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 2021.

6. The appellant relied on two substantive grounds of appeal. First, the identification evidence was not capable of satisfying the tribunal of fact beyond reasonable doubt as to the young person’s guilt. Secondly, on the evidence presented, the prosecution did not discharge the presumption of doli incapax in that the young person was incapable of forming a criminal intent.

7. Conventionally, those two issues would be dealt with in the order set out above. However, as determination of the identification issue involved the personal appearance by the young person and his father in court at the time the appeal was listed, which was not possible as a result of the protocols adopted by the District Court at the time of the appeal, I listed the matter for the issue of doli incapax to be determined. Relevant to that issue, the appellant was allowed to adduce fresh evidence by way of a report from the appellant’s treating psychiatrist, Dr Llosa, dated 19 March 2021, and Dr Llosa was called to give evidence on the appeal. For the purposes of determining the issue of doli incapax, it is to be assumed that the identification issue is resolved against the appellant’s interest.

The evidence

The evidence establishing the offences

Sequence 1 – s 97(1) of the Crimes Act 1900

8. The evidence established that on Sunday 17 September 2020, the victim, Ms Yu Wai Lee, was walking home in Kingsford in the early hours of the morning. She observed the appellant ride alongside her on a scooter and say something to the effect of, “Give me all your fucking cash and cards”. The appellant was holding a knife in his hand and pointing it towards the victim’s stomach area. The knife looked similar to a breadknife and the blade was a few centimetres away from her stomach. The victim proceeded to give the appellant the $5 cash she had in her wallet. The appellant repeated, “Give me your cards” and the victim gave the appellant the only bank card she held, which was an HSBC Bank card.

9. The appellant then said to the victim, “Open your phone and tell me the password”. The appellant held the victim’s phone “for about ten seconds” until he gave it back to her. The appellant then said to the victim, “Don’t you dare call the police” and rode away on his scooter.

Sequence 2 – s 192E(1)(b) of the Crimes Act 1900

10. The evidence established that on Sunday 17 September 2020, the appellant entered a taxi and told the taxi driver that he wanted to go to the city. The taxi driver asked him to pay $30 with EFTPOS for the taxi before he commenced the trip. The appellant paid the fare using the victim’s bank card. The appellant told the taxi driver that he lived in [M], studied in “seven standard” and was 14 years old. The appellant asked the taxi driver what he should do in the instance he lost his bank card. The taxi driver replied that if he lost his card he could just stop bank payments.

Evidence tendered by the prosecution to rebut doli incapax

11. The evidence before the learned Children’s Court magistrate comprised the following:

1. Two sets of school records produced by Mr M, Deputy Principal of [J] High School and Ms Mc, Deputy Principal of [R] High School;

2. A section 178 Evidence Act 1995 Certificate issued by the Children’s Court Registrar Montano introducing a copy of a Provisional Apprehended Domestic Violence Order (“ADVO”) dated 25 November 2019, made against the appellant for the protection of his father, KL;

3. A statement of Constable Sebastian Kemsley dated 25 February 2021, introducing a police notebook statement taken from and signed by the appellant dated 10 February 2020 that introduces a series of Instagram messages between the appellant and two other young persons; and

4. A bundle of police statements from numerous officers in relation to previous dealings, including Youth Justice Cautions, with the appellant.

The school records

12. Exhibit 8 in the Children’s Court was a bundle of school records produced by the Deputy Principal of [J] High School and the Deputy Principal of [R] High School, focused mainly on reporting the appellant’s disruption of class activities and physical and verbal altercations with students and teachers.

Records of [J] High School

Notification of Suspension Letters

13. On 5 April 2019, a letter was sent to the appellant’s parents informing them of the appellant’s suspension from [J] High School. The letter states the appellant was issued with a Long Suspension of ten school days for persistent or serious misbehaviour. The letter notes the appellant was “involved in several serious incidents of misbehaviour during Year 7 camp. This involved physical violence, repeated refusal to follow instructions, swearing at teachers, students and camp instructors and making inappropriate and at times threatening and discriminatory comments to others.”

14. On 4 June 2019, a letter was sent to the appellant’s parents informing them of the appellant’s suspension from [J] High School. The letter states the appellant was issued with a Long Suspension of six school days for persistent or serious misbehaviour. The letter notes the appellant was “involved in several serious incidents of misbehaviour during Year 7 camp. This involved physical violence, repeated refusal to follow instructions, swearing at teachers, students and camp instructors and making inappropriate and at time threatening and discriminatory comments to others.”

15. On 19 June 2019, a letter was sent to the appellant’s parents informing them of the appellant’s suspension from [J] High School. The letter states the appellant was issued with a Long Suspension of fifteen school days for persistent or serious misbehaviour. The letter notes that the appellant has “caused major disruption to the school day with hostile and aggressive behaviour towards students and staff. He has physically and verbally abused staff and students.”

16. On 4 July 2019, a letter was sent to the appellant’s parents informing them of the appellant’s suspension from [J] High School. The letter states the appellant was issued with a Long Suspension of twenty school days for physical violence.

Incident Reports

17. On 8 February 2019, it was reported that the appellant was disrupting other students in class. The teacher, Miss L, noted that she asked those other students to stop engaging with him.

18. On 13 February 2019, it was reported that the appellant was not complying with instructions and was insulting other students in the class. One student retaliated, throwing a marker at the appellant. The appellant then “pounced” on that student. The teacher, Ms T, noted that she took the appellant to the staffroom.

A second report of 13 February stated the appellant struggled to stay on task during class. The teacher, Mr M, noted that the appellant ignored his instructions three times.

A third report of 13 February stated that the appellant required numerous reminders to stay on task and was disrupting the other students in the class. The teacher, Ms G, spoke to the appellant about his behaviour and how to be responsible for his own learning along with the others in class and changed the seating plan for the following class.

19. On 18 February 2019, it was reported by Ms T that the appellant was disrupting other students in the class.

20. On 19 February 2019, it was reported by Miss L that the appellant was uncooperative in class, distracted other students and did not complete any work.

A second report of 19 February stated that the appellant was not completing his assigned work and distracting other students in the class. When spoken to by Miss L, the appellant denied his behaviour and that he had incomplete work and complained that Miss L was picking on him.

21. On 22 February 2019, it was reported by Ms G that the appellant was disrupting other students in the class.

22. On 26 February 2019, it was reported by the teacher, Miss L, that the appellant was disrupting both Miss L and other students in the class. He refused to leave the classroom after the bell and argued with Miss L. Miss L noted that he was oppositional and appeared unable to regulate his behaviour.

A second report of 26 February stated that the appellant was frequently interjecting in and disrupting the class. The teacher, Mr M, asked the appellant to stay back during recess to discuss his behaviour. The appellant thought his behaviour was a joke.

23. On 28 February 2019, it was reported by Ms P that the appellant was in a verbal and physical altercation with another student and as a result, the Deputy Principal was called.

24. On 7 March 2019, it was reported by the teacher, Miss S, that the appellant repeatedly pretended to fall into the pool during a school swimming carnival, and as a result, the races were put on hold. When asked his name by Miss S, the appellant lied. The appellant then told Miss S that she was creepy and rude.

A second report of 7 March 2019 stated that the appellant was physically fighting with other students. He was advised by the teacher, Miss A, that his actions were not acceptable, and was asked to reflect on his behaviour for 10 minutes.

25. On 13 March 2019, it was reported by Mr M that the appellant was not completing his classwork and was disrupting the class. The teacher responsible, Ms G, told the appellant that he was expected to remain in class to finish his work. The appellant left the classroom after class without finishing his work, and was retrieved by Ms G. Following this, the appellant became argumentative and began punching the notice board and brick wall and yelling. The appellant would not comply with instructions to calm himself down and to stop talking and was subsequently taken to the Deputy Principal’s office. The author noted that the appellant’s “oppositional defiance is preventing any progress to resolve incidents even when deliberate attempts are made to not heighten his aggression or increase frustration”. The author noted that the appellant calmed down and was obliging until he was told he would not be able to attend Sport.

26. On 15 March 2019, it was reported by Mr H that the appellant was interrupting the class. Mr H noted that after repeated warnings, he asked the appellant to leave the class, but the appellant refused.

27. On 18 March 2019, it was reported by Mr LK that the appellant was being provoked by other students to fight a student named T. The author noted the appellant “knew it was wrong to get involved and removed himself from the situation and came to the front office. He was very upset and felt unsafe.”

28. On 19 March 2019, it was reported by Ms B that the appellant was persistently disruptive during class.

29. On 20 March 2019, it was reported by Ms B that the appellant was persistently disruptive during class and did not follow her instructions. The appellant was asked to stay back during lunch to reflect on his behaviour. The author noted that she attempted to have a discussion with the appellant and other students, but the appellant made inappropriate comments throughout.

30. On 21 March 2019, it was reported by Mr H that he spoke to the appellant and the appellant indicated that he was prepared to take more responsibility for his actions. The author noted that following this conversation, the appellant again displayed disrespectful, argumentative and defiant behaviours in class. The appellant was asked to attend a reflective session.

