LRW v Director of Public Prosecutions (WA) - [2022] WASC 437

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   LRW -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2022] WASC 437
CORAM:   SOLOMON J
HEARD:   3 OCTOBER, further submissions 12, 19 OCTOBER, further directions hearing 21 NOVEMBER 2022
DELIVERED          :   15 DECEMBER 2022
FILE NO/S:   SJA 1053 of 2022
BETWEEN:   LRW
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Respondent

ON APPEAL FROM:
For File No:   SJA 1053 of 2022
Jurisdiction              :   CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S DEWSBURY
File Number            :   CC PE 859/2021, CC PE 858/2021 and CC PE 854/2021

Catchwords:

Appeal against conviction – Child older than 10 but younger than 14 years of age – Criminal capacity – Whether accused doli incapax – Whether prosecution adduced evidence of accused's capacity

Legislation:

Criminal Code Act 1902 (WA)
Criminal Code Act Compilation Act 1913 (WA) (Criminal Code), s 29
Criminal Procedure Act 2004 (WA), 25(3)

Result:

Leave to appeal granted
Appeal upheld
Appellant acquitted of all charges

Category: B

Representation:

Counsel:

Appellant	:	J C Solliss
Respondent	:	R P Arndt

Solicitors:

Appellant	:	Jennifer Solliss
Respondent	:	Director of Public Prosecutions (WA)

Cases referred to in decision:

A v Director of Public Prosecutions [1992] Crim LR 34
AL v The Queen [2017] NSWCCA 34
B v The Queen (1958) 123 JP 61; [1958] 44 Cr App R 1
BC v The Queen [2019] NSWCCA 111
BDO v The Queen [2022] HCATrans 184
C (a Minor) v Director of Public Prosecutions [1996] AC 1; [1995] 2 All ER 43
Chitambala v The Queen [1961] R&N 166
Ex parte Attorney-General [1998] QCA 97; [1999] 2 Qd R 157
Frijaf v R [1982] WAR 128
JM (A minor) v Runeckles (1984) 79 Cr App R 255
R (A Child) v Whitty (1993) 66 A Crim R 462
R v BDO [2021] QCA 220
R v Brophy [1982] AC 476
R v Chaulk [1990] 3 SCR 1303
R v CRH (Unreported, NSWCCA, No. 60390 of 1996, 18 December 1996)
R v JA [2007] ACTSC 51; 1 ACTLR 126
R v McCormick [2002] QDC 343
RH v Director of Public Prosecutions (NSW) [2013] NSWSC 520
RP v The Queen [2016] HCA 53; (2016) 259 CLR 641
RYE v The State of Western Australia [2021] WASCA 43
Wong Kam-ming v The Queen [1980] AC 247

SOLOMON J:

Introduction and background

This is a case about a 13‑year‑old girl, 'LRW', whose conduct created a grave danger to members of the public. LRW was just shy of her 14^th birthday when the events took place in Perth's northern suburbs in February 2021. In the Perth Children's Court, the following facts were found, and remain unchallenged. On 28 February 2021, LRW was seen by an off‑duty detective, Senior Constable Belton, driving a red Toyota Corolla Hatchback at excessive speeds in the right lane of Kwinana Freeway near Canning Bridge. He saw the same vehicle approximately 15 minutes later at a service station at Dog Swamp Shopping Centre in Yokine. He saw LRW get out of the driver's seat and put fuel in the car. She then got back into the car and drove off. The vehicle was then pursued by a different officer, Senior Constable Thomson.
Senior Constable Thomson pursued the appellant through suburban Nollamara while flashing his lights and sounding his siren. During that pursuit, LRW drove in excess of the 50 ‑ 60 km/hr speed limits, and at times reached speeds of approximately 120 km/hr. There were other vehicles on the road. For a period of the pursuit, LRW drove on the wrong side of the road, swerved around other vehicles, failed to give way to oncoming traffic, and drove over a median strip to avoid waiting behind a queue of cars.
The vehicular pursuit came to an end at Princess Wallington Reserve in Balga. LRW drove into a carpark adjacent to that reserve, and Senior Constable Thomson blocked the passenger side of the Toyota Corolla with his vehicle. At that point, the appellant and two passengers – a girl now identified as LRW's sister, and a boy – exited the Toyota Corolla and ran across the reserve. Senior Constable Thomson pursued the two girls on foot, calling out to them to stop. Part of that pursuit was captured by body‑worn cameras. Senior Constable Thomson apprehended the female passenger, and he saw another officer who had arrived at the scene arrest LRW.
On 24 December 2021, LRW was convicted in the Perth Children's Court of charges of reckless driving to escape pursuit by police, driving when never having held a driver's licence, and failing to comply with a direction to stop a vehicle in circumstances of aggravation.
This case reflects the tension inherent in two issues of intense public concern and scrutiny; one is juvenile criminal behaviour and public safety, and the other is the responsible and humane treatment of juveniles in the criminal justice system. Those well placed, and often conflicting societal concerns, underscore the importance of explaining why LRW's appeal must be upheld, and she should be acquitted of all charges.
Sometimes the outcome of criminal cases creates disquiet, and occasionally outrage, in the community. Those reactions often fail to appreciate that the maintenance of law in a civil and humane society requires the consistent application of principle to ensure that a person's liberty, dignity, and reputation are not impugned by the exercise of state power unless certain preconditions are satisfied. There is a ready acceptance of that proposition when it is apparent that the person did not engage in the conduct that offends societal standards of behaviour. Often however, the preconditions are not met for other reasons. There are numerous reasons why that may be so. For example, admissible evidence may no longer be available, or the prosecution may have failed to adduce sufficient evidence. In those circumstances, the law requires that the person must still be acquitted even though the person's conduct may have caused great harm to another person or may have endangered the community generally. It is a foundational principle of our justice system that the State does not find a person criminally responsible unless the necessary preconditions are met. To abandon that principle would imperil the liberty of every person and compromise the humanity of our society.
The unacceptable danger created by LRW's conduct requires no explanation. The problems associated with her conviction are not as simple. They relate to one of the important preconditions for finding a person guilty of an offence; establishing the point at which a maturing child should be held morally culpable and therefore criminally responsible for her or his conduct.
In an oft-cited passage, Harper J in R (A Child) v Whitty observed:
'No civilised society', says Professor Colin Howard in his book entitled Criminal Law, 4th ed (1982), p343, 'regards children as accountable for their actions to the same extent as adults'...The wisdom of protecting young children against the full rigour of the criminal law is beyond argument. The difficulty lies in determining when and under what circumstances that protection should be removed.[1]
[1] R (A Child) v Whitty (1993) 66 A Crim R 462.
That difficulty is not new; indeed it is ancient. The Biblical account of the Garden of Eden whereby moral awareness was mystically acquired by eating of the fruit of the Tree of Good and Evil may belie the complexity inherent in the development of moral cognition, but it nevertheless reflects the antiquity of the problem. Moreover, that account suggests another point. Adam was commanded: 'Of the Tree of Knowledge of Good and Evil thou shalt not eat'.[2] The command was given, and obedience demanded, before any such forbidden fruit was consumed and 'knowledge of good and evil', thereby acquired. The Genesis narrative is a recognition that mere obedience, and indeed fear of punishment, is not to be equated with moral cognition. That aged observation remains centrally relevant, as this case illustrates.
[2] Genesis 2:17.
LRW now seeks leave to appeal her conviction on two grounds. To understand the grounds of appeal it is necessary to explain some further aspects of the background facts and the relevant legal principles.
The car that was driven by LRW on 28 February in a manner that led to her conviction, was alleged to have been stolen and driven by LRW on 22 February 2021. On 1 March 2021, the appellant was charged with a total of 11 offences, all of which occurred either on 22 or 28 February 2021.
On 28 February 2021, the police conducted an interview with LRW. That interview was recorded by video. The prosecution sought to adduce the video recording in evidence. Counsel for LRW objected to the admissibility of the video interview on the grounds that it was involuntary and that, even if it were found to have been voluntarily given, it should be ruled inadmissible in the exercise of the court's discretion on the basis of unfairness.
On 24 November 2021, all 11 offences were listed for trial in the Perth Children's Court. Prior to the commencement of trial, one charge relating to an offence for the alleged stealing of petrol was sought to be withdrawn by the prosecution and was dismissed pursuant to s 25(3) of the Criminal Procedure Act 2004 (WA).[3] Additionally, the learned magistrate conducted a voir dire hearing as to the admissibility of the video interview conducted by the police.
[3] Transcript, The State of Western Australia v LRW, Children’s Court of Western Australia, 24 November 2021, 3.
Importantly, LRW gave evidence during the voir dire hearing. She gave evidence in response to questions from her own counsel and was cross-examined by counsel for the prosecution.
On 1 December 2021, the learned magistrate delivered reasons in relation to the admissibility of the video interview, ruling that the video record of interview was inadmissible. The trial of the balance of the ten remaining charges was adjourned to 20 December 2021.
At the trial on 20 December 2021, it appears that as a result of the outcome of the voir dire, the prosecution elected to offer no further evidence for six of the remaining ten charges, which consisted of three charges of stealing a motor vehicle and three charges of driving without authority. LRW was acquitted of those charges. Therefore, the trial proceeded in respect of four charges relating to the events of 28 February 2021.
Although LRW had given evidence at the voir dire, she did not give evidence at trial.
On 24 December 2021, the learned magistrate delivered her verdict and reasons. As noted above, her Honour found LRW guilty of three charges; reckless driving to escape pursuit by police, driving when never having held a driver's licence, and failing to comply with a direction to stop a vehicle in circumstances of aggravation. The learned magistrate found LRW not guilty of the charge of stealing a motor vehicle and driving recklessly.
In summary, the charges and relevant outcomes were as follows:

Number	Date	Description	Outcome
CC PE 849/21	22/02/2021	Steal motor vehicle	Acquitted after voir dire on 20 December 2021
CC PE 850/21	22/02/2021	Steal motor vehicle	Acquitted after voir dire on 20 December 2021
CC PE 851/21	28/02/2021	Steal motor vehicle	Acquitted after voir dire on 20 December 2021
CC PE 852/21	22/02/2021	Stealing	Dismissed pursuant to section 25(3) of the CPA prior to trial on 24 November 2021
CC PE 853/2021	28/02/2021	Steal motor vehicle and drive recklessly	Acquitted after trial on 24 December 2021
CC PE 854/2021	28/02/2021	Reckless driving to escape pursuit by police	Convicted after trial on 24 December 2021
CC PE 855/2021	22/02/2021	Never held a driver's licence	Acquitted after voir dire on 20 December 2021
CC PE 856/2021	22/02/2021	Never held a driver's licence	Acquitted after voir dire on 20 December 2021
CC PE 857/2021	28/02/2021	Never held a driver's licence	Acquitted after voir dire on 20 December 2021
CC PE 858/2021	28/02/2021	Never held a driver's licence	Convicted after trial on 24 December 2021
CC PE 859/2021	28/02/2021	Driver of a vehicle failed to comply with a direction to stop (circumstance of aggravation)	Convicted after trial on 24 December 2021

