R v APP
[2025] QChC 16
•22 October 2025
CHILDRENS COURT OF QUEENSLAND
CITATION:
R v APP [2025] QChC 16
PARTIES:
THE KING
v
APP
(Defendant)
FILE NO:
45/25
DIVISION:
Childrens Court of Queensland
PROCEEDING:
Trial (Judge alone)
ORIGINATING COURT:
Townsville
DELIVERED ON:
22 October 2025
DELIVERED AT:
Townsville
HEARING DATE:
16 October 2025
JUDGE:
Porter KC DCJ
ORDER:
1. APP is guilty of Count 1, robbery, in company, with personal violence.
2. APP is guilty of Count 2, assault occasioning bodily harm, in company.
VERDICT
The defendant, APP, is charged with:
(a)One count of Robbery in company with personal violence; and
(b)One count of Assault Occasioning Bodily Harm while in company.
For the reasons which follow, I find her guilty on both counts.
JUDGE-ALONE TRIAL PRINCIPLES
In a trial by judge sitting without a jury, the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury.
If an Act or the common law requires information, a warning or instruction to be given to the jury in particular circumstances or prohibits a warning from being given to a jury, the judge in a trial by a judge sitting without a jury must take the requirement or prohibition into account if the circumstances arise in the trial.
The judge in such a trial may make any findings and give any verdict that a jury could have made or given if the trial had been before a jury. Any finding or verdict of the judge has, for all purposes, the same effect as a finding or verdict of a jury.
These reasons must include the principles of law that I have applied and the findings of fact on which I have relied.
GENERAL PRINCIPLES
The burden rests on the prosecution to prove the guilt of the defendant. For the prosecution to discharge its burden it is required to prove beyond reasonable doubt that the defendant is guilty.
I dismiss all feelings of sympathy or prejudice from my determination of the proceedings.
The Court must decide the case on the evidence and only the evidence. The evidence consists of the testimony of the witnesses that have been called, the exhibits and the formal admissions. The Court must not act on any outside information or other outside influence. The Court must not make its own inquiries or investigations about the case, or anyone connected with it.
The Court must approach the task of reaching a verdict on the basis that the Court may accept evidence in whole or in part. It is for the Court to decide whether it accepts the whole of what a witness says, or only part of it, or none of it. It is for the Court to decide whether a witness is telling the truth and correctly recalls the facts upon which he or she has testified.
The Court may draw inferences from the evidence. The inferences must be reasonable ones to draw from the facts that the Court finds have been established by the evidence. Whilst it is up to the Court to decide whether it accepts particular evidence, and if so, the weight or significance to be attributed to it, the Court must not speculate or conject to fill in any gaps in the evidence.
The evidence comprises the admissions, the statements of the witnesses admitted into evidence, the transcripts and hearings of APP’s previous appearances in the Children’s Court, her criminal history and the audio-visual recordings of previous dealings with the police.
The audio-visual evidence is accompanied by transcripts. It is the audio-visual evidence which is the evidence not the transcript which is an opinion of a transcriber. I give effect to what I see and hear.
The admissions have a special status. They are matters not disputed in the trial and I can treat the matters admitted as proved.
The evidence of previous convictions, previous dealings with police and previous appearances is relevant only to the question of capacity under s. 29(2) Criminal Code Act 1899 (Qld) (the Code).
APP has not given or called evidence. That is her right. She has no obligation to so. She is entitled to insist that the prosecution prove the case if it can.
The prosecution bears the burden of proving guilt beyond a reasonable doubt. The fact APP did not give evidence does nothing to change this.
(a)It is not evidence against her;
(b)It is not any kind of admission of guilt by conduct;
(c)I cannot use it to fill any gaps in the evidence led by the prosecution.
(d)It proves nothing at all and cannot be considered when deciding whether the prosecution has proved its case beyond a reasonable doubt on the evidence.
ELEMENTS OF THE OFFENCES
The elements of an offence are the facts the Crown must prove beyond reasonable doubt before I may convict for that offence.
Count 1: Robbery
As to Count 1, the elements of the offence are these:
(a)First that the defendant stole something.
(b)Second, at the time of, or immediately before, or immediately after, stealing it, the defendant used or threatened to use actual violence to any person or property.
(c)Third, the use or threat of violence must have been done in order to obtain the thing stolen or to prevent or overcome resistance to it being stolen.
(d)Fourth, by way of aggravation, the defendant used personal violence.
