct due diligence and are bound by constructive notice.
Intestate Succession Act — administrator’s duties and limits — prohibition on deriving pecuniary benefit; equitable mortgage; constructive notice from occupation; lender’s duty of due diligence.
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29 December 2022 |
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Application for leave to appeal out of time and for stay dismissed for inordinate delay and insufficient reasons.
Civil appeals — leave to appeal — extension of time — Order XIII Rule 3(1) — inordinate delay and insufficient reasons — prejudice and finality — stay of proceedings refused.
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27 December 2022 |
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Entry of judgment on admission appropriate where defence and correspondence contain clear, unequivocal admission of debt.
:[
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23 December 2022 |
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An application to stay execution pending appeal is irregular and dismissed where no prior High Court stay application was made.
Civil procedure — Stay of execution — Appeal does not stay execution unless court orders — Application for stay must first be made to the High Court (Order XIII r.12) — Failure to comply renders application irregular.
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23 December 2022 |
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A ruling delivered after the ILRA one‑year limit is null, rendering any subsequent appeal incompetent.
Industrial and Labour Relations Act s85 – mandatory one‑year disposal requirement – jurisdiction tied to time; decision delivered outside statutory period is null and void; jurisdictional issues may be raised at any stage; arbitration clause/enforceability (raised but not decided due to time bar).
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23 December 2022 |
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A statutory one-year disposal requirement under s85 ILRA is mandatory; decisions made after that time are void and appeals are incompetent.
Industrial & Labour Relations Act s85 — statutory one-year disposal period — jurisdiction tied to time; decisions delivered outside prescribed period null and void; jurisdictional points may be raised at any stage; consequences for appeals where lower court lacked jurisdiction.
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23 December 2022 |
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22 December 2022 |
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Appeal succeeded where trial court relied on unpleaded duty-to-explain findings; signed surety agreement bound the 2nd respondent.
Civil procedure – pleadings and evidence – court must not decide on unpleaded matters; suretyship – signature binds surety; estoppel against denying signed obligations.
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21 December 2022 |
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Appeal dismissed for want of prosecution where the Record of Appeal was not timely filed and no timely extension was sought.
Civil procedure — Court of Appeal Rules (Order 10 Rule 7) — Dismissal for want of prosecution — Failure to file Record of Appeal within time — Duty to seek extension promptly — Precedent: appellants who 'sit back' risk dismissal (Nahar Investment).
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20 December 2022 |
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Termination without substantiated reasons breaches section 36; court awards each appellant twelve months' basic salary.
Employment law — Section 36 Employment Act — requirement to give valid, substantiated reasons for termination; verbal notice insufficient; localization clause not a substitute for substantiated reasons; damages for unlawful termination — departure from normal measure; award of twelve months' salary.
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20 December 2022 |
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Dying declaration admitted; murder conviction upheld; arson conviction quashed for lack of wilful intent.
Criminal law – admissibility of dying declaration – maker’s settled hopeless expectation of death – circumstantial evidence – assessment of accused’s conduct – arson under s.328 Penal Code requires wilful intent to set property on fire; reckless/spread-of-fire not covered – mandatory life sentence for arson only where fire to property causes death.
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16 December 2022 |
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Whether provocation or failed provocation can mitigate a murder sentence when the appellant denied causing the death.
Criminal law – Murder – Provocation defence – Elements: provocative act, loss of self-control, proportionate retaliation – Failed provocation as extenuation – Raising provocation on appeal when accused denies causing death – Circumstantial evidence sufficiency.
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16 December 2022 |
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Whether a ministerial renewal can validate a fixed‑term appointment absent the Board’s statutory authority, and related entitlements.
Administrative law; statutory appointment powers — Board’s exclusive power to appoint/renew Director‑General under Water Resources Management Act; ultra vires acts by Minister; Employment Act s.28C and fixed‑term contract renewal; effluxion of time; estoppel cannot validate breach of statutory appointment requirements; entitlement to reimbursement where title not passed.
