R v GW

[2015] NSWDC 52

District Court

New South Wales

Medium Neutral Citation:	R v GW [2015] NSWDC 52
Hearing dates:	5 March 2015
Date of orders:	05 March 2015
Decision date:	05 March 2015
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Appeal upheld.  Finding of guilt and any consequential orders are quashed.
Catchwords:	CRIMINAL LAW – doli incapax – rebuttable presumption – previous findings of guilt – recommendations as to legislative change
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Evidence Act 1995 Graffiti Control Act 2008
Cases Cited:	BP v The Queen [2006] NSWCCA 174 Ivers (by his tutor Ivers) v Griffiths & Anor BC 9803397 NSWSC unrep 22 May 1998 Re C (A Minor) [1996] AC 1
Category:	Principal judgment
Parties:	Director of Public Prosecutions Aboriginal Legal Service - Young Person
Representation:	Solicitors: Ms R Fisher - Crown Mr C Day - Young Person
File Number(s):	2014/135238
Decision under appeal	Court or tribunal: Local Court Jurisdiction: Children's Court Date of Decision: 19 August 2014 Before: Magistrate M Price File Number(s): 2014/135238

Judgment

Reasons for Upholding the Appeal against Finding of Guilt 

Introduction

1. On 19 August, 2014 the appellant, who is a juvenile and therefore remains anonymous, was found guilty by the Children’s Court at Dubbo in respect of a charge that she on 2 May 2014 at Dubbo in the State of New South Wales did deface a wooden bench with a graffiti item. That charge is contrary to s 4(1) of the Graffiti Control Act, 2008. Through the solicitor from the Aboriginal Legal Service who appeared for her at the time, she appealed against the finding of guilt.

2. On 5 March 2015 that appeal came before me. The matter had been adjourned several times as the young person was at one stage contemplating having the matter litigated in the Supreme Court. After brief submissions on 5 March 2015 I took the view that the appeal should be upheld. I did not understand the Crown to dissent from this course. I made orders accordingly, and indicated that I would later give reasons. These are those reasons.

Proceedings before the Children’s Court

3. GW was arrested in respect of the charge contrary to the Graffiti Control Act on 5 May 2014. Her first appearance before the Children’s Court was on 6 May 2014 on which occasion the matter was adjourned for plea or mention on 16 May 2014. On that date a plea of not guilty was entered and brief service orders made. On 27 June 2014 the matter was again before the Children’s Court and was set down for hearing on 19 August 2014.

4. On 19 August 2014 Ms Caufield of the Aboriginal Legal Service appeared for the young person. There did not appear to be any factual matter in issue. At p 3 line 7 of the transcript the following is attributed to Ms Caufield:

“Yes Your Honour. Your Honour I can indicate at the outset, I’ve spoken with my friend and the matter can proceed by handing up the brief, there’s no issue that the offence occurred, the issue is doli incapax…”

5. The police prosecutor tendered over objection the bail report in respect of the young person in an attempt to negate beyond reasonable doubt the issue of doli incapax. It is the tender of that bail report that appeared to me to be the substantial issue, or at least one of the more substantial issues on the appeal.

6. Before going to that issue I will need to address the facts. The material in the brief that was tendered before the Children’s Court, and therefore constitutes the material before me on the appeal, entitles me to find the following beyond reasonable doubt.

7. On the afternoon of 2 May 2014 Constables Maslen and Calabretta were called to the Dubbo Square shopping centre in Macquarie Street, Dubbo. Macquarie Street is the main street of Dubbo’s central business district. They spoke to Mr Nathan Coles, a security officer. Police were shown a wooden bench with graffiti that had been placed there by some type of thick marking pen. Constable Maslen was shown some CCTV security footage. She was able to recognise the appellant on that footage from previous dealings with the young person. The footage clearly showed the appellant leaning down towards the bench with what appears to be some sort of pen. One of the pieces of graffiti observed by the officer was the name “G…… [first name of the appellant] W”, which is the name of this appellant. Photographs were taken of the damage. Those photographs are part of the Crown tender bundle on the appeal.