(e)Fifth, by way of aggravation, the defendant was in company.
Further, as to the first element, the requirements for a stealing to occur are as follows:
(a)The property involved is capable of being stolen;
(b)The thing is owned by the person named as owner in the indictment;
(c)There was a taking without the consent of the owner; and
(d)The taking was with a fraudulent intent. That is with an intent to permanently deprive the owner of the thing.
The Crown confirmed in course of the hearing that the things allegedly stolen were a mobile telephone and keys.
Count 2: Assault Occasioning Bodily Harm
APP is charged with one count of Assault Occasioning Bodily Harm while in company of Ms R.
To convict the defendant of Assault Occasioning Bodily Harm while in company, the prosecution must establish beyond reasonable doubt four elements.
The first element is that the defendant assaulted Ms R.
Any person who strikes, touches or moves or otherwise applies force of any kind to the person of another, either directly or indirectly, without that person’s consent is said to assault that other person.
The second element is that the assault was unlawful, that is not authorised, justified or excused by law.
The third element is that the defendant thereby did the complainant bodily harm; that is, any bodily injury which interferes with health or comfort.
The fourth element is that the defendant was in company.
BASIS OF CRIMINAL RESPONSIBILITY
Responsibility as a party
As will be seen, the prosecution alleges a group robbery and assault by four young women including APP. The complainants are unable definitively to identify which of the young women committed the specific acts of taking and violence that they describe.
The Crown case is that APP is criminally responsible as a principal offender under s. 7(1)(b) of the Code. The Crown particularises that as follows:
(a)For Count 1, by aiding or enabling the offence by her conduct of her physical presence and/or striking and/or hitting Ms M.
(b)For Count 2, by aiding or enabling the offence by her conduct of her physical presence and/or striking and/or hitting Ms R.
For the prosecution to establish criminal responsibility for either count it is necessary for it to prove that the defendant committed her acts to enable or aid one or more of the others in the group to either rob or assault the complainants, knowing that that other or others intended to rob or assault them.
It is not necessary to prove that the defendant had such an intention; it is sufficient and necessary that the defendant knew that one or more of the others had it and that, knowing this, did an act to aid or enable the others.
In determining if APP had that state of mind, I can infer her state of mind from all the circumstances which are rationally probative of such an inference.
Capacity and criminal responsibility
Notwithstanding the requirement that I be satisfied beyond reasonable doubt of the above matters, counsel agree that the real issue in the case is whether APP is criminally responsible for her acts of aiding given her age. She was 11 years and 10 months old on the date of the alleged offences.
Section 29 of the Code provides:
29 Immature age
(1) A person under the age of 10 years is not criminally responsible for any act or omission.
(2) 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 the person had capacity to know that the person ought not to do the act or make the omission.
In considering the question of whether on 22 April 2024, APP had the capacity to know that she should not have done the acts particularised in aid of the Robbery and Assault Occasioning Bodily Harm, I am drawing an inference as to her state of mind from facts established by the evidence.
These facts may include age, the alleged offending behaviour and circumstances surrounding it, and any other evidence which is rationally probative of her capacity to know that the person ought not to do the act.
Where there are competing inferences open on the facts as found, it is essential not only that the evidence is strong enough to sustain the guilty inference, but that any inference consistent with innocence has been excluded beyond a reasonable doubt.
Guidance as to the test to be applied is found relevantly in RP v TheQueen (2016) 259 CLR 641 3 at [9] and [12], per Kiefel, Bell, Keane and Gaudron JJ. That case concerned the position in NSW where the common law continues to apply between 10 and 14 years and care must be taken in relation to the nature of the test as explained in BDO v The Queen (2023) 277 CLR 518. But the principles are otherwise applicable, as BDO made clear. Relevantly, the majority held in RP:
[9] …. 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. This distinction may be captured by stating the requirement in terms of proof that the child knew the conduct was “seriously wrong” or “gravely wrong”. 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... 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. This directs attention to the child’s education and the environment in which the child has been raised.
[12] 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.
[underlining added]
BDO adopted these observations at [13], [14], [20], [23] and [48]. The defendant relied particularly on paragraph [48] of BDO as to the capacity of APP to understand the difference between behaviour which was naughty and behaviour which was wrong in the sense identified in the authorities. That paragraph states:
RP v The Queen cautions against too quickly drawing an inference concerning secrecy and children. An appreciation by the child that they should not be discovered doing the act or acts might be consistent with a sense of it being wrong, but the question is to what extent? The appellant may have appreciated that he would be in trouble with his parents for doing what he did, but it is not clear whether that would have been because it was naughty. To be capable of rebutting the presumption, the evidence must be such as to enable a conclusion that the appellant was able to understand that it was morally wrong. That is not a low standard.