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16 December 2022 |
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Murder conviction and death sentence upheld; grievous-harm conviction quashed for lack of intent.
Criminal law — Murder by firearm — Circumstantial evidence and expert ballistic/pathology evidence; Self-defence and accidental discharge; Mens rea for acts intended to cause grievous harm — requirement of specific intent; Trial procedure — court visit to scene; Sentencing — death penalty and extenuating circumstances.
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16 December 2022 |
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Appeal dismissed; registered title upheld absent pleaded or proved fraud or evidence estate exceeded Local Court jurisdiction.
Succession and probate – Local Court jurisdiction under Intestate Succession Act s.43(2) – validity of deed of assent and registration – Certificate of Title conclusive absent fraud (Lands and Deeds Registry Act) – limits of judicial notice regarding property values.
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16 December 2022 |
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Whether a shareholders' resolution can validly transfer individual borrowers' loan liability to the company without the lender's prior consent.
'Personal Liability Transfer Agreement' – effectiveness of shareholders' resolution in shifting loan liability to company; Doctrine of privity of contract and Clause 13.
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15 December 2022 |
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Whether a written sale with a buy-back option constituted an equitable mortgage and whether the Money Lenders’ Act applied.
Property law – contract of sale with buy-back option – distinction between sale and equitable mortgage; Evidence – primacy of clear written instrument; Statutory law – Money Lenders’ Act inapplicable to sales; Contract law – freedom of contract; LAZ Conditions of Sale – temporal applicability.
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15 December 2022 |
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A defective voir dire omitting a child's understanding of the duty to tell the truth invalidated child evidence, prompting quashing of conviction and retrial.
Juveniles Act s122 — voir dire; requirement that child witness understands duty to tell the truth; defective voir dire renders child evidence void; child evidence and corroboration in sexual offences; retrial ordered.
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15 December 2022 |
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Appellant failed to prove consultant underperformed; trial court's factual findings and reasoning upheld, appeal dismissed with costs.
Contract law – consultancy services – performance and entitlement to fees – breach and substantial failure to perform – counterclaim for losses due to alleged underperformance – appellate review of factual findings (perversity standard) – sufficiency of judicial reasoning (Habasonda).
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15 December 2022 |
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Defective voir dire expunged child evidence; no independent corroboration existed, so conviction quashed and appellant acquitted.
Criminal law – defilement – juvenile voir dire must record questions and answers – defective voir dire leads to expungement of child evidence – necessity of independent corroboration of identity – hearsay cannot substitute for corroboration – retrial not ordered where insufficient admissible evidence.
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15 December 2022 |
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A Commercial Division litigant cannot invoke Article 118(2)(e) to avoid consequences of post-default non-compliance with court directions.
Civil procedure — Commercial Division — Order 53 and Orders for Directions — extension of time — post-default applications — Article 118(2)(e) Constitution — strict compliance — consequences for disobedience of court directions.
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15 December 2022 |
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Repeated loans to one borrower do not alone make a lender a "money-lender" requiring a licence under the Money Lenders Act.
Money Lenders Act — definition of "money-lender" — requirement to be in business, advertise or hold out — repeated loans to single borrower insufficient to constitute money-lending business — licence under section 3 not required absent carrying on business or holding out.
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15 December 2022 |
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Appellate court upheld trial judge’s credibility findings that the Appellant’s forklift caused the collision; appeal dismissed with costs.
Tort — Negligence; motor vehicle collision allegedly caused by a protruding forklift fork — Evaluation of witness credibility; appellate deference to trial findings of fact — Relevance of paint marks and presence of third vehicle — Admissibility/reliance on police report.
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15 December 2022 |
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Appellate court reduced an excessive 35‑year defilement sentence where a trial court factual misstatement influenced severity.