8. Also part of the Crown tender bundle on the appeal was a statement from Constable Smart of Dubbo who arrested the appellant in respect of an alleged breach of bail on the afternoon of 5 May 2014. When she was processed in respect of that matter the issue of the graffiti was the subject of a “COPS” warning. The officer then completed the charge in respect of the Graffiti matter. The young person had previously declined to be interviewed about the alleged breach of bail. I presume the officer took the view that she would do likewise in respect of the Graffiti allegation. In the circumstances, this would have been an entirely appropriate assumption for the officer to make.

9. For the sake of completeness, the tender bundle also contained a statement from Danielle Kirkwood, the contents of which indicate that the chair which was damaged was the property of the Dubbo Square Centre, that cleaners were required to clean the chair and that nobody had permission to graffiti or damage the chair.

10. In these circumstances, it is clearly established beyond reasonable doubt that but for the issue of doli incapax the young person was guilty of the offence with which she was charged. It was not argued otherwise, either before the Children’s Court or on the appeal.

Doli Incapax

11. Section 5 of the Children (Criminal Proceedings) Act 1987 provides that a child under 10 is conclusively presumed not to be guilty of an offence. There is no statutory provision relating to children between 10 and 14, however, the common law is that there is a rebuttable presumption that children aged between 10 and 14 are incapable of coming a crime because of a lack of understanding of right and wrong and consequentially a lack of mens rea.

12. In BP v The Queen [2006] NSWCCA 174 Hodgson JA (Adams & Johnson JJ agreeing) said at [27]-[29]:

“The common law concerning the criminal responsibility of children has been modified in New South Wales by s 5 of the Children (Criminal Proceedings) Act 1987 (which provides for a conclusive presumption that no child under the age of 10 years can be guilty of an offence), but not otherwise. Accordingly, as regards a child between 10 and 14 years, there remains a presumption that such a child is doli incapax, that is incapable of committing a crime because of lack of understanding of the difference between right and wrong, and consequential lack of mens rea. It is clear that when a child between 10 and 14 years is accused of a crime, the onus is on the prosecution to prove beyond reasonable doubt not only that the child did the act charged, accompanied by the necessary mental element, but also that, when doing it, he or she knew it was seriously wrong, as distinct from an act of mere naughtiness or mischief: The Queen v M (1977) 16 SASR 589; C v DPP [1996] 1 AC 1 at 38; R v CRH, NSWCCA, 18/12/96; R v ALH (2003) 6 VR 276.

[28] The child must know that the act is seriously wrong as a matter of morality, or according to the ordinary principles of reasonable persons, not that it is a crime or contrary to law: Stapleton v The Queen (1952) 86 CLR 358, The Queen v M.

[29] It has been said that evidence to prove the child’s guilty knowledge must not be the mere proof of doing the act charged, however horrifying or obviously wrong the act may be: C v DPP at 38. This was said in CRH to represent the common law of Australia; but it was strongly disapproved by the Victorian Court of Appeal in R v ALH at [20] and [85]-[86]. However, on either view, the circumstances of the offence, such as concern to avoid detection, may be some evidence of knowledge; although, if the concern is consistent with the child thinking that the act is merely naughty, this will carry little weight.”

13. Lord Lowry (Lords Jauncey, Harwich, Ackner and Browne-Wilkinson agreeing) in Re C (A Minor) [1996] 1 AC 1 at [18] said

“…The doctrine is summarised in Archbold (1993) vol 1 para 1-96:

‘…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 disposition….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…Wrong means gravely wrong, seriously wrong, evil or morally wrong’.”