31. On 22 March 2019, it was reported by Ms G that the appellant was very disruptive throughout the lesson by calling out, teasing and arguing with peers. The appellant had to be told several times before complying with the teacher’s instructions. The author noted that the appellant left the classroom before class ended and ran away despite her asking him to return.

32. On 25 March 2019, it was reported by Ms T that the appellant was being disruptive throughout the lesson and answered back when he was asked to stop talking. The author noted that she asked him to step outside and then spoke to him about his behaviour. The appellant was told to report at lunchtime to complete a reflection card for his behaviour, but he did not show up.

33. On 26 March 2019, it was reported by Miss L that a student, C, told her the appellant had been verbally harassing him.

34. On 5 April 2019, it was reported by Mr M that the appellant was involved in several incidents of misbehaviour during Year 7 camp, involving “physical violence, repeated refusal to follow instructions, swearing at teachers, students and camp instructors and making inappropriate comments to others.”

35. On 8 May 2019, it was reported by Ms CD that the appellant swore at another student and called him “a little cunt”, then complained to the teacher about that student being “autistic and a fucking cunt”. The author noted that the appellant did not take any responsibility for the incident and that she told him they would talk about it later in a reflection session.

A second report of 8 May 2019 by Ms G observed the appellant to be “a little agitated, pacing the room, throwing balls around the foyer and asking lots of questions”. The author noted that she reminded the appellant of his behaviour expectations, namely, that he was expected to participate in the geography lesson. The appellant then engaged in a series of disruptive and agitated behaviours. Ms G noted she gave the appellant the choice to either participate in the lesson or leave the classroom to calm down. The appellant chose to go to the staffroom where he initially began to complete work, but again became agitated. The appellant returned to the classroom and started to wrestle another student and throw things. The appellant started kicking a yoga ball in the classroom and refused to leave the room. Ms G left the room and the appellant punched the wall. The author noted that the appellant proceeded to throw the bin, chairs and other objects around the room. The appellant refused to engage with teachers who attempted to assist him and was “rude and aggressive”. The appellant’s father was then called and the appellant ran away and locked himself in the bathroom.

36. On 14 May 2019, it was reported by Ms CD that the appellant repeatedly growled at, pinched and threatened another student, N, with fake punches. The author noted the appellant laughed when N displayed fear and confusion.

37. On 15 May 2019, it was reported by Ms G that the appellant told another student, Michael, to “shut the fuck up very loudly”. Other students defended M and the appellant replied, “He’s just fucking retarded”. Another teacher, Ms C, “reflected with [the appellant] outside and then returned and [the appellant] sat at the back doing his own work”.

38. On 22 May 2019, it was reported by Ms G that the appellant finished his work and was given free time as a reward. He had a computer and was watching a video. Ms C asked him what he was watching and he said he was watching the news, when he was actually watching footage from 9/11. The author observed that “he seemed to be enjoying this”. The author reported that “Ms C asked him if he knew this was real and that real people died that day. He said yes with a smile. He also disclosed he liked to watch terrorism attacks such as the Lindt café siege and referred to it as very cool.”

39. On 23 May 2019, it was reported by Ms CD that she believed the appellant told her he wasn’t feeling well so as to avoid going to his mainstream lessons. Ms CD called the appellant’s father who noted that he was “very concerned about [EL]’s behaviour at home” and that the appellant was “being very abusive at home to him, his mother and his sister.” The author noted that the appellant’s father stated the appellant had to be held accountable for his actions and needs to have consequences for his behaviour. Ms CD told the appellant’s father that the appellant is being held accountable for what he does and that “we are following the continuum of response when he displays behaviours in the Support Unit and he is being explicitly taught how to interact appropriately with his peers.”

40. On 28 May 2019, it was reported by Mr G that the appellant was “very reluctant to begin work… [and was] restless, walking around the room, dribbling the soccer ball, interjecting unnecessarily.” Mr G gave the appellant the option to work next door or speak to another teacher. The appellant refused and agreed to settle down and work. Another student farted loudly, which that author noted made the appellant upset and angry. The appellant went into the corridor and began arguing with another teacher, which upset a student. The appellant then told that student, “I’ll punch you in the face you little cunt” and other insults.

41. A second report of 28 May 2019 by Ms CD noted that the appellant started annoying another student, J, who was drawing. J asked the appellant to go away a number of times. The appellant didn’t move and a teacher, Ms G asked him to leave J alone. The appellant complained that J told him to “piss off”, to which Ms G replied, “that is not true because I clearly heard him saying ‘please go away’”. The appellant was asked to stay away from J for the rest of the day.

36. A third report of 28 May 2019 by Ms CD noted that following the incident with J outlined above, the appellant was asked to stay out of class for the rest of the day. The author noted that the appellant was told that J got very upset and was hurt due to his actions and he answered “I don’t fucking care about [J]! What about me?” and threw a table across the room. The appellant forced his way back into the classroom, at which point the students were asked to move to a different classroom. The appellant attempted to push back into the classroom with the other students whilst teachers blocked the door. The appellant yelled “stop fucking touching me” and continued to push his way in. The author then reported:

“Mr [G] locked the door with all the students safely in the room and [the appellant] ran away to the side exit door of the building. He then started kicking and slamming the door, punching the window and screaming and swearing at us. Ms [G] tried to open the door and calmly told him “I’m worried for your safety, this isn’t safe [EL]”. He kept on banging the door and swearing. Ms [G] went to call Mr [M] and I stayed with [the appellant]. During that time he continued to screaming obscenities.

When Mr [M] arrived, [the appellant] started calling him “mate” and swearing at him. Mr [M] was worried that [the appellant] was going to slam his hand in the door and tried to convince him to let go and open the door. Mr [M] grabbed hold of the top of the door and at this point [the appellant] put his left forearm into Mr [M] throat and right hand into a fist as if to punch him and swear aggressively at him. At this stage Mr [M] took some steps back. Mr [K], Mr [R] and Ms [G] were nearby watching and Mr [M] was speaking quietly to try and calm [the appellant].

Later there was an exchange of Mr [M]’s keys. [The appellant] had hold of the lanyard, Mr [M] held the keys. [The appellant] detached the clip of the lanyard. At this moment, Ms [G] and Ms [C] went to get Mr [D] as instructed by Mr [M].

Ms [C] called [the appellant]’s Dad to come and pick him up from school. In the meantime, [the appellant] got very upset again and started screaming and crying at Mr [D]. [The appellant] realised it was the end of the day and said “you got to fucking let me out”, Ms [G] saw Dad arrive and went to the back gate to meet him.

[The appellant] scaled the black fence but once he realised its difficulty and got the front of his shirt caught on the spike of the fence, he got down on the ground again. [The appellant] paced the length of the fence and when he saw Dad, [the appellant] climbed the fence next to the bins and jumped over the fence, onto the skip bins and then to the ground screaming at Mr [M], “I’m going to get you fired” (sic).

Records of [R] High School

Incident Reports

43. On 26 May 2020, Ms CL reported that the appellant was disruptive during class.

44. On 4 June 2020, Ms P reported that she observed the appellant pass another student a vape machine. The author noted that she reported this incident to the Deputy Principal. The author reported that the appellant subsequently stated “Why did you tell on us? You don’t know how much trouble I am going to get in now. I’m going to get bashed at home because of you”.

45. On 5 June 2020, Mr J reported that the appellant left the lesson without his permission and did not return to class.

46. On 11 June 2020, Mr J reported that the appellant was playing with a Rubik’s cube instead of completing classwork, despite persistent instruction not to do so. The author noted that when he approached the appellant to take the Rubik’s cube from him, the appellant became aggressive and swore at him, then proceeded to walk out the door.

A second report of 11 June by Ms CL reported that the appellant pushed another student onto a desk and swore at him. The author then reported that the appellant pushed her aside aggressively to leave the classroom, saying that he was “going to speak to the Principal”.

A third report of 11 June by Ms K reported that the appellant was not in full uniform and did not present a note for it and attempted to load a game onto his school computer. The author noted that the appellant was disciplined with a detention.

47. On 19 June 2020, Mr L reported that the appellant was making attempts to launch glue around the classroom as a projectile from a ruler. When confronted, the appellant tried to deny what he was attempting to do. The author also reported that the appellant struck another student hard on the back with his ruler without provocation. The author noted that when he instructed two students to get the Deputy Principal, the appellant left the classroom.

48. On 23 June 2020, it was reported by Mr W that the appellant displayed threatening behaviour, continued disobedience, failure to follow instructions, unsatisfactory compliance, was abusive towards his teacher and used offensive language. The author noted that the appellant used his phone consistently in class and was slicing a glue stick and throwing it around the classroom and then at another student. The author reported that when the appellant was asked to clean up his mess, he was resistant and called his teacher a “faggot”, sprayed soap all over the teacher’s desk and when reprimanded, called the teacher a faggot again. The author noted that the appellant was given firm but fair instruction along with recess detention and a warning.

