KNL v The State of Western Australia - [2023] WASCA 72

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   KNL -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 72
CORAM:   MAZZA JA
MITCHELL JA
VAUGHAN JA

HEARD:   10 JUNE 2022
DELIVERED          :   10 MAY 2023
FILE NO/S:   CACR 96 of 2021
BETWEEN:   KNL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram:   PRIOR DCJ
File Number            :   XX-XX-XX of XXXX

Catchwords:

Criminal law - Appeal against conviction - Appellant tried before judge alone in Children's Court - Whether finding child had criminal capacity at time of offending was unreasonable or unsupported having regard to evidence - Turns on own facts

Legislation:

Criminal Code (WA), s 29

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	K Burgoyne
Respondent	:	K Cook

Solicitors:

Appellant	:	Kate King Legal
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728
Dayananda v The State of Western Australia [2021] WASCA 11
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698
Jago v The State of Western Australia [2022] WASCA 2
Liyanage v The State of Western Australia [2021] WASCA 220
LTC v The State of Western Australia [2021] WASCA 60
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MEN v The State of Western Australia [2020] WASCA 118
OTR v The State of Western Australia [2021] WASCA 200
Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
R v EI [2009] QCA 177
R v F; Ex parte Attorney-General [1998] QCA 97; [1999] 2 Qd R 157
R v JJ [2005] QCA 153
R v M (1977) 16 SASR 589
R v MacMillan [1966] NZLR 616
R v Porter [1933] HCA 1; (1933) 55 CLR 182
R v TT [2009] QCA 199
RP v The Queen [2016] HCA 53; (2016) 259 CLR 641
RYE v The State of Western Australia [2021] WASCA 43
Smith v The State of Western Australia [2021] WASCA 17
Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482

MAZZA JA:

Like Mitchell JA, I have had the considerable advantage of reading in draft Vaughan JA's reasons in this appeal. Other than to affirm that the views expressed by Buss P and me in RYE v The State of Western Australia as to the proper construction of s 29 of the Criminal Code remain unchanged, I agree with Vaughan JA's reasons and orders.

MITCHELL JA:

I have had the considerable advantage of reading a draft of the reasons of Vaughan JA in this appeal. Save that I do not share his Honour's reservations (discussed at [78] - [79] below) as to the correctness of the approach of Buss P and Mazza JA in RYE v The State of Western Australia, I agree with Vaughan JA's reasons and the orders he proposes.

VAUGHAN JA:

Overview

On 9 April 2021, following a judge alone trial in the Children's Court of Western Australia before Prior DCJ, the appellant was convicted of:
1.Four counts of indecently dealing with SF, a child under the age of 13 years, contrary to s 320(4) of the Criminal Code (WA) (Code).
2.One count of indecently dealing with LK, a child under the age of 13 years, contrary to s 320(4) of the Code.
3.Five counts of sexually penetrating SF, a child under the age of 13 years, contrary to s 320(2) of the Code.
Each offence was alleged to have taken place on a date unknown between 1 January 2018 and 21 December 2018. At the time of the alleged offences the appellant was between 11 and 12 years old, the

appellant having been born in April 2006. The two complainants were siblings. They lived on the same street as the appellant. At the time of the alleged offending SF was a girl aged between 8 and 9 years old. LK was a boy aged between 6 and 7 years old.

The appellant was sentenced to a 10 month intensive youth supervision order. That order was not challenged on appeal. The order had been satisfied in full before the appeal hearing.
The appellant appeals against his convictions on the ground that they are unreasonable or cannot be supported having regard to the evidence. The appellant contends that the evidence did not support a finding beyond reasonable doubt in terms of s 29 of the Code that he had capacity to know that he ought not to do the acts the subject of the alleged offending. In alleging that the verdicts of guilty are unreasonable or unsupported the appellant only challenges the trial judge's findings as to capacity. Accordingly, as will be seen in evaluating the single ground of appeal, the relevant consideration is the evidence that relates to whether the appellant, at the time of committing the offences, had the capacity to know that he ought not to do the various acts that constituted the offending as found.
For the reasons that follow the appeal should be dismissed.

The facts of the alleged offending

The following summary is based on the findings of the trial judge as to the alleged offending. None of these findings were challenged on appeal.
SF and LK became friends with the appellant because they lived on the same street. The three children rode their bikes in the sand dunes near their houses. One day, when they were riding back to their houses, the appellant got off his bike, pulled his pants down, yelled '[o]h [SF], look at this', and showed his penis to her. SF said he was kind of dancing and laughing (count 1).[1]
[1] ts 239, 249.
On the second occasion, the appellant, SF and LK were in the sand dunes. The appellant pulled out his penis and started to masturbate. SF said that the appellant said to LK, '[oh] you should get a girl down here as well' and told SF to '[c]ome and touch it' (count 2). SF refused.[2] LK was present on this occasion when the appellant pulled his penis out and he saw the appellant's penis (count 3).[3] On the same occasion, the appellant went over to SF, put his hand down her pants, and started playing with her vagina (count 4). SF froze and said that they should go.[4]
[2] ts 240, 249.
[3] ts 240, 243, 249.
[4] ts 240, 249.
On the third occasion, the appellant and SF were near the sand dunes and were watching trains go past. The appellant put his hand down SF's pants and she told him to stop. The appellant kept touching her vagina for a minute. SF said 'stop' but the appellant kept going. SF kept saying 'stop' and the appellant pulled his hands out (count 5).[5] On the same occasion, the appellant pulled his penis out and told SF to put her mouth on it. SF refused. The appellant pulled down his pants and masturbated in front of her, talking about 'boners' (count 6). They then rode back home.[6]
[5] ts 240, 249.
[6] ts 240, 249.
On the fourth occasion, the appellant and SF went to the sand dunes near to where some rubbish was located. The appellant put his hand down SF's pants and touched her vagina with his fingers. SF said that the appellant tried to '[g]o down the hole' and she said '[o]w' (count 7). The appellant pulled his hand up, then pulled his penis out, and told SF to give him a 'blow job'. The appellant was masturbating his penis. SF refused and went off to talk to a teenage boy who was riding a dirt bike nearby.[7]
[7] ts 240 - 241, 249.
On the fifth occasion, SF and the appellant had an argument about dirt bikes. SF’s mother suggested that the two children go to the sand dunes. The appellant was angry from their argument and SF said that she felt scared. The appellant pulled out his penis and told SF to put her mouth on it, saying '[c]ome on, do it'. SF was scared and complied. The appellant grabbed her head, pushed it down, and moved it up and down when her mouth was on his penis (count 8). SF yanked her head away and rushed home.[8]
[8] ts 241, 249.
On the sixth and last occasion, SF and the appellant were again at the sand dunes. The appellant forced SF down and told her '[o]h we're going to do 69' and described a '69' to her. The appellant pulled SF's pants and underwear down to her ankles and held her down. The appellant then went the other way, pulled his penis out, got on to SF and put his tongue on her vagina (count 9). At the same time, the appellant had his penis near SF's head and she kept moving her face away. The appellant was telling her to suck her penis, and she said no. No act of fellatio in fact occurred. The acts continued for about five minutes (count 10). The appellant then put his penis away, SF pulled up her pants and they returned home.[9]
[9] ts 241, 249.

The parties' respective cases at trial as to capacity

Section 29 of the Code provides:
29.Immature age
A person under the age of 10 years is not criminally responsible for any act or omission.
A person under the age of 14 years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.
As mentioned, the appellant was 11 or 12 years old at the time of the alleged offences. Accordingly, the State was required to satisfy the trial judge beyond reasonable doubt that at the time of each alleged offence the appellant had capacity to know that he ought not to do the acts that constituted the offending.
The appellant's capacity was the subject of a no case to answer submission at the conclusion of the State's evidence. The trial judge rejected that submission and gave detailed oral reasons for his determination.[10] In later finding the appellant guilty of the 10 offences the trial judge said that he was satisfied that the appellant's capacity had been proven beyond reasonable doubt for the reasons that he gave in dismissing the no case submission on the issue of capacity.[11]

The prosecution's case as to capacity

[10] ts 170 - 181.

