NR v Director of Public Prosecutions (WA) - [2022] WASC 456

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   NR -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2022] WASC 456
CORAM:   MCGRATH J
HEARD:   3 NOVEMBER 2022
DELIVERED          :   21 DECEMBER 2022
FILE NO/S:   SJA 1063 of 2022
BETWEEN:   NR
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Respondent

ON APPEAL FROM:
Jurisdiction              :   CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE P HOGAN
File Number            :   PE 1708 of 2021, PE 1709 of 2021

Catchwords:

Criminal Law - Appeal against conviction - Appellant tried before a magistrate in the Children's Court - Appellant convicted after trial of aggravated robbery and aggravated assault with intent to rob - Whether appellant had capacity at the material time for the purposes of s 29 of the Criminal Code (WA)

Legislation:

Criminal Code (WA), s 29, s 392

Result:

Leave to appeal granted
Appeal allowed
Conviction quashed and acquittal entered

Representation:

Counsel:

Appellant	:	Mr S D Freitag SC & Mr W C Yoo
Respondent	:	Mr R P Arndt

Solicitors:

Appellant	:	Aboriginal Legal Service (WA)
Respondent	:	Director of Public Prosecutions (WA)

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

Frailing v Mackay [2020] WASCA 73
KG v Firth [2019] NTCA 5
R v MacMillan [1966] NZLR 616
R v Porter [1933] HCA 1; (1933) 55 CLR 182
RP v The Queen (2016) 259 CLR 641
RYE v The State of Western Australia [2021] WASCA 43
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

MCGRATH J:

Introduction

The appellant was convicted after trial in the Children's Court of two offences namely aggravated robbery contrary to s 392(d) of the Criminal Code (WA) and one count of aggravated assault with intent to rob contrary to s 393(d) of the Criminal Code.[1] At trial there were two issues, being identification and whether the prosecution had rebutted the presumption that the appellant, a 12-year-old Aboriginal boy, did not have capacity under s 29 of the Criminal Code. The learned Magistrate was satisfied in respect of both issues and therefore, convicted the appellant.
[1] Prosecution notice lodged on 31 March 2022, charge number CC PE 1708 of 2021 and CC PE 1709 of 2021.
The appellant contends that the verdict of guilty was unreasonable and not supported by the evidence, in that the evidence failed to prove that at the time of doing the acts that constituted the offences the appellant had capacity to know that he ought not to do the acts, pursuant to s 29 of the Criminal Code. The prosecution relied upon flight and one utterance made by the appellant to a police officer. I am not satisfied that there was sufficient evidence to establish that the prosecution had rebutted the presumption beyond a reasonable doubt and therefore, the appeal must be allowed. I have reached this decision for the following reasons.

Ground of appeal

The appellant relies upon one ground of appeal in the following terms:
Ground 1
The verdict of guilty on the aggravated robbery CC 1708/2021 and assault with intent to rob CC 1709/2021 was unreasonable and unsupported by the evidence on the element of capacity under Criminal Code 1913 (WA) s 29.
Particulars
a)Evidence about the appellant's home life, environment and education were relevant to considering whether the appellant had capacity to know at the material time, that the conduct in question was seriously wrong.
b)Each piece of the prosecution's evidence that was relied on by His Honour the Presiding Magistrate drawing the inference of the existence of capacity in the appellant was subject to reasonable competing inferences consistent with innocence (i.e. inference not capable of supporting that finding).
i.Evidence that the appellant ran away from the scene was capable of supporting, for example but not limited to, a reasonable inference that the appellant was simply running with his counterparts.
ii.Evidence of the appellant running from police was capable of supporting an inference that the appellant was engaging in merely mischievous behaviour.
c)Given the appellant's age, evidence of what the appellant said to the police that he could have them arrested if they touched him required further evidence to be led by the Prosecution about the appellant's home life, environment and education before it could be used by His Honour the Presiding Magistrate to infer capacity.

