Director of Public Prosecutions v PM

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0260

DIRECTOR OF PUBLIC PROSECUTIONS	Crown
v
PM	Accused

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JUDGE:	Incerti J
WHERE HELD:	Melbourne
DATE OF HEARING:	25–28, 31 July, 1–4, 8–10, 17–18 August 2023
DATE OF VERDICT:	20 September 2023
CASE MAY BE CITED AS:	DPP v PM
MEDIUM NEUTRAL CITATION:	[2023] VSC 560

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CRIMINAL LAW – Trial by judge alone – Murder – Complicity – Deceased died as a result of multiple stab wounds during group attack – CCTV of attack available – Accused 13 at time of alleged offending – Accused did not stab the deceased but participated in the attack by kicking and stomping – Trial severed from co-accused – Presumption of doli incapax – Whether accused knew his conduct was seriously wrong in a moral sense – Consideration of moral development of a child – Expert psychiatric and psychological evidence – RP v The Queen (2016) 259 CLR 641 – BDO v The Queen [2023] HCA 16 – Crimes Act 1958 (Vic) s 324 – Children, Youth and Families Act 2005 (Vic) s 534.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms K Churchill with Mr J Manning	Office of Public Prosecutions
For the Accused	Ms S E Lacy with Ms D Price	Stary Norton Halphen

TABLE OF CONTENTS

Summary.............................................................................................................................................. 1

Introduction........................................................................................................................................ 3

Procedural history.............................................................................................................................. 4

Judge alone trial principles.............................................................................................................. 5

Evidence............................................................................................................................................... 8

Elements of the offence..................................................................................................................... 9

The Law of Doli Incapax................................................................................................................ 12

What needs to be proved?......................................................................................................... 14
What must the knowledge relate to?........................................................................................ 19
Factors relevant to rebutting the presumption....................................................................... 21

The circumstances of the alleged offending............................................................................... 23

The ‘first wave’ of the attack..................................................................................................... 26
The ‘second wave’ of the attack................................................................................................ 28
Autopsy........................................................................................................................................ 28
Events following the attack on the deceased.......................................................................... 29
Arrest............................................................................................................................................ 30

PM’s social development, upbringing and family environment........................................... 30

PM’s education................................................................................................................................. 31

PM’s prior interactions with the criminal justice system........................................................ 32

Expert evidence................................................................................................................................. 41

Dr Owen....................................................................................................................................... 42
Ms Cidoni..................................................................................................................................... 59
Dr Singh........................................................................................................................................ 77
Ms Scott........................................................................................................................................ 97
Conclusions as to the expert evidence................................................................................... 106

Doli incapax.................................................................................................................................... 110

Prosecution submissions.......................................................................................................... 110
Defence submissions................................................................................................................. 119
Consideration............................................................................................................................ 126

Conclusion and verdict................................................................................................................. 143

HER HONOUR:

Summary

On 12 March 2022, Declan Cutler also known by his nickname DJ, went to a party in Reservoir with his friends. Declan was 16 years old.

On that same night, the accused, PM,[1] was with a group of seven other boys including his older brother. PM was the youngest of the eight boys being 13 years and three weeks old at the time. The eldest member of the group was 17 years old.
[1]A pseudonym, pursuant to Children, Youth and Families Act 2005 (Vic), s 534.

One of Declan’s friends, who was with him at the party, was known to be associated with a group from Heidelberg. This same friend was in conflict with a group from the western suburbs. Declan did not know PM or any of the other seven boys.

In the early hours of 13 March 2022, Declan and his two friends left the party on foot. Shortly after leaving the party, Declan and his friends were approached by a car, a stolen Mazda, carrying PM and the other seven boys. Some of those boys were said to be in conflict with Declan’s friend. Upon seeing Declan and his friends, four of the boys got out of the Mazda and ran towards Declan and his friends, who all managed to run away.

Very shortly after, at 2:28am on 13 March 2022, Declan entered Horton Street from Elizabeth Street, Reservoir. He was walking alone when the Mazda entered the street. Closed-circuit television footage (‘the CCTV footage’) depicts the Mazda stopping near Declan, who turns and faces the Mazda before all eight boys hurtle out of the vehicle and quickly move towards him.[2]
[2]Tendered as Exhibit P66.

Declan is subsequently attacked and killed by the group of eight boys. The entire attack is captured on the CCTV footage and lasts approximately two minutes. The CCTV footage emits no sound but screams of horror. In approximately two minutes, Declan is repeatedly stabbed and kicked and stomped on. Autopsy results found Declan suffered 66 blunt force injuries to his face and limbs, 56 sharp force injuries, comprising 29 stab wounds, 27 incised wounds, and 30 puncture wounds. The cause of death was from four of the stab wounds to his chest.

PM did not stab Declan. He did however repeatedly kick and stomp on Declan. This occurred while Declan was being stabbed by some of the other boys.

PM is charged with murder by complicity. His trial has been heard separately from the other seven boys alleged to have been involved in Declan’s death.

In this case, there has been little evidence about Declan, other than the fact that he went to a party, as teenagers do, left the party with his friends and the circumstances of how he died. Declan was alone and unarmed when he was set upon, and he was utterly defenceless against the group of eight boys. Declan was entitled to feel safe leaving the party.

The age of criminal responsibility in Victoria is 10 years. When a child is over ten but under 14 years old, as PM was at the time of Declan’s death, the common law presumes that the child lacks the capacity to be criminally responsible for their actions. This rule is known as doli incapax (meaning, incapable of crime).[3] To rebut the presumption, the prosecution must prove that at the time of the offence the child knew that their actions were seriously wrong in a moral sense. The prosecution bears a heavy burden when prosecuting children. It must be emphasised that the starting point is that a child under 14 years is presumed in law incapable of bearing criminal responsibility for their acts.
[3]R v AHL (2003) 6 VR 276, [75].

I have approached this case by determining the question of doli incapax first, rather than the other elements of murder by complicity. The evidence relevant to determining if the presumption of doli incapax has been rebutted beyond reasonable doubt focused on PM’s life, his family background, his upbringing, schooling, his development, his prior interface with the criminal justice system and expert opinions about PM’s intellectual and moral development. In addition, there was careful consideration of PM’s actual conduct captured on the CCTV footage and the circumstances surrounding the attack on Declan.

I have had regard to the extremely serious nature of the allegation of murder by complicity and the disturbing nature of PM’s conduct.

A review of the evidence in its entirety leaves open a reasonable possibility that at the time of the offence, PM did not know that his conduct was seriously wrong in a moral sense. Although the evidence suggests that PM had a wide range of opportunities for learning, the evidence of his capacity and cognitive development means that he had not necessarily gained the requisite knowledge.

In all the circumstances, I find the prosecution has not rebutted the presumption of doli incapax beyond reasonable doubt. As such, this leads to the conclusion that PM cannot be found guilty of murder and the alternative charge of manslaughter.

I therefore find PM not guilty of murder and not guilty of the alternative charge of manslaughter.

Introduction

PM is charged with the murder of Declan Cutler (‘the deceased’) on 13 March 2022.

The deceased died from ‘stab wounds to the chest’ following an attack on him by eight individuals in a suburban street in Reservoir, Victoria.[4] The fatal assault on the deceased was captured on the CCTV footage.[5] The attack involved the use of four knives by five individuals.
[4]Exhibit P1, [111].
[5]Tendered as Exhibit P66.

PM was born on 20 February 2009 and was aged 13 years and three weeks at the time of the alleged offence on 13 March 2022. PM accepts that he is depicted kicking and stomping on the deceased in the CCTV footage of the attack.[6] It is not alleged that PM used a knife in the attack.[7] Instead, the prosecution contends that PM is guilty of murder on the basis of complicity. In particular, the prosecution puts its case against PM pursuant to s 323(1)(c) of the Crimes Act 1958 (Vic) (‘Crimes Act’).
[6]Exhibit P1, [13].
[7]Ibid [71].

Sections 323 to 325C of the Crimes Act provide a statutory codification of complicity. Section 324(1) provides that a person who is ‘involved in the commission of an offence is taken to have committed the offence and is liable to the maximum penalty for that offence’. Section 323(1)(c) provides that a person is ‘involved in the commission of an offence’ if he or she ‘enters into an agreement, arrangement or understanding to commit the offence’.

Furthermore, as PM was under the age of 14 at the time of the alleged offending, the presumption of doli incapax applies.

PM’s trial proceeded by judge alone in accordance with the temporary arrangements for trial by judge alone contained in Ch 9 of the Criminal Procedure Act 2009 (Vic) (‘Criminal Procedure Act’).

Procedural history

On 6 October 2022, PM was committed to stand trial for murder by the Children’s Court of Victoria, along with his seven co-accused.

On 7 October 2022, PM made an application for trial by judge alone pursuant to s 420D(2)(b) of the Criminal Procedure Act. Between 7 and 10 October 2022, each of PM’s co-accused also filed an application for trial by judge alone.

On 11 October 2022, indictment C2215271 was filed charging PM and each of his co-accused with the murder of the deceased.

On that same day, the Court granted the application for a trial by judge alone ordering pursuant to the Criminal Procedure Act s 420E(1), the charge of murder alleged against each of the accused is to be heard and determined by judge alone and fixing the date for trial for 19 June 2023.[8]
[8]See Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Act2022 (Vic) s 3, which inserted Ch 9 into the Criminal Procedure Act 2009 (Vic). Section 420E of the Criminal Procedure Act 2009 (Vic) specified an order may be made for trial by judge alone if a pandemic order is in force. A pandemic order was in force as at 11 October 2022.

For numerous reasons, which were not the fault of any party, the commencement of a joint trial was delayed on a number of occasions.

At a hearing on 20 July 2023, it became clear there would be further delays to the possible start date for any joint trial. Consequently, the prosecution indicated that it would file a fresh indictment in relation to PM so that his trial could be heard separately from the other co-accused.

A fresh indictment, N10577110, was filed on 20 July 2023 naming only PM.[9]
[9]This fresh indictment did not commence a new criminal proceeding and PM’s trial could still proceed by judge alone in accordance with the Court’s order of 11 November 2022: DPP v SA & Ors [2023] VSCA 145.

PM’s trial commenced on 25 July 2023 where he was arraigned, and he pleaded not guilty to the charge of murder.

Judge alone trial principles

In October 2022, when PM made application for a judge-alone trial, provision for criminal matters to be heard in this Court by a judge sitting alone existed by virtue of Ch 9 of the Criminal Procedure Act. While those provisions are now repealed, in this case, I am to apply Ch 9 as it was in force immediately before its repeal.[10]
[10]See Criminal Procedure Act 2009 (Vic) s 461.