[11] ts 234 - 235.

The State referred to the principles regarding the application of s 29 of the Code in conventional terms.[12] The State then submitted that there were 'three categories of evidence' that it said provided ample material to establish that there was a case for the appellant to answer as to capacity:[13]
1.The evidence of the witnesses - in particular that of SF.
2.The unsworn statements of the appellant in his electronic record of interview (EROI) with police.
3.Documentary evidence in the form of the appellant's school disciplinary records.[14]
[12] ts 152 - 153.
[13] ts 153 - 154.
[14] Ex 10.
Among other things, the State relied on an exchange between SF and the appellant referred to by SF during her child witness interview (CWI). SF stated that a day after the alleged count 1 occurred, she and the appellant went back to the sand dunes. SF said that the appellant told her that if she rode down a hill on the handlebars of his bike, he would steal condoms.[15] The State relied on this as demonstrating that the appellant had the capacity to know right from wrong in both his attempt to 'bribe' SF to do something she was reluctant to do and his suggestion that he would 'steal' the condoms (being an acknowledgement that he would do something unlawful).[16]
[15] BGAB 16.
[16] ts 155 - 156.
As will be seen, there was also other evidence about condoms.
As to the EROI, the State argued that, while the alleged offending took place one year to 18 months prior to the appellant taking part in the EROI,[17] the comments the appellant made in his EROI could be considered in determining capacity. In particular, the State pointed to the appellant's command of language and capacity to reason as demonstrating that he 'had cognition to understand the concepts of privacy, age appropriate talk, taboo subjects and inappropriate sexual conduct'.[18] The State also contended that the appellant made 'admissions' during the EROI as to his awareness at or around the time of the offending that discussing certain matters he had overheard adults talking about with SF and LK was inappropriate. The State also referred to the appellant's reference to finding a 'humungous bag of weed' in the sand dunes and that - so far as the bag was delivered over to the police - the appellant knew what was the right thing to do.[19]
[17] In fact, as will be seen, the EROI was closer to two years after the alleged offending rather than merely 12 to 18 months after the offending.
[18] ts 156 - 157.
[19] ts 157 - 160.
The appellant's school disciplinary records were tendered as an exhibit. The State contended that, together with the other evidence, the appellant's school records demonstrated that he understood what constituted wrongful behaviour, having been disciplined for wrongful behaviour in the past.[20]
[20] ts 141 - 143, 160.
The State submitted that, based on these three categories of evidence, the trial judge could draw the inference that the appellant had the relevant capacity at the time of the offending.

The defence's case as to capacity

Defence counsel made submissions regarding the three categories of evidence identified by the State. First, as to the evidence of SF, defence counsel contended that the 'bargain' the appellant attempted to strike with SF regarding the condoms did not demonstrate capacity and that the evidence needed to 'go further'. It was suggested that this evidence needed to be put aside.[21]
[21] ts 163.
Second, so far as the prosecutor relied on the EROI, defence counsel focussed on the passage of time between the alleged offending and the EROI. Defence counsel contended that children mature 'very rapidly'. The time that had passed between the alleged offending and the appellant's EROI meant that, in defence counsel's submission, the EROI was not an accurate reflection of the appellant's capacity as at the time of the alleged offending. There could have been 'immeasurable' maturation between the alleged offending and the EROI.[22]
[22] ts 163 - 167.
Finally, in relation to the appellant's school disciplinary records, defence counsel contended that while the records demonstrated that the appellant had been punished, they did not go to the issue of capacity.[23] In particular, defence counsel submitted that the fact the appellant had been disciplined did not demonstrate that he understood the difference between right and wrong.[24]
[23] ts 162 - 163.
[24] ts 143.

The evidence as to capacity

It is convenient, at this point, to summarise the evidence at trial that was relevant to the question of capacity. That evidence was identified in the State's PD 7.4 schedule.[25] At the appeal hearing the appellant's counsel confirmed that there were no errors or omissions in the State's PD 7.4 schedule.[26] Accordingly, the State's PD 7.4 schedule provides a useful tool for the court in identifying the evidence at trial relevant to the question of capacity.
[25] By contrast the appellant's PD 7.4 schedule summarised all the evidence at trial without discriminating between that which was relevant to capacity and that which was relevant to other issues.
[26] Appeal ts 18.
Before describing the evidence going to the issue of capacity it is necessary to identify the time period during which the alleged offences occurred. The question of capacity must be directed to the time of the alleged offending. It had to be proved that the appellant had capacity to know that he ought not do the relevant acts at the time of doing the acts.
The particulars in the prosecution notice referred to a period from 1 January 2018 to 21 December 2018. However, in her evidence SF provided for a narrower time period. First, in cross-examination SF said that the whole of the offending was spread over around two months.[27] Second, SF said that the offending occurred at the start of the year in which she was nine (ie at the start of 2018).[28] Third, a specific date for one of the offences emerges from SF's evidence in the CWI. The offending the subject of count 7 (see [12] above) occurred the day after SF's birthday.[29] SF's birthday was in early April. This was the fourth of the six incidents. The tenor of the evidence taken as a whole is such that the offending occurred in a two-month window that included early April 2018. Accordingly, the relevant time period is from the start of February 2018 to the end of May 2018.[30]
[27] ts 38.
[28] BGAB 45, 47.
[29] BGAB 51 - 52.
[30] Although there was some evidence that the offending was still going on in the winter school holidays in June and July 2018: ts 39.
The appellant's birthday was also in April, a little after SF's birthday. So, on the evidence, the alleged offending occurred when the appellant was 11 years old (close to turning 12 years of age) or when he had recently turned 12 years old. The more serious offending the subject of counts 8 - 10 occurred at a time when the appellant was 12 years old or almost 12 years old.

The 'capacity' evidence of the witnesses

The State relied on the evidence of SF and evidence from SF's mother.

The evidence of SF

The trial judge found that SF was an honest, credible and reliable witness.[31]
[31] ts 248.
As referred to at [19] above, SF gave evidence of an exchange between herself and the appellant as to a bargain the appellant attempted to strike with her regarding the stealing of condoms. This occurred the day after the incident the subject of count 1. SF and the appellant were riding and came across a 'massive hill' with rocks. The appellant said words to the effect: 'Oh, do you want to go down this, and if you go down this, I'll steal condoms'.[32]
[32] BGAB 16.
The State relied on this evidence as being demonstrative of sexual knowledge on the part of the appellant as well as a sense of right and wrong so far as the appellant referred to stealing.
The other parts of SF's evidence that were relied on by the State dealt with her description of the alleged offending.
When describing count 5 (see [11] above), SF stated that the appellant kept his hand down her pants for a further minute after she told him to stop:
INTERVIEWER: Do you remember another time that he played with your vagina?
SF: Yeah.
INTERVIEWER: Okay, so tell me about that time.
SF: We were near the, um - we went down to the train station. And, ah, then I said, 'I need to go to the toilet', and then he - and then he said, 'Oh, um, it's fine'. And then, um, 'Just wait'. And then - and then he put his hands - we were watching the trains - just sitting there watching the train track, and then, um, he put his hands down my pants and done the same thing.
INTERVIEWER: And what happened next, after he put his hand down your pants?
SF: I said, 'Stop'.
INTERVIEWER: Mm hm.
SF: And then, um, he kept going.
INTERVIEWER: Mm hm. And then what happened?
SF: And then, um, he done it for, like - like, a minute or so. And then, ah, he took his hands out and then he pulled his penis out. And he said, 'Put your mouth on it'. And then, um - and then I said, 'No', and then he just left it up - at that. And then we went - we - were just riding around again, and then we went home.[33]
[33] BGAB 26 - 27.
The State submitted that an obvious lack of consent made the act more obviously wrong.
In relation to count 6 (see again [11] above), SF's evidence was that the appellant was 'wanking himself' and 'talking about boners, and how he gets boners and all that'. SF stated that the appellant told her he got a 'boner' around her and he said words to the effect of 'it feels good when I wank and I get a boner'.[34] Also in the context of count 6, SF gave evidence that when the appellant got his penis out, he said 'you've got to do this' (ie suck the appellant's penis) and 'you've got to suck my penis'.[35]
[34] BGAB 29.
[35] BGAB 31.
The State submitted that this was further evidence that the appellant had a basic understanding of sexual awareness at the relevant time. In addition, the State pointed out that SF gave evidence that SF first heard the term 'wank' from the appellant.[36] This too, in the State's submission, indicated basic sexual knowledge on the appellant's part.
[36] ts 36.