Legal principles in relation to an appeal

This is an appeal under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[2]
[2] Criminal Appeals Act 2004 (WA), s 9(1).
Section 7(1) of the Criminal Appeals Act provides that a person who is aggrieved by a decision of a court of summary jurisdiction may appeal against a decision to the Supreme Court constituted by single judge sitting in its General Division.
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding, meaning that the ground is required to have a rational and logical prospect of succeeding.[3]
[3] Criminal Appeals Act, s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P Wheeler & Roberts-Smith JA).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[4] The contention of the appellant is that there was a miscarriage of justice for the reason that the verdict of guilty was unreasonable and unsupported by the evidence on the element of capacity of the appellant, pursuant to s 29 of the Criminal Code.
[4] Criminal Appeals Act, s 14(2).
The applicable principles are well understood and were recently outlined by the Court of Appeal in Frailing v Mackay.[5] I must undertake my own independent assessment of the sufficiency and quality of the evidence. The question for the appeal court is whether, upon the whole of the evidence, it was open to the learned magistrate to be satisfied beyond a reasonable doubt the appellant was guilty.
[5] Frailing v Mackay [2020] WASCA 73, 121.

Application for extension of time in which to appeal

The appellant was convicted on 8 April 2022 and commenced this appeal on 9 August 2022. An issue arises as to whether an extension of time is required. The appellant has filed an application and affidavit[6] in support for an extension of time in which to appeal but submits that an extension is not required for the reason that the appellant has not yet been sentenced for the offence.[7] I agree. Section 10(4) of the Criminal Appeals Act provides that if the date on which a person is sentenced for an offence is not the date on which the person is convicted of the offence, the time in subsection (3) for an appeal against either the conviction or the sentence or both runs from the date of sentencing. Therefore, in the present circumstances the time in which the appellant may appeal the conviction decision commences on the date upon which he is to be sentenced and therefore, the time in which to appeal the conviction has not yet commenced.
[6] Affidavit of Claire Brennan, legal practitioner, affirmed 5 September 2022 in support of the application for an extension of time in which to appeal.
[7] Appellant's written outline of submissions dated 7 September 2022 [22] - [27] (Appellant's written submissions).

The Children's Court proceedings - Magistrate's decision

On 7 April 2022, the appellant appeared before his Honour Magistrate Hogan in the Perth Children's Court. At the time of the offending the appellant was 12 years of age. I will briefly outline the evidence and the conduct of the hearing before the learned Magistrate.
At the trial the prosecution relied upon five witnesses namely civilians Mr Mertens,[8] Mr Burbidge[9] and Mr Rose[10] and police officers Ms Frame[11] and Mr Ross.[12] Five exhibits were tendered including CCTV footage showing the movement of the appellant from the Perth Cultural Centre through the city to the location of his arrest[13] and body worn camera footage of the arrest of the appellant.[14] The appellant did not give evidence nor did he adduce any evidence.
[8] ts 39 - 47 (07/04/2022).
[9] ts 15 - 29 (07/04/2022).
[10] ts 48 - 53 (07/04/2022).
[11] ts 54 - 56 (07/04/2022).
[12] ts 62 - 72 (08/04/2022).
[13] Exhibit C, CCTV footage.
[14] Exhibit D, Body worn camera footage dated 13 August 2021.
The learned Magistrate stated that there were two issues in dispute at trial being the identification of the offender and the capacity of the accused.
The learned Magistrate found that at about 10.50 pm at the Perth Cultural Centre a group of approximately 15 boys approached the two complainants Mr Burbidge and Mr Mertens who were in the company of a friend Mr Rose. Mr Burbidge, Mr Mertens and Mr Rose were 16 years of age. They were sat on the grassed area at the Perth Cultural Centre.
Mr Mertens stated that the incident commenced when one boy came over and asked for a game of slaps, which is a fighting game using open hands.[15] The complainants declined to be involved. The group of boys surrounding the complainants increased to the point where there were approximately 15 boys in the group.[16] There was no evidence at trial concerning the ages of the boys who were in company with the appellant.
[15] ts 49 (07/04/2022).
[16] ts 87 (08/04/2022).
At that time, one boy in the group 'grabbed' Mr Rose's mobile phone but he managed to take the phone back off the boy.[17] One boy stated to Mr Burbidge 'that's a nice jacket' and another stated 'this kid's got a chain.'[18] One of the boys in the group started to punch Mr Burbidge to the back of the head whilst another boy attempted to take his chain. Mr Burbidge retrieved the chain and placed it in his pocket. However, one of the boys took the chain from Mr Burbridge's pocket.[19]
[17] ts 87 (08/04/2022).
[18] ts 87 (08/04/2022).
[19] ts 87 - 88 (08/04/2022).
At the time Mr Burbridge's chain was taken, one boy, who was wearing a T-shirt with 'CK' on the front and 'whitish-coloured' trousers, hit Mr Burbidge. The learned Magistrate found that the person wearing that clothing was the appellant.
Mr Burbridge suffered swelling to his face as a consequence of the assault.[20]
[20] ts 88 (08/04/2022).
In respect of the second charge, the learned Magistrate found that the group of boys then approached Mr Mertens and commenced touching his hoodie and pockets.[21] His Honour accepted the testimony of Mr Mertens that 'they tried to get my phone' and 'trying to get – pulled it from right pocket.' However, Mr Mertens held the phone in his pocket and he was punched to his left cheek and also punched from behind by one of the boys. In respect of identification, the learned Magistrate further found that accused was one of the people who hit the complainant Mr Mertens, whilst another person tried to steal Mr Merten's jumper and mobile phone.[22]
[21] ts 88 (08/04/2022).
[22] ts 88 (08/04/2022).
In making that finding of identification, his Honour considered the CCTV footage which recorded the incident and movement of the appellant from the crime scene to the location of his arrest and identified the clothing worn by the appellant as he fled across the concourse over Roe Street, going over the flyover over Wellington Street into Forrest Place.[23]
[23] ts 89 - 90 (08/04/2022).
Officer Frame gave evidence that the group of boys ran across the footbridge adjacent to the Perth Cultural Centre over Roe Street towards the train station.[24] Police officers pursued the group of boys with an officer arresting the appellant in Forrest Place.[25] The appellant, when asked his name by the officer, confirmed his identity by stating his name.
[24] ts 55 (07/04/2022).
[25] ts 67 - 68 (07/04/2022).
Officer Ross gave evidence that when another officer was arresting the appellant he said 'Don't put your hands on me because I will charge you with assault' or words to that effect.[26] The learned Magistrate found that the appellant did say those words at the time of his arrest.[27]
[26] ts 71 (08/04/2022).
[27] ts 91 (08/04/2022).
Further, the appellant stated to the police 'I left you my buddy' and later 'your little security guard thinks he is fast? Pffff… left him.'[28]