A critical issue at the trial on 20 December 2021 was LRW's moral capacity. LRW was born on 4 March 2007 and was therefore some five days short of 14 at the time of the alleged commission of the offences on 28 February 2021. The issue arises because s 29 of the Criminal Code provides that a person under the age of 14 years is not criminally responsible unless it is proved that she had capacity to know that she ought not to do the act or make the omission constituting the offence. I will return to the precise terms of the statute later in these reasons.
In her reasons, the learned magistrate turned her mind to the question of the appellant's capacity. Her Honour correctly observed that it was for the prosecution to prove beyond reasonable doubt that LRW had the requisite capacity. The learned magistrate stated that while she could make no reference to the material that she had ruled to be inadmissible in the voir dire, she could rely upon her own 'assessment of [LRW] giving evidence at the [voir dire] hearing and can take account of and assess [LRW's] demeanour, [LRW's] apparent understanding of questions and [LRW's] manner in giving evidence' in order to assess LRW's capacity.[4]
[4] ts 24 December 2021, 12.
Her Honour went on to observe that the appellant gave evidence at the voir dire that she was a school student and various other matters in relation to her circumstances. The learned magistrate found that the appellant's evidence in court at the voir dire hearing was articulate and demonstrated that the appellant understood ordinary language, and that she was capable of expressing herself in examination in chief and cross‑examination. In her Honour's assessment, there was no apparent barrier to the appellant's ability to understand. The learned magistrate remarked 'I find this to be evidence which I can and do take into account in determining her capacity to know that she ought not to do each of the acts of which she was accused of doing'.[5] The learned magistrate then referred to circumstances surrounding the offence, including LRW's evident awareness of being pursued by the police and the manner of driving showing a high level of control and awareness of the road rules, including indicating and slowing down on the approach to traffic lights.
[5] ts 24 December 2021, 12.
The learned magistrate concluded by saying: 'In all of the surrounding circumstances, I find beyond a reasonable doubt, that at the relevant time [LRW] had the requisite capacity to know that she ought not to do each of the acts of which she is charged'. The learned magistrate then went on to detail the relevant acts, finding LRW guilty beyond reasonable doubt of the three charges outlined above.

Grounds of appeal

The appellant's notice of appeal was filed on 4 July 2022. The grounds of appeal are stated as follows:
1.The learned magistrate made an error of law by relying upon evidence given by the accused during a voir dire when determining the question of capacity under s 29 of the Criminal Code in the substantive trial.
2.There was a miscarriage of justice because the prosecution failed to establish capacity as required by s 29 of the Criminal Code beyond a reasonable doubt.
Both grounds of appeal relate to the magistrate's finding that LRW had the capacity to understand that her actions were seriously wrong.
The respondent conceded that Ground 1 was established and that the learned magistrate erred in relying on evidence given during the voir dire to determine whether the appellant had capacity under s 29 of the Criminal Code. The respondent further conceded that this error amounted to a miscarriage of justice and that her Honour's findings as to capacity must be set aside.
The respondent did not concede Ground 2 and submitted that the evidence led to establish capacity at the trial, although not relied upon by the learned magistrate in her reasons, was capable of doing so beyond a reasonable doubt. On this basis, the respondent submitted that the matter should be remitted to the Children's Court for retrial.

Ground 1

Ground 1 of the appeal complains that having ruled that the evidence the subject of the voir dire was inadmissible, it was an error for the learned magistrate to rely on the appellant's evidence during the voir dire as evidence in the substantive trial to establish capacity.[6] The prosecution did not seek to rely on this evidence at trial. The prosecution did not seek to adduce any evidence of LRW's capacity beyond the evidence from the prosecution's witnesses relating to, or surrounding, the circumstances of the charges themselves. As noted, LRW did not give evidence at the trial.
[6] Wong Kam-ming v The Queen [1980] AC 247, 247 (Wong Kam-ming); R v Brophy [1982] AC 476, 481.
Additionally, it was submitted on behalf of LRW that the learned magistrate's reliance on LRW's evidence in the voir dire to assess capacity for the purpose of the trial, deprived LRW of her right to silence. Having opted to exercise her right to not give evidence at trial, it was not appropriate for the magistrate to nevertheless consider and make factual findings on the basis of LRW's evidence in the voir dire.[7]
[7] Chitambala v The Queen [1961] R&N 166, 169 ‑ 170.
The respondent concedes that this was an error that may give rise to a miscarriage of justice. Further, the respondent noted that:
The voir dire was conducted more than eight months after the offences were committed, and when the appellant was at an age when the presumption of incapacity no longer applied. Further, the evidence of the appellant was that about a month before the voir dire she had been prescribed medication for anxiety. She said that she was not on this medication at the time of the offences and was feeling better since taking the medication.
While there was no medical or psychiatric evidence before the Court of the appellant's conviction as of February 2021, the fact that the appellant had commenced treatment and said she was feeling better meant that her presentation at the voir dire was not necessarily a reliable indicator of her capacity eight months earlier.[8]
[8] Respondent's Submissions (23 September 2022) [24] - [25].
The respondent accepted that not only was the learned magistrate in error because she considered evidence that was inadmissible, her Honour also relied on evidence that could only have had 'marginal relevance' to a finding of moral capacity.[9]
[9] Respondent's Submissions [23].
In my view, the respondent's concession was correctly made. Although her Honour did refer to the circumstances surrounding the offences which were the subject of the evidence given by the prosecution's witnesses at trial, on any fair reading of the learned magistrate's remarks, the manner in which LRW gave evidence at the voir dire was a material element of her Honour's assessment of LRW's capacity.
In Wong Kam-ming, the Privy Council considered an appeal against a conviction for murder in an attack on the manager of a massage parlour. The trial judge conducted a voir dire to determine the admissibility of a statement made by the accused to the police. In the voir dire, the accused gave evidence in support of his application to exclude the statement. The judge ruled the statement inadmissible. In cross-examination during the voir dire, the accused admitted that he was involved in the attack. In the trial, the prosecution called the two shorthand writers who had transcribed the voir dire to testify that in the voir dire the accused had made the admission. The accused was then cross-examined on the discrepancy between his evidence at trial and the admission at the voir dire. The accused was convicted of murder. The Privy Council allowed the appeal, holding that where a defendant's statement had been ruled inadmissible on a voir dire, the prosecution was not permitted at the trial to adduce evidence of what the defendant said at the voir dire.