49. On 26 June 2020, it was reported by Miss E that the appellant was “very oppositional the whole lesson. He kept swearing when talking to me, refused to do any work, stayed on his phone with his earphones in and was very agitated whenever I asked him to continue his work.” The author noted that following this incident, the appellant’s regular teacher was informed.

50. On 1 July 2020, it was reported by Mr J that the appellant was persistently misbehaving and failed to follow instructions during class when he was playing games on his phone instead of engaging with his class work. The author noted that he gave the appellant the option of either handing his phone up and continuing with the lesson, or removing himself to the Deputy Principal’s office for the remainder of the class. The appellant remained unresponsive and refused to hand his phone over. The author noted that he continued with the class and the appellant muttered “fuck me” under his breath.

51. On 3 July 2020, it was reported by Ms CA that she received an anonymous report from a student that the appellant was selling vapes to other students.

52. On 19 August 2020, it was reported by Miss K that the appellant displayed continued disobedience, failed to follow instructions and used offensive language during class. The behaviour related to an altercation between the appellant and another student. The author noted that when she observed the appellant “[look] like he was going to become physically violent”, she separated the students and asked the appellant to step outside. The author noted that she told the appellant his behaviour is unacceptable as was his language, and that he needed to calm down. The author noted that the appellant was back in the class and “somewhat calm” before the lesson ended.

53. On 24 August 2020, it was reported by Mr L that the appellant failed to follow instructions by leaving the classroom for 15 minutes despite his instruction not to do so.

A second report of 24 August by Mr J stated the appellant was using offensive language and attempting to intimidate other students in the class. The author noted that the appellant was generally well behaved outside of these incidents until the conclusion of the lesson when he was spoken to about his poor language, to which he replied, “I just hate these fucking cunts in this class. They fucking piss me off.” The author noted the incident was referred to the Deputy Principal.

54. On 26 August 2020, it was reported by Miss K that the appellant displayed threatening behaviour, persistent misbehaviour and used offensive language during class, whilst fighting with another student. The author reported that she had spoken to the appellant about what is and isn’t acceptable in the classroom regarding his language and behaviour. The author observed that, “so far, they have been responsive to prompts to return to their seats and to continue with their work and generally if I am standing close by the behaviour stops. I am concerned that there is a possibility of it escalating to an actual fight.”

55. On 27 August 2020, it was reported by Ms O that the appellant displayed physical violence in class, when she observed him to push another student, JE, out into the corridor. The author noted that she “counselled [JE], asked him if he was ok and physically hurt…. I then asked him to write a statement for me he said that he wouldn’t because this is the 11^th time this has happened and nothing gets done about it.” The author noted that JE complained he is missing out on work in class because of the appellant. The appellant then interrupted the discussion and apologized to JE saying that he didn’t realize he had hurt JE, that he’s really sorry and that he won’t do this again, he won’t speak badly to him or touch him again. The author reported that she counselled the appellant about “his seriousness in the apology and that actions will need to speak louder than words”.

56. On 16 September 2020, it was reported by Ms M that the appellant failed to follow instructions, used offensive language and abused a teacher. Ms Mc reported that the appellant left class to go to the bathroom without permission. The appellant was with another student in the bathroom. They exited upon request to do so, but the author noted that they “proceeded to verbally abuse us and to ask why we were ‘fucking stalking them’ and ‘why we wouldn’t fucking leave them alone’.” The author noted that both students followed her to her office upon request, but continued to use offensive language and behave aggressively, for example, the appellant coughed in her face and then laughed about having done it.

57. On 16 October 2020, it was reported by Mr C that the appellant displayed threatening behaviour when he and a Year 12 student had an altercation in the bathroom. The author noted that he reported this incident to the Head Teacher on duty and the Deputy Principal.

58. On 19 October 2020, it was reported by Mr G that the appellant displayed threatening behaviour and abused a teacher. The appellant was observed by Mr G to be kicking the wall in the bathroom. The author reported that he asked the appellant to leave the bathroom, to which he responded something to the effect of “No, I’m not leaving. You get out” and “Who the fuck are you? What the fuck are you even doing in here? Go use the teacher’s toilet. Fuck off.” The author reported that he responded by saying, “I beg your pardon”, and that the appellant “made a fist that was held around waist level and did a half lunge towards me to staunch or threaten.” The author reported “as [the appellant] exited the bathroom, he told me to ‘fuck off’.” The author noted that he reported this incident to the Head Teacher on duty and the Deputy Principal.

Student Behaviour Support Plan

59. Exhibit 8 also included a Student Behaviour Support Plan from the NSW Department of Education dated 19 June 2019. The support plan identified the appellant’s behaviours of concern, assessed the purpose of and triggers for the behaviour, and suggested elimination or control strategies to manage the behaviour.

The ADVO

60. Exhibit 9 in the Children’s Court was a section 178 Evidence Act 1995 Certificate issued by Children’s Court Registrar Montano, introducing a copy of a Provisional ADVO dated 25 November 2019, made against the appellant for the protection of his mother and father, PP and KL.

61. The application for the ADVO was annexed to the s 178 certificate. The application set out the narrative leading to the provision of the ADVO. It noted that on 20 November 2019, the appellant and his mother were at their home address when a verbal argument erupted due to the appellant consuming alcohol. It was alleged that when his mother took a shot glass of alcohol from the appellant, he pushed her and ran away. A short time later, the appellant caught a bus to East Gardens Westfield. The appellant’s father found him there and restrained him. A physical altercation then occurred before bystanders called police. The application noted that when police arrived, the appellant appeared agitated and was sweating. The appellant admitted to police than when his father had located him at East Gardens, a physical altercation had taken place and that he punched his father in the face, twice. The application noted that this admission was captured on body worn video, but there was no support person present at the time it was made.

62. The application reported that the appellant’s parents believe he has mental health issues and that this incident was a result of those issues. It also reported that “the actions of the [appellant] are increasingly getting worse and Police have had interactions with the [appellant] a number of times over the past couple of weeks. Police believe that due to the [appellant]’s bad behaviour becoming worse that some form of action needed to take place.”

The Instagram messages

63. Exhibit 10 in the Children’s Court was a statement of Constable Sebastian Kemsley dated 25 February 2021 introducing a police notebook statement taken from and signed by the appellant dated 10 February 2020. The notebook statement describes the appellant’s feelings of intimidation after receiving a series of Instagram messages from BE and TE, threatening him. The appellant expressed a fear that BE or TE would stab him or burn his house down.

The bundle of police statements

64. Exhibit 11 in the Children’s Court was a bundle of police statements from various police officers, reporting on their interactions with the appellant.

65. A statement of Constable Luke Tameaka dated 14 October 2020 reports that he applied for an ADVO listing the appellant as the defendant and the appellant’s father as the person in need of protection, following the incident at East Garden’s Westfield outlined above.

66. A statement of Senior Constable Danijela Saric dated 4 November 2020 notes that the appellant and his father came to see her at Rose Bay Police station where she conducted a Caution under the Young Offenders Act regarding a trespass offence, as part of her Youth Officers duty. Senior Constable Saric further stated that she explained to the appellant that future offending may result in him being arrested and possibly facing court. She observed that the appellant understood this, “by confirming it with words to the effect of: ‘Yes I do understand’.”

67. A statement of Constable Maria Gregory dated 28 October 2020 reports that on Saturday 12 September 2020, she attended Porters Liquor on Anzac Parade in Maroubra in relation to a report of an attempted break and enter the previous night. Whilst there, she reviewed CCTV footage of the attempted break and enter. She also viewed footage of a stealing incident on Wednesday 9 September 2020 where the manager confronted a young person wearing a black hooded jumper with a white ‘Nike Air’ motif on the front chest, black tracksuit pants with a small white ‘Nike’ motif on the left thigh and white Asic shoes.

68. On 13 September 2020, Constable Gregory observed the appellant riding a pushbike on the road without a helmet and stopped the police vehicle next to him. Whilst speaking to the appellant, she observed that his clothing was very similar to the clothing worn by the young person in the CCTV footage at Porters Liquor, and advised him of this. Constable Gregory reports that she placed the appellant under arrest and cautioned him for the break and enter and shoplifting at Porters Liquor.

69. Constable Gregory reports that whilst the appellant was handcuffed, he became increasingly hostile. She activated her body worn video camera and advised him he was being recorded and that the video recording would be shown to a magistrate. The appellant yelled at her, saying “I’ll slap you”, “I will shoot you with your guns” and “I’ll stab you, you fucking bitch.” Constable Gregory observed that the appellant “displayed a complete disregard and disrespect for both Constable Eckel and I and his father”.

70. A statement of Senior Constable Mark Irhazi dated 25 January 2021 asserts that he has met and interacted with the appellant on several occasions in the past within his capacity as a Youth Liaison Officer. On one occasion, he had a conversation with the appellant in relation to breaking the law and the possible outcomes and consequences which could follow. On another occasion, he was present when the appellant received a Youth Caution. In addition, Constable Irhazi is aware that Senior Constable Howard informed the appellant that if he reoffends in the future there is a high possibility he may receive a conviction and how that could negatively affect his future plans and goals. The appellant stated he understood.