Capacity - the learned Magistrate's reasoning

[28] Exhibit D, Body worn camera footage dated 13 August 2021.

The learned Magistrate correctly stated that capacity under s 29 of the Criminal Code needed to be proven beyond a reasonable doubt.[29] His Honour stated that the prosecution did not 'call a parent to say what they taught this boy when he was raised, did not call a parent to say what year of education he went to' and further did not 'call anything to do with his moral capacity, did not call anyone to do with his moral development, what he was taught as a child, what he wasn't taught as a child.'[30] The learned Magistrate observed that 'the State called none of that evidence…because they never do.'[31]
[29] ts 86 - 87 (08/04/2022).
[30] ts 90 (08/04/2022).
[31] ts 91 (08/04/2022).
The learned Magistrate stated that capacity was proven 'by two pieces of evidence.' First, by the act of the appellant running from the scene and from the police[32] and by the utterance of the appellant stating to Sergeant Lyon that 'Don't put your hands on me because I will charge you with assault'.[33]
[32] ts 91 (08/04/2022).
[33] ts 70 - 71 (08/04/2022); ts 91 (08/04/2022).
The learned Magistrate stated that flight was evidence of the appellant's capacity to know that he ought not to have done the acts. The learned Magistrate stated that he thereby inferred that running away from the police proves that the appellant had the capacity to know that his acts were morally wrong.[34]
[34] ts 91 (08/04/2022).
Further, the learned Magistrate found that the appellant stated to the police officer 'Don't put your hands on me or I'll charge you with assault.' The learned prosecutor submitted that the body worn camera footage of Officer Ross recorded the words 'Don't touch. I'll charge you with assault.'[35] His Honour stated that 'I place some weight on that as well. That is evidence that he had the capacity to know that he ought not to do an act which amounts to assault'.[36]
[35] ts 69 (08/04/2022)
[36] ts 91 (08/04/2022).
The learned Magistrate did not accept the submission made on behalf of the appellant that there needed to be evidence concerning the appellant's education and his environment in order to demonstrate capacity. His Honour noted that RYE v The State of Western Australia 'does not limit the evidence that can be called to prove capacity' and that 'attention must be focused on the intellectual and moral development of the child at the material time.'[37]
[37] ts 81 - 82 (08/04/2022).

