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Citation
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Judgment date
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| December 2008 |
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Applicant's delayed and unexplained inaction defeated urgent stay of eviction pending rescission; prospects of success and irreparable harm not shown.
Civil procedure — Urgent chamber application — Stay of execution pending rescission — Requirement of genuine urgency — Delay and lack of explanation fatal to urgency — Prospects of success and irreparable harm assessed — Eviction order and summary judgment.
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10 December 2008 |
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Urgent application dismissed for lack of urgency due to dilatory prosecution of the underlying claim.
Civil procedure – Urgent chamber application – urgency doctrine – delay and lack of diligence in prosecuting underlying claim defeats urgency – application dismissed (Kuvarega and authorities).
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10 December 2008 |
| November 2008 |
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Disputed authenticity of signatures made motion proceedings inappropriate; matter converted to action and papers to stand as pleadings.
Civil procedure – motion proceedings – material dispute of fact as to authenticity of signatures – inappropriate to decide on affidavits – order that application stand as summons and papers stand as pleadings.
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12 November 2008 |
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Rescission granted where default resulted from counsel's illness and applicant showed a bona fide defence in a matrimonial dispute.
Civil procedure — Rescission of default judgment — Requirement to show no wilful default and a bona fide defence — Legal representative's illness as non-wilful cause — Matrimonial disputes warranting procedural flexibility.
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12 November 2008 |
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Former employees may not retain employer‑provided accommodation after dismissal pending damages claims; stay of execution refused.
Stay of execution – eviction – employer‑provided accommodation – termination of employment – outstanding damages do not entitle former employees to retain accommodation – procedural non‑compliance – costs on attorney and client scale.
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12 November 2008 |
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Applicant's substitution of buyers amounted to mutual cancellation; no contract existed on 1 February; provisional order discharged.
Urgent chamber application – contract for sale of vehicle – failure to pay by deadline – introduction of substitute purchasers – mutual cancellation of contract – no subsisting contractual right – provisional order discharged.
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12 November 2008 |
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The applicant improperly set the matter down without respondents' consent and failed to comply with Order 32.
Civil procedure — setting down opposed matters at short notice — consent of legal practitioners required — service by affixation — renunciation and assumption of agency — compliance with Order 32.
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5 November 2008 |
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Defendant’s claim that a third party possessed and sold the goods did not constitute a bona fide defence to plaintiff’s summary claim.
Contract – sale of goods – summary judgment – bona fide defence – defendant’s inability to deliver due to third party’s possession not a defence to direct contractual obligation – summary relief appropriate.
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5 November 2008 |
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A donkey is not "stock" under the Act; the mandatory nine-year minimum sentence for stock theft therefore does not apply.
Criminal law — Stock theft — Definition of "stock" excludes donkeys — Mandatory nine-year minimum sentence not applicable — Sentence varied on review.
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5 November 2008 |
| October 2008 |
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A litigant cannot ordinarily set aside a valid default order solely because his lawyer gave wrong advice.
Civil procedure — Default order obtained through attorney negligence — Limits to relief for litigant’s attorney’s fault; condonation and setting-aside; responsibility for choice of legal representative; preservation of court rules and prevention of laxity.
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22 October 2008 |
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No new circumstances shown; bail refused due to counsel’s oversight, risk of abscondment and potential witness interference.
Bail — changed circumstances — omissions by counsel do not ordinarily constitute new facts; risk of abscondment; witness interference despite recorded statements; post-mortem authenticity challenge raised late.
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22 October 2008 |
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A single unauthorised sale of a firearm qualifies as dealing in firearms; conviction upheld, sentence set aside and replaced by a fine.
Firearms Act – unauthorised sale of firearm – whether single sale amounts to "engaging in trade or business" – guilty plea and adequacy of explanation to unrepresented accused – sentencing; amendment 22/2001.
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22 October 2008 |
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Court ordered sale and equal division of matrimonial property, rejecting claim that certain movables belonged to a third party.
Family law — Matrimonial property — Distribution on divorce — Recognition of homemaker's contribution — Declaration of disputed movables as matrimonial property — Sale and equal division to avoid unjust enrichment.
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22 October 2008 |
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Circumstantial proof and an unconfirmed statement failed to exclude reasonable hypotheses; accused acquitted.
