El v R

[2021] NSWDC 585

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

EL v R [2021] NSWDC 585

Hearing dates:

20 October 2021

Decision date:

29 October 2021

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Appeal upheld. For orders see [179].

Catchwords:

APPEAL – conviction appeal – robbery armed with offensive weapon – dishonestly obtain financial advantage by deception – doli incapax – whether presumption of doli incapax rebutted by prosecution.

Legislation Cited:

Crimes Act 1900

Mental Health Act 2007

Cases Cited:

AL v R [2017] NSWCCA 34

BC v R [2019] NSWCCA 111

RP v The Queen [2016] HCA 53; 259 CLR 641

Texts Cited:

NJ Lennings and CJ Lennings, “Assessing serious harm under the doctrine of doli incapax: A case study (October 2016) Psychiatry, Psychology and Law 1, 2.

Category:

Principal judgment

Parties:

Director of Public Prosecutions (Crown)
EL (Appellant)

Representation:

Solicitors/Trial Advocates:
A. Brookman (Crown)
T. Voros (Appellant)

File Number(s):

2020/274573

Publication restriction:

Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 it is an offence to publish or broadcast the name of the appellant.

 Decision under appeal 

Court or tribunal:

Surry Hills Children's Court

Date of Decision:

30 March 2021

Judgment

1. The appellant appeals against his conviction in the Children’s Court on the following charges:

1. That contrary to s 97(1) of the Crimes Act 1900 on 17 September 2020 at Kingsford in the State of New South Wales, he did rob Yu Wai Lee of certain property whilst being armed with an offensive weapon, and;

2. That contrary to s 192E(1)(b) of the Crimes Act 1900, on 17 September 2020 at Haymarket in the State of New South Wales, he did dishonestly obtain a financial advantage by deception.

2. The matter was heard in the Surry Hills Children’s Court on 15 March 2021 and 30 March 2021. Judgment was delivered by the learned magistrate on 30 March 2021.

3. The appellant is a young person. At the time of the offending conduct, he was approximately 13 and a half years old. As the appellant was under 14 years of age, it was necessary for the Crown to rebut the presumption of doli incapax. The learned magistrate found the prosecution had proven all of the elements of ss 97(1) and 192E(1)(b) of the Crimes Act and further, that the prosecution proved beyond reasonable doubt that the appellant knew his conduct was seriously wrong.

4. The appeal is heard by way of a rehearing based on the transcript of evidence before the learned Children’s Court magistrate. In determining the appeal, I am to apply the principles governing appeals from a Judge sitting without a jury, and I am to form my own judgment of the facts on the basis of the transcript evidence, recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the lower court.

5. I have also had regard to the exhibits tendered in the Local Court and I have read the remarks of the learned magistrate in her judgment on 30 March…