[1943] EACA 15

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir JOSEPH SHERIDAN, C. J. (Kenya), Sir NORMAN WHITLEY, C. J. (Uganda) and MARK WILSON, Ag. C. J. (Tanganyika)

## REX, Respondent (Original Prosecutor)

# DANIEL ABRAHAM JOHANNES COETZEE, Appellant (Original Accused) Criminal Appeal No. 132 of 1942

## Appeal from decision of H. M. Supreme Court of Kenya

Criminal Law-Defilement-Section 138 Penal Code-Proof of age of girl-Adequacy of summing up—Sentence—Character of girl.

The accused was convicted in a trial before a Judge and Jury of defilement contrary to Section 138 Penal Code and was sentenced to five years' imprisonment with hard labour. This was an appeal against conviction and sentence.

$Held$ (3-2-43).—(1) That the Crown had discharged the onus of proving that the girl was under the age of sixteen years.

(2) That when an appellant relies on an omission by the trial Judge to put the defence adequately to the jury he has to show that but for the omission it is reasonably probable that the jury would not have returned their verdict had there been no such omission.

(3) That the accused had not discharged the onus of proving that he did in fact believe the girl to be of or above the age of sixteen years.

(4) That having regard to the fact that the girl was a person of loose morals and<br>consented to the accused's act, the sentence of five years' imprisonment with hard labour was excessive.

Dictum in *The King v. Banks*, 1916 2 K. B. 621 by Avory, J., referred to.<br>Appeal dismissed. Sentence reduced to one year's imprisonment with hard labour.

Shaw for the appellant.

The Solicitor General (Brown) for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The accused was convicted of defilement contrary to Section 138 Penal Code in a trial before a judge and jury. He has appealed from the conviction and sentence to this Court. He was sentenced to five years' hard labour.

Mr. Shaw, who appeared for the appellant, raised the following points on his behalf: (1) that the Crown had not proved that the girl was under sixteen years of age, and (2) that the accused had discharged the onus cast on him by the proviso of Section 138 Penal Code of proving $(a)$ that he had reasonable cause to believe that the girl was of or above the age of sixteen years, and $(b)$ that he did in fact believe that the girl was of or above the age of sixteen years.

With regard to the first point, which was not very strongly pressed by Mr. Shaw, there was in our opinion ample evidence that the girl was under the age of sixteen. In fact the evidence proved that she was born on the 27th August, 1927, and as the act alleged as constituting the offence was proved and admitted to have been committed on the 25th December, 1941, the girl was only 14 years and 4 months of age at the time. A certified copy of the girl's birth certificate was put in by Crown Counsel and identified by Mr. Wolmarans, an elder of the Lower Dutch Reformed Church, of which the girl's parents are adherents. In his evidence he said: "I am an elder of the Lower Dutch Reformed Church. I know Sasara Olivier. I have known her since 1930. I keep the records of the Dutch Reformed Church. She was born in 1927. T. F.1 is a copy of her birth certificate. Her people are members of the Church—she is not, because we do not admit people before the age of sixteen. There is a confirmation ceremony at the age of

sixteen for girls. It is looked on as an important ceremony and the girl's relatives would be present if possible". The certified copy of the entry in the Register of Births is prima facie evidence of age by virtue of Section 23 (4) of the Births and Deaths Registration Ordinance, 1928, which reads: "The copy of any entry in any register or return certified under the hand of the Registrar General shall be prima facie evidence in all Courts of the dates and facts therein contained". We see no objection to the way in which the certificate was put in evidence. There is also the evidence of the girl's sister, Mrs. Erasmus, that the girl was born on 28th August, 1927, and that the document Exhibit T. F.1 was a copy of her sister's birth certificate. (The error of one day in stating the date of birth is of no consequence). It is clear then that the Crown discharged the onus of proving that the girl was under the age of sixteen years.

