A Supreme Court judge was wrong to acquit a man accused of having sex with his 13-year-old niece, it was claimed.

The Court of Appeal heard that the defendant, who cannot be named for legal reasons, was allowed to walk free after a legal omission over the complainant's date of birth.

It was the second trial in the case, but Puisne Judge Norma Wade Miller said she had to allow the acquittal because the girl's age had not been physically proved in the court.

But yesterday, Crown counsel Patrick Doherty argued that there was evidence that the age had come out in the trial, from the girl herself and from her mother.

The Crown was appealing that the judge was wrong not to allow the case to be re-opened for presentation of that evidence.

But Court of Appeal President Sir James Astwood refused his application to introduce further evidence, stating the court had to rely upon the record taken at the time.

Mr. Doherty argued that three witnesses could testify that the girl's mother did give her age but it was not reported by the judge.

"The judge is only human, and cannot take verbatim notes,'' he said.

He added that the Crown counsel at the time, Sandra Bacchus, was under the misapprehension that the evidence given by the girl was sufficient.

Sir James told him it was a very serious allegation to make, that a judge had kept an incomplete record.

"You are trying to introduce evidence from people, saying they said certain things and the judge has not recorded what was said,'' he said.

"Judge's notes...that is the way it is done here. That is the law in this jurisdiction.'' Sir James also queried why Ms Bacchus was not appearing before them, as someone who would have a recollection of what transpired in the courtroom.

During the trial, the man was acquitted of charges of having unlawful carnal knowledge of a girl under 14 and three counts of sexual exploitation of a young person.

At the time, the girl said her uncle, who was 35, claimed he was only 16 before the pair had sex a number of times.

But Puisne Judge Wade-Miller said the age error was fatal to the case even though she said there was considerable evidence against him.

Mr. Doherty said the judge erred in her judgment in not allowing the case to be re-opened to establish the girl's age. He said there was evidence submitted that allowed her to do so.

In addition, the Court of Appeal heard there were irregularities with the indictments which appeared to nullify the trial.

Elizabeth Christopher, defending the man, said the indictment issue was an administrative matter.