R v JA [2007] ACTSC 51 (12 July 2007)

Last Updated: 28 July 2008

HUMAN RIGHTS ACT

R v JA

[2007] ACTSC 51 (12 July 2007)

CRIMINAL - Criminal capacity of children (doli incapax) - relevant legal principles - whether 11 year old boy had necessary mental intent to be convicted of an indecent assault

Supreme Court Act 1933 (ACT), s 68C

Evidence Act 1995 (Cth), s 144

Crimes Act 1900 (ACT) (as at 19/1/2006, Republication No 44), ss 53(1), 60(1)

Criminal Code 2002 (ACT), ss 26, 10(1)

Human Rights Act 2004 (ACT), ss 11(2), 20(2), 21(2)

UN General Assembly Resolution 40/33, Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules)

Kenny's Outlines of Criminal Law, 19^th ed, 1966

Criminal Code (Qld)

Pope's Treatise on the Law and Practice of Lunacy (2^nd ed, 1890)

R v M'Naghten (1843) 10 Cl & F 200; 8 ER 718

R v M (1977) 16 SASR 589

Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358

R v Porter [1933] HCA 1; (1933) 55 CLR 182

R v Smith (1845) 1 CoxCC 260

McDonald v Lucas [1922] VLR 47

Keen, "The History of the Criminal Liability of Children", (1937) 53 LQR 364

R v Brooks [1945] NZLR 584

R v B [1979] 1 WLR 1185 (CA)

R v B (an infant) [1979] Qd R 417 (CCA)

O'Toole v Arnold (1982) 61 FLR 372

R v Anunga (1976) 11 ALR 412

M v AJ (1989) 44 A Crim R 373 (SCTas)

R (a child) v Whitty (1993) 66 A Crim R 462

B (1958) 44 Cr App R 1

Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358

C (a minor) v DPP [1966] AC 1

R v ALH [2003] VSCA 129; (2003) 6 VR 276

No. SCC 104 of 2006

Judge: Higgins CJ

Supreme Court of the ACT

Date: 12 July 2007

IN THE SUPREME COURT OF THE )

) No. SCC 104 of 2006

AUSTRALIAN CAPITAL TERRITORY )

R

v

JA

ORDER

Judge: Higgins CJ

Date: 12 July 2007

Place: Canberra

THE COURT ORDERS THAT:

1. A verdict of "not guilty" be entered on both counts of the indictment.

1. The accused `JA' is charged that:

... on the 19^th day of January 2006 at Canberra in the Australian Capital Territory [he] threatened to inflict actual bodily harm on [GL] with intent to engage in sexual intercourse with [GL].

... on the 19^th day of January 2006 [he] did commit an act of indecency on [GL] without the consent of [GL] and knowing the said [GL] had not consented thereto.

2. Upon arraignment the accused entered a plea of not guilty to each count.

3. The accused has elected to be tried by judge alone. Accordingly, the provisions of s 68C of the Supreme Court Act 1933 (ACT) apply. That section states:

Verdict of judge in criminal proceedings

(1) A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.

(2) The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.

(3) In criminal proceedings tried by a judge alone, if a Territory law would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning into account in considering his or her verdict.

4. Thus, as in a trial with a jury, the accused is entitled to the presumption of innocence and the Crown bears the onus of proof of each element of each charge to the criminal standard, that is, beyond reasonable doubt. That embraces the proposition that the Crown must exclude any reasonable hypothesis consistent with the innocence of the accused.

5. Further, the verdict to be returned must be considered by reference only to evidence properly admitted at trial but including otherwise such matters of common knowledge as may be taken into account by virtue of s 144 of the Evidence Act 1995 (Cth).

The Offences

6. The first count charges an offence prescribed by s 53(1) of the Crimes Act 1900 (ACT) (Crimes Act) as at 19 January 2006 (Republication No 44, effective 17/1/2006 - 22/2/2006) which provided:

A person who unlawfully assaults, or threatens to inflict grievous or actual bodily harm on, another person with intent to engage in sexual intercourse with that other person, or with a third person who is present or nearby, is guilty of an offence punishable, on conviction, by imprisonment for 12 years.

7. The second count engages s 60(1) Crimes Act:

A person who commits an act of indecency on, or in the presence of, another person without the consent of that person and who knows that that other person does not consent, or who is reckless as to whether that other person consents, to the committing of the act of indecency is guilty of an offence punishable, on conviction, by imprisonment for 5 years.

The Facts

8. The evidence in this matter was presented by way of an agreed folder of documents being witness statements, police records of conversation and business records. It is agreed that these documents provide the available evidence.

9. On 19 January 2006, GL's parents observed that she was in a distressed condition. GL was then a young girl aged 12 years. She spoke to her parents and told them certain things. Consequently, the parents contacted police. During a taped record of interview that night, the young girl told the investigating police (Sergeant Zielonko) that she had been asked by two boys if she would like "to go to the park and play". She had agreed.

10. That got boring. The boys talked about "a gang". They were in a gang, they said, someone was "stalking" her and they would steal what she had. They then went to some area of bush in the park, she thought, to talk but instead, "They kept saying that they wanted to have sex with me. They will rape me if I won't lie down".