On count 7 (see [12] above) SF's evidence was that, after the appellant had digitally penetrated her vagina and pulled out his penis, the appellant told her 'you've got to do this … [y]ou should, ah, suck, ah - give me a blowjob'. SF said that she did not know what was meant by a blowjob. The appellant said: 'Yeah, you've got to suck my, um, penis'.[37] The State submitted that the pressure the appellant asserted on SF demonstrated that he was aware SF did not want to act in accordance with his wishes. This, in the State's submission, suggested that the appellant was aware that his conduct towards SF was seriously wrong.
[37] BGAB 31.
Similarly, SF's evidence in relation to the procured act of fellatio the subject of count 8 (see [13] above) was that the appellant was 'really mad' (and 'just angry') and SF was 'scared that [the appellant] was going to do something and force me, or he was going to do something bad'. SF further stated that she complied with the appellant's demand for her to put his penis in her mouth because she was 'really scared that [the appellant] was going to do something bad' if she said no.[38] The appellant demanded that SF '[c]ome on, do it'. When SF put her mouth on the appellant's penis the appellant grabbed her head and moved it up and down.[39]
[38] BGAB 37.
[39] BGAB 37.
The State submitted that, taking the events as a whole, it must have been clear to the appellant that SF was not consenting to his actions - and that the act he was performing was seriously wrong.
In relation to counts 9 and 10 (referred to at [14] above), the appellant explained the process of a '69' to SF. SF said that the appellant 'forced me' and 'held me down' with his hands and pulled down her pants and underwear. SF kept trying to move her head away from the appellant's penis. SF said that the appellant persisted with putting his tongue on her vagina for five minutes.[40]
[40] BGAB 39 - 42.
The State submitted that SF's lack of consent was obvious. The appellant's action in holding SF down and removing her clothing indicated that he was aware that SF did not wish to participate and that the act was seriously wrong. That was all the more so given the persistence of the appellant's actions (which meant it was unlikely to have been a spur of the moment decision). Again, the evidence showed that the appellant had sexual knowledge at the relevant time. The seriousness of the conduct and the fact that the appellant held SF down increased the likelihood that the appellant had the capacity to understand that what he was doing was seriously wrong.

The evidence of SF's mother

SF's mother gave evidence that she regularly entrusted the appellant to look after SF and LK.[41] In particular, SF's mother stated that 'there was a trust that I had in - in allowing my kids to go off with [the appellant]'.[42]
[41] ts 113, 115 - 116.
[42] ts 113.
The State submitted that this demonstrated maturity at a contemporaneous time to the offending - the appellant was given responsibility for younger children.
SF's mother also gave evidence that on one occasion, when she was at the shops with SF, LK and the appellant, the children came up the aisle laughing and the appellant was holding a box of condoms.[43] SF's mother gave evidence that she told the appellant 'not to show my kids that and he [ie the appellant] should not be playing with that stuff'.[44]
[43] ts 94 - 95.
[44] ts 95.
The State submitted that as the appellant had been so reprimanded by SF and LK's mother he had the capacity to understand that the two children were too young to be exposed to things of a sexual nature.

The 'capacity' evidence in the appellant's EROI

The appellant's interview with the police took place on 11 March 2020, ie around two years after the alleged offending. At the time of the EROI the appellant was close to being 14 years of age - then being about 13 years and 11 months old. At the time of the EROI the appellant was taking medication for attention deficit hyperactivity disorder, post-traumatic stress disorder, anxiety and bipolar type 2. The appellant had been taking those medications for many years.
In general, as at the time of the EROI, the appellant was articulate, reasonably mature, not apparently suffering from any intellectual disability, understood sexual concepts and understood sexual misbehaviour.[45] In this respect, in the course of his determination on capacity, the trial judge referred to the following aspects of the EROI in terms that I would respectfully accept and adopt having made my own independent assessment of the EROI:[46]
1.The appellant understood the practical effect of the circumstance that he did not have to say anything unless he wished to do so, ie that he did not have to answer any question he was asked by the interviewer.[47]
2.The appellant understood what use may be made of the answers he gave at the interview.[48] For example, the appellant was aware that a judge may use the appellant's statements to decide whether he was innocent or guilty.[49]
3.The appellant sought clarification as to the concept of an indecent dealing and in particular the role of consent in that context.[50]
4.The appellant was able to name the 'private' body parts of a boy and a girl.[51]
5.The appellant had an understanding of sexual interactions between males and females including the concepts of consent and penetration - referring, more colloquially, to 'suck someone off', 'BJ', 'Blow Job', '69', 'eating arse', 'eat her out' and 'jerk off' (some of which terminology he had been introduced to and was aware of as a result of kids at school when in Year 7 while 11 or 12 years of age).[52]
6.The appellant was aware of, and able to properly use and apply, in context, the terms 'paedophile' and 'grooming'.[53]
[45] This was the unchallenged finding of the trial judge. See ts 174. I would, having made my own independent assessment of the EROI, draw the same inferences as to the appellant's state of development as at the time of the EROI.
[46] See generally ts 174 - 181.
[47] BGAB 85 - 86.
[48] BGAB 86.
[49] BGAB 87.
[50] BGAB 84, 88.
[51] BGAB 88.
[52] BGAB 118 - 125.
[53] BGAB 97.
The State submitted that, so far as at 13 years and 11 months the appellant displayed no signs of intellectual disability or poor cognitive skills, it ought to be inferred that the same position prevailed at the time of the offending - the appellant did not have an intellectual disability or poor cognitive skills at the time of the offences.
The State further submitted that the EROI demonstrated that the appellant had a sexual knowledge as at the time of the offending.
The appellant explained that there was a particular context in which he was entrusted with taking SF and LK to the shops or the park. The next door neighbour to SF and LK was a paedophile who had groomed and offended against SF and LK's older sister. The appellant's mother was helping out SF and LK's mother with dealing with matters at the time that this offending came to light. The appellant's mother would often take her credit card out and tell him to take SF and LK down to the shops. The appellant kept them occupied because, as he understood it, SF and LK's mother did not want them to see or hear anything that was going on.[54]
[54] BGAB 97 - 99, 102, 105.
The allegations concerning the neighbour arose in late October 2018,[55] ie some six or more months after the appellant's alleged offending.
[55] ts 105.
Some of the conversations concerning the neighbour's alleged dealings with SF and LK's sister occurred in the appellant's presence. In relation to this, the appellant stated:
It was - um, the man next door was - I'm just gonna say it, he was a paedophile - - - and he was, um, grooming the eldest daughter, and mum was helping - and mum was like there's something - there's something going on and stuff like that. And the mum was like there has to be stuff going on because she was saying that the guy next door used to come over and put her - his hand on her lap and stuff.[56]
[56] BGAB 97.
Initially the appellant knew what was going on but only vaguely.[57] Later on, however, his mother explained it to him properly. The position then was:
I was like yeah I had a fair idea. I knew - I knew straight away …[58]
[57] BGAB 104.
[58] BGAB 104.
The appellant said that he would help out with the younger kids and 'keep them occupied'[59] because he 'didn't want them to hear anything' (ie anything the parents were discussing in relation to the next door neighbour and his dealings with SF and LK's sister).[60] The appellant said that when the younger children, including SF and LK, asked him about such conversations he did not tell them anything because 'they're little kids, they're gonna go home and tell their mum' and get him into trouble.[61]
[59] BGAB 102.
[60] BGAB 103.
[61] BGAB 104 - 105.
The appellant also stated that, so far as the matter had to do with a paedophile, it was sexual in nature.[62] The appellant was also questioned as to his understanding of whether what had been done by the neighbour was right or wrong:
INTERVIEWER: [W]hen you heard the adults having their conversation about that stuff, what was your understanding of what this person had done? Was it right or was it wrong?
APPELLANT: Wrong.[63]
[62] BGAB 106 - 107.
[63] BGAB 106.
To similar effect was this passage:
INTERVIEWER: So you had - at that time you were 11 or 12 and …
APPELLANT: Yeah.
INTERVIEWER: … you had overheard conversations between the adults about what a male paedophile had done to …
APPELLANT: Yeah.
INTERVIEWER: another person and you understood that to be sexual in nature and you knew it to be wrong.
APPELLANT: Yes.[64]
[64] BGAB 107.
I have already referred to the understanding that the appellant had of sexual activities between males and females and what was meant by different phrases he used to describe those activities (see [50.5] above). In the EROI the appellant said that this awareness arose in Year 7 when he was 11 or 12.[65] The appellant also said that he first learned about pornography (which he referred to as 'porn') in Year 7.[66] When the appellant was asked about whether he discussed these sorts of things with SF or LK, the following exchange occurred:
INTERVIEWER: … Did you ever talk about it [ie sexual activities and phrases to describe sexual activities] with SF and LK?
APPELLANT: No, they're too young. Like, they're - well, I don't know if they are any more, but they were Christians so like …
INTERVIEWER: Okay.
APPELLANT: … and mum's - my mum's a Christian, like I'm not gonna tell someone who's Christian to - stuff like that …
INTERVIEWER: Uh-huh.
APPELLANT: … or like any - any little kid stuff that like.[67]
[65] BGAB 123 - 125.
[66] BGAB 123.
[67] BGAB 125 - 126.
The State relied heavily on the parts of the EROI referred to at [53] ‑ [60] above. According to the State: (1) the circumstance that the appellant was entrusted with the care of SF and LK indicated maturity and responsibility; (2) so too did the appellant's awareness that matters such as paedophilia and grooming (and sexual activities more generally) ought not be discussed around younger children; (3) at least in October 2018 the appellant well understood that adults should not have sexual contact with children and that such conduct was seriously wrong; (4) so far as the appellant demonstrated awareness that the younger children were too young to be exposed to sexual issues it should be inferred that the appellant had the capacity to understand that it was inappropriate and seriously wrong to commit sexual acts with them.
The appellant also discussed an occasion on which he and some friends found 'a humungous bag of weed' when dirt biking. The appellant stated that they gave it to a friend's mother with the intention that she would pass it to a police officer she knew.[68] The State submitted that this indicated the appellant's capacity to distinguish right from wrong.
[68] BGAB 117.
Finally, when asked about his school records (see [65] below), the appellant agreed that, at the time, he knew right from wrong.[69] The question and answer were expressed in unqualified terms. However, as the question was tied to the school records, I would not accept that the response is an admission that the appellant knew right from wrong generally. It ought to be understood as no more than acceptance that the appellant knew right from wrong in relation to violations of the school code of conduct that applied to the schools the appellant had attended.
[69] BGAB 134 - 135.
That said, as the State submitted, the appellant's acceptance that he knew right from wrong in this respect separated the appellant from the class of child that had received no behavioural boundaries in his or her upbringing.

