Director of Public Prosecutions v TY

[2006] VSC 494

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1467 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS

v

TY

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JUDGE:	Bell J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 December 2006
DATE OF JUDGMENT:	6 and 14 December 2006
CASE MAY BE CITED AS:	DPP v TY
MEDIUM NEUTRAL CITATION:	[2006] VSC 494

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CRIMINAL LAW – manslaughter – unlawful and dangerous act – dangerousness test – accused a child aged 14 years – whether age must be taken into account in applying the test – whether doing so would change the objective nature of the test – the necessary instructions to the jury.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M Tinney	Ms A Cannon, Solicitor for Public Prosecutions
For the Accused	Mr R van de Wiel QC and Mr M O’Connell	Dowling McGregor Thomas

HIS HONOUR:

1. When aged 14 years and eight months, the accused struck the deceased to the head with a golf umbrella.  Its long metal tip punctured the deceased’s skull and penetrated his brain to a significant depth.  He was fatally wounded and died three days later.

1. In this trial before a jury, the accused now stands charged with murder and, in the alternative, manslaughter.  The issues in relation to the charge of murder are clear and there is no need for me to canvas them here.  As to manslaughter, before I charge the jury, I must determine whether or not the age of the accused is a relevant consideration.  The defence submits it is, and wants me to instruct the jury accordingly; the prosecution submits it is not, and says I should say nothing about it.

1. The charge is brought on the basis of manslaughter by unlawful and dangerous act.  The defence concedes the death of the deceased was caused by the conscious, voluntary and deliberate act of the accused.  Whether the act was unlawful is in issue because the accused relies on self-defence.  There is no question about what I should tell the jury in that regard.  The defence submits the accused’s age comes into the dangerousness element.

1. For a conviction of manslaughter, the prosecution must prove, beyond reasonable doubt, that a reasonable person in the accused’s position would have realised he or she was exposing another person to an appreciable risk of serious injury.[1]  When the accused is a child, should the jury be told to take his or her age into account when applying this legal standard?  Should the jury be told, in effect, to treat the reasonable person as a reasonable child of a similar age to the accused, in this case a young teenage boy?

   [1]Wilson v R (1992) 174 CLR 313, 333-334 approving R v Holzer [1968] VR 481, 482.

1. I have been informed there has been no previous decision on point, and my own research has not revealed otherwise.

1. A child above the age of 10 has the capacity to commit a criminal offence: s 127 of the Children and Young Persons Act 1989. There is no question that the accused could be found guilty of manslaughter, and indeed murder, if the elements of the offences were to be proved against him to the satisfaction of the jury beyond reasonable doubt. What is at issue is the application of the dangerousness test in the circumstance that he is a child.

1. The opposition of the prosecution to taking age into account is based on the well-established principle that the test of dangerousness is objective.  The authorities establish the test is concerned with the physical acts of the accused and not his or her “idiosyncrasies” or “ephemeral emotional or mental state.”[2]  Quite recently, in R v Besim,[3] after a careful review of the authorities, Redlich J rejected an attempt to invest the reasonable person with the emotions that any such person would experience in the position of the accused.  I have no doubt these authorities require me to instruct the jury to apply an objective test of dangerousness – one based on the reasonable person – and I will work within that framework.

   [2]R v Wills [1983] 2 VR 201, 212.

   [3][2004] VSC 169.

1. The test is concerned with the state of realisation of accused persons of the appreciable risks to which their actions expose others.  The law stipulates an accused will be criminally responsible if a reasonable person would have realised how appreciably risky their actions were.  The test is stipulated in objective terms because, if the conduct causes a homicide, the dreadful seriousness of that consequence is seen to require the accused’s responsibility to be measured against a general community standard, not one subjective to the accused.