The judgment of the majority was delivered by Lord Edmund‑Davies. The majority concluded that where the ruling on the voir dire was to exclude the relevant evidence, the argument against ever admitting such evidence as part of the prosecution case at trial must prevail. The majority concluded that the prosecution 'may not adduce as part of its case evidence of what the accused said during a voir dire culminating in the exclusion of an impugned confession'.[10] In so concluding, the majority adopted the reasoning of the Federal Supreme Court of Southern Rhodesia in Chitambala v The Queen:
In any criminal trial the accused has the right to elect not to give evidence at the conclusion of the Crown case. To regard evidence given by him on the question of the admissibility as evidence in the trial itself would mean either that he must be deprived of that right if he wishes properly to contest the admissibility of a statement, or that, to preserve that right, he must abandon another right in a fair trial, the right to prevent inadmissible statements being led in evidence against him. To me it seems clear that deprivation of rights in this manner, and the changing of a trial of admissibility into a full investigation of the merits, cannot be part of a fair criminal trial.[11]
[10] Wong Kam-ming, 259 [C].
[11] Wong Kam-ming, 257 [F] citing Chitambala v The Queen [1961] R & N 166, 169 - 170 (Clayden ACJ).
In this jurisdiction, the Privy Council's decision was considered by the Court of Criminal Appeal in Frijaf v R.[12] The relevant issue in that case was whether the trial judge was correct to have permitted questions of the accused during the voir dire as to the truth of the oral confessions. Although Brinsden J expressed doubt about the reach of Wong Kam-ming and 'hoped' that it might be considered by the High Court, his Honour nonetheless accepted its authority.[13] Wickham and Wallace JJ appeared to have had no difficulty accepting both the authority and the force of Wong Kam-ming. Wallace J emphasised the importance of not discouraging an accused from giving evidence on a voir dire to determine the admissibility of a confession. His Honour took the position that if evidence on the voir dire was to be admissible in the trial, the conduct of the defence would be substantially affected, and the right to silence eroded. Wallace J understood the decision in Wong Kam-ming as grounded in the accused's right to remain silent at the conclusion of the prosecution's case.
[12] Frijaf v R [1982] WAR 128 (Wickham, Wallace & Brinsden JJ).
[13] Frijaf v R, 149.
It seems to me that the broad principle underlying the majority decision in Wong Kam-ming would preclude the use of an accused's evidence in a voir dire to determine the issue of moral capacity, at least where the ruling on the voir dire was to render the evidence the subject of the voir dire, inadmissible. The issue of moral capacity is invariably (and certainly was in this case) directly determinative of conviction or acquittal. To utilise and evaluate the evidence from a voir dire to determine moral capacity would appear to me therefore to undermine the distinct and quarantined function of the voir dire and thereby, an accused's right to have the admissibility of a confession tested while maintaining the foundational right to silence. Different questions may arise if the confession is ruled admissible, but that is not the position here.
For those reasons, I consider that the contention advanced on behalf of LRW, and the concession made by the respondent, are correct. I therefore grant leave to appeal on the basis of Ground 1, and the appeal will be upheld on that basis.
The question of whether to acquit the appellant, or to remit the matter for retrial, turns on Ground 2 of the appeal.

Ground 2

The appellant submits that there was a miscarriage of justice at first instance because the prosecution failed to establish that the appellant had capacity as required by s 29 of the Criminal Code.
The question before me is whether, on the evidence permissibly before the magistrate, that is excluding the evidence of the voir dire, it was open to her Honour to find beyond reasonable doubt that the appellant had the requisite moral capacity to be held criminally responsible for her actions. It was common ground between the parties that if the answer to that question is no, then I should acquit the appellant. If the answer to that question is yes, then it would be appropriate to remit the matter for re-hearing.