I may make any decision which could have been made by a jury and my decision has the same effect as a jury verdict.[11]
[11]Ibid s 420F.

Section 4A of the Jury Directions Act 2015 (Vic) (‘Jury Directions Act’) applies to this case.[12] This means that my reasoning with respect to any matter to which Parts 4, 5, 6 or 7 of the Jury Directions Act applies must be consistent with how a jury would be directed according to the Jury Directions Act. Similarly, I must not accept, rely on, or adopt a statement, suggestion or direction that Parts 4, 5, 6 or 7 of the Jury Directions Act prohibit a trial judge from making or giving a jury.[13]
[12]Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Act2022 (Vic) s 420ZF.
[13]Ibid s 420ZF; Jury Directions Act 2015 (Vic) s 4A (‘Jury Directions Act’). See Makeham v Sheppard [2020] VSCA 242 for the operation of s 4A of the Jury Directions Act in the context of the Magistrates’ Court of Victoria.

Part 3 of the Jury Directions Act concerning requests for directions does not apply to judge alone trials. Nevertheless, counsel addressed me at the conclusion of evidence on the directions and principles to which I should, and have had, particular regard.[14]
[14]See T666–T711.

The onus of proof is on the prosecution and the accused comes to this Court with the presumption of innocence in his favour. The accused is regarded as innocent unless and until the prosecution has proved his guilt beyond reasonable doubt. To do so, the prosecution must prove each of the elements of the relevant offence beyond reasonable doubt.[15] The prosecution does not need to prove every fact that it alleges to this standard; however, facts must be clearly proved before they can be treated as established.[16]
[15]Jury Directions Act ss 61–62.
[16]R v Dickson [1983] 1 VR 227, 235 (Starke ACJ, Crockett and McGarvie JJ); R v Van Beelen (1973) 4 SASR 353, 374–80 (Bray CJ, Mitchell and Zelling JJ).

In this case there was a combination of direct and circumstantial evidence. Where, as here, a case rests substantially on circumstantial evidence a verdict of guilty cannot be returned unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the accused’s guilt. I therefore cannot be satisfied of PM’s guilt unless his guilt is the only reasonable inference that the circumstances of the case would enable me to draw.[17] For an inference to be reasonable, it must rest upon something more than mere conjecture. All the circumstances established by the evidence are to be considered and weighed in deciding whether an inference consistent with innocence is reasonably open. The evidence cannot be considered in a piecemeal fashion.[18]
[17]R v Baden-Clay (2016) 258 CLR 308, 323 [46]–[47] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
[18]Ibid 323 [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ).

I must consider all the evidence and decide the facts of the case. I must then apply the law to the facts I have found to determine whether the accused is guilty or not guilty of the offence charged.

To decide what the facts are in this case, I must assess the credibility and reliability of the witnesses who gave evidence. It is for me to decide whether a witness’ evidence is to be believed and the weight which should be attached to any evidence.

No adverse inference may be drawn from the fact that PM chose not to give evidence at trial.[19]
[19]Jury Directions Act, s 41.

The expert evidence in this case is to some extent disputed. As a starting point, if expert evidence is undisputed, I must have a very good reason not to accept it. A very good reason includes: the facts underlying the opinion not being present; the process of reasoning leading to the opinion being unsound; or a factor that casts doubt on the validity of the opinion.[20]
[20]Taylor v R (1978) 22 ALR 599; R v Matusevich & Thompson [1976] VR 470; R v Matheson [1958] 1 WLR 474; R v Hilder (1997) 97 A Crim R 70; R v Klamo (2008) 18 VR 644.

However, the mere resolution of disputes about the conclusions of the expert evidence does not itself determine whether the relevant elements have been proved and I must independently consider the entire body of evidence. Furthermore, it is not necessary that I accept the evidence of the expert witnesses called by PM to find PM not guilty and, even if I prefer the evidence of the prosecution expert, I must acquit PM if the evidence gives rise to a reasonable doubt.

In this case there is a body of evidence introduced for the purposes of the issue of doli incapax, which included PM’s ‘no comment’ record of interview with police on 23 March 2022. The right to remain silent is a fundamental right at common law,[21] and no adverse inference may be drawn from PM’s ‘no comment’ answers.[22] However, PM’s conduct during the police interview is relevant to this Court’s assessment of PM’s cognitive development and capacity for moral reasoning.[23]
[21]See Judicial College of Victoria, Criminal Charge Book [4.15]; Petty v R (1991) 173 CLR 95.
[22]Evidence Act, s 89.
[23]Jury Direction Act, s 27.

The prosecution also submits that a number of statements made by PM to Ms Cidoni should be treated as admissions. Before I can treat these statements as admissions, I must be satisfied that PM made the alleged statements and, secondly, I must accept that PM’s alleged statements were truthful. A number of the statements made to Ms Cidoni were the subject of a statement of agreed facts. I therefore can readily accept that they were made.[24]
[24]Evidence Act, s 191.

There is also some evidence suggesting that PM was intoxicated at the time of the fatal assault on the deceased. The fact of his intoxication does not give rise to any specific defence or excuse. However, I acknowledge that, if I am satisfied that PM was intoxicated, his intoxication may be relevant to my assessment of some matters such as whether he formed the requisite intent.[25]
[25]See Judicial College of Victoria, Criminal Charge Book [8.7].

Evidence

At trial the prosecution called the following witnesses to give viva voce evidence:

(a) TW,[26] the leader of wellbeing at the secondary college where PM was enrolled from the start of 2021;
[26]A pseudonym, pursuant to Children, Youth and Families Act 2005 (Vic), s 534.

(b) Leading Senior Constable Gavin Williams (‘LSC Williams’), a member of the North West Metro Division 4, Proactive Policing Unit, who had interactions with PM and his family;

(c) Detective Senior Constable Brendon Stack (‘DSC Stack’), the informant in this matter; and

(d) Dr Karen Owen (‘Dr Owen’), a clinical and forensic psychologist.

The defence called four witnesses to give viva voce evidence:

(a) Ms Louise Conwell (‘Ms Conwell’), partner of Stary Norton Halphen criminal lawyers and PM’s solicitor from March 2021;

(b) Dr Yolisha Singh (‘Dr Singh’), a child and adolescent forensic psychiatrist;

(c) Ms Gina Cidoni (‘Ms Cidoni’), a clinical and forensic psychologist; and

(d) Ms Laura Scott (‘Ms Scott’), a clinical neuropsychologist.

The point is worth making at this earlier stage, that the Court had access to quality expert assessments and evidence.

The police statement of R[27] was also read into evidence.
[27]A pseudonym, pursuant to Children, Youth and Families Act 2005 (Vic), s 534.

In addition, the parties provided three statements of agreed facts.[28] The first in relation to the circumstances of the alleged offending, the second in relation to the issue of doli incapax and the third in relation to statements PM made to Ms Cidoni.[29]
[28]Evidence Act 2008 (Vic) s 191.
[29]Exhibit P1; P3; P89.

There was a large volume of documentary and audio-visual evidence tendered throughout the course of trial, primarily relating to the issue of doli incapax. Transcripts were provided for some of the audio-visual evidence. I note that the videos themselves are the only evidence. The transcript is just an aid and if what I read in the transcript differs from what I hear or see, I am to use what I hear or see not what is in the transcript.

Elements of the offence

PM is charged with murder. As discussed, the prosecution alleges that PM is liable for the offence of murder on the basis of complicity in the commission of the offence under Div 1 of Pt 2 of the Crimes Act.

Pursuant to s 324(1), a person who is involved in the commission of the offence is taken to have committed the offence. In this case, the prosecution relies upon s 323(1)(c) which provides that a person is involved in the commission of an offence if the person ‘enters into an agreement, arrangement or understanding with another person to commit the offence’.

In particular, the prosecution put their case against PM on the basis that he participated in an agreement, arrangement or understanding to attack the deceased with the joint intention to at least cause really serious injury or death.

Proof of complicity requires proof that a person committed the offence charged. In the context of group offending, such as this case, the prosecution must also prove that the commission of the offence occurred in accordance with, or within the scope of, the agreement, arrangement or understanding to which the accused was a party.

Pursuant to s 323(1)(c), offending as part of a group requires proof of four elements, that:

(1) two or more people reached an agreement, arrangement or understanding to commit an offence, which remained in existence at the time the offence was committed (‘agreement, arrangement or understanding’); and

(2) the accused had the state of mind required for the commission of the relevant offence at the time of entering into the agreement (here, ‘intention’); and

(3) the accused engaged in an overt act to support or participate in the agreement (‘participation’); and

(4) in accordance with the agreement, one or more parties to the agreement performed all the acts necessary to commit the offence charged, in the circumstances necessary for the commission of that offence (‘commission of the offence’).

Both parties addressed me on the element of participation. However, during closing submissions the prosecution identified that — at some point during the trial — the Judicial College of Victoria’s Criminal Charge Book was amended to remove the reference to participation as an element of an offence by way of statutory complicity under s 323(1)(c).[30] This was done following the Court of Appeal’s decision of DPP v Gebregiorgis,[31] where the Court of Appeal made no reference to participation when discussing what needs to be proved for the purposes of s 323(1)(c). In the circumstances of that case there was no issue as to the participation of the accused and the Court of Appeal was concerned with a question — in a case stated — directed to the content of an agreement, arrangement or understanding for the purposes of the offence of murder. I do not consider the Court to have implicitly found that previous decisions identifying that participation remains an element to an offence pursuant to s 323(1)(c) were incorrect.[32]
[30]T736.5–12.
[31][2023] VSCA 166.
[32]See, eg, R v Semaan(Ruling 7) [2016] VSC 170.

Thus, for the offence of murder by complicity, the necessary elements that the prosecution must prove beyond reasonable doubt are that:

(1) PM entered into an agreement, arrangement or understanding with another to cause really serious injury or death to the deceased and that agreement, arrangement or understanding remained in existence at the relevant time; and

(2) at the time of entering into the agreement, arrangement or understanding PM had the requisite mens rea for murder — an intention to cause really serious injury or death; and

(3) PM acted in furtherance of the alleged agreement, arrangement or understanding; and

(4) in accordance with that agreement, arrangement or understanding one or more of the parties to the agreement, arrangement or understanding formed all the acts necessary to commit murder (‘commission of murder’).

It was accepted that if I find that PM did not enter into an agreement, arrangement or understanding to kill or cause really serious injury, or did not have the requisite intention for murder, then I must turn to consider the statutory alternative of manslaughter by unlawful and dangerous act.