11. The two boys she referred to were 11 years of age. One of them was the accused.

12. She thought of escaping but they "had a knife", one used to cut cheese. She said:

A23 ... So, they made me lie down and forced me to take off my pants ... one of them is named [JA] ... he was trying to have sex with me, and the other boy was on the look-out, then these people came to the park to play. So the boy, [JA], he ran off ...

Q32 And what do you understand - what does sex mean?

A32 All right, when a male and female get together and the male's penis goes inside the female's vagina.

Q33 And did that happen?

A33 Yes.

Q34 And who did that happen with?

A34 It hadn't with [JA] and me ...

13. The knife she referred to was, she said, found at the park by the other boy but he gave it to JA whenever he asked for it. JA did, she said, "threaten" her with it.

Q39 Do you remember what he said?

A39 Well, not exactly. He said, he'll, like, cut me, or something.

Q40 Were you very frightened?

A40 Yes

14. On the critical issue of consent she was asked:

Q44 And when [JA] had sex with you, did you want him to?

A44 No

15. A further interview with GL was held the following day. There was no independent adult present. However, consent has been given to the Court receiving all this evidence.

16. GL gave more detail and context to the alleged offences, in the following terms:

Q35 Start the story from the start.

A35 Okay. Um, I was watching TV at four thirty and - pm, and the boys came to my door, one of them's [JA] who I've known for a couple of months. The other one's name's [AL] he doesn't - was a complete stranger. They were wearing, um, kind of - [JA] was wearing kind of three quarter pants and were camouflaged, that he - they were grey and white. Can't remember what his shirt was and [AL] was wearing kind of black pants and a sleeveless top and, um - they said they wanted to go the park so I said, "Yes," so we went to the park.

We, um, they found a knife which was curved at the end, so [AL] put it in his pocket and then we went for a walk. They kept talking about they were in some sort of a gang and that someone was stalking me, trying to figure out what I had so as they could steal it and, ah, when we went back to the car they took me in an area of a bush which I thought they would just wanna talk but instead it turned out they wanted to have sex with me. Well only [JA] but - and [AL] was just gonna kiss me that was it.

So [JA] kept saying, "Lie down or I'll rape you." And, um, I was just, "Okay a moment to think about it," so I could think of a way how to escape. And when I so - so I laid down and I took off my pants and my sandals and he started having some sex with me. Then when some people came to the park, [AL] - `cause [AL] was to look out he, um said, "Someone's there," and everything. "Someone was coming," so [JA] took, um, stood up and ran for it while I put on my pants and my sandals and I ran home.

17. The two boys also talked about "a gang" and someone stalking her. JA asked for her home security code but said, "I promise I won't sneak into your house and steal something I like." She continued:

Q88 And what did [JA] and [AL] say about the gangs?

A88 They said that they, um, that they killed - the gang mostly killed their family so they'd been part of the gang so they'll stop.

Q89 So, they said they'd killed people.

A89 Yeah.

...

A104 And they said, "Let's jump - let's get over the fence and I'll take you to an area [GL]" which was what [JA] said and I said, "No I don't want to. I don't think we're allowed to." He said, "No, it's all right, it's just over there - it's just over, well it's not that far away," and, "I don't want to." And he said, "This is another rule of the gang, that if you don't do what we say we'll like bash until you do it." And I said, "I don't want to do it," and they didn't touch me.

18. GL reiterated that she felt scared:

A128 Because like I said they had the knife and he [AL] kept like sort of showing it out of his pocket a bit and, um, they kept talking between themselves and I got a bit scared because they said they were gonna bash me if I didn't jump over the fence to go to the golf course.

19. The three of them played in the playground for a time. GL was riding on a rocking koala. The boys then asked GL to go to a "secret base". She "just followed", thinking they wanted to talk.

A155 After that [JA] kept saying, "Lie down, take off your pants or I will rape you." And I said, "Ah, can I just have a moment to think about it," so I can - so like so I can just think about it so I could think of a way how to escape from the situation ...And they kept saying, "If you go out there I will hurt you," I think, `cause he - `cause he, um [AL] gave [JA] the knife.

A156 ... So I just got extremely scared.

20. As a result, she lay down and removed her pants. At that time, JA spoke to AL saying:

A220 ... [AL] can you just leave a bit, like out of this area and keep watch?

21. AL appeared to comply. JA then lowered his pants and got on top of her.

A245 What happened next he - like he got on top of me and started having a little bit of sex with me and then people came and [AL] told [JA], so [JA] stood up and ran away and then I pulled my pants back on and my sandals and ran home.

22. She was asked to describe what JA actually did:

A258 He wanted me to open up my vagina and, um, so he could fit his penis in it.

Q259 H'mm. What did he say?

A259 Um, he said, when - he when his penis was in he said, "[GL] move your hands away." So I did.

23. She said that it felt very uncomfortable "like when I scrape my knee or something". She did not, however, see the accused's penis nor could she say if it was soft or hard. Nor did she know if his penis had entered her vagina. She was also asked:

Q501 Do you think he [JA] knew he was doing something wrong?

A501 I know he definitely knew he was doing something wrong.

Q502 Why do you say that?

A502 Because he's a very naughty boy, for instance, and he knows what's right and wrong.

Q503 What do you mean?

A503 As in, he knew when he stole one of my friend's Tamogotchi's ... he knew it was wrong and, yeah.