71. A statement of Senior Constable Genevieve Howard dated 1 December 2020 reports that she first met the appellant in or around mid-October 2019, after recognising that he had come under police notice for domestic incidents with his parents. Senior Constable Howard informed the appellant in the presence of his father about the implications and consequences of assault and intimidation. She observed that the appellant did not seem to listen and “spoke over me the entire time and asked unrelated questions relating to policing”.

72. Senior Constable Howard reported that she returned to the appellant’s home on 29 October 2019 with Youth Officer, Senior Constable Irhazi, after a further domestic violence incident occurred with the appellant’s parents listed as the victims. She observed Senior Constable Irhazi to have a lengthy conversation with the appellant, stating that threatening, intimidating and assaulting someone is against the law and that the appellant could be arrested, charged and sent to court for committing these offences. The appellant told Senior Constables Howard and Irhazi that he understood and would try his best to control his anger in the future.

73. A statement of Senior Constable Benjamin O’Reilly dated 2 November 2020 notes that the appellant was a suspect in the investigation of a fire that occurred at Pacific Square in Maroubra, in which a shopping trolley had been set alight. Senior Constable O’Reilly noted that he readily identified the appellant from CCTV footage based on a previous and recent interaction he had with him. Constable O’Reilly was aware that EL was wanted for a stealing offence at the Green Grocer. Constable O’Reilly reported that he attended EL’s home and spoke to EL and his father KL. He advised EL not to light further fires, to avoid attending the Green Grocer and to be more respectful towards security personnel who may approach him about stolen goods.

The medical evidence

74. Exhibit 13 was a letter from Ms B. Clarke, Clinical Psychologist, addressed to the National Disability Insurance Agency dated 3 May 2019. Ms Clarke had treated EL since 2012 and she confirmed that he had been diagnosed with Autism Spectrum Disorder (ASD), Attention Deficit/Hyperactivity Disorder (ADHD) and Oppositional Defiant Disorder (ODD). She stated that he exhibits clinically significant deficits in social functioning and community participation. She further opined:

“He struggles to understand both the verbal and nonverbal communication of adults and peers and so frequently misinterprets their communicative intent. He also struggles with empathy and perspective taking and so cannot alter his behaviour to meet the social demands of the classroom or the playground. As a consequence, EL is frequently in conflict with those around him, without understanding the antecedents leading to the conflict or being able to predict the outcome.”

75. Ms Clarke then set out the psychological treatment needs for both EL and his family.

76. Exhibit 14 was a confidential mental health report under the hand of Ms S. Connaughton dated 19 October 2020. The report was prepared to inform the court of EL’s current mental health needs and treatment or support that was available to them. Ms Connaughton is a psychologist and mental health clinician of the Adolescent Court and Community Team. For the purpose of her report, Ms Connaughton interviewed EL and his mother on 28 September 2020. She spoke to EL’s father by phone and was qualified with correspondence from the clinical psychologist at Prince of Wales adolescent mental health service, together with a phone conversation with a team leader from that service.

77. Under the heading, “Current Clinical Issues”, the author noted EL was receiving treatment for ADHD, ODD, Conduct Disorder (CD) and Pervasive Development Disorder (PDD). He was prescribed Ritalin for his ADHD and Aripiprazole, an anti-psychotic used to manage behavioural disturbance.

78. Ms Connaughton opined that EL did not have a good understanding of his diagnoses. He experienced mood swings, had experienced possible transient perceptual disturbance on two occasions, and felt paranoid at times.

79. EL also reported alcohol use twice a week since March 2020 and cannabis use four times a week since December 2019, together with recreational use of MDMA. His mother indicated that EL may be over-reporting illicit drug use.

80. Ms Connaughton noted that EL had been referred to CRAFT (Collaborative Response Adolescent Family Team) for intensive family-based intervention and was seeing counsellors from Youth Justice on a weekly basis. EL had also reported conflict with this father and that his sister was impacted by his behaviours.

81. On mental state examination, the author noted that EL engaged easily but was easily distracted. Objectively, his mood was assessed as “agitated”. His thoughts were coherent and logical however he was an inconsistent historian. Ms Connaughton opined, “He demonstrated poor insights. His judgment was considered impaired due to lack of perspective. Talking ability and impulsivity though was bolstered by his state of willingness to engage in treatment.” She further opined that he was a person with a mental condition for which treatment was available, but was not mentally ill within the meaning of the Mental Health Act 2007. She recommended the POW Adolescent service to continue providing mental health care to him and to include family based intervention as part of his treatment. She further stated that EL may be eligible for consideration under s 32 of the Mental Health (Forensic Provisions) Act 1990 (now the Mental Health and Cognitive Impairment Forensic Provisions Act 2020).

82. Exhibit 14 included a mental health treatment plan dated November 2020 under the hand of Dr Mariano Llosa, psychiatrist. The treatment plan confirmed the diagnosis of ADHD, ODD and PDD and set out the following goals of treatment:

“ ●    To enable psycho-education regarding education, to improve insight into the impact of these concerns on offending behaviour and psychological well-being;

●   To enable management of mental health systems by therapeutic counselling and support;

●   To facilitate the development of strategies to assist EL to more effectively manage his mental health;

●   To engage in supportive counselling to address other areas of psychosocial concern and behaviour that has brought EL to the attention of the justice system;

●   To support re-engagement with other pro-social community activities.”

83. Under the heading, “Obligation of the client”, Dr Llosa set out the various requirements imposed on EL to ensure compliance with his treatment regime.

84. Exhibit 14 also included an intervention plan which noted, inter alia, “EL appears to be quite impulsive and this impacts on his ability to engage in activities appropriately, plus will impact on his ability to learn. He also appears to have inconsistent attention towards activities based on how motivating they are for him.”

85. Exhibit 15 is an assessment report prepared by Dr N Friesen, paediatric Registrar, Ms A Kogekar, clinical psychologist and Ms S De Marchi, social worker, dated 16 May 2013. The assessment took place when EL was aged six years and two months old, over seven years prior to the alleged offending. EL was referred to the Tumbatin Clinic by the student wellbeing coordinator at his primary school when he demonstrated features along the Autism Spectrum. He was known to have oppositional behaviour, sensory issues and difficulty self-regulating emotions in both the school and home environment. Previously he had been assessed as having average intellectual abilities.

86. The assessment report set out comprehensively EL’s family and medical history, together with a comprehensive report as to his self-care skills, communication skills, social play skills, academic skills and motor skills.

87. Under the heading “Behaviour”, the authors noted that EL’s father described him as being “quite bright but appears to be emotionally immature”. He can become overwhelmed and overreacts to situations.

88. Upon assessment, he was exhibiting symptoms consistent with ASD. The authors concluded, “he has impairments in social interaction, and social communication, restricted, repetitive and stereotyped patterns of interest and activities, sensory issues and lack of imaginative play that can be classified under PDD”. His adaptive skills as measured were found to be in the low-average range.

89. The assessment report concluded with recommendations for his ongoing support.

Fresh medical evidence on appeal

90. During the hearing in the Children’s Court, EL sought to rely on a report of Dr M. Llosa dated 19 March 2021, which had not been served on the prosecution prior to the hearing. EL sought an adjournment of the hearing so that Dr Llosa could be called to give evidence. The learned magistrate rejected the tender of the report and refused the adjournment. By Notice of Motion filed on 14 September 2021, the appellant sought an order pursuant to s 19 of the Crimes (Appeal and Review) Act 2001 to call Dr Llosa to give evidence. The order was made on 15 September 2021, and the matter was adjourned for hearing on 20 October 2021.

91. The report of Dr Llosa dated 19 March 2021 became Exhibit 1 on the appeal. The report noted that Dr Llosa had been treating EL since October 2020 and noted that he had required mental health support from an early age. Dr Llosa noted than EL had a “standing diagnosis of ASD, ADHD (Severe), CD and ODD. Dr Llosa opined:

“Due to his ASD, EL struggles to fully understand the consequences of his actions and the impact that these may have on others. His impulsivity and judgment are noticeably impaired which becomes more evident during times of stress.

A key difference between his presentation and that of someone who purely presents with antisocial type behaviours is that EL usually does not plan his actions and mainly acts impulsively with poor planning and logic.

EL’s emotional maturity is delayed in comparison to his biological age. He has difficulties appreciating the magnitude of serious events and has an unsophisticated and fantastic way of problem solving these matters.”

92. Dr Llosa noted that EL will require long-term treatment. That currently involved individual therapy and psychotropic medications.

93. Dr Llosa’s curriculum vitae became Exhibit 2 on the appeal.

94. Dr Llosa confirmed that he had first treated EL in October 2020. He was asked to do so when EL’s previous therapist had left the service and given the complexity of the case, he was requested by the Service Manager to treat EL. He had seen him on at least 20 occasions in the last year.

95. Dr Llosa was asked about the standing diagnosis referred to in his report (Ex 1). He had confirmed the diagnosis of ASD, formerly made by previous clinicians. He described it as a pervasive mental health disorder affecting the neuropsychological development and resulting in deficits in cognitive ability, namely, in flexibility of thinking and communication skills. It involved a lack of understanding of EL’s actions and their impact on others. He referred to this as a lack of “theory of mind”.

