Children's Court New South Wales

 

 

Case Name:	R v Greg
Medium Neutral Citation:	[2023] NSWChC 13
Hearing Date(s):	10, 11 and 12 July 2023
Date of Orders:	12 July 2023
Decision Date:	12 July 2023
Jurisdiction:	Criminal
Before:	Children’s Magistrate Hayes
Decision:	Dismissed
Catchwords:	CHILDREN – Criminal Law – Doli incapax
Legislation Cited:	Crimes Act 1900 (NSW) Children (Criminal Proceedings) Act 1987 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	AL v The Queen [2017] NSWCCA 34 BDO v The Queen [2023] HCA 16 BP v R; SW v R [2006] NSWCCA 172 C v Director of Public Prosecutions (NSW) [1996] 1 AC 1 EL v R [2021] NSWDC 585 Fletcher v R (2015) 45 VR 634 KRM v The Queen (2001) 206 CLR 221 R v ALH (2003) 6 VR 276 RH v Director of Public Prosecutions (NSW) [2013] NSWSC 520 RP v The Queen [2016] HCA 53 RP v R [2015] NSWCCA 215 The Queen v M (1977) 16 SASR 589
Texts Cited:	Hament Dhanji SC, Julia Roy and Sally McLaughlin, ‘Proving the Criminal Responsibility of Children: RP v The Queen’
Category:	Principal judgment
Parties:	Greg James (Young Person) The Crown
Representation:	Mr Knight (Prosecutor) Ms Just (Young Person)
File Number(s):	2022/00267473
Publication Restriction:	Pseudonyms have been used to protect the identity of the child. This ex-tempore judgment has been finessed, formatted and re-structured into a written judgment with full citations.

JUDGMENT

Background

1. This is an ex-tempore judgment.

2. The urgency of decision, in part, is because a child, now aged 11 years is in detention. He has spent a good portion of the hearing, now in its third day, sleeping, playing with toys, waiting for his McDonalds meal or talking with either of the two Youth Justice officers accompanying him - in what ordinarily is the Dubbo District Court

3. The Court is an overwhelming size compared to a proper designated Children’s Court.

4. The Young Person before the Court is Greg James.

5. Greg faces seventy-two offences of various nature. Most could be broadly categorised as dishonesty offences.

6. Greg’s offences involve a range of seriousness. For example, the aggravated break and enters under s 112(2) of the Crimes Act 1900 (NSW) carries 20 years, as does the Robbery armed with an offensive weapon under s 97. Some offences are under the Summary Offences Act 1988 (NSW) and are fine only. Some offences include knives. The police pursuit involved speeds of up to 130km per hour driving through red-light intersections and at 120km per hour on the incorrect side of the road.

7. All offences are said to have occurred over a seven-month period.

8. Greg was aged 10 years and 5 months at the time of the first allegation. Greg was 11 years at the time of the last allegation.

9. Due to the number and complexity of matters, agreement was reached as to how these matters were to proceed.

Preliminary hearing procedure

1. It was agreed that a preliminary hearing would determine whether the prosecution has rebutted the presumption of doli incapax beyond a reasonable doubt for each offence.

2. The prosecution case may be presented by way of written statements, oral evidence, or other evidence such as CCTV, or a combination of each, subject to the consent of the child and the usual rules of admissibility.

3. The child may present evidence.

4. The Court is to decide, based on all the evidence, whether the prosecution has proved beyond reasonable doubt that the child was not doli incapax at the time of each relevant offence.

5. If at the preliminary hearing the prosecution fails to rebut the presumption of doli incapax beyond reasonable doubt, the prosecution has failed to establish an element of that offence and the child will be found not guilty.

6. If the Court is satisfied beyond reasonable doubt that the prosecution has rebutted the presumption of doli incapax, then:

the element of doli incapax is taken to have been established in relation to that offence; and

all written material tendered in relation to the question of doli incapax is to be returned to the prosecutor, and does not remain part of the prosecution case for the remainder of the hearing for that offence; unless

the Court later finds that a fact that the court relied upon in determining the issue of doli incapax was incorrect - then the issue of doli incapax may be revisited for that offence or offences.

the matter is then to be listed for further hearing on the other elements of the offences; and

the Magistrate who heard the issue of doli incapax is taken to be part-heard.

