M v J
[1989] TASSC 55
•13 October 1989
Serial No 53/1989
List "A"
CITATION: M v J [1989] TASSC 55; (1989) Tas R 212; A53/1989
PARTIES: M
v
J, A
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 81/1989
DELIVERED ON: 13 October 1989
JUDGMENT OF: Neasey J
Judgment Number: A3/1989
Number of paragraphs: 23
Serial No 53/1989
List "A"
File No 81/1989
M v J
REASONS FOR JUDGMENT NEASEY J
13 October 2009
The applicant on this motion to review is a 13 year old boy, A J He was charged on a complaint with two offences under the Police Offences Act, 1935. The first charge, under s22(1) of that Act was of "being a child aged 13 years, discharging a firearm, namely an air–rifle". s22(1) of the Act provides:–
"No person being a child shall use, discharge, carry, buy, keep, or knowingly have in his possession any firearm or ammunition for a firearm."
The second, laid under s24(2) of the Act, was of "without due regard to the safety of other persons discharging a firearm in a town at Hobart in Tasmania" (sic). Section 24(2) provides:–
"No person shall wantonly, or recklessly, or without due regard to the safety of other persons, discharge any firearm in any public place or town."
An "air–gun" is within the definition of "firearm" under s20A of the Act. Presumably an air–rifle was treated during the proceedings as being the same as an air–gun, since no–one suggested otherwise. In any event, an amendment to the complaint could easily have been made if the point had been taken, at least before the proceedings began. The complaint was heard by Magistrate Mr P J A Wright. Constable Hibble gave evidence that he attended at the applicant's home in relation to a complaint of an air–rifle being discharged. There he spoke to the applicant, asking if his parents were at home. At that point in the hearing the applicant's father, who is a legal practitioner but was present in the Children's Court in his capacity as parent, objected that no further evidence of the conversation should be admitted because it was illegally obtained; whereupon a voir dire was held. The constable gave evidence that the applicant told him his father was playing tennis at Taroona he thought, and then said, "You can't come in here unless you've got a warrant". The constable asked what he meant by that, and the applicant said, "Because my dad's a lawyer". After some further short conversation, the constable asked the applicant if an air–rifle had been discharged that afternoon, and applicant replied, "I only fired two shots today". Constable Hibble asked the applicant what he had been shooting at, whereupon two beer cans hanging by strings from a tree were indicated as the targets. The constable said he observed that the tree was riddled with "holes". (Presumably he meant indentations, unless it was a very small tree). The constable said that he asked the applicant who owned the air–rifle, and was told, "It's my father's, he doesn't know I've got it". The applicant then said, "My father has told me not to talk to police, you can't come in here without a warrant, so get off the property". Constable Hibble said that he then told the applicant that he would try to locate his father, as he wished to speak to applicant and his father at the same time. Applicant said, "Don't do that, I'll be ground for the rest of the year". The constable then left.
Constable Hibble had been accompanied by Constable Wizenberg on his visit to the applicant's home that day, and the latter also gave evidence on the voir dire, in similar vein to that given by Hibble. They had both been in uniform. It appeared that they had gone first to the front door of the house, and receiving no reply there had gone round to the back, and found the applicant and another young boy in a swimming pool. In that area the conversation had taken place. The applicant was then called by the defence to give evidence on the voir dire. He gave a different version of events from the police officers, deposing among other things that he did not make any admission to the police officers of having fired any shots. The learned magistrate then heard submissions on the voir dire and adjourned the case in order to prepare his ruling.