Criminal law – Circumstantial evidence – Blom test – admissibility of warned and cautioned statements – voluntariness – post-mortem delay and transport damage – witness credibility – sketch plan/authentication – benefit of doubt.
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14 October 2008 |
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Court voided a foreign‑currency property sale but ordered local‑currency restitution to prevent unjust enrichment.
Illegal contract; foreign currency pricing; Exchange Control Regulations s(4)(1)(a)(ii); in pari delicto rule; restitution in local currency; unjust enrichment; nullity of sale agreement.
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8 October 2008 |
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Urgent stay of execution dismissed for lack of reasonable explanation for default and no bona fide defence.
Urgent application — stay of execution/rescission of default judgment — rescission requires reasonable explanation for default and bona fide defence with prima facie prospects — proof of service and title (registered owner) relevant.
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8 October 2008 |
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Agreement was an installment sale; seller’s cancellation invalid for failing to give statutory written 30‑day notice.
Contractual Penalties Act – installment sale of land – statutory definition (deposit plus two instalments and transfer on completion) – mandatory written notice and minimum 30‑day remedial period under s8 – invalid cancellation without compliance – specific performance/transfer ordered.
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8 October 2008 |
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Urgent chamber review was procedurally improper; applicant failed to follow prescribed review procedure and exhaust internal remedies.
Administrative/tribunal review – procedure – Order 33 rule 256 – review must be by court application directed to tribunal and parties; exhaustion of internal remedies required before court intervention; urgent chamber/ex parte review improper.
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1 October 2008 |
| July 2008 |
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Court convicted both accused of murder under common purpose based on credible single eyewitness and corroborative evidence.
Criminal law – Murder – Doctrine of common purpose – Single eyewitness evidence – Constructive intent – Drunkenness and use of weapons.
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28 July 2008 |
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Applicants denied bail pending trial due to strong evidence and a real likelihood of absconding given assets and foreign connections.
Bail pending trial – presumption of innocence – likelihood to abscond – wealthy accused with foreign connections and valid passports – undercover operation strengthens State’s case – custodial discomfort as motive to abscond.
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23 July 2008 |
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Whether a purchaser may rely on an agent's apparent authority to sell the owner's property—appeal upheld with costs.
Property law – Agency and apparent/implied authority – Whether purchaser may rely on agent's representations – Exercise of discretion to condone procedural irregularity – Credibility findings
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16 July 2008 |
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HIV-positive status and widowhood alone do not justify bail pending appeal, particularly with a recent relevant previous conviction.
Criminal procedure — Bail pending appeal — HIV status not per se sufficient ground — Post-trial medical evidence — Widowhood as mitigating factor — Previous conviction militating against bail — No reasonable prospect of sentence alteration on appeal.
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16 July 2008 |
| June 2008 |
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Court grants custody to the father where the mother abandoned the child and no evidence showed the father was unfit.
Family law – custody of minor – preference for natural parent’s custody absent evidence of unfitness – High Court as upper guardian intervenes where custody left with successive third parties.
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25 June 2008 |
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Long delay and misleading conduct defeated a claimant’s attempt to nullify probate and recover a house; punitive costs awarded.
Matrimonial property — delay/laches in enforcing proprietary settlement — verbal agreement to transfer immovable property — challenge to probate proceedings — misrepresentation to the Master — punitive costs (attorney-and-client).
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11 June 2008 |
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Whether the applicant's written, signed payment instructions were a bill of exchange, extending prescription from three to six years.
Prescription — whether claim arose from a bill of exchange — Bills of Exchange Act s3(1) — Prescription Act s15(c)(i) six-year period versus s15(d) three-year period — plea in bar/abatement — condonation of non-compliance with procedural rule (rule 138) under court's power (rule 4C).
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11 June 2008 |
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Convictions quashed due to unreliable, uncorroborated evidence and procedural unfairness; retrial ordered before a different magistrate.
Criminal review; aggravated indecent assault; reliability and corroboration of complainant’s evidence; medical/scientific proof of intoxicant effects; leading questions and unfair trial procedures; misdirection on onus of proof; unlawful detention—absence of proven restraint.