Further, as PM was under the age of 14 at the time of the alleged offending the presumption of doli incapax applies in this case.

The Law of Doli Incapax

The High Court in RP v The Queen has confirmed the common law presumption that a child under 14 years lacks the capacity to be criminally responsible for their acts.[33] The child is said to be doli incapax, meaning ‘incapable of crime’.[34]
[33]RP v The Queen [2016] HCA 53; 259 CLR 641, [4] (‘RP’).
[34]R v AHL (2003) 6 VR 276, [75].

In Victoria it is conclusively presumed that a child under 10 years of age cannot commit an offence.[35] This minimum age of criminal responsibility is consistent with all other Australian jurisdictions.
[35]Children Youth and Families Act 2005 (Vic), s 344.

The legislature in Victoria has not otherwise interfered with the common law position. The result is that in Victoria, the common law rebuttable presumption of doli incapax is applied to children between 10 and 13 years of age inclusive.[36]
[36]R v AHL (2003) 6 VR 276 (‘AHL’) at 20, 24, 87.

It is a fundamental premise of the criminal law that unless a person has the capacity to freely choose to do something they understand to be wrong, they should not be liable to conviction and punishment in criminal proceedings. Children lack this ability, but gradually develop it as they grow up. The law prevents prosecution of young children under 10 years but allows prosecution of older children where there is proof that they are sufficiently developed to understand the wrongfulness of their behaviour.[37]
[37]See, eg, Thomas Crofts, ‘Prosecuting Child Offenders: Factors Relevant to Rebutting the Presumption of Doli Incapax’ (2018) 40(3) Sydney Law Review 339.

In RP, the High Court faced the question of whether sufficient proof had been brought to rebut the presumption of doli incapax in a case involving a boy aged 11 years and six months accused of committing sexual offences against his younger brother. In finding that there had not been sufficient proof, the Court made some important observations about the operation of the presumption of doli incapax.

The plurality explained that the common law presumes that a child under 14 years lacks the capacity to be criminally responsible for their acts. The rationale for the presumption of doli incapax is the view that a child aged under 14 years is not sufficiently intellectually and morally developed to appreciate the difference between right and wrong and thus lacks the capacity for mens rea.[38] The plurality of the Court stated:

From the age of 10 years until attaining the age of 14 years, the presumption may be rebutted by evidence that the child knew that it was morally wrong to engage in the conduct that constitutes the physical element or elements of the offence. Knowledge of the moral wrongness of an act or omission is to be distinguished from the child’s awareness that his or her conduct is merely naughty or mischievous.[39] This distinction may be captured by stating the requirement in terms of proof that the child knew the conduct was ‘seriously wrong’ or “gravely wrong”.[40] No matter how obviously wrong the act or acts constituting the offence may be, the presumption cannot be rebutted merely as an inference from the doing of that act or those acts.[41]

[38]RP, [4], [8].

[39]C v DPP [1996] AC 1, 38; BP v The Queen [2006] NSWCCA 172, [27]–[28].

[40]R v Gorrie (1918) 83 JP 136; C v DPP [1996] AC 1, 38; Archbold: Criminal Pleading, Evidence & Practice, (1993), vol 1 at 52 [1–96].

[41]R v Smith (Sidney) (1845) 1 Cox CC 260 per Erle J; C v DPP [1996] AC 1, 38; BP v The Queen [2006] NSWCCA 172, [29]; R v T [2009] AC 1310, 1331 [16].

Justice Gageler, in a separate judgement, said:

Doli incapax – incapacity for crime – is a common law presumption in the same way as innocence is a common law presumption. To establish that a child under the age of 14 years has committed an offence in a jurisdiction in which the common law presumption continues to apply, the prosecution must prove more than the elements of the offence. The prosecution must prove beyond reasonable doubt that the child understood that the child’s conduct which constituted the offence was seriously wrong by normal adult standards.[42]

[42]RP, [38].

Whilst restating the existing law, the decision in RP is useful in its statement of the principles, its emphasis on the moral quality of what is to be proved and the need for evidence to be adduced to prove it.

The onus is on the prosecution to rebut the presumption of doli incapax. It is not a defence in the sense that it must neither be raised nor proven by an accused. Accordingly, the prosecution must bring evidence to rebut the presumption to the criminal standard of beyond reasonable doubt, alongside proof of all the elements of the offence.[43]
[43]This is so notwithstanding Jury Directions Act 2015 (Vic) s 61.

What needs to be proved?

If the presumption of doli incapax applies, the prosecution must prove beyond reasonable doubt that when doing the act charged, the child knew that their conduct was seriously wrong in a moral sense. An understanding that something is seriously wrong in a moral sense has been distinguished from acts of mere naughtiness or mischievousness.[44] While the test is simply stated, it is difficult in application.
[44]BP v The Queen [2006] NSWCCA 172 (1 June 2006), [27]; RP; R v ALH (2003) 6 VR 276; R v M (1977) 16 SASR 589.

In RP, the High Court made it clear that the test is directed to ‘knowledge of moral wrongness’.[45] Although not new, this emphasis is an important part of the decision in RP. A child’s acknowledgement that they understood that an act was ‘seriously wrong’ will not, of itself, provide an indication that the child appreciated the moral wrongness of the act or omission. The child might view conduct as ‘seriously wrong’ in the sense that they are likely to be in trouble if caught, without the requisite understanding of the act for the purposes of moral wrongfulness. Furthermore, focusing on the child’s belief that the act was more than mischievous, or naughty may obscure what it is that must be established.
[45]RP, [9].

The most recent High Court case to consider doli incapax, BDO v R,[46] dealt with Criminal Code Act 1899 (Qld) s 29(2), which provides that:

A person under the age of 14 years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission the person had capacity to know that the person ought not to do the act or make the omission.

Thus, while the common law focuses on a child’s actual knowledge of the moral wrongness of their action, that provision focuses on the child’s ‘capacity to know’ that they ought not engage in the conduct in question.

[46][2023] HCA 16, [23] (‘BDO’).

Despite the differences between the legal tests in Victoria and Queensland, the High Court in BDO made the following helpful observations about the principle of doli incapax at common law:

Capacity to know and knowledge
The requirement of the common law that it be shown that the child had knowledge of the moral wrongness of an act or omission, before the presumption can be rebutted, is not new. Drawing on what Bray CJ discussed in R v M, the plurality in RP v The Queen held that the nature of the knowledge on the part of the child necessary to rebut the presumption is that an act is wrong according to the standards or principles of reasonable people. The standard, obviously enough, is that of an adult person. …
The plurality in RP v The Queen went on to say that what suffices to rebut the presumption that a child defendant is doli incapax will vary according to the nature of the allegation and the particular child. No matter how obviously wrong the act or acts constituting the offence may be, the presumption cannot be rebutted merely as an inference from the doing of that act or those acts. There needs to be evidence from which an inference can be drawn, beyond reasonable doubt, that the child’s development is such that they knew it was morally wrong, in a serious respect, to engage in the conduct. The development in question is the intellectual and moral development of the child.[47]

[47]BDO, [13], [14] (footnotes omitted) (emphasis added).

The High Court in BDO accepted the proposition in RP that the child’s understanding of ‘moral wrongness’ is at the heart of the inquiry and directs attention to the child’s education and environment in which they were raised.[48]
[48]Ibid [16].

In the present case, the prosecution submits that the statements ‘seriously wrong’ or ‘gravely wrong’ are designed to capture the distinction between something which is morally wrong as opposed to naughty or mischievous.[49]
[49]Prosecution Closing Submissions 25–26.

The prosecution submits that the test is not whether PM understood why the act or acts were seriously wrong in a moral sense, knew the difference between right or wrong in the abstract, or had sophisticated moral reasoning.[50] Instead, the prosecution contends the question should be framed as whether PM knew the acts were seriously wrong in a moral sense, as distinct from believing that the acts were merely naughty, rude or mischievous. That question is to be judged by the standards of reasonable adults.[51]
[50]Ibid 28.
[51]Ibid 27.

The defence on the other hand submits that the need to prove that PM knew his acts were seriously wrong in a moral sense was wider than that posited by the prosecution. The defence emphasises that care must be taken not to pose the question as a simple choice of characterisation, being whether PM knew his actions were seriously morally wrong or whether he thought them merely naughty or mischievous.[52] Posing the question as a simple dichotomy would be to apply a civil standard of proof. The burden remains on the prosecution to prove beyond reasonable doubt that PM knew his actions were seriously wrong in a moral sense. If it fails to do so PM must be found not guilty.
[52]Defence Closing Submissions, [11].

There has been some criticism of the contrast between behaviour which is known to be seriously wrong as opposed to merely naughty. In the New South Wales Court of Appeal decision in RP v The Queen, Hammill J stated:

I confess that I find the distinction unhelpful and, in jury directions could give rise to an erroneous process of reasoning whereby a finding of the act was more than naughty or mischievous may lead to a finding that the child knew that what they did was seriously or gravely wrong without proper attention being paid to that question. There is a vast chasm between something that is ‘naughty’ or ‘mischievous’ and something that is gravely or seriously wrong. The trouble with introducing a comparison is that it is easy to fall into the trap of thinking that if something is more than naughty, it must therefore satisfy the test. It does not.[53]

[53]RP v The Queen (2015) 90 NSWLR 234, 129.

Despite this criticism the plurality of the High Court in RP referred to the distinction stating:

Knowledge of the moral wrongness of an act or omission is to be distinguished from the child’s awareness that his or her conduct is merely naughty or mischievous. This distinction may be captured by stating the requirement in terms of proof that the child knew the conduct was “seriously wrong” or “gravely wrong”.[54]

[54]RP, [9].

Similarly, in BDO, the High Court averted to the distinction, stating:

The knowledge is of the wrongness of the act as a matter of morality, not as contrary to the law. Because it is knowledge of a child it is necessary to prove knowledge of a serious wrongness, as distinct from mere naughtiness.[55]

[55]BDO, [13].

Later in their judgment, the High Court also stated:

In the first place, wrongness is expressed by reference to the standard of reasonable adults, from which it takes its moral dimension. It is not what is adjudged to be wrong by the law or by a child’s standard of naughtiness. The capacity of a child to know that conduct is morally wrong will usually depend on an inference to be drawn from evidence as to the child’s intellectual and moral development. It may be added that there may be a disability from which the child suffers which affects their capacity to know or understand. Such a disability may be a factor which is relevant, but the lack of disability – or proof that a child is of “normal” mental capacity for their age – will clearly not be sufficient to prove the capacity to know or understand.[56]

[56]Ibid, [23].