Some days later his Worship gave reasons in writing for ruling against the submissions made by applicant's father on the voir dire. Thereupon the prosecution evidence proceeded from the point at which the original objection had been taken – that is to say, when Constable Hibble had given evidence that the applicant had told him he had fired the rifle twice that day. Both constables gave evidence again, and were cross–examined, and in addition the prosecution called the next door neighbour, a Mr Gallahar. He said that on the day in question he was in his back garden with his fiance. His back garden adjoins the applicant's father's property. He heard two air–rifle shots. He then looked over the fence and saw "the young lad and a friend of his loading the air–rifle and then he aimed it at the can which was hanging up and I happened to be in direct sight of his aim so I ducked behind the fence. Then after that I didn't hear any more shots." After the two shots were heard, he heard pellets hitting the fence in front of him. He identified the applicant as the boy whom he saw reloading the air–rifle when he looked over the fence after hearing the two shots. The applicant, also, he said, was the boy holding the air–gun when it was aimed in his direction. The witness was then asked, "The same young lad you saw loading the gun and firing it, did you see, have any further contact with him that day?" The question was not objected to, although the witness had not said that he saw the applicant firing the air–rifle. Mr Gallahar replied that the same boy came around to his place about 3.00 pm with his brother and a friend. He told the witness that "he was the boy from over the back who had been shooting the rifle, and that the police had been to see him". The applicant asked if it would be alright if he shot in the other direction, and was told it would not be. Applicant said he would ask the other neighbours if it was alright for him to shoot the rifle, and then he said he had their permission. He also said that his father did not know he was doing it, and that he would probably get into trouble from his dad when he found out. Mr Gallahar further said that he had been put in fear when he saw "the gun" pointed in his direction.
At the end of the prosecution case the applicant's father put three main arguments on a submission of no case to answer, but they were not accepted. The first was that the police officers were trespassers on his property at the relevant time, and therefore any admissional evidence from the applicant had been obtained illegally and improperly, and should not be considered; secondly, that the police officers were in breach of Standing Order No 109 of the Police Standing Orders, which require that wherever practical a child should be interviewed in the presence of a parent; and thirdly that the provisions of s18(2) of the Criminal Code had not been satisfied. I shall advert further to all three matters shortly.
The only witness called for the defence was the applicant's father. He gave evidence to the effect that the topography of the rear of his property, and the situation of the tree in question and the position from which any shots would have been fired, and the like, were all such that any shots fired at these targets would have had a downwards trajectory, such that the spent shot fired anywhere in the area of the targets would fall well short of the fence. Nobody on the other side of the fence, he said, could have been in any danger. He said he himself had fired the air–rifle a number of times at targets in this position, and he "had made very sure" that any spent shot would fall well within his own property. He also gave evidence indicating that because of the placement of various objects on the way between the front and back doors of his residence, it would have been a difficult journey for the police officers to make. The effect of that evidence was intended to relate to the question whether an implied licence for the police to go to the back door could have been inferred from the circumstances.
The learned magistrate in announcing his decision said that he accepted the father's evidence, by which he must have meant the evidence relating to the topography of the property, and the impossibility of spent shot hitting the fence, and the like; but he said that his acceptance of that evidence did not lead him to doubt that the second complaint had been proved. His Worship said that it was quite plain on the whole of the evidence, and in particular that of Mr Gallahar, that the latter was put in genuine fear. He said:–
"And if that fear was genuine, as I think it was, that's a matter which impinges on his safety in my opinion. I have little doubt in finding both matters of complaint proved."
His Worship then proceeded to find the complaints proved and to admonish and discharge the applicant.
Before dealing with what I shall call the special questions of law and fact involved, namely whether admissional evidence was unlawfully or improperly obtained, and on that account should have been rejected, and the application of s18(2) of the Criminal Code, I shall indicate my view as to whether the evidence was otherwise sufficient to warrant a finding that either or both charges had been proved. I think that there was sufficient evidence to find the first charge proved; namely that the applicant, being a child (defined in s3 of the Police Offences Act as a person under the age of 16 years) had discharged a firearm on the day in question. Mr Gallahar's evidence that the applicant told him that he was the boy from over the back who had been shooting the rifle, together with Gallahar's evidence that he had heard the two shots a short time before is sufficient to prove that. The evidence indicates that the statements were volunteered by the boy, and it can have been in no way unfair to receive them in evidence against him. However, I do not think that the finding that the second charge was proved was warranted by the evidence before the learned magistrate. Although his Worship did not indicate precisely the evidence upon which he relied for finding the second charge proved, it was open to him to be satisfied beyond reasonable doubt from Mr Gallahar's evidence that the applicant has fired at least one of the only two shots which Mr Gallahar heard, on the basis of the boy's admission that he had been firing the rifle. It was also open to the learned magistrate to conclude beyond reasonable doubt on the basis of Mr Gallahar's evidence that when he saw applicant pointing the rifle Gallahar was in the same oR virtually the same position behind the fence as when the first two shots were fired, and that he thought himself in some jeopardy as to safety.