24. It is apparent from this account that the assault described, though sexualised, was unlikely to have been sexual intercourse. The opinion about JA's appreciation of the wrongness of his conduct would, of course, be insufficient to prove that fact.

25. The happening of the incident as described by GL is not disputed. Hence, it is not material to set out other evidence corroborating her complaint.

26. A medical report from Dr Sue Packer confirmed that no sexual intercourse had occurred. It can, therefore, be concluded that the actus reus is that of a sexual assault but not of engaging in sexual intercourse. The threat of `cutting' would justify a conclusion that the threat was one of inflicting actual bodily harm for the stated purpose of engaging in sexual intercourse.

27. It was that threat that secured GL's compliance with the assault so that the fact of lack of consent to it must, in the circumstances be considered proved.

28. However, there are two issues left unresolved by that evidence. The first, given the accused's young age, is the criminal responsibility of the accused for his acts, usually referred to at common law as doli incapax. The other issue, assuming criminal capacity to be present, is the actual intention and knowledge of the accused. The latter issue arises for decision only if the former is determined adversely to the accused, acknowledging that, in the circumstances of this case, the two issues are very much linked.

Criminal Capacity

29. For this matter, the issue of criminal capacity is governed by s 26 of the Criminal Code 2002 (ACT) (the Code). That is an "immediately applied provision" within the meaning of s 10(1) of the Code. It applied to all Territory offences, including these alleged offences, as from 1 January 2003 (see End Note 3 the Code).

30. Section 26 of the Code provides:

(1) A child aged 10 years or older, but under 14 years old, can only be criminally responsible for an offence if the child knows that his or her conduct is wrong.

(2) The question whether a child knows that his or her conduct is wrong is a question of fact.

(3) The burden of proving that a child knows that his or her conduct is wrong is on the prosecution.

31. There are two issues that arise from this formulation. First, whether the "conduct" is a reference to the specific conduct alleged to constitute the criminal offence. Second, whether "wrong" is a reference to a moral or legal standard or some synthesis of the two concepts.

32. It is clear that, as the child has a presumption of innocence in his or her favour, the lack of criminal responsibility is presumed unless and until the contrary is proved beyond reasonable doubt.

33. That is consistent with ss 11(2), 20(2) and 21(1) of the Human Rights Act 2004 (ACT). Those provisions are:

11(2) Every child has the right to the protection needed by the child because of being a child, without distinction or discrimination of any kind.

20(2) An accused child must be treated in a way that is appropriate for a person of the child's age who has not been convicted.

21(1) Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

34. UN General Assembly Resolution 40/33, Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) provides:

4. Age of Criminal Responsibility

4.1 In those legal systems recognising the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity.

35. The Explanatory Memorandum to the Code states: (p 13, re Cl 25)

This provision also repeats the law as it currently stands in the ACT and the rest of Australia.

36. It is convenient, therefore, to turn to the law concerning the criminal responsibility of children. I will start with a classic statement taken from JWC Turner (ed), Kenny's Outlines of Criminal Law, 19^th ed, 1966, par 51 at pp 79-80:

Yet the mere commission of a criminal act is not, as it would be in the case of an adult, sufficient prima facie proof of mens rea. The presumption of innocence is so strong in the case of a child under fourteen that some clearer proof of the mental condition is necessary. For this purpose a necessity for special proof of a `mischievous discretion' is impressed upon the jury to try such an infant, by their being asked not only the ordinary question, "Did he do it?" but the additional one, "Had he a guilty knowledge that he was doing wrong?" [R v Owen (1830) 4 C & P 236]. As with adults the `guilty mind' requisite varies with different crimes, but where the accused is a `child' it must probably be shown, even in the case of crimes involving absolute liability, that as in the case of insane persons he had knowledge that he was doing wrong.

37. The link with the M'Naghten sometimes spelt "M'Naghton", (R v M'Naghten (1843) 10 Cl & F 200; 8 ER 718) test of capacity in the particular case, that is, to understand and appreciate that what was being done was "wrong" was emphasised by Bray CJ in R v M (1977) 16 SASR 589, 590-1:

In the nineteenth and twentieth centuries it has been the practice to leave it to the jury to say whether at the time he committed the act the child knew that he was doing wrong, or had a guilty knowledge that he was doing wrong ...

The phrase "knowing what he was doing was wrong" is of course a familiar one. It forms part of the second limb of the M'Naghten Rules ... the test is whether he knew that it was wrong according to the ordinary principles of reasonable men (Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358).

38. In the latter case, the Court (Dixon CJ, Webb and Kitto JJ, at 375) referred to the content of the understanding of "doing wrong":

The truth perhaps is that, from a practical point of view, it cannot offer matter a great deal whether the capacity of the accused person is measured by his ability to understand the difference between right or wrong according to reasonable standards, or to understand what is punishable by law, because in serious things the two ideas are not easily separable. But in certain cases where the insane motives of the accused arise from complete incapacity to reason as to what is right or wrong (his insane judgment even treating the act as one of inexorable obligation or inescapable necessity) he may yet have at the back of his mind an awareness that the act he proposes to do is punishable by law.

39. The quality of the judgment an accused person was required to be capable of bringing to the situation was addressed by Dixon J (as he then was) in R v Porter [1933] HCA 1; (1933) 55 CLR 182 (at 189-90):

If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by `wrong'? What is meant by wrong is wrong having regard to the everyday standards of reasonable people ... was [he] disabled from considering with some degree of composure and reasoning what he was doing and its wrongness.