14. Later, his Lordship said at [29]:

“The material which Mr Robertson put before your Lordships convinces me that the presumption is still universally recognised as an effective doctrine which the Government has recently reaffirmed to be, in the Government’s view, part of the criminal law. The imperfections which have been attributed to that doctrine cannot, in my view, provide a justification for saying that the presumption is no longer part of our law…”

15. At [64]-[65] his Lordship said:

“A long and uncontradicted line of authority makes two propositions clear. The first is that the prosecution must prove that the child defendant did the act charged and that when doing that act he knew it was wrong as distinct from an act of mere naughtiness or childish mischief. The criminal standard of proof applies. What is required has been variously expressed, as in Blackstone, ‘strong and clear beyond all doubt or contradiction’ or in B v R (1958) 44 Cr App R 1, 3 per Lord Parker CJ, ‘It has often been put in this way, that…guilty knowledge must be proved and the evidence to that effect must be clear and beyond all possibility of doubt’. No doubt, the emphatic tone of some of the directions was due to the court’s anxiety to prevent merely naughty children from being convicted of crimes and in a sterner age to protect them from the draconian consequences of conviction.

The second clearly established proposition is that evidence to prove the defendant’s guilty knowledge, as defined above, must not be the mere proof of the doing of the act charged however horrifying or obviously wrong that act may be. As Erle J said in Reg v Smith (1945) 1 Cox CC 260:

‘…a guilty knowledge that he was doing wrong – must be proved by the evidence, and cannot be presumed from the mere commission of the act. You are to determine from a review of the evidence whether it is satisfactorily proven that at the time he fired the rick (if you should be of the opinion he did fire it) he had a guilty knowledge that he was committing a crime’.

16. His Lordship went on to say at [68]:

“The cases seem to show, logically enough, that the older the defendant is and the more obviously wrong the act, the easier it will generally be to prove guilty knowledge. The surrounding circumstances are of course relevant and what the defendant said or did before or after the act may go to prove his guilty mind…”.

Rebutting doli incapax by proof of previous findings of guilt

17. Again I make reference to the speech of Lord Lowry in Re C (A Minor). His Lordship dealt with the issue of the prosecution being able to rely on previous convictions or previous record at paragraph [53] and continuing in the speech. Clearly enough his Lordship concluded – see for example paragraphs [55]-[56] - that the previous convictions are admissible to rebut the presumption of doli incapax. However, as Lord Lowry observed at [55], “One would, of course, have to know the nature of the earlier convictions before accepting that they might properly prove a guilty mind in relation to offence charged”.

18. Newman J in Ivers (by his tutor Ivers) v Griffiths & Anor BC9803397 NSWSC unrep 22.5.1998 said:

“In the instant case the facts relating to the commission of offences contrary to s 114(1)(b) and s 188 of the Crimes Act were not in dispute. The only matter raised in defence was the presumption of doli incapax. Accordingly, the tender of the plaintiff’s past record was not done for the purposes of proving the commission of the crimes in question but merely in rebuttal of the presumption of doli incapax”.

As Lord Lowry pointed out in the passing in ‘C’ cited above, evidence of previous convictions can be admitted in instances where the accused child has put his character in issue or attacks the character of prosecution witnesses or if the earlier convictions come within the similar facts rule. His stricture on the admission of such evidence was in a setting of a case where the primary facts were in dispute”.

19. Ultimately it seems that on the authorities it is now uncontroversial that the record of previous findings of guilt are admissible to rebut the presumption of doli incapax. Mr Day for the appellant in the matter presently under consideration did not argue to the contrary. His issue was the manner in which the previous record of the appellant was placed before the Children’s Court.

20. I was careful to use the expression “findings of guilt” rather than conviction as s 14(1)(a) of the Children (Criminal Proceedings) Act 1987 provides that in New South Wales a person under the age of 16 cannot be convicted of a matter before the Children’s Court.

21. Further, in New South Wales and the other jurisdictions where the Uniform Evidence Act applies the prejudice of which Lord Lowry spoke in Re C (A Minor) is overcome to a very significant extent, if not completely, by s 136 of the Evidence Act, 1995 that provides:

“The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing.”

22. In a matter where the prosecution seek to lead evidence of prior record or findings of guilt any prejudice to the young person is overcome by the court applying s 136 of the Evidence Act, 1995 and limiting that evidence solely to the issue of doli incapax. In this regard it is to be noted that almost all criminal matters involving young persons are heard to finality in the Children’s Court with only the serious children’s indictable offences being dealt with in the higher courts on indictment.