Relevant legal principles - s 29 of the Criminal Code

Section 29 of the Criminal Code provides as follows:
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 proper construction of s 29 of the Criminal Code was considered by the Court of Appeal in RYE v The State of Western Australia.[38] In RYE v The State of Western Australia,[39] the Court of Appeal stated that the following had to be proven beyond a reasonable doubt by the prosecution in order to rebut the presumption:
In our opinion, it is plain, from the text of s 29 of the Code, that a child who is aged at least 10 years but less than 14 years will not be criminally responsible for an act or omission unless the prosecution proves beyond reasonable doubt that at the time the child did the act or made the omission the child had 'capacity to know' that he or she ought not to do the act or make the omission. In particular, that part of s 29 is concerned with the child's capacity to know as distinct from the child's actual knowledge. Our opinion on this issue is supported by the preponderance of the appellate decisions in Queensland to which we have referred.
[38] RYE v The State of Western Australia [2021] WASCA 43.
[39] RYE v The State of Western Australia [2021] WASCA 43 [44].
The Court of Appeal in RYE v The State of Western Australia considered what is meant by the child's capacity to know 'he ought not to do the act or make the omission', within s 29 of the Criminal Code. The plurality in RYE v The State of Western Australia stated as follows:[40]
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. See, generally, R v Porter;[41] R v MacMillan;[42] R v M (591). So, the question for the jury or other fact finding tribunal where the State must prove beyond reasonable doubt that a child had the requisite capacity is whether, at the material time, the child had capacity to know that the conduct in question was seriously wrong by the ordinary standards of reasonable adults.
[40] RYE v The State of Western Australia [2021] WASCA 43 [51].
[41] R v Porter [1933] HCA 1; (1933) 55 CLR 182, 189 ‑ 190 (Dixon J).
[42] R v MacMillan [1966] NZLR 616, 621 ‑ 622 (Turner J delivering the judgment of the Court of Appeal of New Zealand).
In respect of the question of how a child's capacity to know that 'he ought not to do the act or make the omission' may be proved for the purposes of s 29 of the Criminal Code, the plurality of the Court of Appeal in RYE v The State of Western Australia stated as follows:[43]
In R v F, Davies JA said that 'evidence of surrounding circumstances including conduct closely associated with the act constituting the offence may be considered for the purpose of proving the relevant capacity in relation to that offence' (162). His Honour added that such conduct may include 'asserting a false alibi, rendering a victim incapable of identifying the accused or preventing a victim from summoning assistance during the commission of the offence' (162). His Honour acknowledged that evidence of the accused's age alone cannot rebut the presumption under the Queensland equivalent of s 29, but observed that '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]' (162).
In R v JJ [9], McPherson JA referred, with apparent approval, to those comments of Davies JA in R v F.
In our opinion, where the State must prove beyond reasonable doubt that a child had the requisite capacity, within s 29 of the Code, attention must be focused upon the intellectual and moral development of the particular child at the material time. See RP [12]. A child's education and the environment in which he or she was raised are highly relevant in considering whether the child had capacity to know, at the material time, that the conduct in question was seriously wrong by the ordinary standards of reasonable adults. See RP [9], [12].
[43] RYE v The State of Western Australia [2021] WASCA 43 [53] - [55].

The High Court in RP v The Queen considered how the presumption that an accused was doli incapax at common law may be rebutted, stating: [44]
What suffices to rebut the presumption that a child defendant is doli incapax will vary according to the nature of the allegation and the child. A child will more readily understand the seriousness of an act if it concerns values of which he or she has direct personal experience. For example, a child is likely better able to understand control of his or her own possessions and the theft of others' property compared to offences such as damaging public property, fare evading, receiving stolen goods, fraud or forgery. 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. 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 the capacity to understand the serious wrongness of their acts while other children aged very nearly 14 years old will not.
[44] RP v The Queen (2016) 259 CLR 641 [12].
In KG v Firth,[45] the Court of Appeal of the Northern Territory stated that the categories of evidence which might be relevant to determining whether the child knew that the conduct was morally wrong include any admissions made, the nature of the alleged conduct (subject to the qualification that the presumption cannot be rebutted merely as an inference from doing the act), the circumstances surrounding the conduct, including any attempts at concealment or escape and the child's antecedence including education, upbringing, mental capacity and any previous criminal convictions.
[45] KG v Firth [2019] NTCA 5 [27].