Criminal law – Defilement – Sentencing – Appellate interference – Jutronich criteria – Borderline victim age (15 years 8 months) – Trial court factual misstatement – Aggravating factors: abduction, confinement, ill‑treatment – Sentence reduced from 35 to 20 years.
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15 December 2022 |
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Repeated loans to a single borrower do not, alone, make a lender a licensed "money-lender" under the Act.
Money Lenders Act – definition of "money-lender" – requirement to be carrying on business, advertise or hold out as lender – multiple loans to single borrower insufficient to constitute business of money-lending – licence requirement under section 3.
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15 December 2022 |
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Whether withdrawal of an appeal from the procuring entity vitiates an appeal pending before the procurement Authority and arbitration jurisdiction.
Public procurement appeals — interpretation of section 70 of the repealed Public Procurement Act and Regulations 170–174 — arbitration agreement and jurisdiction to stay proceedings — effect of withdrawing an appeal from the procuring entity on an appeal lodged with the Procurement Authority.
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15 December 2022 |
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Unsigned employment agreements render employees orally employed and entitled to redundancy pay and payroll retainment until paid.
Employment law – redundancy – oral versus written contracts – Section 26(b)(3) Employment Act – retention on payroll until redundancy paid – entitlement to minimum wage differences – interest on unpaid employment benefits.
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15 December 2022 |
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An appellate court will not disturb a trial court's personal injury award absent misdirection, misapprehension of facts, or manifest unreasonableness.
Civil damages — assessment of damages for personal injury — appellate interference only if wrong principle, misapprehension of facts, or manifestly unreasonable award — aggravating factors and inflation may justify higher awards.
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14 December 2022 |
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Assessment must quantify actual loss (market value) — mortgage proceeds are not an automatic measure of compensatory damages.
Property torts – wrongful occupation/encroachment – measure of damages for loss of use of land – market value versus mortgage proceeds; assessment procedure – assessor must independently quantify actual loss; special damages require pleading and proof; unjust enrichment principle in damages assessment.
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14 December 2022 |
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Appeal upheld where court proceeded without proof of service of the adjourned hearing, causing procedural injustice and remittal.
Natural justice — service of process — adjournment and notice of hearing — proof of service required before proceeding in absence; res judicata and abuse of process; consent judgments and multiplicity of actions; remittal for fresh hearing.
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14 December 2022 |
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Director improperly joined where claim arose against company and no pleading sought to lift corporate veil.
Civil procedure – misjoinder – Order 14/5(2) HCR; Joinder and necessary parties – Order 15/6 RSC; Corporate law – separate legal personality and limited liability; Piercing the corporate veil – required pleadings or application before imposing personal liability on a director; Companies Act s.85(5) – inappropriate to determine substantive personal liability at misjoinder stage.
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14 December 2022 |
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Appeal allowed: director improperly joined where pleadings did not plead piercing the company’s corporate veil.
Civil procedure – misjoinder and striking out – Order 14/5(2) HCR and Order 15/6 RSC; Company law – separate legal personality and lifting the corporate veil; Companies Act s85(5) – personal liability of directors; pleadings – requirement to plead basis for piercing corporate veil before imposing personal liability.
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14 December 2022 |
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Appellate court found insufficient evidence of encumbrance, upheld conditional refund clause, ordered property advertised for resale.
Contract law – sale of land; misrepresentation – entitlement to rescission/refund; Statute of Frauds – enforceability of signed memorandum; appellate interference with unsupported factual findings; obligation to effect conditional refund by resale.
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12 December 2022 |
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Court set aside single‑judge dismissal, granted applicant extension to file appeal and heads, and annulled the costs order.
Civil procedure — application to reverse single‑judge ruling; extension of time to file Record of Appeal and Heads; dismissal for want of prosecution; procedural priority of competing applications; discretion as to costs.
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12 December 2022 |
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Whether communications accompanying a writ satisfied the mandatory letter-of-demand requirement under Order VI Rule 1(1)(d).