The matter presently under consideration

23. As the law stands at the present, a young person, even one against whom findings of guilt have been previously recorded in respect of other matters, is not required to give any notice that the prosecution is going to be put to proof on the issue of doli incapax. I note that this is not the first conviction appeal that I have heard at Dubbo (where I have presided on a permanent basis since November 2011) where this issue has arisen. It seems that the prosecution may have had some notice in this matter (see transcript Children’s Court proceedings p 4, lines 32-3).

24. Upon the prosecution becoming aware that the issue of doli incapax was a live one, the police prosecutor tendered the bail report. A bail report is not a record of findings of guilt per se, but a history of all appearances before a court, regardless of the outcome. Speaking from experience of some almost seven years as a Magistrate sitting in the Local Court and also routinely sitting in the Children’s Court in metropolitan and several rural centres, those bail reports can be cumbersome. It is often the case that those bail reports are how this court is informed of criminal history in sentence appeals from the Local Court and the Children’s Court. It takes some time and experience to be able to successfully negotiate some of those documents. I infer from the transcript of the proceedings before the Children’s Court, although it was not made particularly clear, that the bail report was not served as part of the brief.

25. The learned Children’s Magistrate admitted the bail report over objection. The learned Magistrate said at p 4 (line 30 and continuing);

“…The prosecution seek to tender into evidence a document identified from the bar table as a bail report. The basis or the purpose of the tender at least as the Court understands it is having received prior notification of the defence likely to be raised by the young person. But the document would act in some form of rebuttal so far as the identified defence or defences are concerned. Counsel for the young person objects to the tender of the document on a number of bases, first of all conceding that it may meet the criteria of a business record. Additionally submitting that the document per se could be visited as being a hearsay document, it is non-compliable with the provisions of s 178 of the Evidence Act, so far as a number of shortcomings of the document are concerned and in additional mindful of the accused in this matter is a young person that he/she should not be in a position any worse that the present situation by virtue of the Court visiting or having regard to the documents the subject of the tender.

Obviously the purpose of the tender is not to place the young person in any position of disadvantage. The Court would determine that the nature of the document probably meets the criteria of a business record, its only basis or only purpose is to rebut what has been flagged as a possible defence or defences to the action against. On that basis I propose to admit the document”.

26. Given my conclusions above about the use of the record of past findings of guilt to negative doli incapax, I take no issue whatsoever with the court per se using that record. However, it is the manner in which that material that was presented to the court that led me to the very reluctant conclusion that the evidence should be rejected. Once the evidence of the past record was excluded, there was nothing available to the prosecution to negate doli incapax to the criminal standard of proof.

27. Section 178 of the Evidence Act, 1995 relevantly provides:

“Convictions, acquittals and other judicial proceedings

(1)       This section applies to the following facts:

(a)   the conviction or acquittal before or by an applicable court of a person charged with an offence,

(b)   the sentencing of a person to any punishment or pecuniary penalty by an applicable court,

(c)   an order by an applicable court,

(d)   the pendency or existence at any time before an applicable court of a civil or criminal proceeding.

(2)    Evidence of a fact to which this section applies may be given by a certificate signed by a judge, a magistrate or registrar or other proper officer of the applicable court:

(a)   showing the fact, or purporting to contain particulars, of the record, indictment, conviction, acquittal, sentence, order or proceeding in question, and

(b)   stating the time and place of the conviction, acquittal, sentence, order or proceeding, and

(c)   stating the title of the applicable court.

(3)       A certificate given under this section showing a conviction, acquittal, sentence or order is also evidence of the particular offence or matter in respect of which the conviction, acquittal, sentence or order was had, passed or made, if stated in the certificate.

(4)       A certificate given under this section showing the pendency or existence of a proceeding is also evidence of the particular nature and occasion, or ground and cause, of the proceeding, if stated in the certificate.

(5)       A certificate given under this section purporting to contain particulars of a record, indictment, conviction, acquittal, sentence, order or proceeding is also evidence of the matters stated in the certificate.

(6)    In this section:

‘acquittal’ includes the dismissal of the charge in question by an applicable court.

