Court of Appeal
Criminal Appeal No. 7 of 1995
TELFORD GEORGES P.
HORACE W. YOUNG J.A.
SIR DENIS E. G. MALONE J.A.

Accused in person
Mrs. M. Rodolfo for the Crown.

Criminal Appeal - Carnal knowledge and Indecent Assault of female child - Appellant's grounds of appeal raised no issues of merit - Court pointed out to Counsel for the State that age of prosecutrix had been proved - Evidence of identification of virtual complainant - Absence of admissible evidence of identification of virtual complainant - Conviction set aside on ground that element of age of victim not established - Court of Appeal Act section 32(3) - New trial ordered in the interests of justice - Appeal allowed - Conviction and sentence set aside - New trial ordered.

J U D G M E N T

The Appellant appeared to answer an indictment containing two counts - carnal knowledge of Paula Jonch a female under the age of 12 years to wit eleven years and eleven months and indecent assault of the said Paula Jonch, a female child. He pleaded not guilty on both charges and after a hearing was convicted on the charge of carnal knowledge and sentenced to a term of imprisonment of 14 years.

The Appellant appealed stating grounds which did not raise any issues of merit in relation to the appeal.

The Court, however, drew to the attention of counsel appearing for the State that the age of the prosecutrix had been proved by presenting her with a birth certificate purporting to relate to herself and having her identify the child named in the certificate as herself. She also identified the persons named as parents in the certificate as being her mother and her father Clarita Jonch and Paul Jonch.

In Isaac Rogers (1914) Cr. App. R. 276 it was held that on an indictment for carnal knowledge of a girl not 13 years old, her age must be strictly proved and if her certificate of birth is put in she must positively identify with the person therein certified. Paula Jonch could not give such identifying evidence since it would inevitably be hearsay.

The best evidence of identification would be that of the mother or some other older relative who could positively state that the virtual complainant was the person referred to in the certificate. Evidence that the virtual complainant had always been treated as the person referred to in the certificate will be acceptable - Frederick Arthur Bellis (1911) Cr. App. R. 283-

In the absence of admissible evidence of identification of the virtual complainant with the person named in the certificate the conviction must be set aside on the ground that the vital element of the age of the victim has not been established-

Section 32(3) of the Court of Appeal Act Cap. 73 empowers the Court in cases where it quashes a conviction to "direct a judgment and verdict of acquittal or if the interests of justice, so require, order a new trial."

Having regard to the circumstances of the case and the nature of the error in law which have led to the quashing of this conviction we are satisfied that it is in the interests of justice that a new trial be ordered.

Accordingly the appeal is allowed, the conviction and sentence are set aside and it is ordered that the Appellant have a new trial.

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