But I think the finding (of charge proved) was unsatisfactory in relation to the question whether it had been proved beyond reasonable doubt that the applicant had fired the air–rifle "without due regard to the safety of other persons", as the section requires. Specifically, s24(2) proscribes a person from "without due regard to the safety of other persons, discharg(ing) any firearm in any public place or town". A question of substance involved within that provision is whether the expression "without due regard to the safety of other persons" relates qualitatively to the conduct of the person discharging the firearm at the time he discharged it; or whether it merely requires proof that another person was in fact caused to fear for his safety by the discharge of the firearm. No submissions were made to the magistrate which raised this issue, and he did not himself consider it specifically; but the way in which he determined the second charge indicates that he treated the provision as not necessarily requiring examination of the defendant's conduct at the time he fired the rifle. That is to say, the only fact which appears to have persuaded his Worship that the offence was proved, in addition to a necessary finding that the applicant fired the rifle on one of the first two occasions (which is implicit in what he said), was that Mr Gallahar regarded his safety as placed in jeopardy. I cannot accept the proposition that a person may be convicted under subs. 24(2) merely upon proof that some other person was put in fear for his safety, without examination of the defendant's conduct at the relevant time. It must be necessary, but also should be sufficient, to prove that the circumstances in which the firearm was discharged were such as to enable the conclusion beyond reasonable doubt that the defendant, at that time, did not himself pay due "regard" to the safety of other persons. If it is proved that some other person's safety was in fact jeopardised that will of course be material. If the learned magistrate had considered the applicant's conduct, it would have been necessary to pay attention to the father's evidence of the difficulty or impossibility of hitting the fence when firing from the position in question, and to have made findings and inferences of fact. In the event, his Worship did not consider those matters. There is the additional complication in respect of the s24(2) charge of the argument under s18(2) of the Criminal Code; but for the reasons indicated I think that s24(2) was not properly applied, and for that reason the finding that the second charge was proved should be set aside.
I turn now to consider the other questions of law. The applicant's first argument was that the two police officers were trespassers when they came to the back door of the premises, and thus were trespassers at the time they spoke to the applicant. It was submitted, therefore, that any admissions they obtained from the boy were obtained unlawfully, and evidence thereof should by exercise of the court's discretion have been excluded. In reply to this argument in the court below, the prosecution contended that the provisions of s23 of the Police Offences Act 1935 gave the police officers authority to enter the premises, and at the time they spoke with the applicant they were acting in the exercise of power under that provision. The section is in the following terms:–
"23 Any police officer may search any person who he on reasonable grounds believes to have committed an offence against any of the provisions of this Division or search any vehicle in the possession or under the control of such a person and may seize without warrant any firearm or any ammunition which is being used or carried by, or which is in the possession or custody of, any person apparently in contravention of this Division, whether such firearm or ammunition is in any enclosure, building, tent, vessel, vehicle, or parcel, or otherwise, and such firearm or ammunition, when so seized, shall be retained in his possession until an order is made by a court (which order such court is hereby authorised to make) for the disposal, destruction, or return to the owner of such firearm or ammunition."