Doli incapax – general principles

Chapter V of the Criminal Code contains the provisions which set out the circumstances in which a person is not criminally responsible for his or her conduct.
Section 29 of the Criminal Code, as enacted by the Criminal Code Act 1902 (WA) and the Criminal Code Act Compilation Act 1913 (WA) deals with children and provides:
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.
The Court of Appeal in the recent decision of RYE v The State of Western Australia considered s 29 of the Code.[14] Buss P and Mazza JA traced the origin of the section and observed that it was intended to reflect the common law.
[14] RYE v The State of Western Australia [2021] WASCA 43 (Buss P, Mazza & Vaughan JJA).
At common law, the issue is referred to by the Latin phrase doli incapax which means literally, incapable of evil. Doli incapax denotes the notion that a child does not possess sufficient intellectual and moral development to distinguish between right and wrong and is therefore not criminally responsible for his or her conduct. At common law, children between the ages of seven and 14 are presumed to be incapable of the requisite moral distinction between right and wrong necessary to attribute criminal culpability. That position has been abrogated somewhat by statute, and now applies to children between the ages of 10 and 14. The opposite of doli incapax is denoted by the Latin phrase doli capax.
In the High Court, the plurality in RP v The Queen observed that at common law:
[A] child aged under 14 years is not sufficiently intellectually and morally developed to appreciate the difference between right and wrong and thus lacks the capacity for mens rea.[15]
[15] RP v The Queen [2016] HCA 53; (2016) 259 CLR 641 [8] (Kiefel, Bell, Keane & Gordon JJ).
In the Canadian case of R v Chaulk, Lamer CJ explained that:
What [the state of insanity and the state of childhood] have in common is that they both indicate that the individual in question does not accord with some basic assumptions of our criminal law model: that the accused is a rational autonomous being who is capable of appreciating the nature and quality of an act and of knowing right from wrong. With respect to the state of childhood, these basic assumptions are brought into question because of the immaturity of the individual – he or she has not yet developed the basic capacity which justice and fairness require to be present in a person who is being measured against the standard of criminal law. [16]
[16] R v Chaulk [1990] 3 SCR 1303, 1320.
It may be observed that there is no shortage of scientific literature to demonstrate that the position adopted by the law is not an artificial legal construct. It is widely accepted by the weight of current neurological, psychological, and sociological consensus that the brain and psyche of an adolescent is undeniably different from that of an adult.[17]
[17] Cauffman E & Steinberg L, '(Im)maturity of Judgment in Adolescence: Why Adolescents May Be Less Culpable than Adults' (2000) 18(6) Behavioral Sciences & the Law.
In RYE v The State of Western Australia, Buss P and Mazza JA summarised the principles in relation to doli incapax from the judgment of Kiefel, Bell, Keane and Gordon JJ in RP v The Queen as follows:
(a)The rationale for the presumption of doli incapax at common law is the view that a child under the age of 14 years is not sufficiently developed, intellectually and morally, to understand the difference between right and wrong and therefore lacks the capacity for mens rea.
(b)The presumption at common law is irrebuttable in the case of a child under the age of seven years.
(c)Between the age of seven years and the age of 14 years the presumption at common law is rebuttable and the prosecution may adduce evidence to prove that, at the material time, the child was doli capax.
(d)The presumption may be rebutted in relation to a child between the age of seven years and the age of 14 years by evidence that 'the child knew that it was morally wrong to engage in the conduct that constitutes the physical element or elements of the offence'. A child's knowledge of 'the moral wrongness of an act or omission is to be distinguished from the child's awareness that his or her conduct is merely naughty or mischievous'. The distinction may be expressed 'by stating the requirement in terms of proof that the child knew the conduct was 'seriously wrong' or 'gravely wrong'.
(e)The prosecution must point to evidence from which an inference can be drawn beyond reasonable doubt that the child's development was such that he or she knew that it was morally wrong to engage in the relevant conduct. This directs attention 'to the child's education and the environment in which the child has been raised'.
(f)At common law, the presumption ameliorated the harshness of the criminal law.
(g)It is not self-evident that the policy embodied in the common law presumption is outmoded in requiring that the prosecution prove beyond reasonable doubt that the child understood the moral wrongness of his or her conduct.
(h)The knowledge required to rebut the presumption is knowledge 'of the wrongness of the act as a matter of morality and not law'. Further, the prosecution must prove knowledge 'of serious wrongness as distinct from mere naughtiness'.
(i)What is sufficient to rebut the presumption will vary 'according to the nature of the allegation and the child'. A child will 'more readily understand the seriousness of an act if it concerns values of which he or she has direct personal experience'. For example:
Answers given in the course of a police interview may serve to prove the child possessed the requisite knowledge. In other cases, evidence of the child's progress at school and of the child's home life will be required.
Rebutting the presumption 'directs attention to the intellectual and moral development of the particular child'.[18]
[18] RYE v The State of Western Australia [35].
LRW at the time of the events was between the ages of 10 and 14 years old. By operation of s 29 of the Criminal Code, it is therefore necessary to proceed on the basis of a rebuttable presumption that she did not have moral capacity and cannot be held criminally responsible for her conduct on 28 February 2021.
The evidentiary onus thus fell on the prosecution to prove, beyond a reasonable doubt, that the appellant had the capacity to know that the conduct in question was 'seriously wrong' by the ordinary standards of reasonable adults.[19] The phrase 'seriously wrong' has been described as 'conceptually obscure'.[20] However, it is relatively settled that the prosecution must satisfy the court that the child understood that the act was seriously wrong, as opposed to merely naughty or mischievous.[21]
[19] RYE v The State of Western Australia [51].
[20] C (a Minor) v Director of Public Prosecutions [1996] AC 1; [1995] 2 All ER 43, 47 (Lord Lowry).
[21] R v CRH (Unreported, NSWCCA, No. 60390 of 1996, 18 December 1996), 8 (Smart, Newman & Hidden JJ).
In RYE v The State of Western Australia, after summarising the various relevant authorities, Buss P and Mazza JA (with Vaughan JA agreeing) observed that:
In our opinion, the 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 [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.[22]
[22] RYE v The State of Western Australia [51].
The Court of Appeal also clarified that s 29 is concerned with capacity to understand that an act is wrong, which is distinct from actual knowledge.[23]
[23] RYE v The State of Western Australia [44].
As explained, the respondent concedes that Ground 1 of the appeal must be upheld. That is, the learned magistrate incorrectly relied on inadmissible evidence to reach the conclusion that the appellant had moral capacity. However, the respondent submitted that there was other admissible evidence led by the prosecution at first instance that was capable of establishing, beyond reasonable doubt, that the appellant had capacity. As I have noted, the significance of that goes to the question of whether this court should acquit the appellant, or remit the matter for retrial.