96. Dr Llosa gave evidence that PDD was a term used for adolescents with ASD or Asperger’s disorder under DSM-IV. In DSM-V, the term ASD now covers the previous diagnosis of Autism Disorder, PDD and Asperger’s. PDD refers to a range of symptoms within the autism spectrum and is not a term that is used anymore.

97. When asked what the term “theory of mind” meant, Dr Llosa gave evidence that people who struggle with ASD have deficits with theory of mind, that is, an understanding of how their actions impact on others. He confirmed that EL has deficits in this area and it is impaired in the moderate range.

98. Dr Llosa was asked whether the deficit of theory of mind impacts on EL’s ability to understand the wrongness of his behaviour in a moral sense. He gave evidence that EL can differentiate right from wrong. He understands what is morally right and wrong but what he lacks is the capacity to understand the impact of his actions on others. That further affected his ability to understand the magnitude of the wrongness, in a moral sense, of his actions.

99. Dr Llosa was asked about his opinion concerning EL’s emotional maturity being delayed in comparison to his biological age. He gave evidence that although he is now 14, EL functions as someone between 10 and 12 years of age. This meant his thinking can be concrete and unsophisticated, and he lacks a moral understanding of what impact his actions may have on others. When asked what caused the delay in his emotional maturity, Dr Llosa opined that ASD is a neural-developmental disorder which may carry delays in areas such as emotional maturity. The delay in EL’s emotional maturity did have an impact on his understanding of right from wrong and, in particular, on what is morally wrong.

100. When asked what he meant by his opinion in Exhibit 1 that EL has difficulty appreciating the magnitude of serious events and has an unsophisticated and fantastic way of problem solving, Dr Llosa gave the following evidence:

“He lacks maturity and tends to believe there are easy solutions to problems and they will just go away. Because of his lack of theory of mind he does not understand the impact of his actions and the consequences they carry. In his mind, although they may be serious events, they will go away and will not have a long-term impact on others.”

101. When asked about the “fantasy” issue, as it relates to EL’s thinking, Dr Llosa opined:

“He has an immature way of, in his mind, understanding how things should play out. His way of thinking would actually prevail when determining a consequence. He has a fantasy in his head that things will resolve in a positive way for him.”

102. Dr Llosa understood the charges EL was facing and was asked, based on the Fact Sheet provided, whether EL had the capacity to understand whether what he was doing was wrong as opposed to morally wrong. He answered:

“EL would have understood the difference between right and wrong. He would have struggled to understand the severity of whether it was morally wrong or right. He would struggle to understand the magnitude of how morally wrong it would be. He would struggle to understand the impact his actions would have on others.”

103. In respect of the offender telling the victim, “Don’t call the police”, Dr Llosa was asked whether that would alter his opinion of EL understanding the magnitude of the wrongness. He answered:

“A.   I do think he was aware that this was wrong, hence the statement. I do believe that he had an understanding of what he was doing.

Q.   What about the magnitude of the severity of what he was doing?

A.   EL lacks understanding of the severity and the impact of his actions.”

104. In cross-examination, Dr Llosa confirmed that whilst he accepted the diagnoses previously made, over time he had formed the view that ASD was the correct diagnosis for EL. In addition, ODD and CD were standalone diagnoses, however, there was a link between them.

105. Dr Llosa confirmed that EL does not have an intellectual disability. He agreed that disruptive or challenging behaviours are more common in children and adolescents with ASD than other disorders including intellectual disability. He was referred to a number of examples included in Exhibits 8-14 to demonstrate that.

106. Dr Llosa was challenged about his opinion that EL does understand right from wrong but lacks the capacity to understand the impact on others. He confirmed that he did not think EL had the full capacity to understand what is morally right or wrong.

107. Dr Llosa agreed that there were examples of EL experiencing a normal fear-response when he was threatened with violence, or whilst walking down the street at night alone by himself. He agreed with a number of propositions, namely, that EL told treatment providers that he understands the impact his behaviour has on his sister, that he understands the impact he had on a friend named JE at school and had apologised to him, and that he had told police when interviewed that he understood the seriousness of his actions.

108. Dr Llosa agreed that in respect of the criminal conduct involved in the index offences, EL had an understanding that the conduct was morally wrong. He understood it was much more wrong and morally wrong than, for example, stealing a lollipop from a shop, which might be described as “naughty or mischievous”. Dr Llosa agreed that EL would know that robbing someone at knifepoint is very seriously wrong.

109. Dr Llosa agreed that it was common ground that EL has trouble controlling himself and that he suffers from emotional dysregulation, at times of stress. He also had an inability to control his actions, “to a certain extent”. Dr Llosa gave evidence that EL lacked the capacity to understand the full impact of his actions on others. He was asked whether that could be characterised as EL lacking empathy. He answered:

“The term empathy is different from theory of mind. Empathy is being able to recognise someone else’s emotions and relate to them. EL does have an overall empathy towards others.”

110. In re-examination, Dr Llosa was asked what he meant by EL not having the “full capacity” to understand what is morally wrong. He answered:

“EL has the capacity to understand right or wrong and morally right or wrong but he doesn’t have full comprehension of these terms given the fact that he does struggle with theory of mind. He doesn’t understand that if he does something to someone, that person might feel something. EL doesn’t lack but struggles to understand the impact of his actions on other people.”

111. Dr Llosa confirmed that EL understands right from wrong and understands what is morally wrong but has difficulty understanding the extent of his moral wrongness. He gave the following evidence:

“In order to understand the morality of an action, you must understand the consequence of that action. To an extent, EL does understand what is morally wrong but he does not understand the impact it will have on an individual or society.”

112. Dr Llosa gave evidence that there was a difference between the impact of threats made upon EL as opposed to threats he made on others. When asked what the difference was, he gave the following evidence:

“EL is fully aware of the dangers around him, he is able to appreciate when someone puts him at risk. The statements made by those individuals were clear. EL wouldn’t have difficulty understanding the threats made towards him.”

113. When asked what caused the difference, Dr Llosa stated:

“ASD. I cannot answer what particular neurological connection causes that, but the main feature of ASD is not understanding theory of mind.”

Evidence of EL’s father, KL

114. KL gave evidence that he had been called to the various schools EL had attended on over 100 occasions in relation to EL’s behaviour. The recurrent theme of his misbehaviour was noncompliance with the requests of teachers, language (swearing), aggressive behaviour such as pushing teachers and children, and running off, which he described as “just oppositional in interactions with teachers, sometimes being told what to do”.

115. KL gave evidence that EL had been suspended for about 150 days over the last two years of high school. He had attended [J] High School, [S] High School and [R] High School, and had been suspended from all three schools on numerous occasions.

116. In 2020, KL gave evidence that EL had been suspended from school for at least 50 days. He gave the following evidence:

“Q.   Were they batches of 20 days or do you remember?

A.   I think it’s, I think the first one was 10 and the next one was 20 and I’m not, I’m not sure, but sometimes I get the Director involved and sometimes they appease me and take a few days off and, so we got to the point where we had to have resolutions and talk about how suspension’s not working because of behaviours being repeated and the outcome is the same. So the education policy states that you use suspension to change behaviour and my argument’s always been the behaviour’s not changed after these 20 days so why are we going down the same road.”

117. KL gave the following evidence:

“Q.   If you’re asked to give an opinion as to whether one, given the repeated threats and fighting and pushing that you speak of over the last two weeks at least at school, what’s your opinion as to whether EL understands what he is doing is wrong and attracting sanctions such as suspensions?

A.   Well, that’s the problem. He’s, he’s just not getting it. And suspensions isn’t really working at all for him.”

118. KL clarified his expression, “he’s just not getting it” by saying that EL “isn’t learning anything from it, it’s the same, same loop that we’re in that we can’t seem to get out of.”

119. KL gave evidence about EL’s medical diagnosis and treatment. At the time of the offence in September 2020, EL had run off from home and he wasn’t taking his medications, which were Ritalin LA and Aripiprazole. KL gave evidence that EL had run away two weeks prior to the incident. He gave the following evidence:

“Q.   As of September last year, I take it that when he left home, as far as you’re aware, was he taking his medication?

A.   No, the medication was with us so he wasn’t, he wasn’t taking any medication because he doesn’t self-medicate, I medicate him.

Q.   I’m not asking you to jump into the shoes of the doctor, but as a parent that has seen and lived with him from birth, did you notice any changes in his comprehension or character in September when he was unmedicated?

A.   Well, he wasn’t really there. You mean when I did come in contact with him?

Q.    Yes?

A.   Yes. He was very angry and very agitated and, and irate. He wasn’t, like – that’s why I was asking the police, “can you take – help, we need a circuit breaker, you know, he’s agitated, he’s not in a fit state to go home because he’s just going to run off”, and that’s what happened.”

120. KL was asked by the learned magistrate, “did you teach him the difference between right and wrong?” to which KL answered, “I tried”.