Section 29(2) of the Code can apply where the child is alleged to be criminally responsible other than on the basis that they did the act which comprises the offence.[1]
[1] R v Sneesby [1951] St R Q 26.
THE OFFENCES ARE PROVED
The defence made no submission that the offences did not occur as alleged. There were admissions made which substantially conceded those facts. Nonetheless, I now consider the evidence, including the admissions, against the elements of the offences.
The statements of Ms M and Ms R, along with two witnesses, were tendered in written form without objection. Notably, the defendant does not dispute that the events occurred as the complainants and eyewitnesses stated. There is no other basis to question the credibility or reliability of their evidence, given it is broadly consistent as between the witnesses, consistent with the phone footage and was not challenged by the defence.
A Statement of Facts was provided as a common submission from counsel as to the findings flowing from that evidence. I adopt paragraphs 1 to 10 as follows, amended in minor respects, as findings I make in this trial:
(a)APP was born on 25/05/2012 and was aged 11 years and 10 months old at the time of the alleged offending.
(b)At the time of the offending, she was with co-defendants, four girls aged between 13 and 15 including ADN, aged 14.
(c)The complainant in Count 1 (Ms M) was born on 08/08/2003 and was 20 at the time of the offending. She was not known to the defendants.
(d)The complainant in Count 2 (Ms R) was born on 11/10/2006 and was 17 at the time of the offending. She was not known to the defendants.
(e)At approximately 12:30pm on 22 April 2024, the complainants went for a walk around Douglas. They each had a phone and a set of car keys on them. They walked over the Weir Bridge from Douglas into Kirwan. They followed a path into a park under the bridge and walked towards the carpark of the Weir State School.
(f)The complainants walked past the group of defendants, and each member of the group stood up and followed them. ADN and another female followed behind the bulk of the group and filmed on a phone. APP and three others walked up to Ms M and one of them grabbed her hair and pulled her back. They then pushed her forward and she fell over. She dropped her phone, and one of the other three girls (not APP) picked it up.
(g)Two of the defendants grabbed Ms M and punched her with closed fists. Ms R said, ‘Hey what are you doing, get off her”. The defendants laughed and continued to punch Ms M. Ms R grabbed one of the defendants and pulled them away. Another defendant grabbed R and punched her in the face multiple times. APP threw at least one of those punches. Ms R pushed the defendants away and ran up the path. Ms M was on the ground. The defendants chased the complainants up the path and they grabbed Ms M’s hair and punched her. Ms R ran over and tried to pull them away.
(h)Ms M stood up and one of the defendants grabbed her. They swore at M and tried to pull her car keys from her hand. Ms M tried to grab her hair and pull her away from her, but they grabbed the keys and ran away.
(i)The defendants ran up into the car park of the Weir State School and onto Ross River Road. The complainants chased them, but the defendants split up and all ran in different directions.
(j)ADN filmed the assault on a mobile phone. She did not participate in the physical assault, however she chased the complainants, laughed at them with the other defendants and stood beside them as they assaulted the complainants.
I have before me the film made by ADN. To the extent it shows the incident, it shows APP actively participating in the melee including punching at one of the complainants. Given that the person with the phone did not participate in the physical assaults, and the complainants speak of a number of persons involved in the melee, I find beyond reasonable doubt that APP actively participated in both the robbery and the assault by participating in the acts of striking and otherwise assaulting both complainants and being part of the group menacing them with their combined presence, while the phone, and then the keys, were taken and Ms R was assaulted.
I find consistent, with the admissions, that another girl stole the keys and I also accept that APP was not the one who personally took the phone. The mobile phone video suggests the contrary and there is no other basis to conclude APP actually stole the mobile phone, much less to conclude that beyond reasonable doubt.
I also find beyond reasonable doubt that in participating in the personal violence accompanying the stealing of the phone and keys, APP committed her acts to enable or aid one or more of the others in the group to either rob Ms M of her phone and keys knowing that that other intended to rob her. That is the only reasonable inference given the following findings:
(a)The personal violence in which APP was involved started with personal violence on Ms M and the taking of the phone;
(b)There is no evident purpose of that violence other than to obtain the phone;
(c)There was no wider assault on Ms R. The assault only occurred when she came to the rescue of her friend, making robbery from Ms M the obvious purpose of the violence;
(d)The assault continued on both complainants while one of the others of the gang (not APP) struggled to get the keys from Ms M and APP continued to participate in the melee while that was occurring; and
(e)Again, there was no evident purpose for the continued violence except to obtain the keys and once they were obtained, the gang fled.
