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[Ruling] Civil Practice and Procedure - stay of execution - application for stay pending appeal - the twin tests which the court will apply in considering such an application - Court of Appeal Rules rule 5(2)(b)

Criminal law - robbery with violence - second appeal against conviction and sentence - grounds: that the trial court failed to indicate the language used at the trial and that there was delay in presenting the appellants to court after their arrest - allegation of violation of section 72(3) of the Constitution - issued raised for the first time on the second appeal - whether there was merit in these grounds - accused person under no duty to raise the issue of his prolonged incarceration early in the trial - duty of prosecution to ensure compliance with the Constitution - presumption that may arise where accused person's advocate failed to raise the issue promptly - Penal Code section 296(2)

Criminal Practice and Procedure - charge - main and alternative charges - accused person having been convicted and sentenced of the main charge, he may not also be convicted and sentenced on the alternative charge - no finding may be made on the alternative count once the main count has been established.

Criminal Practice and Procedure- second appeal-appeal against conviction and sentence –where the appellants had been charged with three counts of robbery with violence and one count of rape- appellants convicted of the first two counts as charged, but conviction in the third count was on the reduced charge of robbery-the 1^st appellant in addition convicted of the rape as charged and later discharged-appeals dismissed in the high court- where the high court overlooked the fact that the evidence against the appellants in the third count clearly showed that an offence under section 296(2) of the Penal Code, had been committed and there was no basis for  reducing the charge to simple robbery-whether the robbery with violence charge ought to have been reduced to simple robbery - section296(1) and  296(2) of the Penal Code

Evidence-identification evidence-the evidence showed that the appellants and all their co-accused refused to take part in identification parades arguing that the people who had been lined up as identifying witnesses knew them before-circumstances regarding the identification showed they were conducive to a correct identification-where the court was satisfied the appellants were positively identified as the robbers-whether the appeal could succeed on that ground

sentencing-guiding principles in sentencing-the principle that where a person is sentenced to death upon conviction for an offence which provides for a death penalty and at the same trial he is convicted of any other offence carrying a lesser sentence, such lesser sentence should be ordered suspended- where the trial court had ordered a discharge on the rape charge-where the first appellate court, like the trial court overlooked that fact and thus erred in principle –whether the court should have suspended the  sentence on the rape charge other than discharging the charge

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