The 'capacity' evidence in the appellant's school records

Exhibit 10 detailed the appellant's attendance at various schools between 2011 and 2019 as well as a number of suspensions between 2013 and 2019.[70] In particular, the appellant was suspended for 15 days over the course of 2018, the year of the alleged offending.[71] The State submitted that this separated the appellant from the class of child who had received no behavioural boundaries in his or her environment - it was said to exclude an argument that the appellant did not, in general, understand right from wrong.
[70] BGAB 138 - 143.
[71] BGAB 141.

The trial judge's decision as to capacity

It is appropriate, for completeness, to mention the trial judge's reasons for finding that the prosecution had satisfied its onus on the question of capacity. In doing so, however, it is necessary to be cognisant of the warning provided by the High Court in Dansie v The Queen.[72] The reasons of the trial judge must be approached by this court with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the sufficiency and quality of the evidence.[73]
[72] Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728.
[73] Dansie v The Queen [16]. See also [7], [12], [15].
The trial judge summarised the evidence as to capacity with reference to the three categories of evidence identified by the State.[74] Having summarised the relevant legal principles in orthodox terms,[75] the trial judge stated at the outset:
I'm satisfied that [the appellant] has the relevant capacity and I've made that decision based on the evidence and in particular as well as the evidence the offences that have been charged and the surrounding circumstances of those offences.[76]
[74] ts 173 - 180.
[75] ts 171 - 172.
[76] ts 172 - 173.
The trial judge found that, at the time of the EROI, the appellant was 'articulate, reasonably mature, not suffering, or apparent that he was suffering from any intellectual disability, understood sexual concepts, understood sexual misbehaviour'.[77] The trial judge made specific reference to the appellant's understanding as to consent and reference to persons as paedophiles.[78] The trial judge acknowledged that the EROI might have occurred up to two years after the time of the alleged offending. The trial judge said that he took that into account when using the evidence as part of the material in assessing capacity.[79] However, the trial judge also noted that the appellant 'makes reference to his earlier knowledge and experience in [the] interview'.[80]
[77] ts 174.
[78] ts 174.
[79] ts 174.
[80] ts 174.
After recounting the evidence he relied on, the trial judge found, in substance, that he was satisfied that at the time of the offending the appellant had the capacity to know he (ie the appellant) ought not do the acts the subject of the various charges.[81]
[81] ts 181.

Grounds of appeal

The appellant's application for leave to appeal was filed just under a month out of time. The application for an extension of time within which to appeal, together with the application for leave to appeal, were referred to the hearing of the appeal.[82] The appellant's delay in making the application for leave to appeal was modest and explained. The State did not oppose the application for an extension of time.[83] At the appeal hearing the application was granted.[84]
[82] Order of Buss P made 5 August 2021 WAB 4.
[83] Appeal ts 3.
[84] Appeal ts 3.
The appellant's grounds of appeal were originally framed as one ground comprised of three parts:
1.To the extent his Honour relied upon the facts of the alleged offences themselves to determine the issue of capacity pursuant to section 29 of the Criminal Code he made a wrong decision on a question of law in relation to all of the offences.
2.The convictions were not supported by the evidence;
Particulars:
2.1The evidence did not support a finding beyond reasonable doubt the appellant had capacity pursuant to Section 29 of the Criminal Code.
3.There was a miscarriage of justice when his Honour took into account statements made by the appellant that post-dated the commission of the offences, namely the appellant's record of interview dated 11 March 2020, when determining whether Section 29 of the Code had been established.
The appellant's counsel clarified at the appeal hearing that the three 'parts' were in fact three distinct grounds of appeal.[85]
[85] Appeal ts 3.
Grounds 1 and 3 were abandoned at the hearing of the appeal.[86] The remaining ground 2 essentially provides that the convictions are unreasonable or cannot be supported having regard to the evidence because the evidence did not support a finding beyond reasonable doubt that the appellant had capacity pursuant to s 29 of the Code at the time of the alleged offending. In raising whether the verdicts of guilty were unreasonable or could not be supported counsel for the appellant confirmed that ground 2 was confined to the question of the appellant's capacity.[87]
[86] Appeal ts 9, 15.
[87] Appeal ts 17 - 18.
Ground 2 is nonetheless informed by the matters the subject of the abandoned grounds. Those matters remain relevant as, among other things, the trial judge took the facts and circumstances of the alleged offending and the appellant's EROI into account in finding that the appellant had the necessary capacity at the time of the alleged offending.