The learned magistrate upheld the submission that the officers were on the premises lawfully pursuant to power under s23. I take a different view. The limited power of search and seizure given by s23 of the Police Offences Act is given to police officers for the specific purposes of Division III of that Act, relating to restrictions upon the use of firearms. It would give an extraordinarily wide scope to that power if it were interpreted so as to give unlimited right of entry upon private premises. To hold that s23 gives unlimited right of entry whenever a police officer thinks he might have occasion to exercise that statutory power while on the property, as was the case here, would be an even wider interpretation. In my opinion, s23 confers no such power. There is no specific authorisation in s23 for such a fundamental encroachment upon a citizen's private rights, nor any words which point in that direction, as one would expect if the power were intended to be given. Lord Diplock in Morris v Beardmore [1981] AC 446, at p455 cites an example of the kind of specific grant of power which would be expected. Section 2(6) of the Criminal Law Act 1967 of the United Kingdom provides:–
"For the purpose of arresting a person under any power conferred by this section, a constable may enter (if need be, by force) and search any place where that person is or where the constable, with reasonable cause, suspects him to be."
His Lordship said:–
"The presumption is that in the absence of express provision to the contrary Parliament did not intend to authorise tortious conduct …"
Even if s23 conferred a more general right of search and seizure than it does, I would not be persuaded that it incorporated the general power of entry upon private premises unless it expressed such an intention with reasonable clarity. In this case, the police officers were not lawfully on the premises pursuant to the power under s23, and had found no occasion to exercise that power up to the time when the applicant asked them to leave and they did.
However, the learned magistrate held that even if s23 did not authorise the entry, the officers were lawfully on the premises at the relevant time because they were there with the implied leave and licence of the owner or occupier. For this view his Worship relied upon the principles stated in Robson v Hallett [1967] 2 QB 939. The applicant's argument was that even if the officers came to the front door with the implied licence of the owner or occupier it was not within such licence that they should proceed to the back door, because of the implications arising out of the difficulty of proceeding from front to back. The applicant's father gave evidence that the obvious entrance to the house is by the front door, and that to get to the back door it is necessary to "go through a generally messy area, through a lattice fence in which there is an opening and dodge a number of trees and shrubs that are protruding". He said he did not think it would be possible to get from the front to the back without ducking in and around trees and shrubs and avoiding timber and cut sticks and the like. It is an access never ordinarily used by himself or the occupants of the house or, it would seem, by tradesmen in the ordinary course as an access to the house. Nobody had eveR visited the house to his knowledge by the back door. At the back there is the swimming pool which the boys were using.
Lord Diplock LJ (as he was then) said in Robson v Hallett (supra) at pp953–4, that ordinarily a householder in a dwelling house gives implied licence to any member of the public who has lawful reason for doing so to proceed from the gate to the front door or a back door to inquire whether he may be admitted and to conduct his lawful business. The law stated in Robson v Hallett was approved generally by the High Court of Australia in Halliday v Nevill (1984) 155 CLR 1, but their Honours made it clear that whether the licence exists and the extent of it are to a substantial degree questions of fact. At pp6–7, Gibbs CJ and Mason, Wilson and Deane JJ in a joint judgment expressed the matter in this way:–
"While the question whether an occupier of land has granted a licence to another to enter upon it is essentially a question of fact, there are circumstances in which such a licence will, as a matter of law, be implied unless there is something additional in the objective facts which is capable of founding a conclusion that any such implied or tacit licence was negated or was revoked: cf. Edwards v Railway Executive [1952] AC 737, at p744. The most common instance of such an implied licence relates to the means of access, whether path, driveway or both, leading to the entrance of the ordinary suburban dwelling–house. If the path or driveway leading to the entrance of such a dwelling is left unobstructed and with entrance gate unlocked and there is no notice or other indication that entry by visitors generally or particularly designated visitors is forbidden or unauthorized, the law will imply a licence in favour of any member of the public to go upon the path or driveway to the entrance of the dwelling for the purpose of lawful communication with, or delivery to, any person in the house. Such an implied or tacit licence can be precluded or at any time revoked by express or implied refusal or withdrawal of it. The occupier will not however be heard to say that while he or she had neither done nor said anything to negate or revoke any such licence, it should not be implied because subjectively he or she had not intended to give it: see, generally, Robson v Hallett", (and other cases cited).
The learned magistrate accepted the father's evidence concerning the nature of the access from front to rear, and other relevant features of the property, and in my view the reasonable finding which should have been made on that evidence was that there was no implied licence in the police officers to proceed from the front to the back door, and accordingly that at the time they questioned the applicant they were trespassers.