The next point is whether the accused discharged the onus cast on him. Mr. Shaw's complaint here was that the summing up of the evidence was inadequate. We agree that in a case such as this, where the defence largely turns upon the proviso to section 138 of the Penal Code, it would have been better if the learned Judge had refreshed the minds of the jury as to the evidence bearing upon the defence raised by that proviso. To this extent the summing up was inadequate and we have to consider the consequences. When an appellant relies on an omission to put the defence adequately to the jury he has to show that but for the omission it is reasonably probable that the jury would not have returned their verdict had there been no such omission. In this case the accused, as we have said, had to prove two things (already referred to as (a) and (b)). Now while it is arguable that the jury might well have answered the issue in favour of the accused if the evidence relating to (a), namely whether the accused had reasonable ground for believing that the girl was sixteen or over on the 25th December, 1941, had been brought to their notice in the summing up, we do not think it at all probable that a detailed reference to the evidence on point $(b)$ , namely whether the accused in fact believed the girl to be sixteen or over at the time, would have resulted in a finding in his favour. The accused's own evidence, which must have been fresh in the minds of the jury at the time they were considering their verdict. indicates that he did not address his mind to the question of her exact age at the time of the occurrence and that, if he thought about the matter at all, his thoughts were confined to this: that the girl had the appearance of being a grown-up person. The relevant portions of his evidence are: "I thought she was sixteen or over. I did not think of the exact years. I thought she was grown-up. She was always dressed as grown-up." . . . "When I had connexion with Sasara at the Lincoln I did not think of what her age was. I thought she was a big girl. I thought she was old enough to be married. I had no reason to suppose she was under sixteen years of age. No one had ever told me her age"... and in cross-<br>examination, "On Christmas night I thought she was a big girl. I thought she was big enough to have connexion with—that is over 16 or 17".

As we have said, this evidence must have been fresh in the minds of the jury when they were considering their verdict. But, even if this were not the case, it does not seem probable to us that a detailed reference to the evidence as a whole would have resulted in a finding that the accused did in fact believe that the girl was of or over sixteen years of age.

The case of The King v. Banks (1916) 2 K. B. 621, to which the learned Solicitor General referred us, is very much in point. In that case the accused was charged with and convicted of a similar offence and said that "he had no idea that the girl was under the age of sixteen and that he did not think about her age at all but that she had the appearance of a girl of seventeen", and Avory, J., in giving the judgment of the Court of Criminal Appeal, dismissing the appeal, said:

"In this case the only defence relied upon at the trial was that the appellant had, within the meaning of the proviso to section 5, sub-section 2.

of the Criminal Law Amendment Act, 1885, reasonable cause to believe that the prosecutrix was of or above the age of sixteen years. In our judgment the phrase had reasonable cause to believe, means, had reasonable cause to believe, and did in fact believe', i.e. that the person charged believed on reasonable grounds that the girl was at least sixteen years of age."

If in the present case the accused had stated consistently that he believed in fact that the girl was sixteen years or over, it might reasonably be contended in view of the evidence of Dr. Bax as to the appearance of the girl and other evidence on the point that a conviction would have been improbable. But this he did not do. A man who has carnal knowledge of a young girl whose appearance suggests that she is of or about the age of consent runs a decided risk and it is his business to address his mind to the question of age and assure himself on reasonable grounds that he is not committing a breach of the law.

Passing to the issue of sentence, the act of the accused was no doubt a reprehensible one, bearing in mind his relationship of uncle-in-law to the girl, but it has to be remembered that had the accused discharged the onus cast on him by the proviso to the section no offence would have been committed, though the act would still have been a reprehensible one. This Court is not a court of morals, and it seems to us that the punishment meted out to the accused for the offence is patently excessive and requires to be substantially reduced. Our reasons for holding this to be so are that the girl conducted herself and had done so for some time as a grown-up person, that she was a person of loose morals and consented to the accused's act, if she did not (as he said) actually solicit it, and that Colonel Stitt, the accused's Commanding Officer, gave him a good character.

We dismiss the appeal against the conviction, but reduce the sentence to one of one (1) year's imprisonment with hard labour.