Relevant legal principles - capacity pursuant to s 29 of the Code

Both parties addressed the applicable legal principles as to s 29 of the Code by reference to this court's decision in RYE v The State of Western Australia.[88]
[88] RYE v The State of Western Australia [2021] WASCA 43 (RYE). See appellant's submissions pars 21 ‑ 23, 37 WAB 11, 14 and respondent's submissions pars 12, 29 ‑ 33 WAB 58, 62 ‑ 63.
In RYE Buss P & Mazza JA concluded that, in the case of a child between the age of 10 and 14, s 29 of the Code was concerned with a child's capacity to know that he or she ought not do the act or make the omission as distinct from the child's actual knowledge.[89] As to what was meant by the child's capacity to know that he or she 'ought not to do the act or make the omission' their Honours stated:
[T]he statement in s 29 of the Code as to a child's capacity to know that 'he ought not to do the act or make the omission' is a reference to the child's capacity, at the material time, to know that doing the act or making the omission was morally wrong. The requisite capacity to know that doing the act or making the omission was morally wrong is not to be equated with capacity to know that the conduct in question was legally wrong or a breach of the criminal law. See, generally, RP[90] [11]. Also, the requisite capacity to know that doing the act or making the omission was morally wrong is not to be equated with capacity to know that the conduct in question was naughty, mischievous or rude. See, generally, RP [9], [11], [33]. A child's capacity to know that 'he ought not to do the act or make the omission' in s 29 is concerned with the child's capacity to know that the relevant act or omission was morally wrong as distinct from legally wrong or a breach of the criminal law or merely naughty, mischievous or rude. It is necessary, however, to connect the concept of moral wrongness within s 29 to community standards which give the concept practical meaning and enable the test to be readily understood and applied by a jury or other fact finding tribunal. In our opinion, a child will have capacity to know that doing the relevant act or making the relevant omission was morally wrong if, at the material time, he or she had capacity to know that the conduct in question was seriously wrong by the ordinary standards of reasonable adults. See, generally, R v Porter;[91] R v MacMillan;[92] R v M.[93] So, the question for the jury or other fact finding tribunal where the State must prove beyond reasonable doubt that a child had the requisite capacity is whether, at the material time, the child had capacity to know that the conduct in question was seriously wrong by the ordinary standards of reasonable adults.[94] (emphasis added)
[89] RYE [44]. I agreed that this aspect of s 29 of the Code was concerned with proof of capacity to know rather than actual knowledge - albeit that proof of actual knowledge might, in a particular case, be of forensic significance in proving the child had the requisite capacity to know that he or she ought not to do the act or make the omission: RYE [87].
[90] Referring to RP v The Queen [2016] HCA 53; (2016) 259 CLR 641 (RP).
[91] R v Porter [1933] HCA 1; (1933) 55 CLR 182, 189 - 190.
[92] R v MacMillan [1966] NZLR 616, 621 - 622.
[93] R v M (1977) 16 SASR 589, 591.
[94] RYE [51].

Both parties addressed s 29 of the Code consistently with Buss P & Mazza JA's formulation of whether the appellant 'had capacity to know that the conduct in question was seriously wrong by the ordinary standards of reasonable adults'.[95]
[95] Appellant's submissions pars 21, 22 WAB 11; respondent's submissions pars 30 - 31, 37, 39, 42 WAB 62 ‑ 65.
I published separate reasons in RYE. I accepted that the words 'know that he [or she] ought not to do the act or make the omission' should be read and construed as 'know that it is wrong to do the act or make the omission'.[96] However, I did not adopt the criterion of 'moral wrongness'. Nor did I use the phrase 'seriously wrong'. Rather, drawing on what was said by Davies JA (McPherson JA & Shepherdson J agreeing) in R v F; Ex parte Attorney-General[97] I considered it was sufficient that the child had the capacity to know that the act or omission was wrong by the normal adult standards of a reasonable person.[98]
[96] RYE [89].
[97] R v F; Ex parte Attorney-General [1998] QCA 97; [1999] 2 Qd R 157, 160.
[98] RYE [91] - [92].
It is appropriate to use the formulation in RYE as stated by Buss P & Mazza JA. First, their Honour's statement commanded the majority of the court in RYE. Second, in the present case both parties adopted and sought to apply what was stated by Buss P & Mazza JA. Neither party sought to rely on my alternate formulation. Third, and related to the second point, Buss P & Mazza JA's formulation is arguably more favourable to a child accused insofar as it requires satisfaction of capacity to know that the conduct was seriously wrong not merely that it was wrong. As a matter of procedural fairness it would be necessary to raise the different formulation with the parties, and afford them an opportunity to make additional submissions, were it proposed to depart from the common basis on which the appeal was argued.
The passage from RYE as reproduced at [76] above confirms that the requisite capacity is not to be equated with capacity to know that the conduct in question was legally wrong or in breach of the criminal law.[99] That exceeds what the prosecution is required to establish. Also, the passage confirms that it is not enough that the child has the capacity to know that the conduct is naughty, mischievous or rude. The requirement is more onerous than merely establishing awareness that the conduct in question was naughty, mischievous or rude.
[99] See also RYE [93].
What in fact suffices in a particular case to prove capacity will vary according to the nature of the allegation and the child.
The proof of a child's capacity to know that he or she ought not to do an act or make an omission focuses attention on the intellectual and moral development of the particular child at the material time.[100] A child will more readily understand the seriousness of an act if it concerns values of which he or she has direct personal experience.[101]
[100] RYE [55] (referring to RP [12]). See also RP [38] ('evidence of the development or disposition of the child').
[101] RP [12].
The authorities demonstrate that other potentially relevant matters to the inquiry will include:
1.The child's age. The older the child, and the more obviously wrong the conduct, the easier it will generally be to prove the relevant capacity.[102] However, this cannot be taken very far. Evidence of the child's age alone will be insufficient.[103] So too whether the conduct is obviously wrong. The most that can be said is that in a particular case it might be that inferences may be drawn from the child's age when considered together with evidence of the child's education, the surrounding circumstances of the offence and his or her speech or demeanour.[104]
2.The child's education and the environment in which the child has been raised.[105]
3.Whether there is, or is not, evidence to suggest that the child suffered from any disability which would deny him or her the capacity to know that the conduct was wrong.[106]
4.The answers given in the course of a police interview.[107]
5.In a case of alleged sexual offending, evidence of: (a) use of force; (b) lack of consent; or (c) distress on the part of the victim.[108]
[102] R v F; Ex parte Attorney-General (161).
[103] R v F; Ex parte Attorney-General (162). See also RP [12].
[104] R v F; Ex parte Attorney-General (162).
[105] RP [9], [12]; RYE [55].
[106] R v TT [2009] QCA 199 [20]. See eg RP [32], [35] - [36], [42] - [43] (in that case the accused was of 'very low intelligence').
[107] RP [12]. See also: R v EI [2009] QCA 177 [20]; R v TT [16] - [17].
[108] R v JJ [2005] QCA 153 [9]; RP [21].
Importantly, the requisite capacity cannot be established merely as an inference from the relevant act or omission no matter how obviously wrong the conduct constituting the offence may be.[109] However, evidence of surrounding circumstances including conduct closely associated with the conduct constituting the offence may be considered.[110] For example, asserting a false alibi, rendering a victim incapable of identifying the child or preventing a victim from summoning assistance may be material in a particular case.[111]

Relevant legal principles - verdict of guilty unreasonable or cannot be supported having regard to the evidence

[109] R v F; Ex parte Attorney-General (161). That is also the position at common law: RP [9], [38].

[110] RP [38].

[111] R v F; Ex parte Attorney-General (162).

