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R. v. Ngado d/o Mwakalinga, (PC) Crim. Rev. 7-D-67, 17/8/67, Georges C. J.

R. v. Ngado d/o Mwakalinga, (PC) Crim. Rev. 7-D-67, 17/8/67, Georges C. J.

Accused, a child of ten years of age, was convicted of assault causing actual bodily harm [P.C. s. 241] upon the bases of the testimony of the victim, a child of eleven years of age. A fine and order of compensation were imposed, both of which were ordered to be paid by the parent of accused under the provisions of section 21(1) of Cap. 13. However, the parent was given no opportunity to be heard at the trial.

            Held: (1) Section 15 of the Penal Code provides, “A person under the age of twelve years is not criminally responsible for an act … unless it is proved that at the time of doing the act … he had the capacity to know that he ought not to do the act ….” In such a simple charge as assault, proof may be inferred from the surrounding circumstances. Most children of 10 know that they ought not to hit other children with stones. However, it is desirable that the Magistrate specifically consider and make a finding on this issue. (2) Section 15 (1) of the Primary Courts (Evidence) Regulations, G. N. No. 22 of 1964, provides, “In both criminal and civil cases, the evidence of young children must be supported by other evidence.” There was no such corroboration and the evidence was thus insufficient to support the conviction (3) Section 21(2) of Cap. 13 provides that a court may not order a parent to pay a fine or compensation order without giving the parent an opportunity to be heard. Therefore, the order was bad. Conviction set aside and sentence quashed.

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