40. The disability in the present case is immaturity. The presumption of lack of criminal capacity is powerful. In 1845 in R v Smith (1845) 1 CoxCC 260, dealing with a boy of 10, indicted for arson, Erle J directed the jury:

... between the ages of seven and fourteen ... that which is termed a malicious intent - a guilty knowledge that he was doing wrong - must be proved by the evidence, and cannot be presumed from the mere commission of the act. You are to determine from a review of the evidence whether it is satisfactorily proved that at the time he fired the rick ... he had a guilty knowledge that he was committing a crime ... .

The jury returned a verdict of acquittal.

41. In McDonald v Lucas [1922] VLR 47 an order nisi was granted to review the convictions of three boys, two aged eight, the other aged nine, for larceny of a clock. The Chairman of the bench of Magistrates convicted them because they had taken the clock behind a bush to deal with it and so "must have known they were doing a mischievous act". Cusson J (at 49) held:

The Childrens Court Act does not affect the presumption of law that boys of this age are incapable of committing an offence; and, there having been no evidence to rebut that presumption, the convictions will be quashed.

42. For a short history of the criminal liability of children see Keen, "The History of the Criminal Liability of Children", (1937) 53 LQR 364.

43. In R v Brooks [1945] NZLR 584, the accused, then aged 13½ years, shot and killed his mother and brother (aged 9). A question of his capacity was raised for the consideration of the Court of Appeal. A question as to insanity had been raised by medical evidence called by the Crown.

44. Myers CJ pointed out that insanity was not relevant where doli incapax was the issue. In the case of a child between seven and fourteen (at 595):

... knowledge by the child of between the ages of seven and fourteen that his act or omission was wrong becomes a necessary ingredient of the charge against him, and the existence of this necessary ingredient must be proved by the Crown before the child can be convicted. If the Crown fails to satisfy the jury that the child knew that the act or omission charged against him was wrong, then the child is entitled to an acquittal on the simple ground that the Crown has failed to prove the essential ingredients of the charge against him, or in other words has failed to prove its case.

45. Even if it be proved that the child was insane so as to attract, if an adult, the defence of insanity, that would merely tend to support the presumption of lack of knowledge that the acts done were wrong. If the accused, though acquitted, be thought insane a civil committal under mental health legislation would be appropriate. He could be acquitted on the grounds of insanity only if doli incapax did not apply.

46. Callan J, (Kennedy J concurring) agreed the boy had to be acquitted on the ground that doli incapax had not been rebutted. At 600, his Honour said, on this issue:

The jury must consider the particular person, and everything in the evidence which assists them to determine whether or not he knew the act to be wrong. It may appear that he is, or may be, mentally defective. If that appears, that should be weighed and considered, with every other relevant consideration, in the endeavour to determine whether he knew that what he did was wrong.

47. Once it be determined that the Crown had failed to so prove, it matters not how the conclusion was reached, whether by reason of immaturity or mental dysfunction or some combination thereof. Finlay J disagreed on the latter question.

48. In R v M (1977) 16 SASR 589, a child of 12 was charged with murder. The accused had also been questioned by police about offences of breaking and entering, assault and arson and admitted then that he was aware that such acts were wrong.

49. Bray CJ addressed the question of what it meant to know that the act done was wrong, asking (at 590-1):

Does it mean knowing that it was contrary to law, or knowing that it would be considered to be wrong by the ordinary man or the reasonable man, or knowing that it was wrong according to the child's own subjective and, it may be, idiosyncratic standard?

50. His Honour considered that the concept of knowing that what he was doing was wrong was indistinguishable from that posed by the second limb of the M'Naghten Rules. That meant more than the attraction of disapproval (at 591):

Adults frequently disapprove of breaches of decorum and good manners on the part of children and their lack of diligence or tidiness without regarding the acts or omissions as wrong in the relevant sense.

51. Was it necessary to specify that not only must the accused know that what he was doing was wrong by reference to the standards of the ordinary adult person but also `seriously' or `gravely' wrong? His Honour said, as to that issue (at 593):

... I cannot find any authority for the proposition that it is a misdirection to admit the adverbs used by Salter J [in R v Gorrie (1918) 83 JP 136], which he may well have deemed necessary on the facts of that case, where all the accused had done was to inflict a slight scratch with a pen knife on the deceased child who died of blood poisoning.

52. Evidence of past misbehaviour, though ordinarily inadmissible, was, in his Honour's view, relevant to prove the element of doli capax, though such evidence was prejudicial and usually inadmissible for that reason. Bright J agreed.

53. Sangster J accepted that `wrong' was not necessarily to be equated with `criminal'. His Honour accepted that the accused had to be shown to have known that his acts were wrong according to the standards of ordinary people. It was not necessary to equate that with `disapproval' or `condemnation' or attracting criminal sanctions though those words in context could be synonymous.

54. R v B [1979] 1 WLR 1185 (CA) similarly addressed the issue of the relevance of prior findings of guilt. A number of 13 year olds were charged with blackmail. The appellants formally admitted doli capax to avoid evidence of prior misconduct being called.