Section 30(3)(a) of the Criminal Appeals Act 2004 (WA) provides that this court must allow an appeal against conviction if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.
Whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported, is a question of fact.[112]
[112] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492; Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482 [56]; GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698 [25].
In MEN v The State of Western Australia[113] this court summarised the general principles governing the determination of appeals alleging that a verdict is unreasonable or cannot be supported having regard to the evidence. Relevantly:
(a)The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
(b)The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(c)That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
(d)In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses.
(e)A doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
(f)If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict.
(g)The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial.[114]
[113] MEN v The State of Western Australia [2020] WASCA 118 (MEN) [403] - [410] (referred to with approval in LTC v The State of Western Australia [2021] WASCA 60 [71] ‑ [72]). To similar effect see Jago v The State of Western Australia [2022] WASCA 2 [144].
[114] MEN [403].
Recently, in Dansie v The Queen, the High Court emphasised the authoritative guidance given in M v The Queen to courts of criminal appeal required to decide a ground of appeal which alleges that a verdict of guilty was unreasonable. The court in Dansie referred to a number of passages in M v The Queen including the following:
[T]he court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, nonetheless it would be dangerous in all the circumstances to allow the verdict to stand.
…
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.[115]
[115] M v The Queen (492 - 493). See also Dansie v The Queen [8] - [9].
In Dansie v The Queen the High Court also emphasised the following passage from M v The Queen (described as 'the carefully crafted passage'):[116]
It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by a jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[117]
[116] Dansie v The Queen [9].
[117] M v The Queen (494 - 495).
While these statements of principle in M v The Queen were made in respect of a verdict by a jury, they apply in exactly the same way where - as in the present case - the trial has been by a judge alone rather than by jury.[118]
[118] Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [12], [82].
In each case the court must conduct an independent assessment of the whole of the evidence to ask itself the question of fact whether it thinks it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty. In each case the court 'will conclude that it was not open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty if its own [assessment] of the evidence leads it to have a reasonable doubt that the accused was guilty, unless that tribunal's advantage in seeing and hearing the evidence is capable of resolving that doubt'.[119]
[119] Dansie v The Queen [15] (referring to Filippou v The Queen [82]).
This court examines the record to see whether it is satisfied that the trial judge, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt - either by reason of inconsistencies, discrepancies, or other inadequacy or in light of other evidence.[120]
[120] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 [39].
This court's reasons must disclose its assessment of the capacity of the evidence to support the verdict. The nature and extent of the court's task, in a particular case, will be informed by: (1) the elements of the offence; (2) the accused's defence; (3) the issues in contest at the trial; (4) the manner in which the trial was conducted; (5) the way in which the case was ultimately left to the tribunal of fact; and (6) the particulars of the ground of appeal.[121]
[121] Dayananda v The State of Western Australia [2021] WASCA 11 [52] - [53]; Smith v The State of Western Australia [2021] WASCA 17 [42] - [43]; OTR v The State of Western Australia [2021] WASCA 200 [249] - [250]; Liyanage v The State of Western Australia [2021] WASCA 220 [98].
Two matters from this list require specific comment.
First, on appeal the appellant only challenged the trial judge's findings as to capacity. The gravamen of the appellant's contention was that, on the evidence at trial, the verdicts of guilty were unreasonable or could not be supported because there was insufficient evidence to prove beyond reasonable doubt that at the time of doing the acts the appellant had capacity to know that he ought not to do the acts. As the single ground of appeal was confined in this way it has not been necessary to refer in detail to the complainants' evidence as to the offending. Instead I have concentrated on the evidence that the parties referred to in addressing their respective cases on the question of capacity in terms of s 29 of the Code.
Second, as I have already mentioned, the relevant tribunal of fact was the trial judge rather than a jury.
Insofar as the single ground of appeal is confined to the appellant's capacity in terms of s 29 of the Code, the references that have been made to the trial judge's finding of guilt should be understood as the trial judge's finding that, at the relevant times, the appellant had capacity to know that he ought not to do the acts the subject of counts 1 - 10.
Where, as in the present case, the prosecution relies on circumstantial evidence and inference, it is fundamental that this court undertake an independent consideration of the combined strength of the relevant evidence and decide whether the evidence left open a reasonable hypothesis consistent with innocence.[122] In the present case that is a reasonable hypothesis consistent with the appellant not having capacity under s 29 of the Code. This requires that the court be more than merely satisfied that the trial judge has not erred in the findings of fact made in arriving at a finding of guilt. It requires more than mere satisfaction as to the existence of a pathway to proof of guilt beyond reasonable doubt.[123]
[122] Dansie v The Queen [35].
[123] Dansie v The Queen [37].
In the context of the present case, in order to apply the test in M v The Queen, the court is required to ask whether it is independently satisfied as a result of an assessment of the whole of the evidence adduced at trial on the question of the appellant's capacity that the only rational inference available on that evidence was that the appellant had capacity pursuant to s 29 of the Code.

The parties' submissions

The appellant contended that the evidence did not support a finding that the State had proved beyond reasonable doubt the element of capacity pursuant to s 29 of the Code.[124]
[124] Appellant's submissions par 30 WAB 12.
The appellant referred to his various diagnoses of attention deficit hyperactivity disorder, bipolar affective disorder and early childhood trauma.[125] Otherwise the appellant alleged deficiencies in the trial judge's process of reasoning in relation to capacity as follows:
1.The appellant alleged that the trial judge was in error in relying on the alleged sexual acts as themselves providing a basis to infer that the appellant had capacity to know that he ought not do the acts. The appellant said that it was not open to the trial judge to consider the events of the offending themselves.[126]
2.Insofar as the trial judge relied on the appellant's school records it was said that the documentary evidence did no more than reveal that the appellant was mischievous and naughty at school - they did not demonstrate the appellant's capacity to know that he ought not to do any of the sexual acts the subject of the offending.[127]
3.The appellant criticised the trial judge's reliance on SF's evidence that the appellant attempted to entice SF to ride down the massive hill by offering to steal condoms if she did so. The appellant said that the trial judge did not refer to either unlawfulness or immorality in his Honour's discussion of this evidence. Thus, according to the appellant, it was unclear whether the trial judge was referring to this evidence as demonstrating the appellant's capacity to know that the acts the subject of the offending were morally wrong as opposed to legally wrong.[128]
[125] Appellant's submissions par 23 WAB 11.
[126] Appellant's submissions par 32 (referring also to pars 25 - 29) WAB 12 - 13.
[127] Appeal ts 16; appellant's submissions pars 33 - 55 WAB 13.
[128] Appellant's submissions pars 36 - 39 WAB 13 - 14.
The first matter is redolent of the abandoned ground 1. Apart from the abandonment of ground 1 the submission fails because the trial judge did not err in the manner suggested. His Honour did not consider the acts of the offences alone to determine capacity. Rather, his Honour considered the acts that constituted the offences together with the circumstances surrounding the offending and the evidence in general. As has been seen, that is permissible (see [84] above). In any case, to make out the basis for allowing an appeal under s 30(3)(a) of the Criminal Appeals Act it is unnecessary (but also insufficient) to establish legal error of the kind posited. Rather, as has been seen, the question is whether, having regard to the evidence, the verdicts of guilty should be set aside because they are unreasonable or cannot be supported.
In oral submissions the appellant's counsel said that there had not been proof of capacity beyond reasonable doubt because the trial judge had considered factors that were not relevant in determining capacity. Counsel included the EROI as well as the matters already mentioned. Counsel for the appellant submitted that the EROI was not probative of the appellant's capacity at the time of the offending due to the lapse of time between the offending and the EROI. It had, in counsel's submission, no, or 'very, very little', weight.[129]
[129] Appeal ts 4, 13 - 16.
Counsel for the appellant contended that the factors relied on by the State to prove capacity showed no more than that the appellant regarded the sexual acts as mischievous, rude or naughty - they did not reveal that the appellant knew them to be seriously wrong by the ordinary standards of a reasonable adult.[130]
[130] Appeal ts 17.
The State contended that the trial judge correctly identified that the relevant factors to be considered included the circumstances surrounding the offending and the appellant's demeanour and admissions in the EROI.[131] Otherwise, so far as I have addressed the evidence mentioned in the State's PD 7.4 schedule, I have also mentioned the State's contentions based on that evidence. More generally the State reiterated that there was no evidence to suggest that the appellant had any intellectual disability or cognitive problems - especially when consideration was given to the EROI.[132]
[131] Respondent's submissions par 35 WAB 63.
[132] Respondent's submissions pars 40 - 41 WAB 64.