I also find beyond reasonable doubt that APP committed her acts of striking Ms R and supporting others in the group assault on her to enable or aid one or more of the others in the group to assault Ms R, knowing that that other or others intended to do so. The overall circumstances, including her own strike at Ms R, leaves no doubt about that conclusion.
I also accept the evidence that Ms R suffered bodily harm in the assault to her eye, as shown in the photographs tendered.
I therefore am satisfied beyond reasonable doubt of each of the elements of Counts 1 and 2 and further that:
(a)APP aided in Count 1 by assisting another member of the group to steal the mobile phone and later to steal the keys by adding her presence and force to the personal violence offered to Ms M; and
(b)APP aided in Count 2 by participating in the struggle with Ms R including by striking her.
The real question in the trial is whether the Crown can establish beyond reasonable doubt that APP had capacity to understand that the acts described in the previous paragraph were wrong in the sense explained in the authorities.
CAPACITY
The evidence
Summary
The evidence led regarding APP’s capacity to know that she ought not do the acts of personal violence and assault aiding in the commission of both counts was as follows.
First, there are admissions relevant to her intellectual development:
(a)As to her cognitive function:
Diagnoses of the defendant:
46.It is admitted that the defendant has the following diagnoses:
a.Attention-deficit hyperactivity disorder (ADHD)
b.Foetal Alcohol Spectrum Disorder (FASD)
i.The defendant meets the criteria for severe impairment in cognition according to the Australian FASD guidelines.
c.The defendant has a moderate intellectual disability.
(b)As to her schooling:
Schooling:
47. It is admitted that state school records show the defendant was enrolled in year 6 until 8 December 2024 and entered year 7 in June 2024.
48. In 2023 the defendant had a 25.13% attendance rate and in 2024 there is no data for attendance.
49. The defendant was assessed in 2025 to have the reading level of a year 4-6 year student and her spelling was at a prep to year 1 level student.
50. The defendant’s average grade throughout her schooling was a ‘D’.
Second, APP was spoken to by police on three occasions: 15 November 2023, 12 December 2023 and 16 April 2024 in respect of offences of wounding, stealing a drink from a shop and stealing two e-scooters respectively. There is audio visual evidence of all three interviews.
Third, APP’s criminal history was before the Court. It showed that she had appeared in the Townsville Children’s Court on six occasions from 12 May 2023 for unlawful use, stealing and enter premises type offences.
Fourth, the transcripts and reasons for three occasions were before the Court. They related to the 23 June 2023, 16 February 2024 and 19 April 2024 hearings.
Fifth, there was body worn camera footage of interaction with the police after the current offences occurred. That footage does not assist in resolution of the capacity issue. I will not refer to it further.
In addition, the nature and circumstances of the offence are relevant to capacity, recognising of course that the presumption cannot be rebutted solely as an inference from the doing of the acts or the offence.
The police interviews and court appearances
It is convenient to summarise APP’s encounters with the police and the Courts in chronological order.
12 May 2023 (11 years)
APP appeared on several unlawful use, enter premises, fraud and tainted property offences. She was reprimanded, with no convictions recorded and a 3-month good behaviour bond was imposed. I have no transcript of this hearing. I infer it was brief, given the later examples and APP’s young age, though it would have required a plea and an appearance in a Court environment, which would have been a first signal of the seriousness which the community treated those acts.
23 June 2023 (11 years, 1 month)
APP appeared on four counts of unlawful use, enter premises and stealing. Her Honour recalled APP had been before her a month before (I infer she dealt with the 12 May hearing). APP was represented. She pleaded guilty to each offence. The circumstances were described in Court as follows:
MR SMITH: Defendant was located a – it was 11.30 am on the 26th of April. Defendant has entered the Big W Aitkenvale store. Defendant has located a watch, food items and a torch, left the store without making an attempt to pay. Charge 3 of four, your Honour, stealing is the Kwik Shop in South Townsville. Went in, grabbed five cans of Pringles, Gatorade, ice cream from within the store and run out. Charge 4 of four, yes, that’s the KFC one, your Honour. It was quarter past 6 on the 13th of May. They’ve entered, proceeded to the food court. This time, the food court’s blocked off. A large portable divider stopped members from entering. Two offenders used an ATM to assist them jumping over the barrier, entered the KFC store, grabbed some soft drinks from the fridge and returned to the – passing them around to other females.