Appellant's submissions

The appellant submitted that the appellant's post offence conduct of fleeing both the crime scene and the police is also consistent with a competing inference being the appellant was merely acting mischievously and that these actions did not support a finding that he knew that his offending acts were seriously wrong.[46] Counsel submitted that a reasonable competing inference was that the appellant was merely running with a group 'out of a sense of loyalty or because the appellant liked running.'[47]
[46] Appellant's written submissions [34a].
[47] Appellant's written submissions [34b].
Counsel stated that the appellant's request to 'play slaps' with the complainants immediately prior to the offending supported the competing inference that he thought the appellant believed that it was acceptable to engage in such behaviour with other similarly aged children.[48]
[48] Appellant's written submissions [34d].
Counsel for the appellant contended that the appellant's utterance to the police 'Don't put your hands on me because I will charge you with assault' is only evidence that supports a finding that the appellant knew it was wrong for the police, being adults in authority, to physically handle him (a child) but was not evidence that supported a finding that he knew it was seriously wrong for him as a child to do the offending acts against the complainants.[49] Counsel contended that the utterance to the police 'only suggests that the young aboriginal person has learnt an expression that can be said to police when the young person feels like they are being unduly treated by police'.[50]
[49] Appellant's written submissions [36].
[50] Appellant's written submissions [36]; ts 83 (08/04/2022).
Counsel contended that given the utterance of the appellant and his flight were ambiguous and supported competing inferences, it was necessary for the prosecution to produce evidence at trial concerning the appellant's home life, environment and education to rebut the presumption. Further, potential deficiency in his supervision and moral guidance was obvious from the fact that he was out in the city with a group of younger people with no adult supervision. The prosecution did not lead any evidence and therefore, failed to rebut the presumption.

Respondent's submissions

The respondent submitted that in the absence of an express admission, any finding as to capacity must be a matter of inference. The respondent accepted that if the only evidence of capacity was evidence of flight then there will be occasions when that evidence will not prove capacity beyond a reasonable doubt. At trial, the prosecution relied upon the flight of the appellant from the scene and the police and the utterance of the appellant to the police officer upon his apprehension. At the hearing of the appeal counsel for the respondent also relied upon the utterance of the appellant concerning his flight, 'I left you my buddy' and later 'your little security guard thinks he is fast? Pffff… left him.'[51]
[51] Exhibit D, Body worn camera footage dated 13 August 2021.
Further, at the hearing of the appeal counsel submitted that the appellant at the time of his apprehension asked on multiple occasions to be allowed to 'see his aunty.'[52] Counsel for the respondent submitted that by requesting to see his aunty, the appellant was exercising his rights at law which thereby, supports the finding of capacity.
[52] ts 17 - 18 (03/11/2022).
The respondent submitted that the utterance of the appellant concerning the officer being charged established that the appellant had the requisite capacity to know that if a police officer touched him without consent, that would amount to an assault and that he knew an assault was more than 'mere naughtiness' or 'mischief' but a serious wrong for which there could be consequences. Further, he knew that the person who assaulted another person could be charged with the crime of assault. That is, the appellant knew that an assault was an offence and that there were legal consequences for an assault.
The respondent submitted that the evidence proved not only that the appellant knew that the assault was morally wrong, but also that assaulting another constituted an offence and could result in punishment. Therefore it follows, that the appellant must have had the capacity to know that he ought not do the acts which constituted the offences committed against the two complainants.
Accordingly, the respondent submitted that extraneous evidence of the appellant's moral development was not necessary, given that the only reasonable inference from the appellant's utterance to the police was that the appellant not only had the capacity to know that he ought not assault someone, but positively knew that there were legal consequences for assaulting another.