7. Each count is to be considered separately and only by reference to the evidence which is admissible with respect to that count.

8. The Court is not to engage in tendency or coincidence reasoning: KRM v The Queen (2001) 206 CLR 221.

9. Given the charge period and the multiplicity of offences, the Court needed to be able to assess the question of knowledge at the time of doing each of the acts.

8. The Court can consider past experiences relevant to knowledge but not future ones.

9. Greg’s representative, Ms Just, provided the Court with the High Court decision of BDO v The Queen [2023] HCA 16.

10. This was on point. Though relevant to the Queensland code, BDO speaks to capacity as opposed to the common law, which incorporates knowledge in doli incapax matters.

11. In BDO, the High Court states at [52]:

‘it was necessary for the prosecution to point to evidence from which an inference could be drawn beyond reasonable doubt that the appellant had the requisite capacity at the time the specific act is said to have occurred. That could not be done globally. In a multi-count indictment where lack of capacity is to be rebutted "at the time of doing the act", that task may require the jury to be instructed to assess the events in chronological order. That approach may be important because the surrounding circumstances of an earlier charge may be relevant to capacity in relation to a later charge. … no backward reasoning was permissible by reference to later acts and later capacity for an earlier charge or charges’.

12. The preliminary hearing commenced on 10 July 2023 and concluded 12 July 2023.

13. During the proceedings some matters were withdrawn.

The onus of proof and standard of proof

1. The prosecution bears the burden of proof.

2. Section 141 of the Evidence Act 1995 (NSW) sets out the standard of proof. Subsection (1) reads:

In a criminal proceeding, the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt.

3. In matters when a child between 10 and 14 years is accused of a crime the prosecution bear the onus and must prove, beyond reasonable doubt, that the child did the act charged, accompanied by the necessary mental element, but also that, when doing it, he or she knew it was seriously wrong, as distinct from an act of mere naughtiness or mischief: The Queen v M (1977) 16 SASR 589; C v Director of Public Prosecutions [1996] 1 AC 1 at 38 (‘C v DPP’); R v ALH (2003) 6 VR 276.

4. There is no onus on the child to adduce evidence that the presumption applies.

Evidence

1. The Court made several rulings regarding the admissibility of evidence.

2. The most significant credit finding was regarding the evidence of Senior Constable Blackstone. The court accepted her evidence as truthful and reliable.

3. Senior Constable Blackstone gave evidence that when first meeting Greg at a ‘bail check’ for Greg’s brother, Greg said, “my brother did bad things.” On another occasion, Senior Constable Blackstone gave evidence that Greg said, “my brother is gone away because he was in trouble again.”

4. Senior Constable Blackstone observed Greg to be a happy, normal, friendly child who “says hello.” However, since just prior to August 2022 during COVID visits, Greg has told Police to “fuck off”, “I’ll blow you” and has thrown rocks at police vehicles.

5. The only other credit finding of note related to a protected admission that neither the lawyer from the Aboriginal Legal Service (who provided telephone advice to Greg), or the arresting police officer, could independently recall. The Court was required to consider and compare inconsistent contemporaneous written records.

6. During the hearing, the mother of Greg raised an objection under s 18 of the Evidence Act and was excused from giving evidence.

7. The Court held that the mother was rendered ‘unavailable’ within the meaning of s 65(2) of the Evidence Act. The Court found that there is nothing contained in s 18 which operates to limit the application of s 65(2). Accordingly, the statements of the mother were admitted pursuant to s 65, subject to the discretion contained in s 137: Fletcher v R (2015) 45 VR 634.

8. The Court admitted the mother’s two statements. Those statements read:

Greg is my 10 year old son…. I am finding it hard to control him and his behaviour.. I've had numerous conversations with Greg about what is right and wrong but he just sits there and he doesn't say anything. When continuing the conversation about the repercussions of these actions with the Police he responds: ‘I don't care’.

(Greg’s brother) has been in and out of juvenile detention since he was 12 years old. He is currently still in juvie. I regularly have discussions with Greg about (his brother) and his offending been similar to his…he responds: ‘I don't care’.

