R. v. Ally Mohamed, Crim Rev. 8-A-68, 6/2/68, Seaton J

R. v. Ally Mohamed, Crim Rev. 8-A-68, 6/2/68, Seaton J

Accused, aged 7,8 and 10 years, respectively, were convicted of indecent assault upon a 6-year-old boy, put on probation and ordered to pay compensation of Shs. 10/- each to the complainant. The Magistrate did not appear to have asked the accused to show cause why they should not be convicted, or to have cross-examined the witnesses against the accused, as is provided for by the Children and Yong Persons Ordinance [Cap. 13, ss. 9, 12]. Nor did he direct himself as to the presumptions of incapacity of children under 12 years of age laid down in section 15 of the Penal Code.

            Held: “The omission to comply with the procedural formalities is serious but even more is the failure of the learned magistrate to direct himself regarding the presumed incapacity.” Convictions quashed, sentences set aside.