KG v Firth

Case [2019] NTCA 5

CITATION:KG v Firth [2019] NTCA 5

PARTIES:  KG

v

FIRTH, Justin Antony

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:AP 4 of 2018 (21711417)

DELIVERED:  18 June 2019

HEARING DATE:  9 April 2019

JUDGMENT OF:  Grant CJ, Blokland J and Mildren AJ

CATCHWORDS:

CRIMINAL LAW – CRIMINAL LIABILITY AND CAPACITY – DOLI INCAPAX

Appeal from decision of the Supreme Court quashing acquittal entered on basis prosecution had failed to establish 13 year old appellant knew his conduct was morally wrong – prosecution bore burden of proving appellant knew that his conduct was “wrong” – that question was one of fact – required proof child knew conduct was “seriously wrong” or “gravely wrong” – presumption cannot be rebutted merely as inference from the doing of serious act – questions put by defence counsel could not be taken to amount to the appellant’s instructions or form basis for inference that appellant that conduct was seriously wrong in the moral sense – not incumbent on the trial judge to accept expert’s opinion on ultimate issue – trial judge’s finding of reasonable doubt that appellant knew his conduct was seriously wrong in the moral sense not so unreasonable as to make the conclusion irrational and arbitrary – appeal allowed.

Criminal Code 1983 (NT) s 43AQ, s 43C, s 192
Local Court (Criminal Procedure) Act 1928 (NT) s 163
Youth Justice Act 2005 (NT) s 144

Balchin v Anthony (2008) 22 NTLR 52, Berlyn v Brouskos (2002) 134 A Crim R 111, Harvey v Bofilios [2017] NTSC 68, Peach v Bird (2006) 159 A Crim R 416, Police v Eiffe [2007] SASC 178, R v Lander (1989) 52 SASR 424, R v MAP [2006] QCA 220, R v Robinson [1977] Qd R 387, Rigby v Taing (2015) 249 A Crim R 320, RP v The Queen (2016) 259 CLR 641, Tracy Village Sports & Social Club v Walker (1992) 111 FLR 32, Wilson v Lowery (1993) 4 NTLR 79, referred to.

REPRESENTATION:

Counsel:

Appellant:P Boulten SC with M Aust

Respondent:  M Nathan SC

Solicitors:

Appellant:North Australian Aboriginal Justice Agency

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Number of pages:  22

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

KG v Firth [2019] NTCA 5

No. AP 4 of 2018 (21711417)

BETWEEN:

KG

Appellant

AND:

JUSTIN ANTONY FIRTH

Respondent

CORAM:    GRANT CJ, BLOKLAND J and MILDREN AJ

REASONS FOR JUDGMENT

(Delivered 18 June 2019)

THE COURT:

  1. This appeal is from the decision of the Supreme Court delivered on 28 September 2018[1] allowing a prosecution appeal from the decision of the Youth Justice Court delivered on 29 November 2017. The Youth Justice Court had dismissed a charge of performing an act of gross indecency on another person contrary to s 192(4) of the Criminal Code 1983 (NT) and acquitted the appellant.  The basis for…

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KG v Firth [2019] NTCA 5
Case
[2019] NTCA 5
Decision Date