Considering RP and the High Court’s further clarification in BDO, I accept that this Court must take care not to pose a question as a simple choice of characterisation, being whether the child knew their actions were seriously morally wrong or whether they thought them to be merely naughty or mischievous. I consider that to pose the question as a simple dichotomy would be an oversimplification of the test as set out in RP and confirmed in BDO. The test always maintains the burden on the prosecution to prove beyond reasonable doubt that the child—in this case PM—knew his actions were seriously wrong in a moral sense, not merely that he knew that his actions were more than ‘naughty’ or ‘mischievous’.

Furthermore, while the distinction provides some clarification to what the test is directed to, it is important to identify that the distinction is repeatedly stated to be between knowledge of serious and/or moral wrongness and naughtiness. It is not merely a distinction between knowledge of right and wrong as opposed to naughtiness.

It remains that the prosecution must prove that the accused had, at the time, actual knowledge that their conduct was seriously wrong in a moral sense. This ‘will usually depend on an inference to be drawn from evidence as to the child's intellectual and moral development’. As stated in BDO:

To be capable of rebutting the presumption, the evidence must be such as to enable a conclusion that the appellant was able to understand that it was morally wrong. That is not a low standard.[57]

[57]Ibid, [48].

The test was applied in EL v R, where the Court said:

In accordance with RP v The Queen, the test is whether this child, EL, at the time of the offence, knew that what he was doing was “seriously wrong” or “gravely wrong”. 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.”[58]

[58][2021] NSWDC 585, [171] (citation omitted) (‘EL’).

In EL, the Court rejected the prosecution’s submission that the appellant was repeatedly delinquent because of his oppositional defiant disorder, which was the ‘simple answer’ for his behaviour. The Court said that this submission:

[Ignores] the complex symptomatology suffered by the appellant, and the history of his diagnoses from an early age and treatment therefore. For this appellant, there is no simple answer, but rather a far more nuanced approach is required to determine whether the test as set out in RP v The Queen has been met. Here, the evidence of Dr Llosa of the mismatch between the appellant’s biological age and his emotional maturity, which I accept, is a relevant factor, and to the extent that the Crown submitted otherwise, I reject that submission. The essential element that the Crown must prove beyond reasonable doubt is whether EL knew that the act was seriously wrong as a matter of morality, not that it was a crime contrary to law.[59]

[59]EL, [173] (‘EL’).

The Court concluded:

Having regard to the whole of the evidence, I am not satisfied that the Crown has proved beyond reasonable doubt that EL knew, at the time of the offence, that what he was doing was seriously or gravely wrong. His knowledge of right or wrong as a child was clearly established by Dr Llosa’s evidence, but it had little if any impact on his conduct which, in respect of school delinquency, was repeated over and over again despite the consequences to him of disciplinary action. No amount of letters to his parents from the school setting out those consequences, or warnings from police officers, had any impact on his behaviour. I accept his father’s evidence that “he’s just not getting it” and reject the Crown’s submission that at the time of the offence he was “on a trajectory of seriously wrong behaviour that culminated in the commission of the offence”, as not reflecting the proper use of the evidence nor the correct test to be determined.
I accept Dr Llosa’s evidence that EL had no understanding of the extent of the impact of his conduct on others, given the complex nature of his multiple diagnoses. Notwithstanding Dr Llosa’s concession in cross-examination that the appellant would know that robbing someone at knife point is very seriously wrong, his lack of impulse control and the circumstances leading up to the offence must be taken into account, together with his diminished emotional maturity by comparison to his biological age. Whilst the appellant would have understood that his behaviour was wrong, and would be likely to get him into trouble with the authorities, his understanding of the wrongfulness of his conduct was superficial and not underpinned by any meaningful understanding of the construct of criminal responsibility.
In all of the circumstances, I am not persuaded he had the necessary mens rea to be guilty of the offence and I find that the Crown has not rebutted the presumption of doli incapax beyond reasonable doubt.[60]
[60]Ibid [175]–[177] (emphasis added).

What must the knowledge relate to?

In this case, the prosecution must prove beyond reasonable doubt that PM knew his conduct was seriously wrong in a moral sense. There are two aspects to this task. The first is to identify the conduct. The second is directed at PM’s knowledge of the serious moral wrongness of his conduct at the time he engaged in that conduct.

In RP, the plurality said in relation to the conduct in the context of doli incapax:

From the age of 10 years until attaining the age of 14 years, the presumption may be rebutted by evidence that the child knew it was morally wrong to engage in a conduct that constitutes a physical element or elements of the offence.[61]

[61]RP, [9] (emphasis added).

The High Court in BDO cited the above passage in RP with approval, and further said:

The requirement of the common law is that it be shown that the child had knowledge of the moral wrongness of an act or omission before the presumption can be rebutted, is not new.[62]

[62]BDO, [13] (emphasis added).

Accordingly, the presumption of doli incapax applies with respect to the conduct which constitutes the physical element or elements of the offence charged. In this trial, the presumption of doli incapax attaches to the two physical elements of the charge of murder by way of complicity, being:

·that PM entered into an agreement, arrangement or understanding to kill or cause really serious injury; and
·participated or acted to support that agreement, arrangement or understanding, by stomping on and kicking the deceased.

The defence suggests, and I agree, I should first consider whether the prosecution has rebutted the presumption of doli incapax beyond reasonable doubt. In doing so I will primarily focus on PM’s conduct in participation and support of the alleged agreement to kill the deceased. While I have of course had regard to all the evidence, I have adopted this approach in this judgment as:

(a) it is not disputed that PM participated in the assault of the deceased and is depicted in the CCTV footage kicking and stomping the deceased. What is in dispute is whether PM did so in furtherance of any agreement, arrangement or understanding with the other boys to kill or to cause really serious injury to the deceased (for the purposes of the offence of murder) or to assault the deceased including with the use of knives to stab him (for the purposes of the statutory alternative offence of manslaughter);

(b) the submissions of both parties in relation to doli incapax primarily focused on his conduct in participation of the alleged agreement rather than his conduct in entering into the alleged agreement;

(c) in the circumstances of this case if PM did not know that his conduct in participation was seriously wrong in a moral sense then it is unlikely that he would nonetheless know that the entering into such an agreement was seriously wrong in a moral sense;

(d) the evidence relating to doli incapax made up a significant part of the evidence at trial and the parties rely upon much of that evidence in relation to the questions of: whether PM entered into an agreement, arrangement or understanding; the content of any agreement, arrangement or understanding he was a party to; and his intention at the time any agreement, arrangement or understanding was entered into; and

(e) if, as the defence contends, the prosecution has not rebutted the presumption of doli incapax in respect of his conduct forming the physical element of participation, this would dispose of both the charge of murder and the alternative charge of manslaughter by unlawful and dangerous act, rendering it unnecessary to consider the contested elements of murder and manslaughter by complicity.[63]

[63]Indeed, the prosecution have conceded that if the presumption of doli incapax is not rebutted for the purposes of the physical elements of murder on the basis of complicity, it would not be open for me to find PM doli capax for the purposes of the statutory alternative of manslaughter by unlawful and dangerous act.

The defence described the conduct to be assessed for the purposes of conduct making up the element of participation as PM’s acts of kicking and stomping the deceased as depicted in the CCTV footage. However, as I discuss below, I consider that the relevant conduct includes not only PM’s individual actions during the assault (kicking and stomping) but necessarily the context in which they occurred.

Factors relevant to rebutting the presumption

Despite the presumption’s longevity, understanding how the presumption operates and what evidence is sufficient to rebut it is not straightforward.

Whether the prosecution can prove beyond reasonable doubt that PM knew that his actions were seriously wrong in a moral sense requires consideration of PM as an individual and unique child. This involves consideration of a wide variety of matters, including his cognitive, intellectual and moral development, his disabilities, his upbringing, his education and environment.

In this respect, the work of Lennings and Lennings cited in EL is of assistance:

The concept of knowing something is ‘seriously wrong’ involves 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 an event, the ability to judge whether their actions were right or wrong (moral sophistication), and an ability to act on that moral knowledge. Moral reasoning involves interpretation individuals make of information for evaluating rightness or wrongness. Such interpretative systems are influenced by social factors (eg, modelling), manipulation of the perceived effect of the action (such as whether the action causes slight or severe harm) and information processing biases.[64]

[64]Nicholas J Lennings and Chris J Lennings, ‘Assessing Serious Harm Under the Doctrine of Doli Incapax: A Case Study’ (2014) 21(5) Psychiatry, Psychology and Law, 791-800, 792.

In this case there is little dispute between the parties about relevant factual matters. As already addressed, three detailed statements of agreed facts were tendered at trial, which provide the relevant evidentiary background and context to the offending.[65] For the purpose of determining if the prosecution has proved beyond reasonable doubt that the presumption of doli incapax has been rebutted in relation to PM participating in the agreement, arrangement or understanding by stomping on and kicking the deceased, PM has admitted he was at the scene and participated in the assault of the deceased, as shown in the CCTV footage.[66]
[65]Exhibit P1; P3; P89.
[66]See Exhibit P89.

There is no dispute between the parties about PM’s background of extreme disadvantage, experiences of serious family violence, interface with the criminal justice system or limited engagement with school and education.

However, it is important to emphasise that the fact PM voluntarily engaged in the conduct depicted in the CCTV footage does not constitute prima facie evidence that he is not doli incapax. Nor would evidence that he intended to kill or cause really serious injury to the deceased constitute prima facie evidence that he is not doli incapax.[67] The evidence relevant to the question of doli incapax can be broadly grouped into the following categories:
[67]R v JA (2007) 161 ACTR 1, 12 [81].

(a) PM’s conduct and the circumstances of the alleged offending;

(b) PM’s social development, upbringing and family environment;

(c) PM’s education;

(d) PM’s interactions with the criminal justice system; and

(e) the expert evidence of Dr Owen, Dr Singh, Ms Cidoni and Ms Scott.

This case is particularly unusual given the breadth of evidence available to the Court on the question of doli incapax. Based on all of this evidence the Court is tasked with making inferences as to PM’s knowledge or understanding at the time of the alleged offending and whether he knew what he was doing at that moment was seriously wrong in a moral sense. This necessarily requires consideration of PM’s moral development.

Unlike other areas of development, moral development is a skill that improves, in most cases, incrementally over an extended period. It involves an individual’s capacity for abstract thinking, which again develops throughout adolescence, and an assessment of cognitive development. As such, in this case, it is necessary to consider PM’s psychiatric, neurological and psychosocial development, and his life experiences to reach a conclusion on the question of doli incapax.