Unlawful use of a motor vehicle, 26th of April. Her fingerprints were located on a stolen vehicle which had been taken on the 25th day of April. That was – the fingerprints were located on the 26th.
Her Honour’s reasons were as follows:
APP, I’ll give you a chance today, but you come back for a third time, you won’t be treated so slightly. Okay. You know what right and wrong is. So if it’s when you hang out with these kids that you’re tempted to do crime with them, don’t run with them, because they will suck you into trouble. And you need to think more about the life your sister’s leading and if you want to live like that. That’s not living. And that’s where you’re heading if this doesn’t stop.
Right. The unlawful use is a very serious charge, but it was before the last sentence, and I would have added it to the good behaviour bond, which you’ve still got. And I won’t be breaching you. So I will reprimand you today, but you come back a third time, you won’t be so lucky. You understand? All right. That’s it.
The 15 November 2023 interview (11 years, 5 months)
There was a formal record of interview conducted by two police officers with APP in the presence of her older sister on 15 November 2023. The interview occurred 5 months before the offences. The recorded interview arose because of an allegation that APP had stabbed her sister with a knife, wounding her. APP admitted the act in the interview.
The whole of the interview must be watched to gage its style, tenor and the presentation of APP. I make the following observations as to its key elements.
The first 15 pages comprised the officers seeking to explain the parameters of the interview to APP and obtain basic information from her. Topics covered included her right to silence, whether she attended freely or as the result of any threat, her personal details such as birth date, family members and whether she was affected by any drugs or alcohol. In that part of the interview, APP did not answer questions effectively, even when they were put into simpler terms by the officers. Her sister assisted with some answers. She presented as passive and uncomprehending, though she was also highly conscious of the camera, which she glanced toward frequently.
Her sister made these two observations about APP’s cognitive function:
(a)She has a problem with her memory and if she is told something she tends to forget it immediately; and
(b)She understands what is said to her (presumably within the scope of her general language development).
I accept this is admissible lay evidence of observations of APP’s cognitive functioning, albeit it is somewhat conclusory in nature.
The next six pages comprised APP giving her account of the circumstances of the wounding. She was able to give an intelligible account, presented in reasonable narrative order. The substance of the account was that she got into an argument with her sister while getting ready for school which escalated into a physical struggle involving threats and use of instruments and that the wounding occurred after APP armed herself with a knife and a struggle between the sisters followed.
The remaining material exchanges related to discussion between the officers and APP about consequences and wrongfulness (TS21.51 to TS22.51):
CON MANNING: So, when you were waving it, you said you were trying to hit her with the knife. What did you think would happen if you did hit her with the knife?
APP: Um, I don't know.
CON MANNING: So, do you think, um, hitting [the sister] with the knife was the right thing to do or the wrong thing to do?
APP: The wrong.
CON MANNING: And why do you think it was the wrong thing to do?
APP: Because um, like, knives are very sharp and like, and like, someone can just get hurt like that.
CON MANNING: Yep. So, if um, if I was standing there, or another police officer was standing there, d-, would you have hit … with the knife? No? What about if Mum was standing in the room? Would you have hit … with the knife?
APP: Um, no.
CON MANNING: Why not?
APP: Because then she would go off at me and kick me out.
CON MANNING: So, who teaches you about the right thing and the wrong thing to do?
APP: Um, my mum.
CON MANNING: Your mum. Do you have um, an example of something that you maybe think is the right thing to do?
APP: I don't know.
DESLIE UNIDENTIFIED: She doesn’t under-, understand that word.
CON MANNING: Doesn’t understand that one.
DESLIE UNIDENTIFIED: Yeah.
CON MANNING: Yep, okay. Um—
CON STOUT: So—
CON MANNING: You got anything? You just wanna cover off that stuff?
CON STOUT: Yep. So, what good things, so, what woulda been a good thing to do?
APP: Um, like, like, like, not to hit her like, with the knife.
CON MANNING: Mmhmm.
I infer the word she did not understand the word “example”.
APP presented as immature in that interview. I infer she was both shy and overawed by the situation, though was quite forthcoming when describing her fight with her sister.