As to the circumstances surrounding the offending, the State said SF's lack of consent - coupled with her reluctance, distress and fear - was relevant to a consideration of the appellant's capacity. Those matters must have been apparent to the appellant. So too the appellant's use of force was relevant. In the absence of any intellectual limitations the appellant's maturity was such that it should be inferred that he had the capacity to understand that his actions were seriously wrong rather than being merely rude or naughty.[133]
[133] Respondent's submissions pars 36 - 39 WAB 63 - 64.
Finally, as to the EROI and the other evidence as to capacity, the State first said that the appellant had a general sense of right and wrong. The State relied on the appellant's apparent knowledge of stealing and the illegality of prohibited drugs as well as his understanding that paedophilia was wrong and that it was inappropriate to talk to younger children, such as SF and LK, about sexual activities and terms. The State also relied on the discipline that the appellant had received at school and from SF and LK's mother. In addition to the appellant having a general sense of right and wrong the State said that the appellant's environment suggested that he had the maturity to be entrusted with looking after younger children.[134]
[134] Respondent's submissions par 42 WAB 65.
The State contended that, on the whole of the evidence, it could not be said that it was not open to the trial judge to be satisfied beyond reasonable doubt that the appellant had the requisite capacity.[135]
[135] Respondent's submissions par 43 WAB 66.

Disposition

There was a tendency in the parties' submissions to group all the alleged offending together. That is understandable given the common features of the alleged offending and the relatively short time period over which it was alleged to have occurred. It must, however, be understood that the question of capacity arises as to each of the alleged offences. While, for convenience, I will deal with much of the evidence together - such evidence applying across all the alleged offences - it must be remembered that ultimately the question of capacity arises separately in the context of each separate count. The question is whether, at the time of doing the act the subject of each alleged offence, the appellant had capacity to know that he ought not to do that act.
At the time of the alleged offending the appellant was either 11 years old (but close to turning 12 years of age) or had recently turned 12 years of age. The more serious offending the subject of counts 8 - 10 occurred at a time when the appellant was 12 years old or was almost 12 years old.
There are, broadly speaking, two categories of alleged offending. Counts 1 - 3, 6 and 10 involved alleged indecent dealings. The appellant engaged in acts of exposing his penis or exposing his penis and masturbating in the presence of SF or both SF and LK. Count 10 involved the appellant exposing his penis to SF in close proximity to SF's face while he performed cunnilingus on SF. Counts 4 - 5 and 7 - 9 involved sexual penetration - three acts of digital penetration of SF's vagina, one act of compelling SF to perform fellatio and one act of performing cunnilingus on SF.
The nature of the offending was such that, in each case, it was obviously wrong. That is particularly the case with the more serious offending the subject of counts 8 - 9 and the digital sexual penetrations the subject of counts 4, 5 and 7. Each of those acts involved a significant interference with SF's person. The acts of indecent dealing, while less serious, were also obviously wrong so far as they constituted acts that were well outside everyday societal norms, values and expectations. The circumstance that the various offending was obviously wrong cannot alone be determinative of the question of capacity. It is, however, relevant in considering whether, having regard to all of the circumstances, the only reasonable inference available on the evidence was that the appellant had capacity to know that he ought not to do the acts the subject of the alleged offences.
There was no evidence to suggest that the appellant suffered from any disability which would adversely affect his capacity to know that he ought not to do the acts the subject of the alleged offences.
In this respect I acknowledge the appellant's counsel's reliance on the appellant's diagnoses of various medical and other conditions. It was, however, apparent from the EROI that the appellant was on prescribed medications for those conditions and that had been the position for a long time.[136] The conditions being so managed the appellant did not point to anything in the evidence to suggest that the various conditions affected his capacity to know that he ought not to do the relevant acts. To the contrary, having made an independent assessment of the EROI in the context of the capacity evidence as a whole, I too would draw the inference, as the trial judge did, that at the time of the EROI the appellant was articulate, reasonably mature and not apparently suffering from any intellectual disability. A further question was whether it should be inferred, on the basis of what the appellant said in the EROI, that he was likewise not apparently suffering from any intellectual disability at the time of the alleged offending some two years earlier. In my view that inference was open and ought to be drawn. Based on the EROI (in particular the appellant's use of language, command of concepts and ability to reason and seek clarification where required) there was nothing to suggest that the appellant had any intellectual disability or cognitive deficiencies - a situation that, so much as it existed in March 2020, would also have prevailed during the first half of 2018.
[136] BGAB 79 - 82.
It follows that I would infer that, at the time of the alleged offending, the appellant did not suffer from any intellectual disability or cognitive deficiency. Rather, the appellant's development was consistent with that which would be expected of a child of around 11 ‑ 12 years of age. As will be seen, these inferences are further supported by other aspects of the evidence.
Two further observations should be made arising from the observation that there was no evidence to suggest that the appellant suffered from any intellectual disability or cognitive deficiency.
First, in referring to the absence of evidence, it should not be thought that there has been a reversal of the burden of proof cast upon the prosecution by s 29 of the Code. It is for the prosecution to prove the element of capacity to the requisite criminal standard. Even in the case of conduct which is obviously wrong, that is not done merely by proving a child under the age of 14 years has reached normal developmental milestones. The point, however, is that there is no evidence of disability or deficiency to counter the evidence of capacity which the prosecution adduced in the form of the EROI.
Second, as can be seen from the discussion at [114] above, the EROI is probative of the appellant's capacity at the time of the offending. I reject counsel for the appellant's submission to the contrary. It was and is permissible to have regard to the EROI in concluding that the appellant had capacity to know that he ought not to do the relevant acts. That is particularly the case where, as I will elaborate below, in material respects the EROI addressed the appellant's understanding of various matters as at 2018 rather than the time of the EROI.
While the EROI provided material evidence on the question of capacity, it was and is necessary to be astute in differentiating between the appellant's expressed understanding as at a younger age and what, based on the EROI, might be inferred as to the appellant's intellectual and moral development at an earlier time. But, to the extent that the appellant challenged the trial judge's approach in this respect, it is evident from the trial judge's reasons that his Honour was alive to this distinction and that his Honour took into account the passage of time between the alleged offending and the EROI in using that evidence as part of the material in assessing the appellant's capacity (see [68] above). I have also carefully considered and distinguished between what the appellant said as to his understanding and state of development while 11 or 12 years of age and what is to be inferred as to those matters having regard to what was stated by the appellant in the EROI some two years later.
The remaining evidence as to capacity may be grouped into five categories:
1.The evidence of 'maturity' so far as the appellant was entrusted with responsibility in taking SF and LK, as younger children, to the shops and to the park.
2.The appellant's school disciplinary record.
3.Evidence going to whether the appellant had a general appreciation of right or wrong in relation to unlawful conduct (eg the evidence as to offering to steal condoms and what the appellant and his friends did when they found a bag containing a prohibited drug).
4.Evidence as to the appellant's sexual knowledge and understanding and whether it was wrong to discuss such matters with younger children.
5.The evidence as to the acts themselves.
I reject the State's reliance on the 'maturity' evidence. The circumstance that the appellant was given charge of SF and LK as younger neighbourhood children to take them to the shops or the park does not bespeak any particular maturity on the part of the appellant. As a matter of common human experience it is not unusual for the oldest of a group of children to be asked to assume certain responsibilities on behalf of the younger children in the group. The most that can be said is that this evidence is consistent with and in that respect confirms that there was nothing to suggest that the appellant had any intellectual disability or cognitive difficulties. Beyond that no relevant inference can be drawn from this evidence.
Nor, in my view, are the school disciplinary records evidence on whether the appellant had capacity to know that he ought not do the acts that constituted the offending. The behavioural issues the subject of the appellant's suspensions were qualitatively different to the alleged sexual offending. The conduct for which the appellant was suspended concerned physical aggression towards other students and abuse, threats, harassment or intimidation of staff. The circumstance that the appellant had been punished for such conduct does not provide an adequate basis to infer that the appellant had capacity to know that he ought not do the acts that constituted the offending. It may be accepted that, as the State submits, it would be open to conclude that the disciplinary records negate a contention that the appellant was a child who had not experienced any behavioural boundaries in his upbringing. But no such contention was ever advanced on behalf of the appellant.
The third category of capacity evidence is supportive of the trial judge's finding on the question of capacity.
At all material times the appellant was aware of the concept of stealing. He attempted to entice SF to take a risk in riding down a hill on the handlebars of his bike with an offer to steal condoms. Insofar as this occurred the day after the first alleged indecent dealing it should be inferred that the appellant was familiar with the concept of stealing - and that it was wrong to steal - at the time of each of the alleged offences. Similarly, in the EROI the appellant referred to he and his friends finding a 'humungous bag of weed' in the sand dunes. The appellant made reference to the prohibited drug being delivered over to the police. I would infer, in the circumstances, that the appellant was aware that it was wrong to be in possession of a prohibited drug and that the right thing to do when finding a stash of prohibited drugs was to report the matter to the lawful authorities.
These two matters, individually and collectively, provide further support for the inference that the appellant's intellectual and moral development was consistent with that which would be expected of a child of around 11 - 12 years of age who did not suffer from any intellectual disability or cognitive deficiency and that, at that age, the appellant generally had the capacity to know right from wrong.
All of these matters are important context for the next category of capacity evidence - the evidence as to the appellant's sexual knowledge and understanding and in particular the appellant's understanding as to whether it was wrong to discuss such matters with younger children such as SF and LK. This next category of evidence is the most probative of all of the capacity evidence adduced at trial.
In relation to this category of evidence, based on my independent assessment of the EROI in the context of the evidence as a whole in relation to capacity, I conclude that at the relevant times:
1.The appellant understood sexual concepts including particular sexual interactions between males and females. This inference arises from:
(a)SF's evidence that the appellant used language that referred to sexual activities or associated matters (eg wanking, boners, blowjobs, sucking a penis and '69s') (see [38] - [40] and [43] above);
(b)the appellant's acknowledgement in the EROI that he had a contemporaneous understanding of particular sexual terminology and had been exposed to pornography at this time (see [50.5] and [60] above).
2.The appellant understood the concept of sexual misbehaviour and that it was wrong. This inference arises from the appellant's statements in the EROI as to the alleged activities of the alleged paedophile neighbour (see [50.6], [53] - [59] above). Importantly, this was not an awareness that merely arose at or about the time of the EROI. The appellant's statements in the EROI were expressed in terms of his understanding at the time of the particular events in October 2018.
3.The appellant understood that SF and LK, as younger children, were too young for him to be discussing with them the alleged sexual misbehaviour of the neighbour or sexual activities in general - again a contemporary awareness rather than one merely arising at or about the time of the EROI (see [53] - [60] above). This was reinforced by the reprimand that the appellant received from SF and LK's mother when the appellant picked up a box of condoms in the presence of SF and LK at the shops (see [47] above).
4.It should be inferred, from the matters mentioned in the preceding sub-paragraph, that the appellant understood that SF and LK were too young to be exposed to or to participate in sexual acts or activities - if SF and LK were too young for the appellant to be discussing sexual misbehaviour or sexual activities with them then all the more so they were too young to be exposed to or to participate in sexual acts or activities.
The latter three matters (ie those described in [127.2] - [127.4] above) each rely, either exclusively or to a significant extent, on the appellant's expressed awareness in the context of the alleged activities of the alleged paedophile neighbour. This was some six months after the alleged offending (see [54] above). The question arises whether, on the basis of what was said in the EROI, it could be inferred that the appellant had the same understanding and awareness going back as early as the time of his alleged offending. In my view that inference is and was open and should be drawn. The inference is supported by the appellant's contemporaneous understanding of sexual concepts and sexual interactions together with the circumstance that the appellant's intellectual and moral development was consistent with that which would be expected of a child of around 12 years of age (the appellant not suffering from any intellectual disability or cognitive deficiencies).
There is, as mentioned when discussing the applicable legal principles, only so much that can be derived from the evidence as to the acts themselves.
One thing that arises from the offending is that the relevant acts were obviously wrong (see [9] - [14], [36] - [44] and [111] - [112] above). That is material so far as the appellant's intellectual and moral development was consistent with that which would be expected of a child of around 11 - 12 years of age who did not suffer from any intellectual disability or cognitive deficiency. The appellant, as a male child of normal intellectual and moral development of around 11 ‑ 12 years of age with the kind of understanding of sexual concepts and sexual misbehaviour (as discussed at [127.1] - [127.2] above) and also understanding that children of 6 to 7 or 8 to 9 years of age are too young to be exposed to or to participate in sexual acts or activities (as discussed at [127.3 - [127.4] above), would have understood that it is wrong (in the sense described) to expose one's penis to such children (or, indeed, people generally) and all the more so to masturbate in front of them or engage in acts of sexual penetration with a young girl of around 8 or 9 years of age.
Beyond that the relevance of the circumstances surrounding the offending must be considered separately count-by-count.
In respect of count 5, SF's lack of consent was obvious - she said stop and the appellant continued with his act of digital penetration (see [36] above). As to count 8 (see [41] above), I accept that, taking SF's evidence as a whole, the appellant must have known that SF was not consenting. The appellant made demands of SF and then forcibly grabbed and manoeuvred SF's head when his penis was in SF's mouth. SF's lack of consent was also obvious in relation to counts 9 and 10. The appellant forced SF down and pulled down her clothing. SF also resisted taking the appellant's penis into her mouth. Insofar as the acts persisted for five minutes the appellant must have known that SF was not a willing participant in the sexual activity that he had instigated.
Having reviewed the evidence at trial as relied on by the parties, and identifying what may be derived from those materials, I am satisfied that the only reasonable inference available on the evidence was that at the time of doing the various acts that constituted the offences as found the appellant had capacity to know that he ought not to do those acts.
In my view, after evaluating and weighing SF's and SF's mother's evidence and the appellant's statements in the EROI in the context of the trial record as a whole, for the reasons I have given:
1.The nature of the offending was such that, in each case, it was obviously wrong.
2.At the time of the offending the appellant's intellectual and moral development was consistent with that which would be expected of a child of around 11 - 12 years of age.
3.At the time of the offending the appellant understood: (a) sexual concepts including particulars of various forms of sexual interaction between males and females; (b) the concept of sexual misbehaviour and that it was wrong; and (c) that SF and LK were too young to be exposed to or to participate in sexual acts or activities.
4.As to each of counts 5 and 8 - 10, the appellant must have known that SF did not consent to the sexual activity that the appellant had instigated.
5.As to each of counts 8 - 10, the appellant used force in engaging in the sexual activity in relation to SF.
6.At the time of the offending the appellant was capable of understanding that the conduct the subject of each offence was seriously wrong ('wrong' in the sense that it constituted conduct that was well outside everyday societal norms, values and expectations). Specifically, the appellant was capable of understanding that: (a) it is wrong for a male to expose his penis to others; (b) it is wrong for a male to masturbate in front of others; and (c) it is wrong to engage in acts of sexual penetration with a young girl of around 8 or 9 years of age.