It is the Court’s task, having regard to the rich matrix of evidence, to conclude what inferences can be made about PM’s knowledge or understanding about his conduct or participation in the assault. Did PM know what he was doing was seriously wrong in a moral sense? Put another way, has the prosecution proven beyond reasonable doubt that PM knew his conduct at the time was seriously wrong in a moral sense?

The circumstances of the alleged offending

On the evening of 12 March 2022, the deceased and his friend, TH,[68] attended a party held by R at her family home in Reservoir (‘the party’). The party commenced at around 9:30pm.[69]
[68]A pseudonym, pursuant to Children, Youth and Families Act 2005 (Vic), s 534.
[69]Exhibit P1, [25]; T126.8–10.

At 1:38am on 13 March 2022, PM and seven other boys, aged between 14 and 17, left a home in Tarneit in a stolen Mazda vehicle. Among the other boys was PM’s older brother, AM,[70] who was then aged 14 years.[71]
[70]A pseudonym, pursuant to Children, Youth and Families Act 2005 (Vic), s 534.
[71]Exhibit P1, [11].

Some of those with PM were known to be affiliated with a group from the western suburbs.[72] There were tensions between that group and the group from Heidelberg.[73] TH was known to be affiliated with the Heidelberg group.[74]
[72]Ibid [14].
[73]Ibid [15].
[74]Ibid [2]–[3].

Throughout the evening of 12 March 2022 and the early hours of 13 March 2022, H[75] — an associate of PM’s group who was at the party — was communicating with members of PM’s group.
[75]A pseudonym, pursuant to Children, Youth and Families Act 2005 (Vic), s 534.

Following its departure from Tarneit, the Mazda containing PM and seven others travelled to Reservoir. It arrived in Reservoir at ~2:24am. CCTV footage from the relevant area shows that as the Mazda comes close to the location of the party, it stops and H and her friend, G,[76] approach the vehicle.[77] The Mazda then moves off, performing a U-turn and travelling along Livingstone Street towards Elizabeth Street.[78] H and G then walked off in the same direction.[79]
[76]A pseudonym, pursuant to Children, Youth and Families Act 2005 (Vic), s 534.
[77]Exhibit P1, [57]; P69; P68, item 43.
[78]Exhibit P1, [58]; P69; P68, item 44.
[79]Exhibit P1, [59].

At 2:26am the Mazda turns right into Elizabeth Street and travels north. At 2:27am the Mazda turns into Nocton Street travelling east.[80]
[80]Ibid [60].

The deceased, TH, and another young male, KH,[81] were walking on the northern footpath in a westerly direction when the Mazda approached the three boys by performing a U-turn and pulling up adjacent to them.[82]
[81]A pseudonym, pursuant to Children, Youth and Families Act 2005 (Vic), s 534.
[82]Exhibit P1, [61].

Within seconds, four individuals alighted the Mazda and ran towards the deceased, TH, and KH. The four individuals got back into the Mazda as the deceased and the other two boys ran. The vehicle then drove off in the same direction as the three boys.[83] CCTV from the eastern end of Nocton Street then depicts the Mazda vehicle speeding past.[84]
[83]Ibid [62].
[84]Ibid [63].

At 2:28am the deceased enters Horton Street from Elizabeth Street. He is now alone and walking along the footpath down Elizabeth Street.[85] CCTV from a residential premises then depicts the Mazda driving past before stopping at the location.[86] The deceased turns and faces the vehicle before all eight co-accused exit the vehicle.[87]
[85]Ibid [64].
[86]Ibid [65].
[87]Ibid [66].

The deceased is then attacked, the entirety of which is captured on the CCTV footage.[88] In short, the attack involves the use of four knives by five co-accused, as well as kicking and stomping. PM did not use a knife in the attack.[89] The attack upon the deceased lasts approximately two minutes.[90]
[88]Exhibit P66; T202.4–5; T204.23–27.
[89]Exhibit P1, [71].
[90]Ibid [68].

The CCTV camera faces north towards the intersection, overlooking the southern footpath of Horton Street. The CCTV footage commences at 2:28:25am. It does not include any audio. The view provided by the camera shows the bottom left corner of the yard of the property, a fence bisects the frame travelling from the upper left to the lower right, and on the street-side of the fence there is a large tree, a small portion of nature strip, a parked car[91] and the street beyond.
[91]This car is a Mazda owned by a nearby resident. To avoid confusion, I will refer to it as the ‘parked car’ when discussing the footage.

For convenience, it is useful to describe the attack as occurring in two waves:

(a) the first wave is the initial assault on the deceased involving PM and seven other individuals, which commences at approximately 2:28:35am and concludes at 2:29:44am when all the co-accused have exited the frame; and

(b) the second wave occurs when PM, and three other individuals, return to the deceased, lasting from approximately 2:30:00am to 2:30:30am.

Subsequently, between approximately 2:31:45am and 2:33:05am, one individual returns onto the screen while the deceased lies motionless in front of the parked car.

The CCTV footage is in greyscale and during the waves of the attack shows a frenzied scene with the various participants moving around and assaulting the deceased in a variety of ways. At times it is difficult to comprehend exact movements or items. This is exacerbated by the fact that the fence and tree, as well as individuals moving about, often obscure actions and the precise location of the deceased during certain events. The CCTV footage has therefore been subject to a number of detailed and concentrated viewings.

The ‘first wave’ of the attack

At the beginning of the footage, a car — the Mazda — can be seen travelling into the frame from the left side of the screen and stopping on the far side of the road with only its headlights and numberplate area visible through the branches of the tree. The deceased can be seen walking on the footpath south of the tree, in the direction of the Mazda.

Indistinguishable movement can be observed through the tree behind the Mazda headlights: one of the driver’s side doors being opened.

Further indistinguishable movements can then be seen by the driver side of the Mazda through the branches of the trees, before at 2:28:35am the deceased can be seen re-entering view from the left side of the screen running down the east footpath near the trunk of the tree.

The deceased is being pursued and is pulled backwards by one individual when he reaches the parked car and, in the space of seven seconds, is on the ground surrounded by all eight individuals.

PM first appears in frame at 2:28:38am running along the road from the Mazda and onto the nature strip near the deceased. Four other individuals have already reached the deceased and are striking and kicking him. PM reaches the deceased at 2:28:40am and immediately begins kicking or stomping towards the deceased.

In the following moments, in a frenzied scene, PM and the others surround the deceased. All appear to be kicking or stomping towards the deceased while one of them appears to repeatedly stab the deceased. Two of the individuals then move away from the deceased while the others continue the attack.

At ~2:28:46am, one of the individuals can be seen with a knife in his right hand, stabbing towards the deceased. PM is behind this individual and appears to be looking down at the deceased over the left shoulder of the stabber. The deceased is still being stabbed and struck while on the ground. PM can be seen moving around the back of the other individuals before continuing to kick and stomp the deceased, pushing one of the other individuals out of the way as he does so.

PM continues to kick towards the deceased as the three others continue their assault, two of whom appear to be stabbing towards the deceased while PM is faced towards them. PM can be observed at 2:29:00am holding onto the shoulder of the individual on his left while that individual appears to stab the deceased.

Around 2:29:02am, PM is pushed slightly behind another assailant in front of the parked car but away from the deceased. PM appears to watch for approximately five seconds as the deceased continues to be assaulted and stabbed. At ~2:29:09am, PM appears to re-commence kicking towards the deceased while the others present continue the assault.

At ~2:29:13am, PM is standing just behind the deceased’s head and appears to move back to steady himself on the parked car. PM then watches the attack for a further eight seconds while two others stab directly towards the deceased on the ground. PM re-commences kicking at 2:29:20am.

At ~2:29:22am, four of the boys move away from the deceased and towards the Mazda still parked in the street. One continues stabbing the deceased as PM and two others kick towards him.

At ~2:29:30am, two further boys move away from the deceased, leaving only PM and one other. PM continues to kick and stomp down towards the deceased’s head. As PM kicks and stomps, the other individual continues to stab towards the deceased’s right side before departing.

At ~2:29:33am, one of the individuals moves away from the deceased as another comes closer to the deceased. During this time PM continues kicking. PM then strikes down at the deceased while leaning on the parked car. PM then runs around the back of the parked car, down the street towards the Mazda and out of frame.

From ~2:29:44am to 2:30:00am none of the co-accused can be seen on screen. The deceased’s upper body and head can be seen as he lies on the nature strip in front of the rear tyre of the parked car.

The ‘second wave’ of the attack

At 2:30:00am, an individual moves back on screen towards the deceased from near the Mazda. This individual arrives where the deceased is laying at ~2:30:03am and continues the attack while two others return to the frame.

At ~2:30:12am, PM returns to the deceased. PM arrives at the deceased while the first assailant to arrive during the second wave moves around the deceased and appears to be crouching down near his head and looking at him. PM immediately begins stomping on or near the deceased’s head several times as the other individual stands up and watches. PM then steps back and watches as the other individual puts his hand on the parked car and starts kicking or stomping on the deceased. PM then leans on the parked car himself and kicks at the deceased’s head as the other individual goes around the parked car and returns towards the Mazda. After some more kicks PM then himself turns back and moves towards the Mazda.

By ~2:30:29am, PM and the other individual are out of screen and at ~2:30:44am the Mazda drives down the street and out of screen as the deceased remains prone on the ground with his head and upper body visible near the rear wheel of the parked car.

At ~2:32.13am the lighting illuminating the street and the deceased from the right of frame disappears. Shortly later, at ~2:32.19am, a car, which is the Mazda, drives on the street from the right to the left of the frame. The cars headlights are off. During this time the deceased has remained motionless on the nature strip.[92]
[92]Exhibit P69, ~36:45.

Autopsy

An autopsy on the deceased’s body was performed by Dr Joanna Glengarry at 10:00am on 14 March 2022. The deceased’s cause of death was ‘stab wounds to the chest’ and Dr Glengarry’s findings noted that the deceased suffered:

(a) 66 blunt force injuries to the face and limbs;

(b) 56 sharp force injuries, including four stab wounds to the chest region ‘associated with lethal injuries’; and

(c) 30 puncture wounds.[93]

[93]Exhibit P1, [110]–[111].

Events following the attack on the deceased

At 2:32am, H is recording on her phone. A vehicle can be heard approaching and slowing. It can then be heard stopping and an individual yells out, ‘Hey’. H responds with, ‘what’, and the male says, ‘He’s around there. He’s dead. Mum’s life he’s dead’.[94]
[94]Ibid [78]–[79]; Exhibit P69, 38:00–38:35.

