Results.
162 judgments found.
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| December 1941 |
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A Governor's general order to continue work is not void for vagueness, but mere absence is insufficient—intention not to continue must be proven.
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Emergency Powers (Defence) Regulations — Validity of Governor's Order — Order need not specify reasons or duration — Court may inquire into intra vires nature of Orders; Criminal law — Disobedience to Order to continue work — Mere absence insufficient proof of failure to continue work — Proof of intention or conduct required; Evidence — Necessity to prove fitness for duty and contractual terms when alleging breach of an order to continue work; Procedural fairness — No evidence that presiding Magistrate procured the Order.
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31 December 1941 |
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After a guilty plea, magistrates must secure the accused's agreement to the facts before sentencing; licence suspension requires an offence connected with driving.
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Criminal procedure — plea of guilty — prosecution outline and accused's agreement — magistrate to be satisfied before sentence; Criminal Procedure Code s.273 — evidence after conviction for sentencing; Roads/vehicle regulations — construction/user offence — whether an "offence in connection with the driving of a motor car" permitting suspension of driving certificate.
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31 December 1941 |
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Court allowed immediate decree absolute where co-respondent's military service made future marriage impossible.
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Divorce — shortening interval between decree nisi and decree absolute — wartime conditions and active military service — public policy — bona fides inquiries not required where irrelevant.
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31 December 1941 |
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Adultery proved but divorce dismissed—husband’s domicil remained Scotland; no domicil of choice in Northern Rhodesia.
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Divorce — adultery proven; no connivance or condonation — domicile — change from domicil of origin to domicil of choice requires clear animus and factum; residence for employment insufficient; lack of jurisdiction.
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31 December 1941 |
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An accused cannot be convicted on witnesses called by the court after the defence closed unless the evidence arose ex improviso.
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Criminal procedure — Court calling witnesses of its own motion under section 139 — Power limited to ex improviso evidence arising during trial — Conviction unsustainable where additional witnesses were procured after adjournment/investigation.
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31 December 1941 |
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A case stated must comply with section 320 and Form 20 of the Criminal Procedure Code; remitted for restatement.
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Criminal procedure — Case stated — Form and procedure governed by section 320 and Form 20, Fourth Schedule, Criminal Procedure Code — Case remitted for restatement — Parties may draft proposed case for magistrate’s adoption.
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31 December 1941 |
| December 1940 |
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An inquest cannot be held without a body unless death is certain and the body destroyed or irrecoverable; the inquest was quashed.
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Inquest law — requirement of a body — exception where body destroyed or irrecoverable (s.10) — ejusdem generis interpretation — need for clear evidence of death before inquest — quashing of inquest where death not established.
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31 December 1940 |
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A trustee may claim a bankrupt’s earnings above a reasonable maintenance allowance; court fixed a £42 monthly retention.
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Bankruptcy Act 1914 s38 — trustee entitled to bankrupt’s future earnings; definition of "property" includes debts due from employer; maintenance allowance for bankrupt; trustee may intervene without prior notice or court order; Hill v. Settle and In re Graydon cited
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31 December 1940 |
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A mine manager retains personal criminal responsibility unless he proves he took all reasonable measures; delegation alone is insufficient.
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Mining law — Managerial responsibility — Regulations 10(1), 10(3), 10A(1)-(2) — "All reasonable means" — Delegation does not automatically relieve manager — Systemic failures attract liability; isolated lapses may not.
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31 December 1940 |
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A "guilty but insane" special verdict is an acquittal not revisable by the High Court, though it is appealable.
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Criminal law — Special verdicts — "Guilty but insane" constitutes an acquittal — Revision excluded by section 309(1)(b) Criminal Procedure Code — Acquittals appealable under section 300(c) Criminal Procedure Code.
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31 December 1940 |
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Corporal punishment for adults is permissible only in recorded special circumstances; magistrates must state those reasons.
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Corporal punishment — adults — only in special circumstances — Magistrate must record reasons — Instructions to Magistrates para 55 — Penal Code s.27 — caution against extending caning for adults.
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31 December 1940 |
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Sentencing must be guided by five principles—value of subject matter, antecedents, youth, plea, and local prevalence.
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Sentencing principles — intrinsic value of subject matter; antecedents; youth; conduct at trial (plea); prevalence of crime; series of offences as single lapse.