(His brother) speaks with Greg on the telephone. His brother says: ‘you don't want to come in here…’ Greg responds laughing.

I have caught Greg stealing coins and cigarettes, he responds: ‘it wasn't me’ and blames another sibling, He thinks it's funny.

I ground him. I take pocket money away. I have taken the PlayStation 4 away as discipline but he doesn't care. He.. has no respect for anyone. He swears at me and calls me a slut and a whore. I chastise him. He just laughs at me. I tried to teach him the difference between right and wrong…. he just laughs and walks away… I spoke to Greg about (the robbery) and he said: ‘I didn't do nothin’. I brought him up to the police station he didn't seem concerned at all… I asked him why he did it, he told me: ‘the girls asked me to do it, so I did and gave them the money’… I asked him to hand over the rest of the money and he gave it to me. He had a worried face…I know he was concerned …he seemed worried about what might happen.

Greg attended a ‘suspension school’… He was suspended for 20 days then went back to school for one day and got another 20 days.…he liked it… he doesn't care that he's suspended….He swore at a teacher…He was suspended for 20 days. He didn't care for the repercussions.

Greg has only been to school for one day since his big suspensions for 20 days… He would get more school at juvie than when he is out.

I told him… people will get sick of him and likely hurt and bash him. He said they won't catch me 'cause I'll run’.

I told him… you're going to be in and out of gaol the whole of your life… he looked at me and smiled.

I picked him up from the … Juvenile Justice Centre and he said as we were leaving …to one of the workers: ‘don't let them take my room from me, I'll be back soon save my bed for me’. He does not care about being up there, it's just like a holiday camp for him and his brother is up there at the moment so it doesn't bother him.

I talked to him about how serious the things…he is doing, he just walks away from me and takes off…I don't want to bury my kids before me or have my family members come to me and tell me you've been killed. He just laughs and tells me he doesn't care.,, he just laughs at me… I have stopped buying him things to try and punish him but it doesn't matter 'cause he steals other people’s stuff anyway’.

I have explained to him about the consequences of his older brother..who is locked in juvi now... I have talked to him about the consequences of his father’s action who is back in gaol.. He just keeps laughing at me he says I don't care they’ll never catch me.

9. The crafted written statements of the mother contrasts with the mother’s verbal response to investigating police when the mother said: “the cunts are in the back” – when identifying Greg and his brother.

10. The other evidence was tendered without objection and included Court records, police statements, facts sheets, body worn video and CCTV.

11. Greg did not give evidence and is certainly not obliged to give evidence. No adverse inference is drawn.

12. The defence called no evidence.

Issues in dispute

1. The only issue in dispute was that of doli incapax.

Submissions

1. The prosecutor, Mr Knight, addressed the offences in chronological order, identifying the factors that go to the rebuttal of the presumption.

2. That approach allowed the surrounding circumstances of an earlier charge to be relevant to knowledge in the charges that followed.

3. Prior to these offences Greg had several previous interactions with the police and courts, identified in exhibit 1.

4. Prior to these offences the mother had numerous conversations with Greg about what is right and wrong.

5. Prior to these offences the consequences of offending were explained to Greg, particularly regarding property style offences.

6. Prior to these offences Greg saw police interactions with his brother and the consequences of dishonesty matters. Greg was made aware his brother was in detention for similar matters.

7. Ms Just submits that frequent exchanges with police have normalised those exchanges and the Court should not infer that Greg knew that his actions were seriously wrong.

8. Ms Just submits that the bench papers in exhibit 1 do not identify the consequences but rather only the appearances.

9. Ms Just submits that the mother’s evidence regarding Greg knowing the difference between what is seriously wrong, and naughty is opinion evidence.

10. Regarding the first set of matters in the chronology, Mr Knight submits that:

The mother spoke to Greg about the car offence.

Greg ran away.

Greg was warned by police about the seriousness of driving a car.

Greg was warned by police about running away, it was pointed out the police dog would give chase.

At the police station Greg was asked about whether the taking of the car was bad and Greg replied: “yeah.”

Greg was asked what happens; and he replied: “you go to gaol.”