55. Lord Widgery CJ (Shaw LJ, McNeill J concurring) affirmed that the evidence would otherwise be admissible, pointing out (at 1187):

If the presumption is allowed to stand and the prosecution did not call evidence to rebut it, then, at the close of the prosecution case, there would be a ruling that there was no case to answer.

56. That point was made also in R v B (an infant) [1979] Qd R 417 (CCA). The appellant, aged 11, was charged with breaking, entering and stealing and wilfully and unlawfully damaging property. The children concerned all pleaded guilty.

57. D M Campbell J noted the presumption of doli incapax, recognised by the Queensland Criminal Code as requiring (at 421):

...evidence on which to base a special finding that the child had capacity to know that he ought not to do the act or make the omission with which he is charged.

58. It was erroneous for the magistrate to proceed to convict, even on pleas of guilty, absent such evidence.

59. W B Campbell J agreed in a separate judgment, Williams J concurred.

60. In O'Toole v Arnold (1982) 61 FLR 372, the appellant, aged 13 years, was convicted in a Children's Court at Alice Springs for possession of a bicycle reasonably suspected of having been stolen. His counsel called no evidence to rebut the prosecution case but submitted that the presumption that the child lacked sufficient capacity to know that what he was doing was wrong had not been rebutted. The child had pleaded guilty to other offences.

61. The learned magistrate, having decried technical defences such as the Anunga Rules (see R v Anunga (1976) 11 ALR 412), found the charge proved from the content of the child's record of interview. He had `changed his story', found the magistrate, so demonstrating sufficient criminal capacity.

62. On appeal Muirhead ACJ concluded (at 376):

If I was applying the civil onus of proof I would have found the charge proved, but I am left unable to exclude upon the evidence the reasonable possibility that the appellant did not appreciate the wrongfulness of his possession as opposed to the wrongfulness of the original theft. In short, I cannot be satisfied that the presumption has been rebutted.

63. Whilst all the circumstances of the appellant's conduct and background were material, the apparent discrepancies in the record of interview could not be viewed in isolation. They were not sufficiently evaluated. Hence the appeal was allowed.

64. In M v AJ (1989) 44 A Crim R 373 (SCTas), the applicant, a 13 year old boy, had been charged with two firearms offences. He admitted, according to police, that he had fired the air rifle in question twice that day. He denied making the admission. There was circumstantial evidence supporting the conclusion that the applicant had, in fact, discharged the firearm.

65. The learned magistrate found two charges proved. That is, a finding of guilt for discharge of a firearm whilst under age and of discharging a firearm without due regard for the safety of other persons. Neasey J, on appeal, considered that the second charge was not proved on the facts. It was not sufficient to prove that a person had, in fact, been put in fear.

66. As to the issue raised by the age of applicant in relation to the first charge, his Honour agreed with Bray CJ in R v M (supra) that the concept of wrongness picks up the meaning of the second limb of the M'Naghten Rules. It relies on the ordinary standards of reasonable persons. However, it is also relevant to statutory offences such as the first offence despite the lack of any element of mens rea (at 383):

(383) ... [The] real difficulty arises in this State when it becomes necessary to apply the subsection in respect of one of the numerous statutory offences in which there is little if any content of "wrongness" in the acts or omission proscribed. If the concept is to be applicable to offences of all kinds, I think it is evident that the word "capacity" cannot refer merely to mental capacity, but means capacity in a general sense to appreciate why a particular act or omission ought not to be done or made. In the case of minor statutory offences, the concept of capacity will generally include intellectual capacity to understand the reasons which make the act one which ought not to be done. In appropriate cases it may require a degree of intellectual maturity as well as ability: cf Vamplew [(1862) [1862] EngR 185; 3 F & F 520; 176 ER 234]

67. Neasey J considered that whilst the boy had capacity to understand the wrongness of the second charge, on which he was, in any event, acquitted, the boy was not shown to understand why his age made the discharge of the firearm `wrong' in respect of the first charge holding (at 383):

In the present case I think it would have been necessary to prove in respect of the first charge that the applicant had sufficient capacity to understand and know that the act of discharging the air-rifle was wrong because he was a child when he discharged it, whereas if he had been aged 16 years or over it would not have been wrong. But, presumably the applicant knew that his father fired the air-rifle from time to time, assumed that it was not wrong for his father to do so, and probably assumed that it was not wrong for him to do so either, even if his father (and the police) disapproved.

68. However, had the facts warranted it, the boy could have been found guilty of firing the air-rifle in circumstances endangering others for that particular concept of wrongness he clearly was shown to understand by virtue of his conversation with a neighbour about the firing of the air-rifle.

69. It is apparent that `wrongness' includes an appreciation of the nature and effect of the prohibited act. It is not sufficient that the child knows that there would be `disapproval' of the act by a parent or even police.

70. In R (a child) v Whitty (1993) 66 A Crim R 462, Harper J upheld the conviction of a 12 year old girl for stealing. His Honour accepted nevertheless that the presumption of doli incapax must be rebutted by the prosecution. It was, he held, required that the prosecution (at 463):

...show that when the child committed the act in question, he or she knew that what was being done was not merely wrong but seriously wrong.

71. Of course, Bray CJ had rejected the use of the adverb but it seems to me Harper J was using `seriously' in the sense of offending the rules of society as exemplified by the ordinary standards of reasonable people so as to result in more than mere disciplinary disapproval. That is, an appreciation of wrongness beyond a consciousness of naughtiness or of childish mischief.

