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Citation
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Judgment date
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| December 1939 |
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Court held Lord Campbell damages are pecuniary only; used income, dependancy share, and actuarial guidance to award £4,000.
Fatal Accidents Act 1846 (Lord Campbell’s Act) – damages limited to pecuniary loss – measure by portion of deceased’s income enjoyed by dependants – use of actuarial tables as a guide – insurance receipts and premiums treatment – allowance for remarriage and risky income.
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31 December 1939 |
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Shift-based pay and discretionary overtime are not "salary or income" under section 51(2); s.51(2) order refused.
Bankruptcy law – meaning of "salary or income" under s.51(2) – shift-based pay and discretionary overtime not salary – reliance on Ex parte Benwell, Ex parte Lloyd, Shine ex parte Shine, In re Landau.
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31 December 1939 |
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"Beyond the seas" means outside the territory; limitation runs after return, and service abroad risks the defendant if he absents himself.
Statute of limitations – meaning of "beyond the seas" – construed as "without the territories"; limitation runs only after return to territory; service abroad does not bar suit and, if duly served, a defendant who absents himself does so at his peril; jurisdiction may depend on submission.
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31 December 1939 |
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Application to read foreign-criminal-trial testimony in civil suit denied for lack of same parties/identity of issues.
Evidence — admissibility of prior testimony from foreign criminal proceedings — Order 37 rules — requirement of same parties or privies and identity of issues — adequacy of prior cross-examination — unavailable witness.
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31 December 1939 |
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Court shortened decree interval to allow the applicant and respondent to marry and legitimize the child.
Divorce procedure – shortening interval between decree nisi and decree absolute; legitimacy of child; public policy; distinction from expediting hearing; King's Proctor consenting.
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31 December 1939 |
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Mere failure to pay native tax is not evasion; evasion requires affirmative acts or attempts to deceive.
Native tax — evasion v. non-payment — evasion requires overt act or attempt to deceive (s14(1)(6)) — wilful neglect (s14(2)) only after statutory period — guilty plea recording (s187(2) CPC).
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31 December 1939 |
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Section 168 allows conviction only for offences included in the charge; unrelated offences cannot be substituted—conviction quashed.
Criminal Procedure Code s.168 — conviction for an included offence — "offence proved is included in offence charged" — cannot substitute conviction for an unrelated statutory offence; acquit and re-charge procedure.
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31 December 1939 |
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An accused’s admission and offer of money can sufficiently corroborate a child’s testimony to uphold an indecent-assault conviction.
Criminal law – Indecent assault on a child – Corroboration of child’s evidence – Admission by accused and offer of money as sufficient corroboration – Appellate review of magistrate’s credibility findings.
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31 December 1939 |
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Mere repetition of a witch-doctor’s diagnosis does not constitute an offence under the Witchcraft Ordinance; conviction quashed.
Witchcraft Ordinance – section 12 – requirement of an underlying offence to sustain conviction – imputing witchcraft – mere repetition/conveyance of a witch-doctor’s diagnosis not an offence – territorial jurisdiction (consultation outside Ordinance’s scope) – reliance on R v Nywelluna and R v Mpambani.
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31 December 1939 |
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Knowingly misleading police, causing unnecessary investigation and suspicion, constitutes common-law public mischief; conviction confirmed.
Criminal law — Public mischief (common-law misdemeanour) — Elements: misleading police causing wasted investigation; placing others at risk of suspicion or arrest — Conviction upheld.
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31 December 1939 |
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Permitting another to drive does not necessarily constitute an overt act "tending to serious risk" under section 75(1).
Employment of Natives Ordinance – section 75(1) – "doing an act tending to serious risk" – requirement of an overt act – breach of duty does not automatically constitute penal offence
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31 December 1939 |
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Under s.160(1) a magistrate must fix a definite reasonable costs amount and may not leave the sum unspecified or delegate its taxation.
Criminal Procedure Code s.160(1) – costs must be reasonable and for a definite amount – magistrates have no inherent jurisdiction – cannot delegate taxation or leave precise cost amount unspecified – order reviewed and set aside under s.309(1).
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31 December 1939 |
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Forfeiture of an accused's deposit is discretionary and should be postponed where a warrant is issued to secure appearance.