Greg clarified he was in the back of the car and appeared to understand that, as a passenger, it did not matter where he was in the car by responding: “it is all the same.”

Greg was bail refused.

11. Ms Just submits that Greg responded with “you go to gaol” only after his older brother had said: “you get locked up” in answer to the same question.

12. The second set of matters are alleged to have occurred 19 days later and are captured on the motel’s CCTV.

14. Mr Knight submits that:

Greg was in company with three others.

Greg pulled a hoodie to the top of his head. Another young person ties something over her head.

Greg is seen to crouch down near the entry to the motel. It appears he is alerted by others when a car passes and moves away. Greg appears to conceal his conduct.

Greg enters a motel room; he whispers “jackpot” and appears to take a motel key.

Greg smashes a car window.

A woman yells and Greg and the other young persons run.

15. The next set of matters, Mr Knight submits, Greg arms himself with a knife and uses a broken wooden pallet slat. Mr Knight highlights the use of a jemmy bar in RH v Director of Public Prosecutions (NSW) [2013] NSWSC 520 (‘RH v DPP’). In that case it was said that the use of a ‘jemmy’ showed an obvious wrongful act and required planning. Mr Knight draws the parallel to this matter. Greg also flees.

16. The next set of matters, Mr Knight submits, involves Greg’s mother discussing the act with Greg. Greg wore a hooded jumper. Mr Knight refers to the time of night and Greg’s flight from the scene of the alleged offending.

17. The next set of matters, as with several previous matters, occur in the early hours of morning. This infers Greg utilises the cover of darkness, with less people about, to reduce the risk of apprehension.

18. The CCTV clip shows Greg revving a car’s engine and showing off – bragging of sorts. Mr Knight refers to RH v DPP at [31].

19. Relevant to a different allegation, Mr Knight submits that the mother spoke to Greg about the offences, including that the victims would assault him if apprehended. This is relevant to consequence and the seriousness that victims regard the offending. Greg responded that “they won’t catch me anyway.”

20. The allegations of 13 December 2022 again involve a time where it is inferred that Greg is less likely to get caught. A jumper is again used for a disguise and Greg again flees from the scene.

21. The next allegation in the chronology is an aggravated break and enter of commercial premises captured on CCTV.

22. Once again, this offence occurs in the early hours of the morning – 1:00 AM. A bigger person is seen to smash the door with a tyre iron. Two other people, of which Greg is one, both with bags, enter the building and steal cigarettes. A later clip of stolen cigarettes is shown with a gang name. Again, it is submitted that there is evidence of boasting, planning and possible financial gain.

23. The allegations of offences on 18 February 2023 again involve Greg fleeing from the scene.

24. Three days after that offence, there is CCTV footage of further alleged offending. Greg is in the open, then again disguises himself and crouches between 2 vehicles.

25. Two days after that offence, alleged offences are again captured on CCTV at 2:00 AM. There are others in the car. Those others are wearing gloves and hoodies and film what is happening. It is submitted that gangs gain notoriety by such actions.

26. During the next allegations in time, Greg is seen in a black hoodie, with his face covered and gloves on as he tries to gain entry.

27. CCTV footage of the 21 March 2023 allegations depict an arrest of Greg, him being charged, him being bail refused, and receiving a warning from the Police.

28. It is submitted by Mr Knight that the Police and Greg’s mother have warned him of gaol as a consequence for behaviours. This demonstrates Greg would have had the requisite knowledge to negate doli incapax. This is in addition to some of Greg’s actions before, during and after the alleged offending, also supporting knowledge.

29. Ms Just highlights Greg’s dysfunctional family. His father and brother are in gaol. Another older brother is a co-offender in some matters. Ms Just submits that Greg follows rather than leads. Further, she submits that secrecy, disguising, and hiding is ambiguous evidence.

30. Ms Just submits that the Court should focus on the legal test, the onus, and the standard.

Findings of fact relevant to the issue in dispute

1. Not much of the evidence is in dispute. The primary difference between the prosecution and defence pertains to inferences to be drawn and weight to be attached.

2. The evidence the prosecution rely upon must be clear evidence that Greg knew that his actions were wrong. If the evidence is ambiguous, then it is not sufficient to rebut the presumption.