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11 June 2008 |
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Bail pending appeal granted where sentence appears excessive and accused unlikely to abscond, subject to strict conditions.
Criminal law – Bail pending appeal – considerations: prospects of success on appeal and risk of absconding – aggravated indecent assault – apparent excessive sentence – bail granted with stringent conditions (cash deposit, residence restriction, exclusion from complainant’s home).
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11 June 2008 |
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Appellate court upheld separate sentencing for multiple exchange control offences, finding no misdirection or excessive fines.
Exchange Control offences – sentencing – globular versus separate sentences – mitigation (guilty plea, cooperation, commercial motive) – dollar-for-dollar fines – appellate interference standard (disturbingly inappropriate).
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4 June 2008 |
| May 2008 |
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An agent cannot claim commission when the selling mandate expired or was validly cancelled before the purchaser's offer.
Estate agent commission — validity, expiry and cancellation of mandate — seven days' notice — timing of purchaser's offer — exclusive mandate not granted — summary judgment inappropriate where bona fide defence exists.
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28 May 2008 |
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Accused’s actions amounted to attempted rape; the fine and suspended sentence were inadequate, so the review certificate was withheld.
Criminal law – indecent assault v attempted rape – use of violence and attempted removal of clothing – sentencing inadequacy – custodial sentence of 5–8 years appropriate – review: certificate withheld.
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28 May 2008 |
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Application for absolution denied; company-held business assets may be part of the matrimonial estate and require full hearing.
Divorce — Ancillary relief — Absolution from the instance — Test for absolution (Supreme Service Station) — Not for piecemeal determination of issues; Business assets/company-held assets — net worth may form part of matrimonial estate.
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21 May 2008 |
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Applicant's defiance of prior court orders amounted to 'dirty hands', barring equitable relief; application dismissed with costs.
Civil procedure — Clean hands doctrine — Non-compliance with prior court orders — Applicant in open defiance disentitled to equitable relief; interim interdict and stay refused on that basis.
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21 May 2008 |
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Ex parte freezing order discharged where applicant withheld material facts and was a willing participant in a potentially illegal exchange transaction.
Civil procedure – Ex parte provisional order – Duty of full and frank disclosure – Material non-disclosure and misleading affidavits – Transactions tainted by possible Exchange Control contraventions – Discharge of provisional order with costs.
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21 May 2008 |
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Whether circumstantial evidence and an admitted affidavit proved the respondent’s adultery and justified damages and enhanced costs.
Delict/damages – adultery – proof by circumstantial evidence – admissibility of affidavit under s27 Civil Evidence Act – assessment of witness credibility – award of damages and attorney-and-client costs.
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21 May 2008 |
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Urgent interdict dismissed for self-created urgency and lack of locus standi over a vehicle registered to a third party.
Urgent application — self-created urgency and inadequate certificate; locus standi — third-party registered owner not cited or supporting affidavit; provisional interdict over movable property; mechanic's improvement lien asserted.
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14 May 2008 |
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Principal’s conduct and signed special power created ostensible authority, validating agent’s sale despite defective powers.
Agency — apparent/ostensible authority — defective general/special power of attorney — principal’s conduct creating estoppel — representation to third parties — transfer of immovable property.
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14 May 2008 |
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Condonation refused for nearly four-year delay due to inadequate explanation, lack of bona fides and credible service.
Civil procedure – condonation for late rescission – inordinate delay and inadequate explanation – bona fides – personal service – false explanations – costs on attorney-client scale
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14 May 2008 |
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Incomplete trial record and unrecorded recusal application required setting aside dismissal and ordering a fresh hearing.
Civil procedure — Record of proceedings — Adequacy and duty to record rulings, objections and hearings — Recusal — Appearance of bias — Referral for rehearing when record is incomplete.
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14 May 2008 |
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Sale subject to Master’s approval and based on a void executor’s appointment is unenforceable; provisional order discharged.
Administration of Estates Act s120 — condition precedent to sale — suspensive condition — inchoate contract; validity of executor's appointment — will declared invalid, appointment set aside — transfer requires valid executor authority; provisional order discharged.
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14 May 2008 |
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Pre‑plea challenges must test whether a charge discloses an offence; unsworn complainant statements cannot decide merits prematurely.