72. His Honour cited a passage from Pope's Treatise on the Law and Practice of Lunacy (2^nd ed, 1890) as setting out the relevant test. That led, he held, to the conclusion that (at 464):

If a child is capable of understanding that the act in question is such as in any well-ordered society would subject the offender to punishment, then in my opinion the child has the requisite degree of understanding.

73. The fact that the appellant herself characterised her conduct as stealing, appropriately in the context of her interview with police, in addition to her furtive behaviour, took it beyond `merely mischievous intent'.

74. I note that in C (a minor) v DPP [1966] AC 1, a 12 year old boy was accused of interfering with a motor cycle with a view to theft. He and another boy attempted to force a restraining chain and padlock. They fled when disturbed. The justices at Liverpool had found that he knew what he had been doing was `seriously wrong' so that the presumption of doli incapax was rebutted. The Court of Queen's Bench found the presumption to be no longer part of the law of England and dismissed C's appeal.

75. On appeal to the House of Lords the appeal was allowed and the justices' finding set aside. The view of Laws J that the rule had no place in modern law was rejected.

76. At 39, Lord Lowry stated (Lord Jauncey of Tullichettle, Lord Bridge of Harwich, Lord Ackner and Lord Browne-Wilkinson agreeing):

The cases seem to show, logically enough, that the older the defendant is and the more obviously wrong the act, the easier it will generally be to prove guilty knowledge. The surrounding circumstances are of course relevant and what the defendant said or did before or after the act may go to prove his guilty mind. Running away is usually equivocal ... because flight from the scene can as easily follow a naughty action as a wicked one ....

The Divisional Court here, assuming that the presumption applied, would have reversed the youth court, rightly, in my opinion, because there was no evidence, outside the commission of the "offence", upon which one could find that the presumption had been rebutted.

77. However, lest it be thought that the circumstances in which the offence itself is committed might not, at least in some circumstances, provide sufficient evidence to rebut the presumption, regard should be paid to the decision of the Victorian Court of Appeal in R v ALH [2003] VSCA 129; (2003) 6 VR 276.

78. Callaway JA noted (at 281):

To speak of a "presumption" that a child under 14 is doli incapax accords with long usage, but it obscures the simplicity of the common law rule properly understood. In the case of an accused person of or over the age of 14, the Crown does not have to prove that he or she knew that his or her conduct was seriously wrong. The question does not arise. In the case of an accused person under that age, but not under the age of 10, the Crown does have to prove such knowledge. That is all that is meant by the presumption. It is like other rebuttable presumptions that do no more than indicate on whom the burden of proof of a particular fact lies.

79. Cummins AJA also criticised the proposition that, if it were to be the law, that the mere proof of the act changed could not establish doli capax. His Honour said (at 298):

What is required is the eschewing of adult value judgments. Adult value judgments should not be attributed to children. If they are not, there is no reason in logic or experience why the proof of the act charged is not capable of proving requisite knowledge. Some acts may be so serious, harmful or wrong as properly to establish requisite knowledge in the child; others may be less obviously serious, harmful or wrong, or may be equivocal, or may be insufficient .... The prosecution should prove beyond reasonable doubt, as part of the mental element of the offence, that the child knew the act or acts were seriously wrong.

80. No direction was given to the jury on that issue. That was an error. The proviso was, however, applied as it would not in the Court's view have affected the result. In any event, some of the convictions had to be set aside as consent had not been disproved and the two parties to the sexual acts charged were within two years difference of age.

81. This decision should not, however, be taken to establish that proof of the voluntary and intentional commission of the acts charged will constitute prima facie evidence of doli capax. It is merely a circumstance relevant to the overall judgment as to whether the presumption is displaced. Nor is it clear that, properly understood, it conflicts with C (a minor) v DPP (supra).

82. I, therefore, approach the evidence in this case bearing in mind the strong presumption against criminal capacity and directing myself that a finding of guilt may be made only if the Crown has displaced that strong presumption by `strong and pregnant evidence' to the contrary (see B (1958) 44 Cr App R 1, 3 per Lord Parker LCJ). It is insufficient to displace the presumption to prove that the child voluntarily and intentionally did the acts constituting the offence. It must be shown that the child knew that the acts or omissions were wrong by reference to the ordinary standards of reasonable men and women in society generally going beyond mere disapproval or the imposition of merely disciplinary sanctions. That which the Crown must establish beyond reasonable doubt is the same degree of knowledge of wrongfulness as an accused must negative on the balance of probabilities to attract acquittal on the ground of mental impairment. That knowledge of wrongfulness must relate to the offence in question in particular not merely knowledge of right and wrong generally.

The Evidence

83. The manner in which a crime is committed and utterances made in the course of it may, as, for example, in R (a child) v Whitty (supra), assist to displace the presumption. However, even in that case, that evidence was insufficient without the assistance of the child's police interview concerning her perception of what she had done. In this case, compliance by GL with JA's demands was procured by threats such as "If you go out I will hurt you" and "Lie down, take off your pants or I will rape you". It seems clear that the accused, in talking about gangs, gang rules and killing his family, was engaging in fantasy. Whilst he acted out sexual behaviour he was clearly incapable of engaging in sexual intercourse. That does not mean of course, that his activity was not a sexual assault. It does, however, leave open the hypothesis that the episode was the acting out of a fantasy rather than an appreciation that he engaging in criminal activity, that is, that it was `wrong' in the sense referred to above.