3. Greg was aged 10 years and 5 months at the time of the first allegation.

4. Greg was 11 years at the time of the last allegation.

5. Greg’s home life can be broadly described as one of significant disadvantage. Greg’s father and brothers are in detention. Another older brother is a co-offender.

6. Greg is accustomed to a range of unlawful conduct by close family members and older members of his community.

7. The mother’s evidence regarding Greg knowing the difference between what’s seriously wrong and naughty is opinion evidence. The mother can give observational evidence but not inferences drawn from those observations.

8. The mother says that when Greg is confronted, he says he “doesn’t care.”

9. The mother’s teaching of right and wrong includes possible violent repercussions. This sits uncomfortably with developing moral reasoning.

10. Greg’s schooling is fragmented and marred by misbehaviours and suspensions, with limited or no appreciation of school rules.

11. The frequency and nature of offending, and the dramatic shift in behaviour of Greg as evidenced by Senior Constable Blackstone, shows some impairment of the mind. It was at the time of that changed behaviour that these offences are said to have occurred.

12. Greg’s cognitive reasoning and emotional intelligence is low. This is evidenced by Greg’s continued reaction of walking away, laughing inappropriately and making comments, such as to Youth Justice: “I'll be back soon, save my bed for me”. In addition, Greg lacks remorse, lacks empathy, and lacks respect for authority.

13. Greg is deficient in appreciating benefits to him to follow rules.

14. Conversely, he regards intended punishment as a reward.

15. Greg’s moral development has not even reached the first stage of fearing punishment if he does not follow the rules.

16. Greg is generally in company of older children, or encouraged by others, when committing acts. There is planning to various degrees, including others warning Greg of persons approaching.

17. Greg’s actions prior to, and at the time of the alleged offences include - attempts by Greg to conceal his identity by covering his face and by whispering, hiding, using gloves, and fleeing.

18. However, Greg’s other actions attract attention - such as breaking car windows for no explicable reason other than to draw attention to himself.

19. Greg’s actions after the alleged offences include lies, disposing and bragging.

The law applicable

Aged under 10

1. The common law has been modified in New South Wales by s 5 of the Children (Criminal Proceedings) Act 1987 (NSW). Section 5 provides a conclusive presumption that no child under the age of 10 years can be guilty of an offence: see Hodgson JA in BP v R; SW v R [2006] NSWCCA 172 at [27].

2. A conclusive, or irrebuttable presumption, cannot be challenged by contradictory facts or evidence.

Aged 10 to 14

1. For a child between 10 and 14 years there is a presumption that the child is doli incapax: see RP v The Queen (2016) 259 CLR 641 at 648.

2. This means that a child is presumed to be incapable of committing a crime because the child is not sufficiently intellectually and morally developed to appreciate the difference between right and wrong; and therefore, lacks the capacity for mens rea (guilty mind): see RP v The Queen (2016) 259 CLR 641 at [8].

3. The presumption of doli incapax is therefore not a defence; it is an element of the prosecution case.

4. To be criminally responsible the child must know that the act is seriously wrong as a matter of morality, according to the ordinary principles of reasonable persons, not that it is a crime or contrary to law: Stapleton v The Queen (1952) 86 CLR 358; The Queen v M (1977) 16 SASR 589.

5. This presumption is a rebuttable presumption. The Court must accept that the child lacks the capacity for mens rea as true - until evidence proves the contrary.

6. In short, a Court can reject a rebuttable presumption based on other evidence.

The test

1. The test whether the prosecution has rebutted the presumption of doli incapax is a subjective one in that it is concerned with the state of mind of the particular minor: see Hoeben CJ at CL in RH v DPP at [22].

2. In RP v The Queen (2016) 259 CLR 641 at 649 [9], what is spoken of is the child's actual knowledge.

3. Each case must be approached from the subjective circumstances of the child and not the presumed normal understanding of a child of a particular age.

4. Guilty knowledge must not be the mere proof of doing the act charged, however horrifying or obviously wrong the act may be: C v DPP at 38.