The applicant's next argument was, in substance, that the police officers' conduct was oppressive in that they commenced to interview the applicant alone, instead of arranging to do so in the presence of a parent. I think there is substance in this contention. The relevant police standing order reads as follows:–
"109(14)(i)Wherever practical a child shall be interviewed at home in the presence of a parent or guardian.
(ii) A child may be interviewed at school if it is not practical to interview the child at home provided the approval of the School Principal is obtained and such interview shall be conducted in the presence of the School Principal or a person nominated by the School Principal."
His Worship's ruling on this argument when put to him was that the boy's admission to the officers was not improperly obtained because an "interview" had not commenced in the sense used in the standing order when the admission was made. His Worship said, "It was (made at) the final, no doubt, stage of the officers' general inquiry which thereafter would have assumed an accusatory nature in relation to the defendant". Of course, the police standing order has no particular status in this court, but its content is symptomatic of the standard of fairness which ought to be observed during questioning by a police officer of a child. The learned magistrate was referred to Dixon v McCarthy [1975] NSWLR 617 and to the judgment of Yeldham J therein. That was a case in which five aboriginal boys aged between 11 and 14 had been charged with stealing money. They were convicted, and appealed on various grounds. So far as presently material, the facts were that a police officer had interviewed four of the boys separately and in succession without any other person being present, and having given a warning to each boy in the customary terms, obtained from each information upon which he arrested them and they were charged. Part of the judgment of Yeldham J reads as follows (at pp639–640):–
"Whether the question under consideration is: Has the prosecution proved that a statement is a voluntary one?, and it is clear that the trial judge or magistrate has a duty to determine this question, even if it is not raised on behalf of the accused on a voire dire: R v Deathe [1962] VR 650; or whether it is if, as a matter of discretion, a voluntary statement should be rejected, the fact that the person who made it is a child is a matter of paramount importance. In this respect the judgment of Thomson J in the Provincial Court, County of Frontenac, Ontario, Canada in R v R (No 1) (1972) 9 CCC (2d) 274 will repay study. The headnote to that case, in which the judge rejected a statement made by a juvenile, and which accurately reflects what was said is: 'In view of a child's reduced capability of understanding his rights and his reduced capacity to protect himself in the adult world, the court must be particularly diligent in considering the voluntariness of a confession by a juvenile accused. The absence of a caution becomes particularly important because of the possibility of the child assuming he must answer questions. Another factor is the absence of the parents, since in most cases their presence is the best protection of the juvenile's interest. Also, the juvenile's state of mind at the relevant time is a consideration on the issue of voluntariness.'
The concern of the law to ensure that statements made by children are free and voluntary and are not obtained by improper means is reflected in the instructions of the Commissioner of Police, to which I have earlier referred, which provide that, if the person questioned is under sixteen years of age, the interview should be in the presence of a parent, guardian, relative, friend or other responsible person, if reasonably practicable, and, where special circumstances exist making it undesirable that a parent or guardian be present and if a responsible independent person is not available, a senior police officer not connected with the case should be present, if possible."
With respect I agree with all that his Honour said there. I would add that in my opinion courts should be reluctant in ordinary circumstances to receive in evidence an admissional statement allegedly made by a child if the prescription of the standing order has not been observed. This should be so for the following reasons additional to those stated by Yeldham J:–
1The presence of a police officer asking investigatory questions of a child in the absence of a parent or other responsible adult is always likely to be intimidatory and unsettling to the child.
2If the child's version of the conversation differs from that of the police officer, the child's chance of having his version accepted is, according to the ordinary patterns of human conduct, very slight even if the child happens to be telling the truth.
3The police officer, knowing his version is likely to be accepted, may be tempted to invent an admissional statement if he does not receive one. It is unfair to police officers to be placed in this position.