84. The general capacity and reasoning level, appreciation of right and wrong of the accused is clearly relevant. Indeed, even prior findings of guilt, though prejudicial, may be admitted for the purpose of assessing whether the accused, at the time he did the acts complained of, knew them to be wrong in the relevant sense.

85. There was evidence from Mr Marsden, a teacher, concerning JA's behaviour at school. This was primarily during 2005. This was the school period most proximate to the offending behaviour. There was a continuing concern about JA's `problem behaviours'. It usually involved `rough play' either as a perpetrator or victim. Mr Marsden usually expressed disapproval of such behaviour in terms of a breach of school rules or policies. Sometimes suspension was imposed. He reported:

On occasions when he admitted he'd done something wrong he was accepting of the consequence and did not withdraw. The majority of the time he was accepting of the punishment.

Problem behaviours I have witnessed [JA] display include fist fights with other students, calling other students names, swearing, damaging school property and non compliance with directions from teachers.

86. This evidence does indicate that neither JA nor many of his peers regarded such behaviour as wrong in the relevant sense.

87. There was a search conducted by police on 20 January 2006 at the home of the accused. His mother was also present. The process was audio recorded but the whole conversation could not be recorded due to equipment malfunction. The accused was able to identify a knife referred to in the search warrant with a knife on the kitchen bench. However, there is no evidence it was the actual knife displayed the day before. He identified certain clothes as those he had worn the day before but, again, whether that identification was accurate was not confirmed.

88. There was no conversation with the accused concerning the events of the previous day. On legal advice procured by his mother, the accused declined to take part in a recorded interview.

89. I remind myself that no adverse inference can be drawn from this against the accused on any issue. Indeed, as a matter of common sense it is entirely neutral.

90. School records were produced which confirmed Mr Marsden's statement concerning JA's behaviour at school, from 2003 to 2005 inclusive.

91. On one occasion in 2003 police were called concerning his behaviour in throwing stones at cars. No charges were laid. He was, of course, then under 10 years of age, being born on 9 July 1994.

92. His last student assessment in December 2005 was:

[JA] is a quiet class member who enjoys the company of close friends. When on task [JA] has produced some quality work. He needs a lot of encouragement to complete tasks and requires constant supervision. [JA] is working towards accepting responsibility for his choices. [JA] needs to work on maintaining concentration during instruction time, as he can get easily distracted. At times this can hamper [JA]'s progress, as his work is often incomplete. I have seen improvements in areas of [JA]'s work and hope he can continue this next year. [JA] has shown improvement towards completing tasks in term four.

93. Even after the events charged, in June 2006, the class teacher reported (inter alia):

[JA] loses concentration at times and when this occurs he becomes silly in an attempt to be funny. His sense of humour is enjoyable but [JA] must learn to `pick his time' to act the clown.

94. These assessments do not support a conclusion that JA was, as at January 2006, able to assess and apply adult standards. Indeed, if anything the last assessment would tend to support a contrary conclusion.

95. The other boy involved, AL, was interviewed by police on 11 April 2007. His date of birth was in March 1995.

96. AL told police about finding the knife and giving it to JA from time to time when he asked for it. He recounted a discussion with GL about whether she would "do it". He said:

A9 ... I kept on having to going, giving the knife, going back, giving the knife, going back - just back and forwards, back and forwards, till she said "yes". So, she was forced to do it.

97. At A43 he referred to JA "doing actions and showing her how to do things". I infer that this is a reference to simulation of sexual activity. At A47 AL indicated he understood `it' to refer to "sex".

98. AL said that he saw JA in the bush enclave with GL "doing it, um, doggy style". (A91).

99. AL was asked about his understanding as to whether this activity was wrong. The exchange was:

Q103 Okay. And what's wrong about forcing someone?

A103 Um, I don't know.

Q104 Okay. Do you know much about the law and things like that?

A104 Yep

Q105 What do you know?

A105 I know over eighteen to drive, sixteen to drink, well that's not when everyone starts, but sixteen.

Q106 Do you know what the law is about forcing people to do things they don't want to do?

A106 Yeah, that's just to keep - if there was no laws, this whole place would be nuts, pretty much.

100. I would pause here to note that question 106 was both misleading and irrelevant. It is not against the law to force people to do what they do not wish to do. That is one of the objects of deterrence by the threat of lawful punishment. It is only if it is against the law to do so that it becomes wrong to force a person to so something. The young person clearly understood that, generally, laws were designed to prevent conduct that was wrong. It is also not conclusive of criminal capacity that conduct is or is not known to be unlawful although, as noted already, that knowledge may lead to a conclusion that the person possessed of that knowledge also knows that the conduct so forbidden is wrong in the sense of being regarded as wrong in the relevant sense, that is, regarded as such by ordinary reasonable members of the general community. The converse may also, though not necessarily, be true.

101. The interview continued:

Q107 Okay

A107 Everyone, would be kicking. If there was no laws, someone would run in here, find a knife or something, and would kill us all - or a gun.