Criminal procedure — Pre‑plea challenge to charge (s178/s171) — Court must assess whether charge discloses an offence and gives sufficient particulars, not adjudicate merits — Unsigned/unsworn complainant statements inadmissible at pre‑plea stage — Prima facie sufficiency of state outline; no mala fides shown.
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14 May 2008 |
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Convictions for possession of suspected stolen goods cannot be based on guilty pleas without evidence of the finder’s reasonable suspicion.
Criminal law – Possession of goods reasonably suspected to be stolen (s 12(2) Miscellaneous Offences Act/s 125 Criminal Law (Codification and Reform) Act) – Plea proceedings (s 271(2)(b) CPEA) – Requirement that finder’s reasonable suspicion be proved by evidence – accused cannot admit another’s state of mind – convictions entered on plea without such evidence unlawful – convictions quashed and matters remitted for trial de novo.
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14 May 2008 |
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Whether appellants knowingly used forged travel documents and whether sentencing relied on a repealed mandatory imprisonment provision.
Criminal law – Forgery/use of forged travel documents – Knowledge and procurement of forged documents – Sentencing law – Mandatory custodial provision repealed; sentencing discretion and mitigation (pregnancy, parental responsibilities, first offender principle).
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14 May 2008 |
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Whether a forfeiture order added after sentencing is valid and whether fresh sentencing is required following that irregularity.
Criminal procedure – Gold Trade Act s8(1) – possession of unregistered gold – alleged post-sentencing insertion of forfeiture order into court record – irregularity in Criminal Record Book entries – High Court review powers – confirmation of conviction and remission for fresh sentencing on forfeiture.
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14 May 2008 |
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Juristic persons cannot be imprisoned; alternative custodial terms deleted, fines retained; convictions confirmed.
Criminal law – Sentencing juristic persons – Corporations/entities cannot be sentenced to imprisonment; only fines permissible – Alternative custodial terms deleted – Exception where natural person charged under s277(5) Criminal Law (Codification and Reform) Act or s385 Criminal Procedure and Evidence Act.
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14 May 2008 |
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Applicant failed to justify piercing the corporate veil; share sale did not affect tenant’s lease or option.
Company law – lifting or piercing corporate veil – requirement of fraud or manifest injustice; Sale of shares versus sale/transfer of immovable property – effect on tenant’s lease and contractual option; Provisional order discharged; Costs on attorney-client scale.
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14 May 2008 |
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Enforceability of a lease clause allowing immediate cancellation for rent default and consequent eviction of the respondent.
Commercial lease – Clause permitting immediate cancellation for rent default – Validity and enforceability – Non‑applicability of Contractual Penalties Act and Commercial Premises (Lease Control) Act/Regulations – Tender after cancellation does not reinstate lease – Eviction and costs.
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13 May 2008 |
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President obliged to publish Gazette notice and order a by-election within 14 days after CEO's declaration of a candidate's death.
Electoral law – Death of candidate (s50) – Chief Elections Officer's declaration need not be written – President's mandatory duty to publish Gazette notice ordering by-election within 14 days (s39(2)) – Peremptory vs directory statutory language – Lack of funds/public inconvenience not established by affidavit – Nomination court and by-election timetable.
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8 May 2008 |
| March 2008 |
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Conviction for unlicensed driving quashed where learner's licence conditions and material facts were never determined.
Road Traffic Act — Learner's licence conditions (s9) — Correct charge under s9(10) not s6(1)(a); failure to determine licence class, passengers, and "L" plates; procedural irregularity; conviction quashed; retrial de novo.
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26 March 2008 |
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Accused convicted of murder with constructive intent for a joint, lethal assault on a handcuffed victim; self-defence and intoxication rejected.
Criminal law – Murder – Constructive intent – Common purpose where co-assailants jointly assault a handcuffed victim – Self-defence rejected where victim posed no threat – Intoxication not exculpatory; reliance on post-mortem despite non-production of weapons.
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21 March 2008 |
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Failure to consider community service before imprisoning for 24 months or less is a reviewable sentencing misdirection.
Criminal procedure - Sentencing - Obligation to consider community service as an alternative to imprisonment for sentences of 24 months or less - Failure to consider constituting misdirection on review - Custodial sentence as last resort.
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13 March 2008 |