1. The law stipulates a standard in similar objective terms in other contexts, most obviously in tort.  Generally speaking, the law of negligence “prescribes a minimum standard of care to be observed by everyone for the safety of all who may be injured by non-observance of it, and that… is the standard of care reasonably expected of a man of reasonable foresight and prudence in the circumstances.”[4]  In applying this standard, the age of the alleged wrongdoer is taken into account.  In the law of negligence, the reasonable person, in the case of a child, is a reasonable child of similar age.[5]  The same principle applies when considering whether contributory negligence is to be found against a child.[6]

   [4]McHale v Watson (1966) 115 CLR 199, 212.

   [5]Ibid 214.

   [6]Harrold v Watney [1898] AC 448, 457.

1. In the law of negligence, as in the law of manslaughter, the objective test precludes the idiosyncrasies of an alleged wrongdoer from being taken into account.[7]  Yet, in the law of negligence, age is considered.  “Childhood is not an idiosyncrasy”, said Windeyer J in his judgment at the trial of McHale v Watson.[8]  More fully, Kitto J gave this compelling explanation in his celebrated judgment on the appeal:[9]

“The principle [of the objective reasonable person standard] is of course applicable to a child.  The standard of care being objective, it is no answer for him, any more than it is for an adult, to say that the harm he caused was due to his being abnormally slow-witted, quick-tempered, absent-minded or inexperienced.  But is does not follow that he cannot rely in his defence upon a limitation upon the capacity for foresight or prudence, not as being personal to himself, but as being characteristic of humanity at his stage of development and in that sense normal.  By doing so he appeals to a standard of ordinariness, to an objective and not a subjective standard.  In regard to the things which pertain to foresight and prudence – experience, understanding of causes and effects, balance of judgment, thoughtfulness – it is absurd, indeed it is a misuse of language, to speak of normality in relation to persons of all ages taken together.  In those things normality is, for children, something different from what normality is for adults; the very concept of normality is a concept of rising levels until ‘years of discretion’ are attained.  The law does not arbitrarily fix upon any particular age for this purpose, and tribunals of fact may well give effect to different views as to the age at which normal adult foresight and prudence are reasonably to be expected in relation to particular sets of circumstances.”

[7]Glasgow Corporation v Muir [1943] AC 448, 457.

[8]McHale v Watson (1964) 111 CLR 384, 397.

[9]McHale v Watson (1966) 115 CLR 199, 213.

1. This reasoning has been influential in the criminal law.  Glanville Williams drew on the tort authorities to declare: “Children are not subject to the standard of adults; they need show only the standard to be expected of a child of the particular age.”[10] In Tasmania, Burbury CJ drew on the judgment of Kitto J to decide that homicide by culpable negligence under s 156(2)(b) of the Criminal Code only captured conduct less than the standard of care expected of a youth of the accused’s age (there 14 and 17 years). His Honour said “the relevance and the weight of the age factor is essentially a jury matter and I propose to leave it to them.”[11]  And, of course, in Stingel v R[12] the Full Court of the High Court of Australia drew on the judgment of Kitto J to decide the objective test of provocation under s 160 of the same Code required age to be taken into account. 

   [10]Glanville Williams, Criminal Law (Second Edition) 101.

   [11]R v Holness and Banks [1970] Tas SR 74, 81; cf Stingel v R (1990) 171 CLR 312, 330 and see below.

   [12](1990) 171 CLR 312, 330-331.

1. No case I am aware of has decided the age of an accused who is a child should not be taken into account when applying the dangerousness test.  In my view, it would not be inconsistent with the function of the test in the law of manslaughter to do so.

1. It has often been pointed out the common law of homicide has evolved from automatic culpability for those who cause death, whether intentionally or accidentally, to culpability only for those whose actions or state of mind fulfil additional criteria.[13]  One important principle now applied to that continuing process is that, so far as possible, the criminal law should be developed “towards a closer correlation between moral culpability and legal responsibility”.[14]  Subjecting children to an adult standard, when we know children have a lesser capacity for realisation of appreciable risk than adults, would widen the gap between moral culpability and legal responsibility to its maximum.  Taking the age of a child into account when applying the dangerousness test brings the two more closely together and is more consistent with the evolution of the law of homicide.