The 12 December 2023 interview (11 years, 6 months)
This interview occurred at APP’s home. Her mother was present, and an older sister was moving around in the background. Two officers attended. She was interviewed sitting on the sofa of the family lounge room. The interview was short, covering some 9 pages of transcript. The officers attended to interview APP about a shop stealing matter. They covered the usual formalities in a mechanical manner, though I infer that their intention was to issue a caution.
Again, APP appeared shy and passive, though she readily admitted to taking the frozen raspberry drinks. The officer sought to explain the problem with the theft like this:
SCON MAGUIRE: Yeah. Are you aware that ah, stealing’s an offence Jennifer?
APP: Yes.
SCON MAGUIRE: How do you think that um, the store owner feels that you stole from her shop?
APP: I don’t know.
SCON MAGUIRE: What if I, what if someone came in here and—
APP: Sad.
SCON MAGUIRE: Yeah, feel sad. What if someone came into Mum’s house and took her, I don’t know, phone or something like that? How would that make Mum feel? How would that make you feel? Jennifer?
APP: I don’t know.
SCON MAGUIRE: How would Mum feel if someone took her phone?
APP: She would feel angry.
SCON MAGUIRE: Yeah. So I’m thinkin’ these guys felt the same, hey? What are you gonna do differently next time?
APP: Not steal.
2 February 2024 Court appearance (11 years, 8 months)
APP appeared in the Children’s Court charged with stealing a scooter. She was represented and pleaded guilty. After brief submissions about the circumstances and the suggestion of a restorative justice response, her Honour made the following remarks:
Okay. APP, you can remain seated if you like while I talk to you. So, as you know, it is not your first time at court. The purpose of today is that I do have to impose some type of order or a punishment to try and help you learn and understand that it is not okay to behave in this way. Obviously, as you would appreciate, if you were in that position and someone took something that belonged to you, you would be very upset by it. But the other things I do take into account is you are still young. You are only 11 years of age, and sometimes young people, especially when they are with their friends, they get up to mischief and make some silly choices. So today is really about learning it was the wrong thing to do, encourage you to try and make better choices in the future and not get caught up in that type of behaviour.
Now, to your credit, you have come along today and entered a very early plea of guilty and accepted full responsibility for your actions, so I have imposed a lesser penalty than would normally be imposed because of that, and the other thing I do also think shows a level of maturity is your willingness to go and apologise to that person, and that takes courage to do that, but I do think that is a good idea, and the reason I say that is because not only does it give you that opportunity to apologise for your actions but, quite often, people who are in that position appreciate it too when someone comes and apologises, and it makes them feel better as well, so for that reason, I do think that is the most appropriate sentence.
APP does not speak on the transcript. However, I infer her legal representative spoke to her about the plea and offer to apologise.
16 February 2024 Court appearance (11 years, 8 months)
This was also a brief appearance where APP was charged with trespass. She and a group of girls were on the roof of a commercial premises at midnight. The learned Magistrate told APP about the dangers of being out late and night and how she would struggle at school if she was tired. She was reprimanded.
The 16 April 2024 interview (11 years, 10 months)
This interview is of particular assistance given that it occurred just six days before the offences. Two officers attended at APP’s home again to investigate the theft of two e-scooters. APP was interviewed in an informal manner. She was called by her mother and spoke to the officers at the door of the home. She stood in the doorway. Defence counsel submitted that the interview was not conducted in a serious manner. It is true that it was not conducted in an intimidating or strict manner, though that does not mean it lacked effectiveness to instruct in proper behaviour.
The formalities were again perfunctory, though that might be a reflection of the seriousness with which the Officers took the offence and the fact that they already had video footage of the theft. APP readily accepted that she took the e-scooters and gave an intelligible version of events. The Police Officer discussed the effort taken by APP and her co-offender to steal the e-scooters given they were locked up. The discussion about the nature of the wrong done was in these terms:
SCON HARDMAN: So do you think he got both scooters back, or just one?
APP: I’m pretty sure two. Yeah.
SCON HARDMAN: Alright. So, yeah, like, he had it chained, so even if it wasn’t chained to that um—
APP: Mm.
SCON HARDMAN: To the seat there, if you took it, it’s still the same offence, so, yeah you’ve just gotta remember that’s someone’s property and what you take, especially—
MELISSA UNIDENTIFIED: Mmhmm.
SCON HARDMAN: When they’re, they are really expensive things.
MELISSA UNIDENTIFIED: Mmhmm.
