This has been raised only at the appeal level. The Rule provides that either litigant to a
justice or legal case may not raise a new pleading at the appeal level which has not
previously been raised before the trial court.
Further, the accused appeared before the trial court on the basis of beingan adult in terms of
appearance and age as previously stated.
The allegation at the appeal level that adulthood has not been attained is deemed to be too
late. The appeal court should have not acted upon such pleading at this level.
Secondly: the second reason upon which the appeal court relied in cancelling the trial court
judgment was the victim`s consent, which the appeal court provided as part of reasons of
appeal. I wish it had never done so.
The appeal court adopted a wrong method in the assessment of consent that means
acceptance which is not reliable if provided by a non-adult person according the definition
contained in Article (3/b) of Criminal Act for 1991.
It is proved that the victim was a 15 years old non-adult child and nobody objected thereto
or challenged the same.
We therefore agree with the petitioner that consent in this event does not change description
of the crime.
The provision of Article (149/1) of Criminal Act or 1991 as mended for 2015 to which the
appeal court referred to in its decision provides that ((shall be a rapist every person performs
sexual intercourse with a person by an act resulting in penetration of a sex organ or any tool
or part of the body into victim`s vagina or anus by using force or ………. against a person
unable to express his consent for physical or seduced reasons or relevant to age)).
The last part of the provision of this Article is evident and completely in conformity with the
definition contained in Article (3) hereinabove referred to and therefore consent of a minor
un-adult female cannot be reliable.
Thirdly: The conviction was based on the accused`s explicit admission at all levels of
litigation staring from the statements which he provided at the investigation level before the
interrogator on 06/08/2017 on page (2) of the same record and ending with his statements
he provided before the court on 27/09/2017 on page (12) of the minutes of the trial.
There is nothing indicating that he changed his mind towards his admission even at the
levels of appeal in cassation. So, we have no doubt about the validity of evidences reached
by Neyala Child Court with invalidity of reasons upon which the Appeal Court relied in
cancelling the trial court decision. We find, however, the Child Court restricted the
conviction of the accused to Article (45/b) of Child Act for 2010 which is the Article of
criminalization.