121. KL gave further evidence that EL was raised “in a loving, nurturing environment”. He was asked:

“Q.   And given the environment to which he has been raised in and your interaction with him and the school, are you then able to then give us an opinion as to whether he understood at least as at September last year what was wrong or really wrong as opposed to just being mischievous and naughty?

A.   Yeah well, I don’t think he knows the difference. I just think he wants to do whatever he wants to do and, you know, he’s got impulse control issues, but I think he just, he doesn’t know, like, from the suspensions, the same thing over and over so, he’s, you know, he’s not really getting it. And I don’t think he understands the difference between, between the two at all.”

122. KL was cross-examined about his education and gave evidence that EL had been suspended during primary school for a minimum of 80 days. Once he reached Year 7 he was suspended an increasingly large number of times and KL gave evidence that he had spoken to EL about the consequences of being suspended so that he could have strategies to do something different.

123. KL also gave evidence about disciplining EL for non-compliance with rules at home. He was asked:

“Q.   So, would it be fair to say that there has been consequences in the household for him not doing what you’ve told him to do?

A.   Yes, yes.”

124. KL gave evidence that he had run away from home prior to September 2020. When asked why, he gave the following evidence:

“A.    Usually more of the same, like, just with you’re, you’re giving him the consequences, he just doesn’t want to accept them so he, he’d run off.”

125. KL gave evidence that he had not, prior to this occasion, run away for two weeks before and that he was very concerned for EL during that period. He gave evidence that EL had learned that his parents could not stop him from running away from home.

126. KL gave evidence that on the occasion when he had been asked to go to the police station to collect EL, outside the police station there was an incident with EL verbally threatening him, which led to EL’s arrest and to him being taken to hospital for assessment.

The appellant’s submissions

127. The appellant relied on a written outline of submissions in relation to the issue of doli incapax. It was submitted the evidence does not establish that the presumption that EL was incapable of forming criminal intent was rebutted beyond reasonable doubt.

128. In relation to doli incapax, the appellant referred to RP v The Queen [2016] HCA 53; 259 CLR 641 at [12], where the majority said:

“The only presumption which the law makes in the case of child defendants is that those aged under 14 years are doli incapax. Rebutting that presumption directs attention to the intellectual and moral development of the particular child. Some 10-year-old children will possess the capacity to understand the serious wrongness of their acts while other children aged very nearly 14 years old will not.”

129. The appellant referred to Exhibit 14 and 15 in the Children’s Court, which were a mental health assessment, treatment and intervention plan dated October and November 2020, and a medical report dated March 2013 respectively. It was submitted that those exhibits show that the appellant had a number of psychological and psychiatric ailments, including ADHD, ODD, CD and PDD. Ex 15 was evidence of a concern on behalf of the appellant’s school at the time that he demonstrated features along the autism spectrum and that a formal assessment for Autism Spectrum Disorder was required.

130. It was submitted that the learned magistrate erred in not allowing the appellant to adduce into evidence the medical report of Dr Llosa (Ex 1), or the opportunity to expand on that report orally. It was further submitted that evidence of Dr Llosa was critical to the question of doli incapax and that the learned magistrate was in error to find there was not “significant prejudice to [EL] if adjournment is refused (T 6.50 – 30.3.21)”.

131. In his oral submissions, the solicitor for the appellant submitted there was an abundance of material evidencing the delinquency of the appellant. This included the evidence of his father, and the consistent evidence of suspensions for failing to take instructions, assault and defiance, which demonstrated that EL “just doesn’t get it”.

132. The appellant referred to the evidence of KL outlined above, in which he stated that EL had impulse control issues, that he is not really getting it, and he doesn’t understand the difference between what was wrong or really wrong, as opposed to just being naughty or mischievous.

133. It was submitted that the point was that EL’s infractions at school sit comfortably with the opinions of Dr Llosa, namely, that whilst EL understands right and wrong, his continual infractions give rise to the rhetoric question, “If he understood the extent of what he was doing, why would he keep doing it?”

134. The answer is that EL does not understand the full extent of his wrongdoing. It was one thing to make a complaint to police about the behaviour others had upon him but another to fully understand his effect on others. It was Dr Llosa’s opinion that the reason for that was the nature of his ASD, a diagnosis he had when assessed as a six year old. It has plagued EL from a very young age and has two relevant effects on doli incapax:

1. EL’s emotional maturity is similar to that of someone aged between 10 and 12 years of age;

2. EL lacks theory of mind, namely, a capacity to understand the impact of his actions on others.

135. The appellant submitted that the court is not dealing with an individual that was 13 and a half years old at the time of the offence. The unchallenged evidence of Dr Llosa means that the court is dealing with a person with the emotional maturity of someone aged between 10 and 12 years. It was submitted the starting point was the High Court’s decision in RP v The Queen at [12]. In assessing the extent of his moral wrongness, the court would find that it was well below his biological age and possibly as low as 10 years.

136. It was submitted that the fact that the offender had said to the victim, “Don’t call the police” was some evidence that the offender understood that what he was doing was wrong. However, it was submitted that is not the test. It does not prove that he knew what he was doing is seriously wrong. Rather, the evidence established that EL lacked theory of mind. Because of his ASD, whatever he does, EL has an inability to understand the wrongfulness of what he was doing.

137. It was submitted the onus was on the Crown to rebut the proposition that EL did not fully understand what it was that he was doing in a moral sense. The evidence of Dr Llosa was clear and he had fairly conceded that EL understood right and wrong and the concept of moral wrongness. What was relevant here is the severity or extent of the wrongness, which EL did not understand. This gave rise to a significant question mark as to the level of moral wrongness as EL perceived it. Therefore, the Crown had not rebutted the presumption.

138. It was submitted that the evidence of EL’s school reports varied as to their content. Delinquent behaviour could not be compared to criminal offending. However, the continuing nature of his delinquent behaviour demonstrated EL’s inability to understand the impact of his actions on others. It was submitted that nothing in the cross-examination of Dr Llosa dispels what the doctor said about EL not having an understanding as to the extent of the moral wrongness of his conduct. This was described as a “grey-area”. It was in fact a psychological defect in EL, caused by his ASD that resulted in a lack of emotional maturity.

139. Finally, it was submitted that the presumption of doli incapax had not been rebutted by the evidence in the Crown case.

The Crown submissions

140. The Crown relied on a detailed written outline of submissions in which it summarised the common law principle of doli incapax as considered by the High Court in RP v The Queen (supra) as follows:

• The rationale for the presumption of doli incapax at common law is the view that a child under the age of 14 years is not sufficiently developed, intellectually and morally, to understand the difference between right and wrong and therefore lacks the capacity for mens rea: [8].

• The presumption at common law is irrebuttable in the case of a child under the age of seven years: [8].

• Between the age of 7 years and the age of 14 years the presumption at common law is rebuttable and the prosecution may adduce evidence to prove that, at the material time, the child was doli capax: [8].

• The age at which a child is capable of bearing criminal responsibility for his or her acts has been raised by statute in New South Wales pursuant to s 5 of the Children (Criminal Proceedings) Act.

• 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. A child’s 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’. The distinction may be expressed ‘by stating the requirement in terms of proof that the child knew the conduct was “seriously wrong” or “gravely wrong”: [9].

• 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: [9]. See also BC v R [2019] NSWCCA 111 at [43].

• The prosecution must point to evidence from which an inference can be drawn beyond reasonable doubt that the child’s development was such that he or she knew that it was morally wrong to engage in the relevant conduct. This directs attention ‘to the child’s education and the environment in which the child has been raised’: [9].

• The knowledge required to rebut the presumption is knowledge ‘of the wrongness of the act as a matter of morality and not law’. Further, the prosecution must prove knowledge ‘of serious wrongness as distinct from mere naughtiness’ [11].

• What is sufficient to rebut the presumption will vary ‘according to the nature of the allegation and the child’. A child will ‘more readily understand the seriousness of an act if it concerns values of which he or she has direct personal experience’: [12]. For example: Answers given in the course of a police interview may serve to prove the child possessed the requisite knowledge. In other cases, evidence of the child’s progress at school and of the child’s home life will be required: [12].

• It has been said that the closer the child defendant is to the age of 10 the stronger must be the evidence to rebut the presumption. Conversely, the nearer the child is to the age of 14, the less strong need the evidence be to rebut the presumption.

• Rebutting the presumption directs attention to the intellectual and moral development of the particular child. Some 10-year-old children will possess the capacity to understand the serious wrongness of their acts while other children aged very nearly 14 years old will not: [12].”

141. The Crown submitted that the authority of RP v The Queen is not entirely apposite to this case. The offender in RP was in the “borderline range of intellectual functioning” and was “described as having ‘moderate difficulty in social/occupational functioning’ and ‘as requiring supervision in daily activities… [and] placed on a disability support pension.” It was submitted that whilst the offender in RP did not make threats of violence to his victims, the appellant here did, and expressly told the victim not to call the police.

142. The Crown then set out what it submitted to be the most compelling evidence tendered by the prosecution in the Children’s Court to rebut doli incapax as follows.