SCON HARDMAN: Um, yeah, you’ve gotta, you know, if you wanna ride a scooter maybe hire one of those town scooters or something.
MELISSA UNIDENTIFIED: Mmhmm.
SCON HARDMAN: Um, yeah. So you, I’m just looking through your history, you know, you’ve had a lot cautions, restorative justices for, you know, you got some pretty serious offences there.
MELISSA UNIDENTIFIED: Yeah, we just—
SCON HARDMAN: Um—
MELISSA UNIDENTIFIED: [INDISTINCT].
SCON HARDMAN: Have you, have you already done the restorative justice?
APP appeared to have grown physically and developed in her social skills in the five months since her last interview. She presents as less shy and more engaged. She was told she would have to appear at Court “only for stealing”.
19 April 2024 Court appearance (11 years, 10 months)
APP appeared and pleaded guilty to stealing the scooter. She was represented. Her counsel confirmed she had completed previous restorative justice processes. Her Honour said:
You did cooperate with the police. Thankfully, the man got his e-scooter back. I am going to place you in a restorative justice order. So you need to see Youth Justice now. No more breaking the law, you can be resentenced on this. You need to follow every reasonable direction they give you. If they want you to go to the office you need to do that. If they want you to be home to pay you a visit, you need to do that. You need to tell them within two work days if you change where you live or what you do for education. Cannot leave or stay out of Queensland without their permission. You need to take part in that restorative justice how they want you to, when they want you to and as part of that you are likely to make a promise to do something to show how sorry you are. And any promise you make, you need to make good that promise, okay?
APP did not speak in Court, however again I infer her legal representative spoke to her about the plea.
Summary of submissions
The Crown submitted that APP had had the benefit of the several interactions with Police and the Courts explaining the wrongness of the wounding and later stealing offences. In those interviews, it is submitted, she demonstrated an ability to explain her actions in the audio-visual recordings when given an opportunity to do so. It was submitted that by the wounding interview APP was informed about the wrongness of violence to another and in the later interactions she was informed about the wrongness of stealing.
The defence submitted that the Court should give considerable weight on the evidence of severe impairment from Foetal Alcohol Syndrome Disorder. The defence submitted that the Crown had led no further evidence about the nature of that cognitive impairment and accordingly, the Court should act on the basis that it informs her ability to understand and learn from her interactions with the Police and Courts. That is particularly given her poor school attendance and limited reading age.
The defence also submitted the audio-visual recordings and Court transcripts show APP struggling to understand straightforward ideas like the right to silence and to state simple facts like her birth date. They show little by way of substantive responses from APP to those parts of the interviews and hearings where police or the Magistrates seeks to explain wrongness of the conduct in question.
The defence submitted that in those circumstances, the evidence could not sustain the conclusion that she had capacity to understand the serious wrongfulness of her acts.
Analysis
Some further observations of principles and proof.
First, the burden is on the Crown to prove that APP had capacity. It bears repeating that to discharge that burden, the Crown must prove capacity beyond reasonable doubt. I have already identified that the Court must draw an inference as to her capacity and in doing so must meet the practical articulation of beyond reasonable doubt in that context, being that there is no reasonable inference other than capacity from the facts.
Second, there is a different conceptual approach to capacity under s. 29(2) as compared, for example, to common cases of capacity to make a will. Where a testator suffers from dementia which rebuts the civil presumption of testamentary capacity, it makes no sense to speak of instruction addressing that lack of capacity. No matter how often the legal requirements are explained, a person without capacity due to impairment of mind will not learn and thereby improve their capacity.
The situation is conceptually different under s. 29(2), at least where the Court is dealing with children with an ability to learn. Paragraph [23] of BDO quoted above articulates the test for capacity by reference to the particular child’s intellectual and moral development. That case and RP v The Queen identify as relevant the child’s education and environment. These observations reveal that a child’s capacity can be developed by instruction. Of course, there must be a sufficient basis to conclude beyond reasonable doubt that the instruction had the effect of educating the child’s capacity for understanding serious and moral wrong involved in the act in question.
Third, in assessing that capacity, it is logical (and consistent with the authorities) to pay close attention to the nature of the act, and the factors which make it wrongful. As the Court observed in RP v The Queen, 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 other more conceptually complex offences.
Fourth, the admitted diagnosis of FASD and impact on cognitive function, while important, must be considered in the light of evidence of the circumstances relating to the particular child and the particular acts at the particular time.[2]
[2] See comments in the analogous context of expert evidence and lay evidence on capacity to make a will: Sargent v Brangwin [2013] QSC 306 at [97] and the cases cited there.