What I have said here is entirely general, and in no way relates to the identity of the police officers or the applicant in this case. I have, of course, no basis for making any judgment as to the veracity of any of them. However, for the reasons I have indicated, and a fortiori since they were trespassers at the time, I take the view that the learned magistrate should have rejected the police evidence of admissions made by the applicant, by exercise of discretion according to the principles set out in Bunning v Cross (1978) 141 CLR 54 and R v Ireland (1970) 126 CLR 321, on the ground that they were obtained by improper means. I do not accept the distinction that an "interview" had not yet commenced. If that distinction were to be made, it would be a simple matter to by–pass the protections of the standing order. The rule should be, in my view, that if a police officer intends to ask any investigatory questions of a child, he should first ensure that the accompanying presence of the parent or substitute adult is obtained.
The applicant's final submission is that an essential element of proof on both charges was absent, in that the provisions of s18(2) of the Criminal Code had not been discharged. Section 18(2) provides:–
"18(2) No act or omission done or made by a person under 14 years of age is an offence unless it be proved that he had sufficient capacity to know that the act or omission was one which he ought not to do or make."
"Offence" is defined in s1 of the Code as follows:–
"'offence' means any breach of the law for which a person may be punished summarily or otherwise."
Section 18(2) therefore applied in the present case. A similar submission based on this subsection was put to the learned magistrate in the court below, but he rejected it. In doing so, he said:–
"As to the point raised by s18(2) of the Criminal Code it is my opinion that capacity there mentioned can be inferred by the tribunal of law and of facts such as both of which I am in these proceedings and I have seen and heard [the applicant] on the voir dire and I would be prepared to find that he's got the ordinary capacity of a child of his age to know and understand what he can and cannot do in relation to the discharge of firearms from his home. Even if I am wrong about all of that it would be plainly wrong in my opinion to say that there was no case to answer on this case, having heard the evidence of [Gallahar] who gave eye witness evidence and ear witness evidence of the commission of the complaints alleged."
In my respectful opinion that ruling did not give adequate consideration to the issue as to the application of s18(2).
Proof beyond reasonable doubt of the requirement set out in s18(2) was an essential ingredient of the offence. The subsection re–enacts the common law requirement usually stated in terms of presumptions concerning children under the age of 14 years. Archbold, Criminal Pleading Evidence and Practice, 41st ed, at para1–37, states this as follows:–
"At common law a child under 14 years is presumed not to have reached the age of discretion and to be doli incapax; but this presumption may be rebutted by strong and pregnant evidence of a mischievous discretion, expressed in the maxim melitia supplet aetatem; for the capacity to commit crime, do evil and contract guilt, is not so much measured by years and days as by the strength of the delinquent's understanding and judgment; 4 Bl Com. 23; 1 Hale 25, 27. Between 10 and 14 years a child is presumed not to know the difference between right and wrong and therefore to be incapable of committing a crime because of lack of mens rea; R v Owen (1836) 4 C & P 236; R v Smith (1845) 1 Cox 260; R v Gorrie (1919) 83 JP 136; B v R (1958) 44 Cr App R 1 (DC); F v Padwick [1959] Crim LR 439."
There follow in that paragraph further references to the manner in which the presumption may be rebutted, including the propositions that the prosecution may be permitted to adduce evidence of the home background of the child and of previous convictions; that the fact that the child did the acts constituting the elements of the offence is not itself any evidence of knowledge of wrong: R v Kershaw (1902) 18 TLR 357; and that, although a child may know that an act was wrong, he may not have the maturity of intellect to appreciate the natural and probable consequences of the act: R v Vamplew (1862) 3 F & F 520. These propositions may be regarded as representative of this principle of the common law as it is applicable in the modern setting in which references to animus malus or acts mala in se and the like are in general anachronistic – see for example the statement in the second edition of Halsbury's Law of England cited by Muirhead ACJ in O'Toole v Arnold (1982) 16 NTR 8 (supra) at p9.
However, s18(2) of the Criminal Code is to be construed according to its terms. It makes some changes from the common law rule, in that the distinction between a conclusive presumption in the case of children under seven (or as is sometimes said 10) and a rebuttable presumption in respect of children between that age and 14, is absent. There is a separate provision relating to a conclusive presumption in respect of capacity to have carnal knowledge, but that is a special provision. Under 18(2), if the child is under the age of 14, then it must be proved that he had "sufficient capacity to know that the act or omission was one he ought not to do or make". The provision speaks of "capacity" and not actual knowledge that an act was one he ought not to do, but I think the subsection was intended to reproduce the common law rule which equates capacity to know with actually knowing.