At 2:38am, CCTV depicts the Mazda travelling east on Bell Street. PM is in the front seat wearing a Champion Brand hoodie.[95]
[95]Exhibit P1, [81]; Exhibit P69, ~40:00.

At 11:33am PM, his brother AM, and another individual were captured on CCTV as they arrived at an address in Hoppers Crossing.[96]
[96]Exhibit P1, [87].

At 5:48am on 16 March 2022, a Holden Cruze with licence plate 1FZ6ZG was captured on CCTV at a BP Service Station on Pascoe Vale Road, Coolaroo. A male gets out of the car and fills up two McDonald’s cups with petrol before getting back into the Holden Cruze and departing at 5:50am. The car then travels south along Pascoe Vale Road.

At 6:00am the Mazda driven on the night of the deceased’s death is set on fire at a carpark in Meadow Heights. The carpark is a five-minute drive from the BP petrol station in Coolaroo. Footage shows five males run from the car fire towards the Holden Cruze and depart the area.[97] In a later interview with Ms Cidoni, PM acknowledged he was present when the Mazda was burnt.[98]
[97]Ibid [89]–[90].
[98]Exhibit P89.

Arrest

At 11:54am on 23 March 2022, PM was arrested in North Melbourne in the company of AM and others by members of the Special Operations Group.[99]
[99]Exhibit P1, [97].

PM’s social development, upbringing and family environment

PM was born on 20 February 2009 and is now 14 years and seven months old. PM was age 13 years and three weeks in March 2022.[100] Both parents, MJ and DM,[101] were born in Sudan and commenced a relationship in or around 1991.[102]
[100]Exhibit P3, [1].
[101]Pseudonyms, pursuant to Children, Youth and Families Act 2005 (Vic), s 534.
[102]Exhibit P3, [3].

The family migrated from Sudan to Australia as refugees in 2004. PM was born in Queensland in 2009 and raised in Toowoomba. In 2013 the family moved to Tarneit, Melbourne.[103] PM’s parents remained in an intermittent relationship until late 2015.[104]
[103]Ibid [4].
[104]Ibid [3].

PM has eight siblings. His two youngest siblings are born from relationships between MJ and other partners, in 2019, and 2021, respectively.[105]
[105]Ibid [2].

MJ has made multiple reports to police of family violence perpetrated by DM, in some instances in front of the children.[106] These reports resulted in a number of intervention orders against DM.[107] PM and his family have been the subject of multiple Interim Accommodation Orders[108] and Family Preservation Orders,[109] and were in receipt of crisis accommodation throughout 2020 and 2021.[110]
[106]Ibid [6], [8]; P4.
[107]Ibid [7], [10].
[108]Per a joint Aide Memoire handed up 2 August 2023, “an interim accommodation order is an order made by the Children’s Court for the temporary placement of a child pending a final determination of an application”.
[109]Per a joint Aide Memoire handed up 2 August 2023, “A family preservation order gives the Department of Families, Fairness and Housing the responsibility for the supervision of the child for a specified period but does not affect a person’s parental responsibility for the child. This order provides for the child to live with and be placed in the day-to-day care of one or both of the child’s parents. The Department of Families, Fairness and Housing supervise the care for the child during the period of the order”.
[110]Exhibit P3, [15].

Commencing on 7 November 2019, regular multidisciplinary family care meetings were held in relation to PM and his family. These meetings were attended by various organisations including Victoria Police, the Department of Health and Human Services (as it then was), the Department of Education and representatives from the children’s schools.[111] Evidence of 10 different family care meetings is before the Court.[112] It was documented in the care team meetings that PM should receive trauma counselling, [113] but despite it being identified as a need, none was organised.[114]
[111]Ibid [16].
[112]Ibid [17]–[18], [19]–[28].
[113]T63.27–29.
[114]T64.27–T65.2.

The Proactive Policing Unit within Victoria Police attempted to engage with PM and his family on multiple occasions, as there had been a number of negative interactions and many of the children were deemed ‘high risk’ because of contact with the criminal justice system.[115] PM was noted as uncomfortable and resistant to engage.[116]
[115]T94.26–T95.11.
[116]Exhibit P3, [68]–[70].

PM’s education

PM attended four different primary schools before moving to a high school for Year 7.[117] PM’s 2021 school reports reveal minimal attendance, resulting in a grade of ‘did not participate – low participation’ for most subjects.[118] The prosecution submits that PM’s school results are of limited weight in assessing his intellectual ability or moral reasoning because they are so sparse.[119]
[117]Ibid [34]–[39].
[118]Exhibit P2.
[119]Prosecution Closing Submissions, 32.

TW is the leader of the Wellbeing Team at PM’s high school,[120] and first had contact with PM when he and his brother enrolled in early 2021. PM’s attendance was initially satisfactory, but ‘fell away fairly quickly’.[121] PM displayed difficulty following the rules at school,[122] and his ability to read and write ‘was not great’.[123]
[120]T45.6–9.
[121]T46.14–17.
[122]T50.17–18.
[123]T49.1–6.

PM was suspended from a school in 2019 when he was found in possession of cannabis, resulting in a five-day suspension.[124] PM was again suspended in early 2021 for punching another student during physical education, and for stealing another student’s bike, and threatening to assault that student.[125] In mid–2021 PM was reported to have punched another student at least three times over the use of the ‘n word’,[126] and to have sworn at a teacher and ‘invited them outside to fight’.[127]
[124]Exhibit P3, [40]–[42].
[125]Ibid [46]–[47]; Exhibit P22, 2.
[126]T66.19–T67.3.
[127]Exhibit P3, [50].

At the end of 2021, PM was suspended from school for saying he would ‘shoot all the teachers and throw a grenade into the front office’.[128] In early February 2022, PM was involved in an incident in the school toilets which culminated in PM holding his fingers in the shape of a gun and pointing them at a teacher. PM ‘wasn’t really apologetic’ about the incident or the impact it had on the teacher.[129]
[128]Ibid [54].
[129]T51.10–11.

TW gave evidence that he had discussions with PM on multiple occasions about his behaviour and the importance of reparations as opposed to punishment.[130] PM was suspended and never returned to school after the incident in early February 2021.
[130]T48.21.

PM’s prior interactions with the criminal justice system

Prior to his arrest on 23 March 2022 in relation to this matter, PM was remanded in custody and granted bail on the following dates:[131]
[131]Exhibit P3, [194]; T169.1–5.

Remanded

Bailed

31 March 2021

1 April 2021

28 April 2021

6 May 2021

10 May 2021

11 May 2021

25 May 2021

26 May 2021

1 June 2021

2 June 2021

14 February 2022

15 February 2022

1 March 2022

11 March 2022

PM has never pleaded guilty to, or been found guilty of, a criminal offence. He does not admit to engaging in activities, criminal or otherwise, which are alleged to have taken place between 2019 and 2022.[132]
[132]Exhibit P3, [58].

The prosecution submits that the evidence tendered at trial allows the Court to directly observe PM on approximately 28 occasions over three years of his life, between the ages of 10 and 13.[133] This evidence is comprised of body worn camera (‘BWC’) footage, records of interview and custody and attendance records. I have paid close regard to all this material which is too voluminous to fully summarise here.
[133]Prosecution Closing Submissions, 35.

It should be noted that the recordings of BWC footage, are incomplete in that the recording only starts when the police officer turns on their camera. Furthermore, DSC Stack was unable to locate some of the BWC footage either because it was not saved, or it was mislabelled by the police members who captured it.

In June 2019, PM (then age 10) was observed by police as being part of a large group fighting amongst themselves at a train station. PM was losing the fight but did not make any complaint to police, and the group was moved on without arrest.[134] The following month, PM was arrested for the first time in relation to an altercation with security personnel at Tarneit Central Shopping Centre. BWC footage shows PM being handcuffed and surrounded by police members. PM can be observed getting the spelling of his surname wrong.[135] The arresting member tells PM, ‘You’re too young to be getting mixed up with people who cause trouble just because they feel like it.’[136] PM maintained that he was not involved in the incident and that he walked away.[137]
[134]Exhibit P3, [60].
[135]Exhibit P5, 5:24–5:30.
[136]Ibid 9:28–9:34.
[137]Ibid 14:19–5:30.

PM and various associates have eight recorded interactions with Protective Services Officers (‘PSOs’) and police at train stations between 14 January 2021 and 21 February 2022.[138] During these interactions, PM often gives false details and becomes frustrated and heightened when PSOs or police will not let him leave. Much of PM’s behaviour in these interactions demonstrates unsophisticated, immature and volatile responses to the situations he finds himself in.
[138]Exhibit P3, [71], [79], [99], [135], [171]; P23; P37; P43; P56–P62.

An interaction with PSOs on 14 February 2022 results in PM’s arrest. On this occasion PM swears at PSOs while handcuffed and becomes very frustrated when asked to take his shoes off before being placed in the divisional van.[139] During the relevant record of interview, PM is asked various questions by police about how he thinks the victims of his crimes might feel. PM says he would feel ‘mad’ if he was in the shoes of the victims.[140]
[139]Exhibit P59, 3:00–3:22.
[140]Exhibit P60, Q138.

During an interaction with PSOs on 21 February 2022, PM can be observed as extremely emotionally dysregulated and shouts at PSOs demanding them to explain ‘why is [his cousin] getting arrested’ for not carrying a Myki card.[141] He accuses PSOs of being racist and implies that the arrest is targeted.
[141]Exhibit P62, 0:38–1:00.

PM can be observed being questioned or arrested by police for car-related matters on 11 different occasions.[142] It is repeatedly alleged that PM and associates enter 24-hour gyms, steal keys from unattended lockers and drive away in stolen vehicles. PM takes part in 11 different records of interview, including an interview in relation to the death of the deceased, recordings of which are before the Court.[143] Due to his age, PM is supported during each interview by an Independent Third Person who ensures that he understands the questions being put to him and his legal rights and obligations.
[142]Exhibit P3, [81], [106], [115], [136], [149]–[153], [163]; P7–P11; P13–P22; P28–P32; P38; P39; P45; P46; P49–P55; P63; P64.
[143]Exhibit P9; P14; P17; P20; P26; P31; P38; P50; P54; P60; P79.