APP had capacity
There are several compelling considerations supporting the inference that APP had capacity to understand that it was seriously and morally wrong to do the acts of personal violence and assaults on the complainants as part of, and in aid of, the offences of Robbery and Assault Occasioning Bodily Harm.
First, assaulting a person to rob them of personal property is the simplest and most concrete kind of offence. It is one of the easiest kinds of wrong for a child to understand, involving as it does personal property which even a child of 11 will have and value. That is all the more so where that item is a mobile phone, a ubiquitous and well understood item, even for a child nearly 12 who does not own one (if APP did not, which I must assume absent evidence).
Second, APP had been given instruction as to the wrongness of stealing on six occasions in the 11 months prior to the commission of the offences, including in the week before the offences. While the instructions about the right to silence and the details of the formal procedure might have been hard for her to understand, on each occasion the wrongness of taking property of others was stated in simple terms.
Third, not only were the instructions that stealing was wrong given repeatedly and in simple terms, but they were given in circumstances which highlighted the social unacceptability of that conduct. Being called on by the Police, going to Court, talking to her own lawyer and being before the Magistrate communicates even to the most immature that the wider society takes seriously and disapproves of taking what is not yours. I also assume some such instruction was given in the two restorative justice orders made in July 2023 and February 2024, however as I have little evidence on what occurred, I cannot put weight on the instructional effect of those processes. It would have assisted to have evidence about that.
Fourth, I do not place much weight on the record of interview on 15 November 2023 as instruction on the wrongfulness of violence. In my view, APP saw that incident as a fight with her sister and the consequences of concern being getting into trouble with her mother. However, that interview added to her experiences of the serious disapproval of the society outside her home of conduct she engaged in.
Fifth, I accept that apart from the wounding interview, the interviews and Court dates concerned stealing rather than robbery. However, I have no difficulty with the conclusion that if APP had capacity to know that acts of stealing were seriously and morally wrong, then she also knew that stealing accompanied with violence to facilitate the stealing was seriously and morally wrong. That is especially so where the violence is offered to strangers.
Sixth, I recognise the Crown provided no detail as to the particular impact of the cognitive impairment. Further, I recognise that the effect of the cognitive impairment could be to impact APP’s ability to learn from her experiences. However, there was other evidence: the audio-visual recordings showing APP’s interactions, the observations in the interview about the impact being on short term memory, the evidence of reading ability and the obvious increase in maturity and confidence shown in the 16 April interview with Police.
Seventh, at the time of the offences, APP was 11 years and 10 months old; relatively young, in the context of the ages covered by s. 29(2) of the Code, though not at the youngest end of the scale. I am conscious however of the warning of the High Court about assuming steady development over the period as a question of law.
As I have said, those factors support the conclusion that APP had capacity to understand the wrongfulness of her acts. The real question then comes to this. Given the limited evidence of responses from APP, and the imprecise evidence in the admissions as to the impact of her FASD on her cognitive ability, is the evidence sufficient to establish beyond reasonable doubt that she had capacity of the kind called for by the section? Put another way, is there any reasonable circumstantial inference consistent with a lack of capacity?
In my view, it is sufficient, and there is not. The series of instructional experiences which APP was given would be sufficient, in all the above circumstances, to communicate to a child capable of learning that stealing the property of others was seriously and morally wrong. A fortiori using violence for that purpose. The question is whether APP’s cognitive limits meant that she was not capable of learning that obvious lesson from her experiences. I am satisfied beyond reasonable doubt that she was capable.
It must be kept in mind that this aspect of the analysis, as I have articulated it, is APP’s cognitive ability to learn the lessons being communicated. So, the focus is necessarily on her general intelligence. In that regard, her interview with the Officers on 16 April 2024 is particularly instructive. In that interview, she presents as alert and aware. She can explain the functioning of Bluetooth control of the e-scooters. She explained about the practice of her sister to not be home when the Police called and, in my view, clearly understood the purpose of that behaviour. Whatever the effect of her FASD, it did not impair her cognitive capacity in a manner which prevented her from learning that it was seriously and morally wrong to steal at that time. I am satisfied that she had such ability to learn for some months prior, given that there is no suggestion that the impact of her FASD was not stable.
Accordingly, I find APP guilty of Counts 1 and 2 on the indictment.
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