Exhibit 8 – [J] High School and [R] High School Reports

143. The Crown submitted that the following reports should be taken into account:

1. A report stating that a teacher spoke to the appellant’s father for an hour about the need for accountability and that the appellant is being made accountable at the school, which indicated the appellant’s knowledge of consequences for bad behaviour and knowledge of the difference between right and wrong.

2. A report stating that the appellant was involved in a violent incident on 28 May 2019 with a teacher whereby he put his left forearm against the teacher’s throat and threatened to punch him, which indicated that the appellant was made aware that violence is seriously wrong.

3. A report dated 8 May 2019 stating the appellant complained about another student’s behaviour towards him and was told by a teacher that this behaviour was a result of the appellant’s provocation, which indicates that the appellant knows other people will react to his actions and that he should leave other people alone.

4. A report dated 5 April 2019 stating the appellant displayed persistent or serious misbehaviour in relation to violence and inability to follow instructions, which indicates that the appellant was repeatedly told of the wrongfulness of such behaviour.

5. A report dated 18 March 2019 stating the appellant was involved in a disturbance with other students which led to a female student picking a fight with him and noted, “[EL] knew it was wrong… and came to the front office. He was very upset and felt unsafe”, which indicates that the appellant is aware that violence and threats of violence are seriously wrong, and not just naughty. The Crown further submitted that the appellant himself does not like such behaviour and knows how distressing it is to others.

6. A report dated 7 March 2019 stating the appellant was given a ten minute “time out” for play fighting and, upon reflecting on his behaviour, was allowed to re-join class. The Crown also referred to a report dated 13 March 2019 stating the appellant was prevented from playing sport due to misbehaviour. The appellant calmed down, but when he was told he would still not be allowed to play, he acted out again. The Crown submitted these reports indicated that the appellant knows there are consequences for bad behaviour and will moderate his behaviour when he perceives it suits him to do so.

7. A report dated 26 March 2019, in which the reporting teacher notes following an instance of bad behaviour that the appellant is “oppositional and does not seem to be able to regulate his response”, which indicates that the appellant has difficulty controlling his behaviour. The Crown submitted that this is entirely different to, and ought not to be conflated with, whether the appellant knows right from wrong.

8. A letter dated 5 April 2019 notifying the appellant of his suspension from school for physical violence, swearing and incidents of misbehaviour at Year 7 camp, which indicates that the appellant is aware that violence is seriously wrong and results in consequences.

9. A letter dated 4 June 2019 notifying the appellant of his suspension from school for physical violence, swearing and incidents of misbehaviour at Year 7 camp, which indicates that the appellant is aware that violence is seriously wrong and results in consequences.

10. A letter dated 19 June 2019 notifying the appellant of his suspension from school for hostile and aggressive behaviour, after he “physically and verbally abused staff and students”, which indicates that the appellant is aware that violence is seriously wrong and results in consequences.

11. A letter dated 4 July 2019 notifying the appellant of his suspension from school for physical violence, which indicates that the appellant is aware that violence is seriously wrong and results in consequences.

12. A report dated 19 October 2020 stating after the appellant was confronted in the boys’ toilets by a teacher, the appellant threatened to punch the teacher, which showed that when the appellant acted out violently he was reported to the Deputy Principal.

13. A report dated 27 August 2019 stating the appellant was involved in a fight with a student and that “[EL] then continued to push and shove [JE] up against the wall until he finally realised that I was watching… [EL] then interrupted the discussion and apologised to [JE] saying that he didn’t realise that he had hurt [JE] and that he’s really sorry and that he won’t do this again.” The Crown submitted that this indicates that the appellant knows the difference between right and wrong, and what is seriously wrong and not just naughty. It was further submitted that the appellant is able to moderate and control his behaviour when he perceives that it suits him to do so.

14. A report dated 28 August 2020 in which a teacher noted, “generally if I am standing close by the behaviour stops”, which indicates that the appellant knows the difference between right and wrong and can moderate his behaviour.

15. A report dated 4 June 2020, stating the appellant was seen passing a yellow “vape machine” to another student. When confronted by a teacher, the appellant stated, “Why did you tell on us? You don’t know how much trouble I am going to get in now. I’m going to get bashed at home because of you.” The Crown submitted this report indicates that the appellant knows the difference between right and wrong and what is seriously wrong and not just naughty.

Exhibit 9 – s 178 certificate dated 27 January 2021 and provisional ADVO dated 20 November 2019

144. The Crown referred to a copy of the provisional ADVO protecting KL from the appellant. The Crown submitted that it indicates the appellant is aware of the legal consequences of breaking the law and knows that such behaviour will lead to the involvement of police.

Exhibit 10 – Statement of Constable Sebastian Kemsley dated 25 February 2021

145. The Crown referred to the police statement of Constable Sebastian Kemsley dated 25 February 2021, stating that the appellant went to police on 10 February 2020 to make a complaint of threats of violence made against him by other young persons on Instagram. The officer stated at [6], “[EL] expressed to me that he felt intimidated… this made him feel unsafe… [EL] showed an understanding for the threats that were made by the boys and expressed to me that he was scared because of these threats and feared for his safety.” The Crown submitted this indicates the appellant himself felt scared and aggrieved by threats made against him that he knew to be seriously wrong, and not just naughty.

Exhibit 11 – Bundle of police statements

146. The Crown referred to two police statements which described Youth Justice Cautions administered to the appellant by uniformed police officers on 1 February 2019 at the appellant’s home and 9 April 2020 at Rose Bay Police Station. The Youth Justice Cautions were administered following the incident leading to the ADVO against the appellant for the protection of his father and a trespass committed by the appellant. The Crown submitted this indicated the appellant knows that serious wrongdoing will result in legal consequences and the involvement of the police. The Crown further submitted that “a fight with parents and a trespass pale into insignificant compared to robbing someone at knifepoint” (sic)

147. The Crown referred to a police statement of 25 January 2021 of Senior Constable Irhazi regarding Youth Justice Cautions administered to the appellant. Paragraphs 9-10 of the statement state, “Senior Constable Howard explained the Young Offender’s Act… explained to EL that assaulting another person is against the law and you could be charged and placed before a Court… informed [EL] that if he reoffends in the future there is a high possibility he may receive a conviction and how that could negatively affect his future plans and goals. [EL] stated he understood…” The Crown submitted this indicated the appellant knows that assault is serious wrongdoing that will result in legal consequences and the involvement of the police.

Exhibit 15 – Assessment report dated 22 March 2013 from the Tumbatin Clinic at Sydney Children’s Hospital

148. The Crown referred to a report from the Tumbatin Clinic at the Sydney Children’s Hospital dated 22 March 2013 which stated the appellant had communication skills in the high average range when assessed by speech pathologist Lisa Boland in February 2013. Under the heading “Academic Skills”, the report stated the appellant was a “capable student”. Under the heading “Behaviour”, KL, the appellant’s father, reported that “EL is quite bright but appears to be emotionally immature.” The Crown submitted that this report indicates the appellant has behavioural problems and cannot control himself properly. The Crown further submitted that these issues are to be distinguished from intellectual disability or cognitive impairment, of which there is no evidence.

Children’s Court Hearing – Transcript References

149. The Crown referred to the evidence in chief of the victim, Ms Lee, in the Children’s Court where she stated that the appellant said to her, “Don’t you dare call the police”. The Crown submitted that this indicates the appellant knows the robbery was seriously wrong and would result in police involvement.

150. The Crown referred to the evidence in chief of the father of the appellant, KL, in which her Honour asked if he had taught the appellant the difference between right and wrong and to which he replied, “I tried”. The Crown submitted this is “uncontroverted evidence the appellant was raised to know what was seriously wrong”.

151. The Crown referred to KL’s cross-examination, where he stated, “Yeah, he was raised in a loving, nurturing environment”. The Crown submitted this is evidence of the environment in which the appellant was raised. The Crown further referred to KL’s cross-examination, in which he agreed there had been consequences in the home for the appellant not doing what he is told. The Crown submitted this is evidence of the appellant’s knowledge of right from wrong. The Crown further referred to KL’s cross-examination in which he stated, “You’re giving him the consequences, he just doesn’t want to accept them so he, he’d run off”. The Crown submitted this showed the appellant wilfully misbehaves and is disobedient.

152. The Crown referred to KL’s cross-examination, where he agreed that when the appellant is violent, “he has consequences”. It was submitted that this is evidence of the environment in which he was raised.

153. In summary, the Crown referred to the remark of the learned magistrate in the decision below that her Honour would “like to draw a distinction between knowledge of wrongness and capacity to control conduct” and submitted that the evidence before the court demonstrates that the appellant has serious difficulties with emotional regulation and self-control. It was submitted that the fact that the appellant has sought the help of teachers and police in the past following threats of violence made against him is compelling evidence that he was aware that robbing a young woman at knifepoint on the street is very seriously wrong.