Determination of appeal

I have carefully considered the appellant's contention that it was necessary for the prosecution to lead evidence that directly addressed the appellant's education and environment in which he had been raised. The respondent at trial relied only on the post-offence circumstances, which I have outlined. The primary circumstances are the appellant's utterance to the police officer, the appellant's flight, and a statement by the appellant wanting to see his aunty is also relied upon.
I am not satisfied in this particular case that the appellant's post-offence conduct established beyond a reasonable doubt that the appellant had the capacity to know that the acts constituting the offence of aggravated robbery, namely assaulting the victims, whilst other people in the appellant's group stole or attempted to steal property from them, was seriously wrong by the standards of reasonable adults.
I have made this finding for the following reasons.
First, rebutting the presumption directs attention to the intellectual and moral development of the particular child. Therefore, I am required to assess the evidence relied upon by the prosecution to rebut the presumption beyond a reasonable doubt in respect of this particular child.
Second, in directing attention to the intellectual and moral development of this particular child I am mindful that children of substantially identical age groups and demographics may demonstrate vastly different cognitive capacities for understanding. As the High Court stated in RP v The Queen,[53] 'some 10-year-old children will possess the capacity to understand the serious wrongness of their acts while other children aged very nearly 14 years old will not.' The development of the capacity necessary for legal responsibility does not take place at a consistent rate between children, and in particular, children from a disadvantaged background. Within the juvenile justice system there is a significant overrepresentation of indigenous children and a significant number of those children are marked with a history of disadvantage and deprivation, neurological impairments and psychological trauma. Among those aged 10 to 13 who are in detention or supervision, 65% are Aboriginal and Torres Strait Islander children.[54] In respect of children aged between 10 and 17, Aboriginal and Torres Strait Islander children are imprisoned at 17 times the rate of their non-indigenous peers.[55] Although only about 6% of young people are indigenous, approximately half of all children under some form of juvenile justice system supervision are indigenous.
[53] RP v The Queen (2016) 259 CLR 641 [12].
[54] Australian Institute of Health and Welfare (2020) Youth Justice in Australia 2018-19 - Data, table S5b, cited in Raising the age of criminal responsibility, Discussion paper (July 2020) 1.
[55] Sentencing Advisory Council (2020) Indigenous Young People in Detention, cited in Raising the age of criminal responsibility, Discussion paper (July 2020) 1.
Third, the utterance to the police officer is the principal factor upon which the prosecution relied to rebut the presumption beyond a reasonable doubt. The other circumstances are of lesser evidentiary weight. The statement of the appellant wanting to see his aunty, and his flight, are relied upon but the prosecution accepted that without the utterance to the police officer those other factors are insufficient to rebut the presumption.[56]
[56] ts 22 (03/11/2022).
That concession was a proper one. The appellant's flight considered in isolation would not be sufficient to rebut the presumption given the ambiguity of a child running from an adult. Further, I do not accept that the appellant's statement to the officer that 'I left you my buddy' and later 'your little security guard thinks he is fast? Pffff… left him' strengthens the circumstance in the respondent's favour. Those words are no more than a boy commenting on how fast he ran and do not reveal the reason for his flight.
In my view the statement of a 12-year-old Aboriginal boy asking to 'see his aunty' provides no support to the inference of capacity. Children of all ages very commonly ask to see maternal figures - whether mothers, aunts or grandmothers - when in trouble or hurt. It is too long a bow to equate such a plea of a child with the child exercising their rights under the Criminal Investigation Act 2006 (WA) and thereby revealing a capacity to understand that the conduct is seriously wrong by the standards of reasonable adults.
Fourth, the utterance to the police officer is ambiguous. On one view, the words are evidence that may support a finding that the appellant knew it was wrong for the police, or persons in authority, to physical touch him. However, those words convey nothing about his capacity to know that it was seriously wrong for him as a child, to do the acts alleged, which involved other children. Further, I accept the contention of the appellant's counsel at trial that the utterance may simply 'suggest that the young Aboriginal person has learnt an expression that can be said to police when the young person feels like they are being unduly treated by police.'[57]
[57] ts 84 (08/04/2022).
After carefully considering the utterance to the police officer, along with all of the post offence conduct, I am left in this position. I need to know more about this 12-year-old Aboriginal boy in order to properly understand what he meant by the words that he spoke to the police officer. Without knowledge of his education, personal circumstances, and the environment in which he was raised, I am unable to reach a view as to whether the utterance made to the officer may be understood as simply a boy repeating what he has heard others say, or whether it reflects an understanding that in the criminal justice system, touching another person may be wrong. The evidence that the prosecution relied upon at trial was insufficient. To permit a proper assessment of the utterance the prosecution should have led evidence concerning the appellant's education, personal circumstances and environment in which he was raised.
During the hearing of the appeal, counsel for the respondent submitted that there are potential difficulties with the prosecution having to lead evidence to prove capacity. Counsel submitted that leading evidence of how a child has been raised may be at odds with the Young Offenders Act 1994 (WA) for the reason that family members may have to give testimony.[58] I do not accept the submission of the respondent. Certainly, it will not always be necessary that the evidence be oral testimony from family members. Other evidence such as school records and reports may suffice. In any event, the fact that proving capacity may be burdensome to the prosecution is not relevant. The Parliament has required of the prosecution to rebut the presumption of a child's capacity beyond a reasonable doubt.
[58] ts 19 - 20 (03/11/2022).

Conclusion

According, I find that the verdict of guilty determined by the learned Magistrate was unreasonable and not supported by the evidence in respect of the issue of capacity required by s 29 of the Criminal Code and therefore the appeal must be allowed. Therefore, leave to appeal is granted, the appeal is allowed and the conviction is quashed and an acquittal is ordered.

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