Evidence that can be led to prove capacity

The difficulties associated with demonstrating mental capacity are not peculiar to the criminal law or indeed to minors. Issues regarding cognitive capacity are not infrequently features of litigation concerning the ability to enter into contracts or the validity of testamentary instruments. In relation to minors, the author of Heydon on Contract begins the relevant section with the bleak observation: '[t]he human race has long found it difficult to bring up its young'. [24] No authority is cited for that proposition, and it may perhaps be opportune to observe that others might aspire to a more hopeful or empathetic perspective of humanity's young. Relevantly, the author goes on to observe that this area of the law 'has a deserved reputation for complexity'.
[24] Heydon D, Heydon on Contract (2019) [1.60].
In those other areas of the law, it is not uncommon for mental capacity to be demonstrated by expert medical or psychiatric evidence. Perhaps for practical reasons this is apparently rare in the juvenile criminal justice system. What suffices to rebut the presumption that a child does not have the requisite capacity will vary according to the nature of the allegation and the child. In some cases, answers given in the course of a police interview may serve to prove the child possessed the requisite capacity. In other cases, evidence of progress at school and the child's home life will be required.[25] In RYE v The State of Western Australia, the Court of Appeal suggested that evidence as to the child's education and social circumstances, or the environment in which the child was raised, may be relevant.[26] In AL v The Queen, the prosecution relied upon school reports and the nature of certain classes attended by the accused.[27] Evidence of this nature has been described as 'highly material to the state of the child's knowledge' in the UK context.[28] Presumptions arising from age (closer to 10 or closer to 14) or circumstance are to be avoided; the only presumption the law makes is that below the age of 14 the child does not have capacity.[29] Rebuttal of the presumption requires sufficient evidence to displace the presumption beyond reasonable doubt.
[25] RP v The Queen [12].
[26] RYE v The State of Western Australia [65].
[27] AL v The Queen [2017] NSWCCA 34 [139].
[28] Bandalli S, 'Abolition of the Presumption of Doli Incapax and the Criminalisation of Children' (1998) 37(2) Howard Journal of Criminal Justice 114, 114.
[29] RP v The Queen [12].
Evidence of the circumstances surrounding the offence can also be led to prove that the accused was aware of the wrongness of the act. Such evidence may include the assertion of a false alibi, disguising oneself, preventing any victim from identifying the accused, or rendering a victim unable to leave or seek help during the commission of the offence.[30] Evidence of evading detection and running from police has also been accepted as evidence of the accused's capacity to understand that the act was wrong.[31]
[30] R v F; Ex parte Attorney-General [1998] QCA 97; [1999] 2 Qd R 157, 161 ‑ 162.
[31] A v Director of Public Prosecutions [1992] Crim LR 34; JM (A minor) v Runeckles (1984) 79 Cr App R 255, 258 (JM v Runeckles).
It is not, however, sufficient to establish capacity for the prosecution to merely prove that the act was committed by the accused.[32] This position does not change because the act committed was so abhorrent as to be 'obviously wrong'. The majority judgment of the High Court in RP v The Queen emphasised this point, observing that:
No matter how obviously wrong the act or acts constituting the offence may be, the presumption cannot be rebutted merely as an inference from the doing of that act or those acts. To the extent that the decision of the Court of Appeal of the Supreme Court of Victoria in R v ALH suggests a contrary approach, it is wrong. The prosecution must point to evidence from which an inference can be drawn beyond reasonable doubt that the child's development is such that he or she knew that it was morally wrong to engage in the conduct.[33]
[32] RYE v The State of Western Australia [34] citing RP v The Queen [38].
[33] RP v The Queen [9].
In the UK (prior to the abolition of the presumption in 1998),[34] there was authority to suggest that the presumption may be rebutted by evidence that the child was of normal intelligence and mentality for his or her age.[35] This approach has been criticised by some commentators for the reason that it appears, on its face, to be incompatible with the presumption. The presumption of doli incapax operates on the assumption that children generally do not have the capacity to understand the wrongfulness of their actions. It is therefore inconsistent to allow evidence that the child was developmentally 'normal' to rebut that presumption.[36]
[34] Crime and Disorder Act 1998 (UK) s 34.
[35] JM v Runeckles.
[36] Crofts T, 'Prosecuting Child Offenders: Factors Relevant to Rebutting the Presumption of Doli Incapax' (2018) 40(3) Sydney Law Review 339, 355.
The High Court has disapproved of the assumption that the closer a child is to the age of 14, the less strong the evidence needs to be to rebut the presumption of doli incapax. In RP v The Queen, the majority judgment of Kiefel, Bell, Keane and Gordon JJ noted that:
It has been said that the closer the child defendant is to the age of 10 the stronger must be the evidence to rebut the presumption. Conversely, the nearer the child is to the age of 14, the less strong need the evidence be to rebut the presumption. The difficulty with these statements is that they are apt to suggest that children mature at a uniform rate. The only presumption which the law makes in the case of child defendants is that those aged under 14 are doli incapax. Rebutting that presumption directs attention to the intellectual and moral development of the particular child. Some 10-year-old children will possess capacity to understand the serious wrongness of their acts while other children aged very nearly 14 years old will not.[37]
[37] RP v The Queen [12].

In BC v The Queen, Leeming JA, Ierace J and Hidden AJ of the NSW Court of Criminal Appeal jointly expressed that, in the absence of evidence of the accused's maturity or intelligence at the time of the offending, the age of the accused carries 'little to no weight' in rebutting the presumption.[38]
[38] BC v The Queen [2019] NSWCCA 111 [50].