Criminal procedure — Forfeiture of recognizance/deposit — Discretion under s.124 — Forfeiture immediate if no enforcement steps; postpone if warrant issued — Right to show cause on appearance.
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31 December 1939 |
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Abduction conviction quashed where prosecution failed to prove the requisite element of secret confinement.
Criminal law – Penal Code s228 abduction – essential element: intent to secretly and wrongfully confine – plea-taking procedure – recording and construction of guilty pleas (CrPC s187(2)).
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31 December 1939 |
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Court approved child’s acquittal and clarified proper procedure and recording of pleas when altering charges and proceeding summarily.
Criminal procedure — alteration of charge during preliminary inquiry — summary determination under s210 Criminal Procedure Code — plea to be recorded in accused’s own words (s187(2)) — use of depositions and offer of witnesses for cross-examination (proviso to s210) — acquittal of a child under Penal Code provisions.
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31 December 1939 |
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A criminal court cannot determine wages after an employment contract has been terminated; the remedy is civil action.
Criminal procedure vs civil jurisdiction — employment contract terminated — magistrate lacked jurisdiction to determine wages — subsisting contract required for sections 72(1)(c) and 72(4) to apply — remedy is civil action for wrongful dismissal.
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31 December 1939 |
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Recent possession of stolen goods may sustain a receiving conviction but not necessarily a burglary conviction without proof of entry.
Theft/burglary — recent possession of stolen property — sufficiency of evidence for conviction under s271(2) Penal Code — receiving stolen property (s286(1)) — inconsistency of convicting for both burglary and receiving — substitution of conviction under Criminal Procedure Code.
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31 December 1939 |
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Causing annoyance to an individual is not a public nuisance; the proper charge is under Townships Regulations Reg. 4(9), not Penal Code s.151.
Criminal law — Common/public nuisance — Causing annoyance to an individual is not a common nuisance — Proper charge under Townships Regulations Reg. 4(9) — Misdescription of offence not fatal where no miscarriage of justice.
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31 December 1939 |
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A charge of noisy disorderly behaviour alleging annoyance to “any person” is fatally uncertain unless the annoyed person is specified.
Criminal law – Municipal by-law – Disorderly/noisy behaviour – Charge must specify the person annoyed; lack of particularity renders charge fatally uncertain.
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31 December 1939 |
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On an unequivocal guilty plea the magistrate must ordinarily convict and sentence forthwith; any departure requires recorded reasons.
Criminal procedure – Plea of guilty – Section 187(2) CPC – Mandatory conviction and sentence forthwith on unequivocal guilty plea – Trial after plea permissible only for quantum of sentence with recorded reasons – Examination of one or two witnesses may suffice.
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31 December 1939 |
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Conviction under s.158(3) quashed: antecedent reputation required for "suspected person"; mere circumstantial suspicion insufficient.
Criminal law — Rogue and vagabond — section 158(3) Penal Code — meaning of "suspected person" or "reputed thief" — antecedent reputation required — mere contemporaneous circumstantial suspicion insufficient; deportation recommendation not approvable for misdemeanour; procedural requirement to record judgment and sentence at conclusion of evidence.
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31 December 1939 |
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A joint trial was unfair where single counsel represented co-accused with conflicting defences and one accused was removed.
Criminal law – fair trial – conflict of interest where one counsel represents co-accused with antagonistic defences – removal of accused from courtroom without statutory authority – retrial ordered.
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31 December 1939 |
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A charge under section 273(1) should not separately cite section 243; the alleged felony must be specified in the particulars.
Criminal law – Penal Code s.273(1) – storebreaking and theft – correct form of charge – do not import s.243 into statement of offence; particulars must set out the alleged felony.
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31 December 1939 |
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Sleeping incapacity negates consent; penetration must be proved for rape, so conviction reduced to attempted rape.
Criminal law – Rape – Proof of penetration required for rape conviction – Consent – sleeping person incapable of consenting – Native custom should be proved by witness evidence not merely by assessors – Appeal – verdict unreasonable test and power to alter conviction to lesser offence.
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31 December 1939 |
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A court must record the specific offence of conviction; "Guilty" alone is inadequate.
Criminal procedure — Recording convictions — "Guilty" alone insufficient — Record must specify offence — Alternative convictions under Criminal Procedure Code s.171 (now s.174(1)(a)) must be stated and referenced.
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31 December 1939 |