154. In his oral submissions, the Crown submitted that the prosecution had rebutted the presumption beyond reasonable doubt “in no uncertain terms”. In answer to the rhetorical question asked on behalf of the appellant, namely, “If he understood the extent of what he is doing, why would he keep doing it?”, in relation to the abundance of evidence tendered by the Crown regarding the child’s upbringing, involvement with police and discipline at school, the answer was because EL has ODD. The Crown submitted it was a simple answer. Further, DSM-V says the diagnostic criteria for ODD is “an angry or irritated mood, often angry or resentful, argumentative or defiant behaviour, often argues with authority figures or with adults, often actively defies or refuses to comply with requests from authority figures or with rules, often deliberately annoys others, often blames others for his/her mistakes or behaviour.”

155. The Crown submitted that the evidence rebutting doli incapax was not confined to the large amount of material arising from the disciplinary procedures leading to suspension and expulsion from EL’s schools or his dealings with police. None of that evidence was challenged. Also relevant was the evidence as to EL’s upbringing and moral development. The Crown referred to the evidence outlined above given by KL that he had tried to teach EL the difference between right and wrong and that EL was raised “in a loving, nurturing environment”. KL also agreed that there had been consequences in the home for EL not doing what he was told, however, KL gave evidence, “you’re giving him the consequences, he just doesn’t want to accept them, so he’d run off”.

156. Assuming EL did commit the offence, the issue of identification not having been determined on appeal, the Crown relied on the circumstances surrounding the offence. The Crown acknowledged that in RP at paragraph [9], the High Court held that the presumption cannot be rebutted merely from the doing of the acts involved. Here, the Crown was not relying on the act of armed robbery, but rather the circumstances of the offence. The Crown referred to BC v R [2019] NSWCCA 111 at [53] to submit that the Crown may rely on the circumstances of the offending to rebut the doli incapax presumption. The Crown submitted that this was not relying on the offence itself. In that case, which involved a sexual assault on a sibling, the applicant had told the complainant when he heard an adult moving around in the house, the words, “Quickly, stop. Stop.” Similarly here, in the middle of the night, in a public place, the offender had said to the victim, “Don’t you dare call the police.”

157. The Crown submitted the primary submission of the appellant relied on Dr Llosa’s evidence that even though EL knew the difference between naughty or mischievous behaviour and something that was seriously wrong, the Crown has not rebutted the doli incapax presumption. The Crown submitted this was not the test, referring to the High Court’s decision in RP at [8] where the court said:

“The rationale for the presumption of doli incapax is the view that a child aged under 14 is not sufficiently intellectually and morally developed to appreciate the difference between right and wrong and thus lacks the capacity for mens rea.”

158. The Crown referred to the evidence of Dr Llosa as to the mismatch between EL’s biological age and his emotional maturity. Dr Llosa’s evidence clearly was that EL was not intellectually disabled and there was nothing before the court to indicate any level of developmental delay or intellectual disability. The Crown referred to RP at [12] where the court said, “rebutting that presumption directs attention to the intellectual and moral development of the particular child.” In RP, the High Court had been dealing with a child who was borderline disabled and with an IQ placing him in the eighth percentile of functioning, who had had a disadvantaged upbringing.

159. The Crown submitted here there was overwhelming evidence pointing to the intellectual and moral development of EL. When asked directly whether EL knew right from wrong, Dr Llosa said clearly that he does. The Crown submitted the test was not whether EL had some deep and thorough and complete understanding of the impact on the victim.

160. In response to the appellant’s submission that Dr Llosa was not challenged as to EL’s emotional age, the Crown submitted that his emotional age was irrelevant to his intellectual and moral development.

161. The Crown submitted, “By positing what was described as a rhetorical question, the appellant is asking the court to venture into a realm of intellectual, moral and philosophical speculation that has plagued the great minds of human history. The fact of his continued violence and misbehaviour and defiance at school actually shows that EL was at that time on a trajectory of seriously wrong behaviour that culminated in the commission of the offence.”

162. The Crown submitted that Dr Llosa had concurred with the proposition that a diagnosis of CD can only be made when the symptoms of ODD are severe and that those two conditions or diagnoses are linked.

163. Finally, the Crown submitted that it complied with the High Court of Australia’s mandate in RP by producing reams of material that speak to the scores of instances of disciplinary action taken by EL’s schools and the police. To conclude that, by virtue of this, somehow the Crown case is weakened, could not be correct.

Determination

164. At common law, there is a presumption that a child under 14 years lacks the capacity to be criminally responsible for his or her acts – see RP v The Queen [2016] HCA 53; 259 CLR 641 at [4]. The child is said to be doli incapax, meaning “incapable of crime”. In RP, the High Court restated the principles in relation to the presumption of doli incapax. Those principles can be summarised as follows:

1. The onus is on the prosecution to adduce evidence to rebut the presumption to the criminal standard;

2. Proof of capacity requires proof the child appreciated the moral wrongness of the offending conduct;

3. 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;

4. 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.

165. The plurality in RP stated at [9]:

“From the age of ten 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. 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’. 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…”

166. It was this mandate that led the Crown to tender and rely on a great deal of material from EL’s schools, medical and police records. The Crown submission to the effect that it cannot be correct that the more material the Crown relies on the weaker the Crown case becomes is entirely misconceived. It is the qualitative nature of the evidence, and not the volume of it, which is important in determining whether the Crown has rebutted the presumption to the criminal standard beyond reasonable doubt.

167. The plurality in RP stated at [12]:

“What suffices to rebut the presumption that a child defendant is doli incapax will vary according to the nature of the allegation and the child. A child will more readily understand the seriousness of an act if it concerns values of which he or she has direct personal experience… Answers given in the course of a police interview may serve to prove the child possessed the requisite knowledge. In other cases, evidence of the child’s progress at school and of the child’s home life will be required.”

168. This case may be contrasted with AL v R [2017] NSWCCA 34, which followed RP v The Queen. In that case, the applicant challenged his conviction upon a number of grounds including an alleged failure to adequately direct the jury on the issue of doli incapax. The court rejected this ground of the appeal. There was a substantial body of evidence, including school reports and assessments of the applicant, all of which were pertinent to the question whether the presumption of doli incapax had been rebutted. The court observed that there was, “no prescribed formula for evidence sufficient to rebut the presumption” and that this “will depend upon the circumstances of individual cases” (at [149]). The court went on to say at [150]:

“In the circumstances of this case, there was evidence to suggest that the applicant had a good home life; he lived with both his parents and siblings in an apparently affluent environment; he attended school regularly and his parents secured additional tuition for him each Saturday. The evidence of his performance and conduct at school pointed to a mature, respectful and intelligent youth. There was evidence that the applicant had taken steps to hide his conduct to the complainant. That evidence coupled with the applicant’s own concession in evidence of his level of understanding, was sufficient for the jury to be satisfied beyond reasonable doubt of this aspect of the matter.”

169. BC v R [2019] NSWCCA 111 was a decision where the Court of Criminal Appeal came to the view, contrary to the primary judge, that the Crown failed to adduce evidence capable of satisfying the jury to the criminal standard that the doli incapax presumption had been rebutted. In that case, which involved numerous allegations of sexual assaults, the court held the fact that when the applicant apprehended being discovered by an adult during an assault and said to the complainant, “Quickly, stop, stop”, was not relevantly probative. At [52] the court said,

“The issue is whether the applicant knew that his conduct was “naughty or mischievous”, as opposed to knowing that his conduct was seriously wrong. This evidence was equally consistent with either state of mind. We respectfully agree with the statement of Hodgson JA in BP v R; SW v R [2006] NSWCCA 172 at [29]:

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

170. The same reasoning applies here to the evidence relied on by the Crown that the appellant said to the victim, “Don’t you dare call the police.”

171. 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.” – see 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, referred to in a paper entitled “Proving the Criminal Responsibility of Children: RP v The Queen” authored by Mr H Dhanji SC (as his Honour then was), Ms J Roy and Ms S McLaughlin.

172. Moreover, the evidence must prove beyond all doubt that the child knew that his actions in committing the offence were seriously wrong. As the High Court said in RP at [9]:

“The prosecution must point to evidence from which an inference can be drawn beyond reasonable doubt that the child’s development is such that he or she knew that it was morally wrong to engage in the conduct. This directs attention to the child’s education and the environment in which the child has been raised.”

173. I do not accept the Crown’s submission that the appellant was repeatedly delinquent because of his diagnosis of ODD, and that was the
     “simple answer” for his behaviour. That 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.

174. EL had from an early age of six years symptoms of, and an early diagnosis of ASD, ODD and PDD. He had been treated with regular counselling and medication. Notwithstanding that, he had an appalling record of school disciplinary measures and suspensions, including at two primary schools and three high schools (in the space of two years, namely Years 7 and 8). Whilst he had a loving and nurturing environment at home, he was not compliant with the most reasonable boundaries set by his parents. That led him, at the time of the offence, to being suspended from school, homeless, un-medicated and no doubt, penniless.

175. 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.

176. 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.

177. 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.

178. The appeal will be upheld, and I will set aside the orders made by the learned Children’s Court magistrate on 30 March 2021.

Orders

179. I hereby order as follows:

1. The appeal is upheld;

2. The orders made by the learned magistrate on 30 March 2021 are set aside.

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Amendments

11 November 2021 - Removed identifiers.

Decision last updated: 11 November 2021