   [13]See eg Wilson v R (1992) 174 CLR 313, 320.

   [14]Wilson v R (1992) 174 CLR 313, 327 citing R v Wilson (1991) 53 A Crim R 281, 286.

1. As I said earlier, it is the dreadful consequence of an act causing the death of a human being that is seen to call for the application of an objective test.  The community expects criminal responsibility to be attributed even where the accused, subjectively, did not realise his or her actions were dangerously risky.  One reason for not taking the age of a child-accused into account, which was urged on me by the prosecution, is that doing so would undermine – explode, the prosecution would say – the objectivity of the test.  The argument is that today it is age, tomorrow it will be gender and the day after that it will be upbringing.  Eventually, it is said, these allegedly subjective factors will pile up and bury the objective test.

1. I cannot accept this submission.  A child is a person under the age of 18 years.  All persons under that age are children.  The status of an accused person as a child is an objectively ascertainable attribute.  It is not like a state of mind or an emotion.  It is not like an intention.  As we saw Windeyer J say, it is not an “idiosyncrasy”.  And, as we saw Kitto J say, it appeals to “an objective and not a subjective standard.”  Taking the age of a child-defendant into account has not damaged the objective reasonable person test in the law of negligence.  Taking the age of a child-accused into account will not damage the objective reasonable person test in the law of manslaughter.

1. The prosecution relies on the observation of the High Court in Stingel that the test of criminal negligence giving rise to involuntary manslaughter was “entirely objective, taking no account of the age of the accused”.[15]  Involuntary and voluntary manslaughter are closely connected[16] so, it is submitted, it would be wrong to ignore age for one and look at it for the other.

   [15]Stingel v R (1990) 171 CLR 312, 330. Redlich J drew attention to the observation in R v Besim [2004] VSC 169, [37].

   [16]See R v Wills [1983] 2 VR 201, 212 and Nydam v R [1977] VR 430, 445.

1. There is force in this submission.  I have examined the observation carefully to see whether the logic behind it requires me to come to a different conclusion.  The observation, which was brief, was made in the context of a detailed discussion of the law of provocation.  In the later case of Wilson v R,[17] the Court said that, in manslaughter by unlawful and dangerous act and manslaughter by criminal negligence, “the tests of dangerousness are different.”  Whatever the implications of the observation as regards the test for manslaughter by criminal negligence,[18] I think it does not dictate the approach to be adopted as regards the test for manslaughter by unlawful and dangerous act.

   [17](1992) 174 CLR 313, 333.

   [18]For the proposition that age was not taken into account in the test of criminal negligence, the High Court cited Director of Public Prosecutions v Newbury [1977] AC 500. That case concerned two boys aged 15 years who, from a railway bridge, pushed a stone onto a train, killing the guard. The question certified for the House or Lords was: “can a defendant be properly convicted of manslaughter, when his mind is not affected by drink or drugs, if he did not foresee that his act might cause harm to another” (at 506). It was held the test of dangerousness was objective – “would all sober and reasonable people recognise its danger” (at 507 per Lord Salmon). The appeal was not put on the basis of the defendants’ age, and there is no mention of this consideration in the judgments. I acknowledge the High Court treated the decision as authority for the observation made. The earlier decision of Burbury CJ in R vHolness and Banks [1970] Tas SR 74 that age was taken into account for this offence under the Criminal Code was not cited to the High Court in Stingel or mentioned in the judgments.

1. For these reasons, the fact that the accused was a young teenage boy when he killed the deceased has to be taken into account in the application of the dangerousness test.  The prosecution must prove beyond reasonable doubt the accused, when he killed the deceased, acted in a way that a reasonable person who was a young teenage boy would realise exposed the deceased to an appreciable risk of serious injury.   I will so instruct the jury.

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