Q108 Did you know that it's against the law to make somebody have sex with you?

A108 No

Q109 You don't?

A109 No, I didn't.

Q110 You didn't back then?

A110 No. But I did after when I got told that.

102. He was then asked why he and JA ran from the scene. His reply (A111) was, "I don't know really. We were just running for the sake of it, really".

103. Of course, the fact that AL did not regard it as unlawful and, probably, not "wrong" to force a person to have sex does not establish that JA shared that belief. However, it does make it a reasonable hypothesis that JA, being at about the same level of maturity as AL, did have such a belief or, at least, did not have the opposite belief.

104. It should be added that when, at Q163, AL was asked how he felt about what had happened with GL, he said, "... I wish I didn't do it". He was asked to explain that.

Q164 And why is that? Why do you wish you didn't?

A164 I was just thinking about - I was just thinking what would she do, how was she feeling. I just felt ashamed of myself, really.

Q165 Okay. What were you ashamed of?

A165 Ah, being on lookout, doing what [JA] said.

105. That could be construed as a consciousness of wrong doing on AL's part. However, but it does not relate to the time of the event but only subsequently, after reflection, and, possibly, communicated disapproval and then only in respect of "being a lookout".

106. The remaining material relates to the interaction of JA and his family with Family Services. In December 2001 `concerns' were expressed by a psychologist about the entire family due to domestic violence arising from the father's bipolar disorder. Then aged seven, JA was observed to engage in "disruptive and uncontrollable behaviour at school". He was referred to a psychiatrist.

107. In May 2000 JA was reported and said to be of concern for `sexualised behaviour' and `stealing'. This was in the context of allegations that the father had brought prostitutes to the home.

108. On 13 September 2001, a Family Services Officer reported concerns about JA's `sexualised behaviour' and `stealing'. He was found to be a victim of continuing emotional and psychological abuse.

109. On 14 February 2002 JA was declared to be a child in need of care and protection. A report, issued 6 January 2003, recommended the order continue for a further 12 months. He exhibited what were assessed as "problems associated with his emotional and behavioural development".

110. A psychological report of 8 May 2003 expressed concern about JA's mental health. He alternated between being abnormally fearful and being violent and angry. By 22 November 2003 he was reported as making "good gains" but exhibited signs of post-traumatic stress disorder. As at 12 December 2003 he had been referred to Dr Teresa Foce, a child psychiatrist, for ongoing treatment. He had made "considerable gains with his behaviour" on medication. By 24 December 2004, JA was reported to have been "a lot more settled in 2004". He was said to be "displaying far less aggressive outbursts and he is improving in his interactions on the playground [at school]".

111. There was a further report, dated 13 April 2006, after the incident with GL, from Dr Foce. It does not address that incident. JA was reported to have been engaged in a number of incidents of disturbed behaviour -

... throwing rocks at other students, also furniture; he'd run away from school the previous week with another student; he'd got under one of the demountable buildings and proceeded to bang his head on the steel support and had been picking on other children.

112. JA had also been assessed by a psychologist as "having clinically significant levels of anxiety and depression". I infer that Dr Foce was in agreement with this assessment. The history of her clinical involvement from 2003 to 2006 demonstrated great variations in JA's behaviour. As at 6 March 2006, Dr Foce saw "great improvement". She does not refer to, and may not have been aware of, the events of 19 January 2006. She does report:

... we decided to increase his Dexamphetamine to 10mg in the morning and 10 mg at lunchtime and he was to continue on Clonidine 50 micrograms at night.

...he appeared to no longer fulfil the criteria for Conduct Disorder. ... He does still fulfil the criteria for ADHD and he does have a biological vulnerability to Bipolar Disorder. ...

Unfortunately [JA] has been exposed to extreme antisocial behaviour and drug taking behaviour initially by his father and later by his three older siblings. No doubt this places him at significant risk in the longer term.

113. It is unfortunate that Dr Foce was not asked to consider the accused's behaviour on 19 January 2006 but I can only proceed to determine this case on the evidence before me.

114. I am left, on the evidence concerning JA's background and behaviour, with the clear impression that, if he was an adult, I would conclude that his criminal responsibility, though not removed, was, at least, significantly diminished by mental dysfunction.

115. However, the accused is not an adult. He was but 11 years of age at the time of the acts committed by him which allegedly constituted the offences charged.

116. There is no evidence to support a conclusion that the accused did have the requisite guilty knowledge and some evidence tending against that conclusion. As the prosecution bears the onus of proving his criminal capacity beyond reasonable doubt, I am driven to the conclusion that it has not done so. As Earle J stated, as long ago as 1845, (R v Smith (supra)) in respect of a child under 14 years of age:

... that which is termed a malicious intent - a guilty knowledge that he was doing wrong - must be proved by the evidence, and cannot be presumed from the mere commission of the act.

117. As the jury did in that case, I find a verdict of not guilty on each count in the indictment and an acquittal should be entered accordingly.

I certify that the preceding one hundred and seventeen (117) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 12 July 2007

Counsel for the plaintiff: Mr A Doig

Solicitor for the plaintiff: ACT Director of Public Prosecutions

Counsel for the defendant: Mr M J Ryan

Solicitor for the defendant: Mark Fleming Criminal Lawyers

Date of hearing: 14 May 2007

Date of judgment: 12 July 2007