During an arrest on 30 January 2021, PM refuses to give his mother, father and brother’s names, and is told by the police member ‘not to fuck [the police] around’.[144] Later, a Dinka police member can be observed interacting with PM and chiding him for crying after he is arrested.[145] PM is taken to the Werribee Police station where he is interviewed between 2:25am and 2:49am on 31 January 2021.[146]
[144]Exhibit P7, 5:30–7:25.
[145]Exhibit P8, 1:30–2:00.
[146]Exhibit P9, Q3, Q141.

On 19 February 2021, PM can be observed saying to the arresting officer words to the effect, ‘how are you going to let him [another police member] say that to me? [He] called me the “n-word” like ten times and you didn’t say anything’.[147] The arresting officer can be heard responding with words to the effect, ‘so it’s okay for you to steal cars…and then people call you the “n-word”’.[148] PM is taken to the Werribee Police station where he is interviewed between 3:12am and 3:27am.[149]
[147]Exhibit P13, 0:50–1:09.
[148]Ibid 0:55–1:17.
[149]Exhibit P14, Q2, Q94.

During an arrest on 6 March 2021, PM can be observed giving his correct details, but becomes emotionally heightened when challenged by police about his truthfulness.[150] While being arrested, PM says, ‘Do you see this? For our safety, I’m in cuffs’, and then tells his associate to ‘record this shit’.[151] The prosecution described PM as ‘upset, hostile and aggressive’ on this occasion.[152] The prosecution pointed to evidence from the record of interview to assert that PM knew right from wrong;[153] knew stealing was ‘obviously bad’;[154] knew that hurting someone is bad;[155] expressed vehemently that killing someone is bad with the words ‘that’s fuckin’ dumb’;[156] and could identify the negative consequences of bad behaviour.[157] That interview with PM took place at Werribee Police Station between 11:26pm and 11:42pm.[158]
[150]Exhibit P16, 0:08–0:30.
[151]Ibid 7:05–7:15.
[152]Prosecution Closing Submissions, 38.
[153]Exhibit P17, Q52.
[154]Ibid Q57.
[155]Ibid Q58–Q59.
[156]Ibid Q60.
[157]Ibid Q61.
[158]Ibid Q1, Q163.

BWC footage of an arrest on 31 March 2021 shows that PM and two others had been sleeping rough in a home under construction. The Victoria Police Air Wing and Dog Squad were in attendance. During the record of interview, PM confirmed that he knows the difference between right and wrong,[159] and uses ‘getting arrested’ as an example of something that would be wrong.[160] During a record of interview three weeks later on 21 April 2021, PM indicated that it was ‘obviously’ wrong to steal.[161] That interview took place between 3:26am and 3:42am.[162]
[159]Exhibit P20, Q31.
[160]Exhibit P20, Q33.
[161]Exhibit P26, Q82.
[162]Ibid Q1, Q105.

On 10 May 2021, PM gave a mixture of ‘no comment’ and short answers during a record of interview.[163] On 11 June 2021, PM referred to ‘opp block territory’,[164] which the prosecution submits is indicative of his adherence to an alternate moral code.[165]
[163]Exhibit P31.
[164]Exhibit P38, Q280–Q290.
[165]Prosecution Closing Submissions, 41.

I consider that all the evidence adduced by the prosecution, when considered together, could potentially be capable of supporting an inference that PM knew that his conduct is seriously wrong in a moral sense. This is particularly evident when regard is had to the seriousness of the conduct under consideration.

As Dr Owen’s opinion suggests, one may expect that a 13-year-old who had significant exposure to police would have learnt from his experiences. This learning may have given rise to an understanding that kicking and stomping on an unarmed individual, who was being attacked by a group, was seriously wrong. Dr Owen’s explanation for PM’s conduct, notwithstanding knowledge of its wrongness, was because he had actively chosen to ascribe to an ‘alternative moral code’. However, I consider the framework presented by Dr Owen is somewhat simplistic in this case and does not fully drill down into the complex matrix of PM’s life experiences, neurological deficits and the overlay of his disorders. It is enticing to accept Dr Owen’s hypothesis given the horrendous nature of the offending, which places the criminal responsibility at PM’s feet.

However, the High Court has emphasised that what is important is the consideration of the knowledge of the unique child in question. While the prosecution has led evidence which suggests that PM had numerous opportunities for learning and moral development, it cannot be assumed he has done so. The evidence of PM’s home life, schooling and interactions with the justice system are not themselves necessarily suggestive that he is morally developed. Accordingly, care must be taken to consider his capacity for learning from his previous experiences. Even in the absence of the evidence adduced by the defence, there is evidence before the Court of earlier doli incapax assessments and importantly Ms Cidoni’s testing performed on 7 March 2022, six days before the alleged offending, which raises doubt as to PM’s moral development as at that point in time. Dr Singh considered Ms Cidoni’s test results from 7 March 2022, revealed PM’s moral reasoning levels were low and immature and demonstrated superficial understanding, compromised empathy and a failure to understand or see other’s perspectives.

At the time she prepared her report, Dr Owen’s opinion relied on a number of assumptions, in particular that PM was cognitively intact, that he was capable of experiential learning, and that his moral development was such that he had an understanding and knowledge of conventional morality and the capacity to choose to reject this in favour of ascribing to an ‘alternative moral code’. Dr Owen accepted that PM’s ADHD and slower processing speeds may mean his decision-making will be poor, however noted that even with the ADHD and identified cognitive difficulties, PM still had the capacity to understand conduct that is seriously wrong.

Despite the burden being on the prosecution to rebut the presumption of doli incapax beyond reasonable doubt, the defence called evidence from three expert witnesses, Dr Singh, Ms Cidoni and Ms Scott, as well as from PM’s solicitor, Ms Conwell.

Dr Singh, Ms Scott and Ms Cidoni, each of whom assessed PM, in person, on multiple occasions, found PM to be significantly cognitively impaired. As set out in detail above, each of the defence expert witnesses were of the view that PM has impaired social and cognitive development which has impacted his developmental trajectory and thus his capacity to develop a sound understanding of moral principles. Furthermore, PM has been diagnosed with a childhood-onset conduct disorder, severe ADHD and PTSD as well as a major depressive disorder and anxiety disorder of moderate severity. Each of these conditions were present at the time of PM’s alleged offending. Dr Singh’s evidence, supported by Ms Scott, is that these psychiatric conditions impact directly on PM’s capacity to develop moral sophistication and a capacity for mature reasoning.[682]
[682]T425.24–426.4.

As I have stated Dr Singh was an impressive witness. She concluded that PM presents with a persistence of immature moral reasoning and is of the opinion that:

[PM]’s limited capacity for abstract thinking, evidenced at assessment, is consistent with previous assessments of his cognitive ability, as noted in the psychometric assessment conducted by Ms Cidoni in 2021 when he was aged 12 years and 4 months. Based on my clinical observations and semi-structured assessments over the course of three psychiatric assessments, coupled with the results of a structured assessment of his moral reasoning [six] days prior to the alleged index offence, which indicated that he had low and immature moral reasoning, I formed the opinion that [PM] presents with a persistence of immature moral reasoning over the course of these assessments.[683]

[683]Exhibit D2, [2105]–[2112].

Similarly, Ms Cidoni concluded that PM’s complete responses to the SRM-SF administered on 7 March 2022 demonstrated that his moral reasoning levels were low and immature. Indeed, in every psychological or psychiatric assessment from the age of 12 years and 4 months to the age of 14 years and 1 week, PM has presented with features consistent with Dr Singh’s psychiatric formulation and finding of persistent immature moral reasoning.

I consider that there is cogent evidence based on psychological testing and psychiatric assessment that PM’s cognitive and moral development is limited and that he is further incapacitated by his psychiatric disorders, particularly severe ADHD.

While the evidence of PM’s immature intellectual and moral development does not necessarily preclude a finding that the presumption has been rebutted, the evidence called by the defence is extremely important to understanding what inferences can be drawn about PM’s moral capacity and knowledge at the time of the offending.

Viewing the evidence through this lens leaves open the real possibility that PM did not in fact have the ability to learn from his experiences in the manner suggested by Dr Owen.

For example, PM’s behaviour in his interactions with the criminal justice system is consistent with the opinions of the defence experts. His dysregulated behaviour in the BWC footage can be seen as demonstrating his incapacity to understand the cues around him and make sense of how to deal with a given situation. He shows little concern for consequences and, in line with the expert opinions of Dr Singh and Ms Scott, they can be seen as reflecting an immature and reactive young boy with poor impulse control and little understanding that his behaviours are only worsening the situation for him. TW’s evidence, including his observations of PM at school, is also consistent with Ms Scott and Dr Singh’s opinions in relation to PM’s behaviour in the BWC footage. TW observed PM rapidly becoming more heightened in aversive interactions with others and that PM had no real understanding of the impact of his behaviours on others or the consequences of his behaviour.

While not fully explored in the evidence, there are suggestions that PM had earlier experiences and interactions with police before the first BWC footage in June 2019 when he was 10 years old. For example, it appears that police attended his home on 29 November 2015 after he and his siblings witnessed his father perpetrating violence against their mother.[684] PM’s mother also told Dr Singh that her older children had started getting in trouble with police in 2016.[685] LSC Williams’ evidence is that PM and his family had interactions with police in different capacities. The evidence confirms that PM experienced racism from police. These facts, along with his earlier interactions with police, may well have normalised interactions with police as an ordinary occurrence and potentially limited his ability to understand the gravity of his interactions with the police and respect for the authorities.
[684]Exhibit P4.
[685]Exhibit D2, [706].

Similarly, it is difficult to accept the prosecution’s submission that PM’s firsthand experiences of family violence provided an opportunity for learning the consequences of interpersonal violence. PM told Dr Singh that he had first witnessed his father beat his mother at the age of four.[686] His mother also told Dr Singh of PM witnessing family violence from when he was a toddler.[687] I prefer Dr Singh’s evidence that these experiences are likely to have impressed social scripts on PM, normalising violent and antisocial behaviours from an early age.[688]
[686]Ibid [747].
[687]Ibid [817].
[688]Ibid [1960]–[2012]; T420.10–27.

As already addressed, the fighting ground in the expert evidence is that, on the one hand, Dr Owen considers that PM’s behaviours as observed in the BWC footage and the interviews with the police equates to his capacity to learn from his experiences and demonstrates his adherence to an alternate moral code rather than impaired moral development. On the other hand, Dr Singh opines that PM is the product of his childhood trauma, persistent adverse experience and psychosocial disadvantage in his life which has hindered his ability to learn from his behaviour and actively make pro-social choices. Dr Singh explained that PM has experienced many losses in his life, feels isolated, different to others and discriminated against and in turn has fuelled connection-seeking with others, particularly his older brother, AM, and his friends.[689]
[689]T422.15–18.