Evidence of the appellant's capacity led at trial

In this matter, the prosecution evidence in relation to capacity was solely the evidence of what was alleged to be the appellant's conduct relating to the circumstances surrounding the commission of the offence. In this appeal, counsel for the respondent submitted that the prosecution could also rely on the appellant's age to prove capacity (that is her proximity to turning 14).
In summary, although the respondent agrees that the learned magistrate took account of evidence that was inadmissible, the respondent contended that the matter ought to be re-tried on the basis that there was other admissible evidence that was sufficient to satisfy the court of the appellant's moral capacity.
Counsel for the appellant submitted that that evidence was insufficient. Specifically, the appellant pointed to an absence of evidence 'about the intellectual or moral development of the appellant at the time the offences were alleged. There was no evidence led by the State about schooling, prior involvement with police, or the familial or cultural environment in which the appellant had grown up'.[39] The respondent concedes that no such evidence was led.[40] At the appeal hearing, counsel for the respondent candidly observed that the State had made a 'forensic choice' not to adduce further evidence, even when they knew that the video interview would not be admissible.[41]
[39] Appellant's Written Outline of Submissions (2 September 2022) [56].
[40] Respondent's Submissions [43].
[41] Transcript, LRW v The State of Western Australia, Supreme Court of Western Australia, 3 October 2022, 29.
Counsel for the appellant does not deny that evidence of the appellant's age, conduct while driving, and running from the police existed at trial. The contention is rather that that evidence is not 'sufficiently cogent' to satisfy the court to the relevant standard.
It was also agreed by all parties that the offence was serious, the relevance of which has been considered at [57] above.
I will deal with those categories of evidence – the appellant's age at the time of offending, the seriousness of the offence, the appellant's conduct while driving, and the act of running from the police – in turn.

The appellant's age

First, it cannot go unobserved that at the time of the offences, the appellant was 13 years and 11 months old; she was less than a week from her 14^th birthday, at which point she would be assumed by operation of the statute to have moral capacity. In many cases it has been said that the closer the child is to 14, the easier it is to rebut the presumption.[42] This approach has been criticised as explained at [59] ‑ [60].
[42] RP v The Queen; RH v Director of Public Prosecutions (NSW) [2013] NSWSC 520; R v McCormick [2002] QDC 343 [10]; R (A Child) v Whitty; B v The Queen (1958) 123 JP 61; [1958] 44 Cr App R 1, 3.
In R v F; Ex parte Attorney-General, Davies JA acknowledged that:
Although evidence of the accused's age alone cannot rebut the presumption made by s 29(2) of the Code, inferences capable of rebutting the presumption can be drawn from the accused's age when considered together with evidence of the accused's education or of the surrounding circumstances of the offence, or with observations of the accused's speech and [demeanour].[43]
[43] R v F; Ex parte Attorney-General, 162.
In short, the appellant's age is not of itself evidence that can rebut the presumption. However, it may assist the court to draw an inference of capacity in the context of other relevant evidence. In this matter, the fact that LRW was nearly 14 years old can only be relevant to capacity to the extent that it might assist the court to draw inferences on the basis of other evidence.

The seriousness of the offence

Secondly, the parties agree that the offence was serious in the sense that the appellant's conduct posed a risk to life and property.[44] There can be no doubt that it is due only to very good fortune that no person, either the appellant herself, the other passengers in the car, or another road user, was seriously or even fatally injured.
[44] ts 3 October 2022, 4.
It may be thought that in cases where an offence is so egregious as to offend all moral sensibilities, there is less of an onus to prove that the child offender had capacity to understand its wrongness. That is, the more serious the offence, the more it can be presumed that the child understood it was wrong.
As I have noted, that proposition was rejected by the High Court in RP v The Queen.[45]In that case, the appellant sexually penetrated his younger brother's anus. During the course of the offence, the complainant was crying and saying 'no'. The majority judgment of the High Court noted that 'it cannot, however, be assumed that a child of eleven years and six months understands that the hurt and distress on a younger sibling involves serious wrongdoing'.[46]
[45] RP v The Queen [9].
[46] RP v The Queen [35].
In this matter, the wrongness of the conduct relates to the appreciation and assessment of risk. That ordinarily comes more easily to an adult than to a 13‑year‑old. Moreover, it might be suggested that the circumstances in this case that make the conduct serious (the speed and reckless nature of the accused's driving, and the presence of other children in the vehicle) might also be the very alluring factors that distort and reduce a child's immature capacity to appreciate the seriousness of the conduct.[47]

The appellant's conduct while driving

[47] Hartley A & Somerville L, 'The neuroscience of adolescent decision-making' (2015) vol 5 Current Opinion in Behavioural Sciences 108, 112.

Thirdly, the respondent relies on evidence adduced at first instance in relation to the appellant's conduct while driving the vehicle. The summation of that evidence is that the appellant used indicators while driving and drove with some skill and proficiency above that which would be ordinarily expected of a 13‑year‑old. The learned magistrate acknowledged as much at first instance.[48]
[48] ts 24 December 2021, 13.
The respondent invites me to draw an inference that that evidence is sufficiently cogent to demonstrate that the appellant had 'the capacity to know that one ought not [to] drive contrary to the road rules'.[49]
[49] Respondent's Submissions [47].
There was some debate at the appeal hearing regarding the possibility that the appellant had learned these skills from, for example, video games. In my view, it is equally likely that a teenager simply observed these behaviours while in the car with licensed adults or was taught them by another juvenile or adult. Respectfully, none of these explanations support a cogent inference that the defendant knew that the behaviour was 'morally or seriously wrong'. Indeed, if LRW learned these skills from another juvenile or adult, it seems all the less likely that the lessons were accompanied by any moral tuition.
The evidence seems more directed to the fact that LRW knew how to commission the offence—that is, she understood the mechanics of the act constituting the offence. Driving a car in and of itself is not a criminal act. Showing that LRW knew how to commission the offence and execute it well, is in my view, insufficient to demonstrate beyond reasonable doubt that she knew it was morally, or seriously wrong.

