BP v The Queen

Case [2006] NSWCCA 172

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      BP v. Regina, SW v. Regina [2006]  NSWCCA 172

FILE NUMBER(S):
2005/1956
2005/1957

HEARING DATE(S):               10 May 2006

DECISION DATE:     01/06/2006

PARTIES:
BP - appellant
SW - respondent
Regina - respondent

JUDGMENT OF:       Hodgson JA Adams J Johnson J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC04/31/0032, DC04/31/0033

LOWER COURT JUDICIAL OFFICER:     Freeman DCJ

COUNSEL:
Mr. M. Austin for BP
Mr. R. Button SC for SW
Mr. D. Frearson for respondent Crown

SOLICITORS:
Many Rivers ALS Newcastle for appellants
S. Kavanagh, Solicitor for Public Prosecutions, for respondent

CATCHWORDS:
CRIMINAL LAW
APPEAL AGAINST CONVICTION - Appellants aged 11 and 12 at time of alleged offences - Doli incapax - Need for prosecution to prove beyond reasonable doubt that child between 10 and 14 knew that what he or she was doing was seriously wrong, not merely naughty or mischievous - Whether directions adequate - Whether jury's verdict reasonable.

LEGISLATION CITED:

DECISION:
1.  Appeal of BP dismissed.
2.  Appeal of SW dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2005/1956
CCA 2005/1957
DC 04/31/0032
DC 04/31/0033

HODGSON JA
ADAMS J
JOHNSON J

Thursday 1 June 2006

BP V. REGINA
SW V. REGINA

Judgment

  1. HODGSON JA:  On 30 August 2004, the appellants BP and SW appeared before Freeman DCJ on an indictment containing four counts, each relating to events that took place at Kempsey on 5 November 2003.  Each count was to the effect that the person or persons charged did have sexual intercourse with LD without her consent knowing that she was not consenting in circumstances of aggravation, namely being in the company of another person.  The counts related to two incidents of alleged sexual activity:  the third and fourth counts related to the first-occurring incident, which occurred on a grassed area near an oval at Kempsey; and the first and second counts related to the second-occurring incident, which occurred behind a nearby tree.

  2. The first count charged both BP and SW, and was based on an allegation of digital penetration.  The second count also charged both BP and SW, and was based on an allegation of penile/vaginal intercourse.  The third count charged BP alone, and was based on an allegation of digital penetration.  The fourth count charged SW alone, and was based on an allegation of digital penetration. 

  3. The appellants pleaded not guilty to all counts, and a trial proceeded before a jury.

  4. On 3 September 2004, the jury returned the following verdicts:  on the first count, both not guilty; on the second count, BP guilty of sexual intercourse without consent simpliciter, SW not guilty; third count, guilty; and fourth count, guilty. 

  5. Subsequently the following sentences were imposed.  As regards BP, on the count involving digital penetration, the trial judge deferred passing sentence upon him entering into a three year bond, with various conditions; and on the count involving penile penetration, the trial judge sentenced him to 3 years’ imprisonment, with a non-parole period of 12 months.  As regards SW,…

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AGLC
BP v The Queen [2006] NSWCCA 172
Case
[2006] NSWCCA 172
Decision Date

CaseChat Overview and Summary

In the case of BP v The Queen, the appellants, who were aged 11 and 12 at the time of the alleged offences, challenged their convictions before the court. The primary legal issue revolved around the doctrine of doli incapax, which required the prosecution to prove beyond reasonable doubt that a child between 10 and 14 knew that their actions were seriously wrong, rather than merely naughty or mischievous. The appellants argued that the trial judge's directions to the jury were inadequate in this regard, and that the jury's verdict was unreasonable given the appellants' ages and the circumstances of the case.

The court considered the submissions made by the appellants' legal representatives, who argued that the jury could not reasonably have been satisfied beyond reasonable doubt that the appellants knew the seriousness of their actions. They highlighted the appellants' ages, the actions of the older appellant in leading the events, and the younger appellant's apparent lack of understanding of the gravity of the situation. The court also examined the evidence presented to the jury, including the testimony of a witness who concluded that the younger appellant had some understanding of appropriate and inappropriate sexual behaviour, which the appellants' representatives argued did not support a finding that he knew what he did was seriously wrong.

The court found that there was no specific form of words required in the judge's directions on the issue of doli incapax, as long as the jury was adequately informed that the prosecution needed to prove the accused's knowledge of the seriousness of their actions. The court held that the judge's directions were sufficient in this respect, and that the lack of specific reference to the factual issues in relation to doli incapax was not an error that would give rise to a miscarriage of justice. The court also concluded that the police officer's statement, which was not referred to in the summing up, was of no weight in establishing the appellants' knowledge of the seriousness of their actions.

In summary, the court dismissed the appellants' appeal against conviction, finding that the trial judge's directions to the jury were adequate and that the jury's verdict was reasonable in light of the evidence presented. The court did not find any errors in the trial judge's handling of the doli incapax issue that would warrant overturning the appellants' convictions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr. Button further submitted that, in the circumstances, the jury could not reasonably have been satisfied, to the requisite standard, that SW knew that the act constituting count 4 was seriously wrong. He was only 11 years old at the time. BP was the moving party with regard to the whole incident. SW was laughing at the time. When told what he was doing was wrong, he desisted. At the time of the incident behind the tree, SW was childishly running back and forth and peeking at them. Afterwards, he was crying with regard to a missing $10 note. Further, SW remarked that BP could be in trouble, but said nothing about possible consequences for himself. He put his hand over LD’s mouth at the request of BP. The evidence of Ms. Liva, concluding that he had some understanding of the difference between appropriate and inappropriate sexual behaviour, did not support a finding that he knew what he did was seriously wrong. DECISIONS On Mr. Button’s first submission, in my opinion there is no clearly established form of words that must be used in a direction on this question. What is important is to bring home to the jury that the Crown must prove beyond reasonable doubt that the accused, at the time of doing the act, knew it was seriously wrong, and not mere naughtiness or mischief. In this summing up, I do not think the reference to “crime” was such as to divert the jury’s attention from the essential question, which in my opinion was sufficiently indicated in the directions. In my opinion, this view is confirmed by the circumstance that no objection was taken to the summing up at the time. As regards Mr. Austin’s submission for BP, I note that no complaint is made on appeal about the judge’s directions on facts generally. The complaint that is made is that the summing up did not relate the factual issues to the issue concerning doli incapax. In my opinion, it was not an error not to do so, and certainly not an error such as would give rise to a miscarriage of justice. The trial judge did not direct the jury that the evidence of Ms. Dockrill on its own was sufficient. Rather, he said that the Crown relied on the act itself, and on Ms. Dockrill; and in my opinion, that reference to “the act itself” was apt to direct the jury’s attention to factors such as those referred to in par.[30] above. Again, in my opinion it is of some significance that no complaint about this direction was made at the trial. Mr. Button’s submissions for SW on the second ground of appeal raises more difficult questions. Certainly, the Crown case on the issue of doli incapax was less strong against SW than against BP. I would comment at once that the statement to the police officer should be considered as of no weight. It was not in fact referred to in the summing up, although it had been relied on in the Crown’s address to the jury. In my opinion, it was wrong for the police officer to seek an admission as to an element which the prosecution had to prove, after SW said he did not want to talk to the police. Further, the assent to the proposition that something was “wrong”, put to SW by the police after his arrest, was in my opinion of no value in establishing that, at the time of the events, SW knew what he did was seriously wrong rather than merely naughty or mischievous.

Ratio Decidendi

Legal Principle Established

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