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31 December 1940 |
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Compensation under s.164 CPC cannot be awarded in criminal proceedings for imputations of witchcraft that are essentially civil in nature.
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Witchcraft Ordinance — imputation of witchcraft as criminal libel — spoken words not chargeable as defamation under Penal Code — limits on awarding compensation under s.164 Criminal Procedure Code — distinction between criminal remedy and civil remedies; native customary law not a ground for compensation in criminal proceedings where matter is essentially civil.
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31 December 1940 |
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Subordinate Courts may take similar outstanding charges into account at sentencing, subject to admission and procedural safeguards.
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Criminal procedure — Consideration of outstanding charges in sentencing — Requirement of similarity and clear admission by accused — Prosecution consent if committal elsewhere — Applicability to Subordinate Courts under s.13.
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31 December 1940 |
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A child's out-of-court complaint to her mother is inadmissible unless the child testifies; medical evidence alone cannot support conviction.
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Criminal law — Indecent assault — Admissibility of prior complaint evidence by mother when child does not testify — Such evidence is confirmatory, not proof — Medical evidence alone insufficient — Accused should not be called to defence when prosecution evidence insufficient.
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31 December 1940 |
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Keep-left regulation must be construed purposively; literal application improper absent other road users or potential danger.
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Township regulations; Regulation 13 (keep left) — statutory interpretation — literal versus purposive construction — application only where actual or potential danger or other road users exist — limits to subordinate legislation’s scope (s.27(a)(8) Cap. 26/Cap. 120).
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31 December 1940 |
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Marginal notes and chapter headings do not impose a negligence requirement on offences under section 214; convictions upheld.
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Statutory interpretation — Penal Code s214 construed as independent offence; marginal notes and chapter headings are not part of the statute and do not impose a negligence requirement.
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31 December 1940 |
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General deficiency alone does not prove embezzlement; reasonable doubt required, and acquittal cannot be overturned on revision.
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Embezzlement — general deficiency insufficient alone; indictment should specify 'between' dates; reasonable doubt required for acquittal; High Court cannot overturn subordinate court acquittal on revision.
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31 December 1940 |
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Accomplice testimony requires independent corroboration; prior statements by a testifying witness were inadmissible, but convictions upheld.
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Criminal law — accomplice evidence — requirement of independent corroboration — inadmissibility of prior statements by a testifying witness — duty of prison officers regarding escaped prisoners — harbouring and accessory after the fact.
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31 December 1940 |
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Accused charged with similar but unconnected offences should have been indicted separately, but no order made in absence of injustice.
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Criminal procedure — Joinder of accused — Similar offences under same statutory provision — Offences unconnected to one another should be tried separately — No remedial order where no injustice resulted.
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31 December 1940 |
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A non-corporate firm cannot be convicted; individuals must be prosecuted and a manager's plea on its behalf is incompetent.
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Non-corporate firm — no separate legal personality — cannot be charged or fined; manager's plea on firm's behalf incompetent; prosecute individuals instead.
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31 December 1940 |
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An uneducated accused must be clearly informed of the statutory age element and proviso before a guilty plea is accepted.
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Criminal law — defilement — element of age in charge — necessity of explaining statutory age and proviso to an uneducated accused; judicial notice of different age-conception and use of non-year indicators (e.g., puberty) — plea equivocality — retrial ordered.
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31 December 1940 |
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A foreign decree nisi plus the respondent's admission can establish adultery and justify a decree nisi.
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Divorce—adultery—proof by foreign decree nisi—respondent's written admission—Ruck v. Ruck; Little v
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Little—combined evidence sufficient to establish adultery
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31 December 1940 |
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Solicitor entitled to allowances for portions of travel days under Item 45, but not to detention allowances absent prior/subsequent detention.
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Costs — Subordinate Court Rules Appendix D Item 45 (now Item 49) — travel and day allowances for portions of a day — detention requirement for second part of item — calculation of allowances.
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31 December 1940 |
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Money paid into court as security for a potential judgment belongs to the applicant, not the trustee in bankruptcy.
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Bankruptcy — Trustee’s claim to funds — Money paid into court to abide event of judgment — Payment into court as security for successful creditor — Interim receiving order does not defeat plaintiff’s secured claim.
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31 December 1940 |
| 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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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).
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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 |