Evidence required by Prosecution

1. Evidence required to rebut the presumption that a child is doli incapax will vary according to the nature of the allegation and the particular child: RP v The Queen (2016) 259 CLR 641 at 650-651 [12].

2. Whilst guilty knowledge must not be the mere proof of doing the act charged, there should not be a narrow view taken on what are circumstances of the offence that can operate as evidence to rebut doli incapax: see Hodgson JA in BP v R; SW v R [2006] NSWCCA 172.

3. It is for the Prosecution to rebut the presumption by proving beyond reasonable doubt that the child was sufficiently developed to know that their physical acts of the offences charged were seriously wrong in a moral sense by normal adult standards.

4. The prosecution must point to evidence from which an inference can be drawn beyond reasonable doubt that the child's development is such that he or she knew that it was morally wrong to engage in the conduct.

5. In RP v R [2015] NSWCCA 215, Johnson J at [5] held that:

the doli incapax issue will be considered in the context of the developing understanding of a child which takes into account the child's previous acts, knowledge and experiences.

1. This directs attention to the child's education, including intellectual development and environment in which the child has been raised, including their moral development: see AL v The Queen [2017] NSWCCA 34.

2. The development in question is the intellectual and moral development of the child: see RP v The Queen [2016] HCA 53 at 651 [12].

3. As to intellectual development, in RP v R [2015] NSWCCA 215 at [159] Hamill J recognised that:

evidence supported that the Applicant was of very low intelligence and possessed a lesser appreciation of the seriousness of his conduct.

1. Moral development involves the progress of what is right and wrong to more complex ways of distinguishing the difference. In EL v R [2021] NSWDC 585, Mahony SC DCJ noted at [171] (quoting “Proving the Criminal Responsibility of Children: RP v The Queen” authored by Mr H Dhanji SC (as his Honour then was), Ms J Roy and Ms S McLaughlin (as her Honour then was)):

Knowing that something is “seriously wrong” has been defined as involving “more than a childlike knowledge of right and wrong, or a simple contradiction. It involves more complex definitions of moral thought involving the capacity to understand the event, the ability to judge whether their actions were right or wrong (moral sophistication), and an ability to act on that moral knowledge.” 

1. At common law, conduct by a party (such as lies and flight) where it could amount to consciousness of guilt, is admissible to prove that guilt: Edwards v The Queen (1993) 178 CLR 193.

2. In BP v R; SW v R [2006] NSWCCA 172, Hodgson JA said at [29]:

The circumstances of the offence, such as concern to avoid detection, may be some evidence of knowledge; although, if the concern is consistent with the child thinking that the act is merely naughty, this will carry little weight.

Decision: integrating the facts and law

1. What Greg said or did before, during or after the act may go to prove his guilty mind.

2. Attempts by Greg to conceal his identity, dispose of property, lying, apologising and flight may be evidence of knowledge that his actions are seriously wrong but they are also consistent with Greg thinking that his acts are naughty. It is for the Prosecution to exclude all reasonable hypotheses.

3. It is for the Prosecution to rebut the presumption that Greg was not sufficiently developed to know that his acts were seriously wrong in a moral sense.

4. The mother’s evidence of Greg knowing the difference between what’s seriously wrong and naughty is opinion evidence. The mother can give observational evidence but not inferences drawn from those observations.

5. The mother makes constant references to Greg saying he “doesn’t care.” This may equate to Greg’s lack of knowledge and be reflective of a disadvantaged background and fractured schooling.

6. Greg is exposed to a range of unlawful conduct. This may mean such behaviour is normalised and Greg may not appreciate the moral wrongness of the conduct that he either participates in or imitates.

7. Greg’s moral development has not reached the fearing of punishment stage. Conversely, Greg appears to regard intended punishment as a reward.

8. It is for the Prosecution to rebut the presumption by proving beyond reasonable doubt that Greg was sufficiently developed to know that his acts were seriously wrong in a moral sense - by normal adult standards.

ORDERS

1. The prosecution has failed to rebut the presumption of doli incapax beyond reasonable doubt, the prosecution has failed to establish an element of the offence and Greg is found not guilty.

2. Each matter is dismissed.

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Amendments

23 October 2023 - Word 'knifes' changed to 'knives' at [6]

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