The combined force of these conclusions is such that a tribunal of fact, acting reasonably, was entitled to conclude beyond reasonable doubt - and I am also so satisfied - that in respect of each of the offences the appellant had capacity to know that the conduct in question was seriously wrong by the ordinary standards of reasonable adults. In so stating it will be appreciated that the matters referred to in [134.4] and [134.5] above have only been taken into account in relation to the counts to which they relate.
The trial record does not require the conclusion that the trial judge must necessarily have entertained a doubt about the appellant's guilt on counts 1 - 10 because the evidence did not support a finding beyond reasonable doubt that the appellant had the requisite capacity in terms of s 29 of the Code. The verdicts of guilty were not unreasonable. They were supported by evidence that the trial judge was entitled to accept and by inferences that the trial judge was entitled to draw. Having reviewed the trial record, I do not have a reasonable doubt as to the appellant's guilt on counts 1 - 10 or as to the correctness of his conviction on those charges. It would not be dangerous, in the circumstances, to allow the verdicts of guilty to stand.
Ground 2 fails.

Conclusion and orders

I am not satisfied that the single ground of appeal pressed at the appeal hearing had a rational and logical prospect of succeeding. Leave to appeal should be refused. Accordingly, the appeal must be dismissed.
I would make orders as follows:
1.The time for the appellant to appeal from his convictions on 9 April 2021 in Children's Court of Western Australia proceeding XX of XXXX in relation to charges XX XX - XX of XXXX and XX XX - XX of XXXX is extended to 13 July 2021.
2.Leave to appeal on ground 2 is refused.
3.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MD
Associate to the Honourable Justice Vaughan
10 MAY 2023