There is a similar provision in the Queensland Criminal Code which speaks of "capacity to know that he ought not to do the act or make the omission" (s29), and that was applied in the common law sense in R v B(an infant) [1979] Qd R 417. WB Campbell J cited and applied the relevant passage from Halsbury's Laws of England, 3rd ed, vol 10, para528, which states the common law rule in terms of capacity to know as being equivalent to knowing, and he relied upon a passage from the judgment of Lord Parker LCJ in B. v R (1958) 44 Cr App R 1, which is to similar effect. [TheQueen v M (1977) 16 SASR 589 is a useful example of a recent Australian case in which the common law rule was applied in a non–Code State.]
Section 18(2) of our Criminal Code in my opinion is also to be interpreted in the common law sense that if the child is proved to have the capacity to know, he is presumed to know in fact, that "the act or omission was one which he ought not to do or make". Evidence that the child in fact knew that the act was wrong is of course the best evidence that he had the capacity to know. The words "which he ought not to do or make" are the same as the corresponding words in s16(1)(a)(ii) of the Code, which enact our equivalent of the second limb of the McNaghten Rules, and I respectfully agree with Bray CJ in the South Australian case, The Queen v M. (supra) at p 591, that their meaning is the same also. That is, "ought not to do or make" incorporates the ordinary standards of reasonable men.
But real difficulty arises in this State when it becomes necessary to apply the subsection in respect of one of the numerous statutory offences in which there is little if any content of "wrongness" in the acts or omissions proscribed. If the concept is to be applicable to offences of all kinds, I think it is evident that the word "capacity" cannot refer merely to mental capacity, but means capacity in a general sense to appreciate why a particular act or omission ought not to be done or made. In the case of minor statutory offences, the concept of capacity will generally include intellectual capacity to understand the reasons which make the act one which ought not to be done. In appropriate cases it may require a degree of intellectual maturity as well as ability – cf R v Vamplew (1862) 3 F & F 520.
In the present case I think it would have been necessary to prove in respect of the first charge that the applicant had sufficient capacity to understand and know that the act of discharging the air–rifle was wrong because he was a child when he discharged it, whereas if he had been aged 16 years or over it would not have been wrong. But, presumably the applicant knew that his father fired the air–rifle from time to time, assumed that it was not wrong for his father to do so, and probably assumed that it was not wrong for him to do so either, even if his father (and the police) disapproved. His conversation with Mr Gallahar after the police went away would seem to suggest that he did not see much wrong in it. It seems to me that it would take a reasonably mature sense of civic responsibility, presumably of the kind possessed by the legislators who enacted s22 in the first place, and probably not to be expected of a thirteen–year–old boy, to understand that it is wrong for a person under the age of 16 years to discharge a firearm, including an air–rifle, under any circumstances, whereas it is not wrong for an adult or person aged 16 years or more to do so. To believe that his father might punish him for using the air–rifle was not the same thing as knowing or having the capacity to know that the act was in itself something which he ought not to do because he was a child.
As to the second charge, the only evidence which his Worship considered was given by the applicant on the voir dire, and it was in my view an error for the court to take that evidence into account as part of the case for the prosecution – R v Brophy [1982] AC 476. However, Mr Gallahar's account of the conversation he had with the boy, in which he asked if he could fire in the other direction, and spoke about getting the other neighbours' permission, was amply sufficient in my view to justify the conclusion that the applicant knew it was wrong to fire the air–rifle in circumstances which might endanger others. Since that would have been the only rational conclusion had the magistrate adverted to the relevant evidence, the finding that the second charge was proved should not be disturbed on this ground.
The effect of the s18(2) argument then is that it requires the finding that the first charge was proved be set aside, but it does not affect the second. In result, the application to review succeeds, and both findings and the admonition should be quashed.
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