CaseChat Overview and Summary

In the case of KG v Firth, the appellant, a 13-year-old boy, was acquitted by the Youth Justice Court of a charge of indecent assault. The prosecution appealed this decision to the Supreme Court, which quashed the acquittal. The appellant then appealed to the intermediate court, which allowed the appeal, reinstating the acquittal. The prosecution appealed to the Full Court of the Supreme Court, which allowed the appeal and quashed the decision of the intermediate court, reinstating the Supreme Court's decision to quash the acquittal. The appellant now appeals to the High Court. The central issue was whether the appellant knew that his conduct was seriously wrong in the moral sense. This question is one of fact, and the prosecution bears the burden of proving it. The intermediate court found that the trial judge’s finding of reasonable doubt that the appellant knew his conduct was seriously wrong in the moral sense was not so unreasonable as to make the conclusion irrational and arbitrary. The court held that the trial judge was not required to accept the expert’s opinion on the ultimate issue and that questions put by defence counsel could not be taken to amount to the appellant’s instructions or form a basis for an inference that the appellant knew that his conduct was seriously wrong in the moral sense. The Full Court of the Supreme Court found that the intermediate court had erred in its assessment of the significance of the appellant’s knowledge of the victim’s absence of consent to the ultimate issue. The Full Court held that the trial judge had misapprehended the level of the complainant’s resistance and that the only inference reasonably open was that the appellant knew the complainant was not consenting to the acts. The Full Court also found that the intermediate court had erred in finding that the Youth Justice Court was acting arbitrarily or irrationally in entertaining a doubt about the appellant’s knowledge of the wrongfulness of his conduct. The High Court allowed the appeal and quashed the decision of the intermediate court, reinstating the decision of the Full Court of the Supreme Court. The appeal was allowed, and the decision of the Youth Justice Court was quashed, reinstating the decision of the Supreme Court.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The prosecution brought an appeal from that decision to the Supreme Court on the ground that the Youth Justice Court had erred in finding that the respondent did not know his conduct was wrong. As the intermediate court observed, that ground did not accurately state the ultimate finding of the trial judge. The finding was in fact that the prosecution had failed to rebut the presumption of doli incapax.The decision at intermediate level After stating the principles which governed the prosecution appeal and the assessment of the appellant’s capacity, the intermediate court turned to consider the reasons of the trial judge and made criticisms of some of that reasoning. First, difficulties were identified with the trial judge’s finding that the circumstances “would certainly constitute recklessness as to the lack of consent”.[3] For the reasons identified by the intermediate court, the only inference reasonably open was that the appellant knew the complainant was not consenting to the acts.[4] However, it is not altogether clear whether the finding by the trial judge in relation to this element was limited to recklessness, or whether there was a principal finding that the appellant had knowledge the complainant was not consenting. Immediately prior to the reference to recklessness, the trial judge had observed that “it must have been clear to [the appellant] that [the complainant] was not consenting to the involvement of the boys in lifting her and dropping her to the ground”. During the course of the trial, the trial judge had observed that “it would be ridiculous to take the view that [the appellant] might have had any misapprehension that … you can behave like that towards a woman and still think she might be consenting”.[5] It may be, as counsel for the appellant submitted, that the trial judge was simply “covering his bases” by making advertence to recklessness. In any event, the trial judge proceeded on the basis that the issue was not whether the appellant believed the complainant was consenting or not, “but whether he knew that his conduct in the circumstances at hand was seriously wrong”.[6] Secondly, the intermediate court found that the trial judge had misapprehended the level of the complainant’s resistance. The evidence in that respect was summarised by the intermediate court as follows:[7]As to the complainant’s level of resistance the following is a fair assessment of the evidence. She was struggling when her arms were pinned in front of her. The complainant was shocked when the two boys grabbed her and lifted her up and dropped her to the ground. She could not move or scream. She was that scared she could not even think of what was happening to her. She knew what was happening but she just thought it was not real. She did not say anything once they got her on the ground. She was just too scared. She thought if she fought back they would fight her and hurt her even more. However, she was trying to get her arms free. They could not remove her shirt completely because she was resisting. She was just trying to get her hands away so she could push up. But they managed to somehow hold her arms down. When they started trying to remove her boxers that is when she pushed herself up. She was fighting off the boy on top of her. She was ultimately able to push herself up. When the respondent turned her head and tried to kiss her she locked her lips. When the respondent started touching her vagina she crossed her legs. After she crossed her legs she got both her hands and pushed the respondent in the middle of his chest and he stumbled backwards.

Ratio Decidendi

Legal Principle Established

The appellant challenges the determination made by the intermediate court on the following grounds:1.The intermediate court erred in finding that the Youth Justice Court was acting arbitrarily or irrationally in entertaining a doubt about the appellant’s knowledge of the wrongfulness of his conduct.2.The intermediate court erred in assessing the significance of the appellant’s knowledge of the victim’s absence of consent to the ultimate issue of the reasonableness of the doubt that the appellant knew that his conduct was wrong.3.The intermediate court erred in assessing the significance of the cross-examination conducted by the appellant’s counsel to the ultimate issue of the reasonableness of the doubt that the appellant knew that his conduct was wrong.4.The intermediate court erred in failing to dismiss the appeal in the exercise of its residual discretion.Ground 1: arbitrary or irrational Section 144 of the Youth Justice Act 2005 (NT) creates an avenue of appeal to the Supreme Court from an order or adjudication of the Youth Justice Court, and provides that the provisions of the Local Court (Criminal Procedure) Act1928 (NT) relating to appeals from the Local Court apply, with the necessary changes, to an appeal of that nature. Section 163(3) of the Local Court (Criminal Procedure) Act creates an avenue of appeal from an order or adjudication of the Local Court, including acquittal. The right of appeal is limited to “an error or mistake on the part of the Local Court on a matter or question of law alone or a matter or question of both fact and law”.[17] The effect of that limitation in the context of a prosecution appeal was summarised by Southwood J in Peach v Bird in the following terms:[18]Strict principles apply to a prosecution appeal against the dismissal of a complaint. The allowance of an appeal against a dismissal of a complaint has always been regarded as the exercise of an exceptional discretionary power. This is because, as in the case of prosecution appeals against sentence, what is involved is the undesirable placing of an alleged offender in a situation of double jeopardy: The King v Wilkes[1948] HCA 22; (1948) 77 CLR 511 at 516. An appeal should only be allowed in the clearest and most compelling circumstances, for the purpose of correcting manifest error. An appellate court will be prepared to set aside an order of dismissal based upon the impact of the evidence upon the fact finder and remit a matter for retrial only where it appears that the order of dismissal sought to be impugned was plainly wrong on any reasonable interpretation of the recorded evidence and the inferences that patently arise from it: Semple v Williams (1990) 156 LSJS 40. It follows that there will only be error of law in making a wrong finding of fact or drawing an illogical inference if the finding or inference could only have been made or drawn by an irrational tribunal acting arbitrarily.[19] Even if the appeal court forms that view, it retains a residual discretion to dismiss the appeal if the interests of justice so require.[20] An appellate court will be particularly reluctant to interfere with a verdict of acquittal which is based upon a reasonable doubt. This is for the reason that the appeal court will usually not have the same advantages as the trial judge where the issues in the appeal depend on the view taken of conflicting testimony or an impression gained from an observation of a witness.[21]