Civil procedure — High Court Rules Order VI Rule 1(1)(d) — Letter of demand — Content of demand letter — Constructive dismissal — Curability of procedural non-compliance.
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12 December 2022 |
Bornface Ndumba and Ors v the People (CAZ APPEAL NO. 30,31,32,33/2021; CAZ APPEAL NO. 30,31,32,33/2021; CAZ APPEAL NO. 30,31,32,33/2021; CAZ APPEAL NO. 30,31,32,33/2021) [2022] ZMCA 183 (9 December 2022)
Evidence from detained co-suspect witnesses requires independent corroboration before sustaining a conviction.
Criminal law – witness with interest to serve – detained co-suspect witnesses require corroboration; Evidence – inferences from absence/flight and proximity insufficient without independent corroboration; Standard of proof – beyond reasonable doubt.
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9 December 2022 |
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Circumstantial evidence showed the appellant inflicted stab wounds, but proximate causation of death was not proven, conviction reduced.
Criminal law — Circumstantial evidence — sufficiency of inference; Causation — proximate cause and chain of causation in homicide where immediate cause was pneumonia; Expert evidence — weight and limits of pathologist’s opinion; Investigations — failure to lift fingerprints and produce deceased’s statement weighed in context; Section 181 CrPC — substitution to lesser offence.
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9 December 2022 |
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Circumstantial evidence may prove stabbing, but murder requires proof that the stabbing proximately caused the death.
Criminal law — Circumstantial evidence — Proof beyond reasonable doubt — Proximate cause of death — Expert medical opinion; failure to lift fingerprints and absence of deceased’s written statement assessed against totality of evidence.
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9 December 2022 |
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Witnesses detained as potential co-suspects require corroboration; uncorroborated testimony led to quashing of convictions.
Criminal law — Murder; witnesses detained as co-suspects — witnesses with possible interest to serve — requirement of corroboration; circumstantial corroboration — flight and proximity insufficient alone; appellate review of credibility findings.
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9 December 2022 |
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Self-defence rejected; despite no recovered weapon, court upheld murder conviction and mandatory death sentence.
Criminal law – murder – malice aforethought – self-defence and provocation – absence of recovered weapon – inferential proof – mandatory death sentence – evaluation of factual findings.
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9 December 2022 |
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Opportunity evidence (shared bed) can supply the 'something more' required to corroborate identity in a defilement conviction.
Criminal law – Defilement – Corroboration of identity – Opportunity evidence as corroboration/'something more' – Voir dire in relation to child witnesses aged 14 – Trial‑within‑a‑trial and alleged confession – Paternity/DNA not determinative in defilement.
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9 December 2022 |
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Whether self-defence or provocation excused the killing, and whether extenuating circumstances warrant commuting the death sentence.
Criminal law – Murder – Defences of self-defence and provocation – Credibility of witnesses and corroboration of suspect witness – Missing video evidence presumption displaced by police evidence – Extenuating circumstances justifying commutation of death sentence.
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8 December 2022 |
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The appellant's challenge to a murder conviction based on self-defence and absence of a weapon was dismissed; conviction and death sentence upheld.
Criminal law – Murder – Malice aforethought (s.204 Penal Code) – Self-defence and provocation – Post-mortem stab wound – Absence of recovered weapon – Manslaughter vs murder with extenuating circumstances – Appellate evaluation of circumstantial inferences.
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8 December 2022 |
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A defective voire dire does not defeat a sexual-offence conviction where independent corroborative evidence proves guilt.
Criminal law — Indecent assault; voir dire for child witnesses (Section 122 Juveniles Act) — defective voire dire and exclusion of child evidence — corroboration requirement in sexual offences — eyewitness evidence and 'opportunity' as corroboration — admissions to non-police persons — relatives/friends not automatically suspect witnesses.
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8 December 2022 |