Running from police

Finally, the respondent relies on the fact that LRW evaded the police during pursuit, fled the scene and ran from police as evidence that she was aware that her behaviour was criminally, or at least seriously wrong.
On the respondent's argument, this is evidence which 'permits a court to infer that the reason for the appellant running from police is not merely a fear of injury or disorientation, but an awareness of the wrongfulness of the conduct that had caused the police to chase her'.[50] As noted above, running away from the police may be accepted as proof that a child offender appreciated that their actions were seriously wrong.[51]
[50] Respondent’s Submissions [48].
[51] JM v Runeckles.
In the decision of R v JA, Higgins CJ said:
It is apparent that 'wrongness' includes an appreciation of the nature and effect of the prohibited act. It is not sufficient that the child knows that there would be 'disapproval' of the act by a parent or even police.[52]
[52] R v JA [2007] ACTSC 51; 1 ACTLR 126 [69].
As I observed at the outset, mere obedience or fear of punishment does not of itself reflect moral cognition. A very young child can be obedient and fear the consequences of the failure to obey. That apprehension is quite independent of any moral insight into the behaviour. Indeed, obedience may be demanded, and punishment threatened, in respect of behaviours that are quite immoral.
In A v Director of Public Prosecutions, the Queen's Bench Divisional Court held that 'a naughty child would run away even if what it had done was not criminal but merely a breach of a school or parental rule'.[53] In the absence of other evidence in that case, such as evidence about the appellant's upbringing or his reaction when seen by the police, there was insufficient evidence to find the presumption had been rebutted.[54]
[53] A v Director of Public Prosecutions, 35.
[54] A v Director of Public Prosecutions, 35.
In my view, the mere fact that LRW, in the company of other children, ran from the police – perhaps to avoid punishment, perhaps at the encouragement of her peers, perhaps to avoid having the incident reported to her parents, or indeed perhaps because she was aware of the wrongness of her conduct – is insufficient to prove, beyond reasonable doubt, that she in fact had the requisite capacity.

Conclusion on LRW's capacity

As counsel for the respondent conceded with admirable candour, the prosecution made a forensic decision, knowing that the evidence of the voir dire was excluded, not to garner any further evidence in respect of LRW's capacity. It did not seek to adduce any of the other types of evidence that I have referred to above that was tendered in other cases. That is the choice the prosecution made in seeking to demonstrate LRW's guilt beyond reasonable doubt. For the reasons I have set out, I am not satisfied that the evidence led by the prosecution was capable of establishing LRW's capacity beyond reasonable doubt.

Public Interest

At the hearing on 3 October 2022, counsel for the appellant raised the possibility that I could find it was reasonably open for the magistrate to be satisfied beyond reasonable doubt of LRW's moral capacity, and nevertheless dismiss the matter on public interest grounds.[55] I made orders programming the filing of written submissions in relation to that point. The relevant submissions were filed on behalf of the appellant on 11 October 2022, and by the respondent on 19 October 2022.
[55] ts 3 October 2022, 11.
As I have noted, the respondent conceded that if I concluded the evidence at the trial was not capable of establishing LRW's capacity beyond reasonable doubt, the appropriate course would be to set aside the conviction without ordering a retrial. As that is indeed the position I have reached, the public interest issues do not arise.
Nevertheless, I observe, without deciding, that there was some force in the suggestion that the public interest would not, in any event, be well served by a retrial. This is for the following reasons. LRW has successfully completed her sentence, other than the disqualification period; there will likely be a not insignificant delay before the new trial is listed; and a new trial would give the prosecution an opportunity to supplement their case in circumstances where they made the deliberate forensic choice I have referred to above. I also observe that if LRW was convicted afresh, the disqualification period would have a more onerous impact due to LRW's increased age. I do not think it would be a satisfactory outcome of a successful appeal that LRW was subjected to a significant delay and then confronted, in effect, with a more onerous penalty. That is particularly so in circumstances where in the almost 22 months since the offending, there is no evidence that LRW has reoffended.
In making those remarks, I do not overlook the significant risk that LRW's conduct posed to other road users and indeed, to the other children in the vehicle. Any sensible person would be appalled and horrified by that behaviour. But those condemnatory sentiments are to be distinguished from a criminal conviction in accordance with the law and the principles that govern the public interest in a retrial.
The appeal is upheld in respects of both Ground 1 and Ground 2, and the conviction is quashed. For the reasons outlined above, I will not remit the matter for retrial. The appellant should therefore be acquitted of all charges.

Recent relevant grant of special leave

On 21 October 2022, the High Court heard an application for special leave in relation to the matter of R v BDO [2021] QCA 220. That application was successful, and special leave was granted.[56] One of the grounds upon which leave was granted to appeal concerned the application of the statements of principles on the law of doli incapax in RP v The Queen applied to the Criminal Code Act 1899 (Qld) and, by extension, to the Criminal Code in this State.
[56] BDO v The Queen [2022] HCATrans 184 (Kiefel CJ).
Given the clear relevance of that appeal to the matters before me, on 21 November 2022, I brought the matter on for directions. At that hearing, I raised with counsel the possibility that the court should wait until the appeal had been decided in the High Court to publish my reasons in this matter.
At that hearing, counsel for both parties agreed that the High Court's decision may be relevant to the determination of this matter. However, the parties identified some prejudice to the appellant by reason of the delay, and counsel for both LRW and the prosecution were of the opinion that there was no prejudice to the respondent that would arise from the handing down of my decision prior to the High Court hearing and determining the appeal.
It was therefore the preference of both parties that the decision in this matter not be delayed by the ongoing High Court proceedings.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IS
Associate to the Honourable Justice Solomon
15 DECEMBER 2022