Similarly, while, at face value, a number of PM’s responses to police interview questions may suggest that he understood right and wrong, as Dr Singh explained:

The fragility of the leap to asserting that his responses demonstrate an understanding of the seriousness of his actions is exposed when one considers the categorical error inherent in the assertion. Simply stating that something is right or wrong and being able to give examples of actions that might be right or wrong, as [PM] has done, does not demonstrate that he had a moral understanding of why a specific action is right or wrong. Acquiring a moral understanding is a skill that improves incrementally over an extended period.[690]

[690]Exhibit D2, [2275]–[2280] (footnotes omitted).

I consider PM’s responses in records of interview demonstrate at best a superficial understanding of right and wrong. There is little exploration by the police of why he considers something to be right or wrong. In the records of interview viewed by the Court, PM does not show any capacity to explain his responses beyond a basic level of right and wrong, which is not necessarily reflective of his level of moral understanding.

For example, in a record of interview with police on 6 March 2021, when PM was aged 12, the following exchange occurred:

Q … so I want to know what you think right and wrong is.
A. I already know. I know all that.
Q. You tell me what you think right and wrong is. You tell me. Let’s – let’s – let’s speed up the process then. You tell me what right or wrong is.
A. Continue, fuck.
Q. So at home does mum have rules?
A. Obviously.
Q. Yep. What’s the rules at home?
A. Don’t worry.
Q. … If you steal something is that good or bad?
A. Obviously bad.
Q. … If you hurt someone is that good or bad.
A. You already know the answer. Why are you asking me this?[691]

[691]Exhibit P17, Q51–Q58.

On 31 March 2021, PM gives the following answers when asked whether he knows right from wrong:

Q. … Are you able to sort of explain … if something’s right and something’s wrong, what that sort of means to you? … if you get in trouble at home, would you say that’s right or wrong, or can you explain to me what the difference is?
A. … Obviously no.
Q. Obviously no?
A. I dunno what you’re asking.
Q. You don’t know the difference between right and wrong?
A. I do, but I dunno why you’re asking me that, also, yeah.

I consider PM’s responses when asked whether he understands right or wrong in the records of interview with police, are akin to saying, “I’ve heard this before, move on to the next question”. They do not reflect that PM has moral sophistication as suggested by the prosecution.

In relation to PM’s post offence conduct in fleeing the scene and being present when the stolen vehicle was burnt some days later provides little basis for inferring what PM understood when he participated in the attack. It is at least equally explainable as demonstrating naiveite and immaturity. Regard must be had to the facts that he made no attempt to hide or destroy the clothing and footwear he wore at the time of the alleged offence, he placed himself in another stolen vehicle, continued to interact with his co-accused and lacked consideration of CCTV cameras.

The prosecution relies significantly on Dr Owen’s opinion in relation to the interview with police on 23 March 2022. Dr Owen opined that on 23 March 2022, PM for the first time when arrested contacted his lawyer on two occasions, suggesting learning regarding seriousness of his conduct and consequences following his exposure to previous doli incapax assessment.[692] Dr Owen also notes in relation to the 23 March 2022 interview, that PM provided his correct name and address, that he understood the reason for interview, repeated his rights in his own words, stated he understood his rights, that he understood what a legal representative was and that he had spoken to a lawyer. PM made a ‘no comment’ interview throughout. He denied recognising himself in video and in photographs. He stated that he understood the seriousness of the death of a person and that he understood the opportunity to provide his side of the story.
[692]Exhibit P90, [78].

The 23 March 2022 interview lasted 23 minutes. Dr Owen was not aware of the legal advice, or the emphasis of the legal advice given to PM before the interview by his lawyer, Ms Conwell. Dr Owen was not aware of the longstanding relationship between PM and Ms Conwell prior to this time and the depth of PM’s trust in Ms Conwell. Dr Owen was not aware of the coaching or repetition of instructions provided by Ms Conwell to PM and her instructions in relation to giving a ‘no comment’ interview and the point in time when he should commence providing no comment. Dr Owen was not aware of the dramatic nature of PM’s arrest by the Special Operations Group and that he had been at a fingerprint hearing in the evening around 9:30pm prior to the interview. The hearing went for approximately one hour and he then had a telephone consultation, pre-interview, with Ms Conwell. Dr Owen was not aware of how PM came to speak to Ms Conwell on the night of 23 March 2022.

Dr Owen agreed that based on the additional information about Ms Conwell’s involvement and the instructions she gave him, a cognitively impaired child with reduced executive functioning could maintain a ‘no comment’ interview.[693]
[693]T359.16–18.

Dr Singh rejected the proposition that PM’s subdued behaviour in the 23 March 2022 interview suggested a high degree of internal control or a reasonably mature response to police questioning.[694] In her oral evidence, Dr Singh maintained that she considered that PM’s responses in interviews are more likely evidence of his profound developmental and moral immaturity. This may be contrasted with Dr Owen’s view that PM ‘no comment’ responses reflect a high level of moral understanding and therefore he knew what he was accused of was seriously wrong in a moral sense.
[694]T482.17–21.

Further, based on the information about PM’s pre-interview circumstances and what Ms Conwell told him to do and the emphasis in the discussions for PM to sustain the ‘no comment’ interview, Dr Singh considered that this would have contributed to his ability to sustain the response.[695]
[695]T432.31–433.3.

Given the circumstances of PM’s arrest, the fingerprint hearing and his telephone conversations with Ms Conwell, Dr Owen’s concessions and Dr Singh’s opinion, I do not consider PM’s subdued behaviour, and his ability to sustain a ‘no comment’ interview for approximately 23 minutes, is necessarily indicative of learning or an understanding of the seriousness of his conduct on 13 March 2022. He was given truly clear and strong advice on how to respond, by Ms Conwell, a person he knew and trusted.

As to the Arunta calls, Dr Singh considers PM’s conduct to be more likely mimicking demeanour.[696] Dr Singh disagreed that the calls were evidence of PM being a leader rather than a follower or that he was directing others. I consider the Arunta calls are consistent with PM behaving in an immature manner mimicking language and discourse of older boys. PM’s conversations are equally consistent with a young boy seeking approval and trying to big note himself.
[696]T423.5–9.

The prosecution bears a heavy burden when prosecuting children. It must be emphasised that the starting point is that a child is presumed in law incapable of bearing criminal responsibility for their acts. The High Court’s decisions in RP and BDO confirm that the State’s exercise of power over children through prosecution cannot be approached lightly and can only be appropriate where criminal responsibility has been properly established.

On the totality of the evidence I do not consider that the prosecution has rebutted the presumption of doli incapax in respect of PM’s conduct for the purposes of the participation element. The presumption must be rebutted beyond reasonable doubt.

I have had regard to the most serious nature of the allegation of murder and the nature of the alleged conduct. However, it is important to avoid the application of adult value judgements on PM’s conduct or undue regard to the obviously abhorrent nature of the alleged crime itself.

A review of the evidence in its entirety leaves open, at the least, a reasonable possibility that PM had limited knowledge at the time of right and wrong. While the evidence suggests that he had a wide range of opportunities for learning, the evidence in particular, of his moral capacity and cognitive development mean that he had not necessarily gained the requisite knowledge to understand that what he was doing at the time he attacked the deceased was seriously wrong.

The evidence leaves open the reasonable inference that PM, given the complex nature of his multiple diagnoses, had no real understanding of the extent of his impact on others. Notwithstanding some of PM’s statements to police and the experts — such as saying he knew murder was wrong on 7 March 2022 — PM’s severe emotional dysregulation, his lack of impulse control, impacted by his severe ADHD, his psychiatric disorders, including severe child-onset conduct disorder and PTSD and the circumstances leading up to the offence, must be considered alongside his diminished cognition, emotional and moral development by comparison to his chronological age. At the very least, Dr Singh’s opinion leaves open the reasonable possibility that PM’s understanding of the wrongfulness of his conduct at the time was superficial and not reflective of any meaningful understanding of it being seriously wrong in a moral sense. Indeed, even on Dr Owen’s view, such absence of knowledge is a reasonable possibility given she felt she could only express her opinion on the balance of probabilities.

In all the circumstances, I find the prosecution has not rebutted the presumption of doli incapax beyond reasonable doubt in relation to PM’s conduct, namely the kicking and stomping on the deceased while he was being stabbed. Consequently, the inevitable conclusion must be that PM cannot be found guilty of murder or the alternative charge of manslaughter. This is because both charges, when alleged by way of complicity, require proof beyond reasonable doubt that PM knew his conduct making up the participation element of either offence was seriously wrong in a moral sense.

Accordingly, it is unnecessary for me to conclude whether the evidence establishes beyond reasonable doubt that PM entered into an agreement, arrangement or understanding with another to cause really serious injury or death to the deceased. Nonetheless, had I found that PM had in fact entered into an agreement, arrangement or understanding to kill, or cause really serious injury to, the deceased I would still be satisfied that the evidence leaves open the reasonable possibility that he did not know that his conduct of participation, done in furtherance of that agreement, was seriously wrong in a moral sense.

For much of the same reasons as those discussed above — I would not have been satisfied that PM knew that his conduct, in entering into such an agreement, arrangement or understanding, was seriously wrong in a moral sense. In her report, Dr Singh identified that PM had ‘a limited capacity for autonomy, he is noted to be vulnerable to influence by his older siblings and his anti-social peers’. The evidence of his cognitive and moral development suggests that PM lacked agency and may not have had the capacity to understand that he could be viewed as morally (as well as legally) responsible for the actions of others, which would necessarily require a degree of consequential and abstract thinking. This is reflected in his statements to Ms Cidoni where he did not describe or consider himself as being part of what ‘they’ did and placing emphasis on the fact that he did not use a knife.[697] Thus, having regard to the evidence, including his age in comparison to the other older boys, there remains the reasonable possibility that PM would regard such conduct as wrong but not seriously wrong in a moral sense.
[697]Exhibit D6, [67].

Conclusion and verdict

I therefore find PM not guilty of murder and not guilty of the alternative crime of manslaughter.

I direct that an entry of not guilty be made on the record in respect of the charge of murder, and the statutory alternative of manslaughter, in the indictment numbered N10577110.

Remanded	Bailed
31 March 2021	1 April 2021
28 April 2021	6 May 2021
10 May 2021	11 May 2021
25 May 2021	26 May 2021
1 June 2021	2 June 2021
14 February 2022	15 February 2022
1 March 2022	11 March 2022

[2023] VSC 560

20 September 2023