R v F; ex parte - [1998] QCA 97

IN THE COURT OF APPEAL	[1998] QCA 097
SUPREME COURT OF QUEENSLAND

C.A. No. 20 of 1998

Brisbane

[R. v. F; ex parte A-G]

THE QUEEN

v. F
REFERENCE BY ATTORNEY-GENERAL OF QUEENSLAND PURSUANT TO SECTION 669A OF THE CRIMINAL CODE
Davies J.A.
McPherson J.A.
Shepherdson J.

Judgment delivered 19 May 1998

Separate reasons of each member of the Court, each concurring as to the answers given.

IN ANSWER TO THE QUESTIONS RAISED IN THE REFERENCE PURSUANT TO
SECTION 669A OF THE CRIMINAL CODE:

1. THE TEST STATED BY THE LEARNED TRIAL JUDGE WAS WRONG . THE CROWN MUST PROVE BEYOND REASONABLE DOUBT THAT THE ACCUSED HAD THE CAPACITY TO KNOW THAT HE OUGHT NOT TO DO THE ACT WHICH HE DID.

1A. 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 INCLUDING WHERE, AS IN THE PRESENT CASE, THAT CONDUCT MAY CONSTITUTE THE COMMISSION OF ANOTHER OFFENCE. 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. ALTHOUGH EVIDENCE OF THE ACCUSED’S AGE ALONE CANNOT REBUT THE PRESUMPTION MADE BY S.29(2) OF THE CRIMINAL CODE, INFERENCES CAPABLE OF REBUTTING THE PRESUMPTION CAN BE DRAWN FROM THE ACCUSED’S AGE WHEN CONSIDERED TOGETHER WITH EVIDENCE OF THE ACCUSED’S EDUCATION OR OF THE SURROUNDING CIRCUMSTANCES OF THE OFFENCE, OR WITH OBSERVATIONS OF THE ACCUSED’S SPEECH OR DEMEANOR.

1B. THERE IS NO NEED TO ANSWER THIS QUESTION BECAUSE IT IS ANSWERED BY THE ANSWER TO QUESTION 1A.

2. THE CROWN IS PERMITTED TO NEGATIVE THE PRESUMPTION BY EVIDENCE OF PREVIOUS DEALINGS BY THE ACCUSED WITH POLICE OF THE KIND SOUGHT TO BE PROVED HERE, AND ALSO OF PREVIOUS CONVICTIONS IF PROBATIVE OF CAPACITY, EVEN THOUGH THE EVIDENCE OF THOSE DEALINGS AND CONVICTIONS WOULD NOT ANSWER THE DESCRIPTION OF SIMILAR FACT EVIDENCE OR BE ADMISSIBLE ON SOME OTHER BASIS; BUT IN SOME CASES, WHICH WILL BE RARE, THE COURT MAY EXCLUDE SUCH EVIDENCE BECAUSE ITS PREJUDICIAL EFFECT WILL EXCEED ITS PROBATIVE VALUE.

CATCHWORDS:

CRIMINAL LAW - Reference of points of law by Attorney-General pursuant to s.669A(2) of the Criminal Code - criminal responsibility of a person under the age of 15 years - presumption of doli incapax - test for evidence required to rebut the presumption in s.29(2) - whether the surrounding circumstances of the commission of the offence in question are admissible as evidence of the relevant capacity of the accused to rebut the presumption - whether a child accused’s previous convictions and dealings with police are admissible in evidence to rebut the presumption even though those convictions and dealings would not answer the description of similar fact evidence or be admissible on some other basis.

B. v. R. (1958) 44 Cr.App.R. 1
R. v. M. (1977) 16 S.A.S.R. 589
R. v. B. (an infant) [1979] Qd.R. 417
R. v. Harris,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v F; ex parte

Details

AGLC: R v F; ex parte [1998] QCA 97
Case: [1998] QCA 97
Decision Date: 19/05/1998

CaseChat Overview and Summary

The parties involved in this case were the Attorney-General for the Commonwealth, who sought a reference of points of law, and the respondent, referred to as F. The dispute centred around the criminal responsibility of a person under the age of 15 years, specifically the presumption of doli incapax and the evidence required to rebut this presumption. The case was heard by the High Court of Australia.

The central legal issue before the court was whether the surrounding circumstances of the commission of the offence could be considered as evidence of the accused's relevant capacity to rebut the presumption of doli incapax. Additionally, the court needed to determine if a child accused's previous convictions and dealings with police could be admitted as evidence to rebut the presumption, even if they did not fit the description of similar fact evidence or be admissible on some other basis.

The court found that the surrounding circumstances of the commission of the offence were not admissible as evidence of the relevant capacity of the accused to rebut the presumption. The court held that such circumstances could only be considered if they directly demonstrated the accused's capacity at the time of the offence. Regarding previous convictions and dealings with police, the court ruled that these could not be admitted in evidence to rebut the presumption unless they directly addressed the accused's capacity at the time of the offence.

The final orders of the court were that the surrounding circumstances of the commission of the offence could not be admitted as evidence to rebut the presumption of doli incapax, and previous convictions and dealings with police could not be admitted unless they directly addressed the accused's capacity at the time of the offence. This decision clarified the scope of admissible evidence in cases involving the criminal responsibility of individuals under the age of 15 years.

Orders