‘applicable court’ means an Australian court or a foreign court.

Note. Section 91 excludes evidence of certain judgments and convictions.”

28. Had the record of previous findings of guilt recorded against the young person been in a form that complied with the provisions of s 178 of the Evidence Act, 1995 I would have had no hesitation in dismissing the appeal. Indeed, had the material complied with s 178 it is difficult to perceive of a valid submission that could be made to ground the rejection of the material relating to previous findings of guilt that had been recorded against the appellant.

28. The prosecution must have been on notice that there was at least the possibility of doli incapax noting that the prosecution case against the appellant was otherwise unassailable. It would not have been particularly difficult to obtain the material in a form that complied with s 178 of the Evidence Act, 1995.

29. Prima facie the bail report may well be a business record. However, as I have already indicated the documents themselves can be cumbersome. The issue of whether or not the bail report was a business report was not argued before me with the Crown essentially conceding the matter on the point that I have already decided on the manner in which the previous record was placed before the Court.

30. However, even if the bail report is a business record (a point on which I do not purport to make a decision) there needs to be compliance with s 171 of the Evidence Act, 1995. As Odgers says in his text “Uniform Evidence Act” 11th Edition at p 324:

“Evidence of a fact that is ‘to be proved in relation to a document or thing’ under s 69, may (in accordance with Div 2 of Part 4.6) be given by a person permitted under s 171 to give such evidence – by affidavit, or if the evidence relates to a public document (see Dictionary) by written statement”.

32. In the matter presently under consideration no such affidavit or statement accompanied the service of the bail report, or if it was, there is no evidence of that before me on the appeal.

33. For these reasons, the evidence of and relating to the contents of the bail report is excluded. Accordingly, there is no other evidence upon which the prosecution can rely to rebut doli incapax to the criminal standard. Therefore, the appeal must be upheld, the finding of guilt and all consequential orders quashed.

Additional comments and recommendations

34. As once observed by the House of Lords in dealing with a technical point in an appeal concerned with an offence of dishonesty, words to the effect of, “but for this technical point, the appellant would otherwise be singularly unencumbered by merit”. Those comments are more than apposite to the case of the young person GW. Although the bail report that was tendered before the learned Magistrate was not before me as part of the appeal, it is apparent that the young person has had several appearances before the Children’s Court. As much is obvious by the fact that she was initially apprehended by Constable Smart on 5 May 2014 in respect of an alleged breach of bail in another matter then pending before the Children’s Court.

35. As the learned Magistrate observed at p 6 lines 36-7 of the transcript of proceedings before the Children’s Court:

“The case for the prosecution is essentially comprised within documentary material additional upon that material it has been identified as a bail report type document. That document on its face would indicate that Ms [W] has interfaced with the criminal justice system on many occasions up until the or about the time of this offending behaviour 2 May 2014…”

36. In this regard I note that the appeal to the House of Lords in Re C (A Minor) came before their Lordships as the court below certified as a point of law of general public importance expressed as:

“Whether there continues to be a presumption that a child between the ages of 10 and 14 is doli incapax and, if so, whether that presumption can only be rebutted by clear positive evidence that he knew that this act was seriously wrong, such evidence consisting merely in the evidence of the acts amounting to the offence itself”.

37. Lord Lowry in Re C (A Minor) at paragraph [71] of his speech said:

“My Lords, I have reached without difficulty the conclusion that both parts of the certified question should be answered “YES”…Forty years have passed since the article by Professor Glanville Williams and the years between have witnessed many criticisms and suggested remedies, but no vigorous or reasoned defence of the presumption. I believe that the time has come to examine further a doctrine which appears to have been inconsistently applied and which is certainly capable of producing inconsistent results, according to the way in which courts treat the presumption and depending on the evidence to rebut it which is available in each case”.

38. Lord Jauncey in some brief additional comments in concurring with Lord Lowry said at [2]:

“…There must be many youthful offenders under the age of 14 who are very well aware that what they are doing is seriously wrong”.

39. With unfeigned respect to Lord Jauncey, his Lordship is stating the obvious. The issue of doli incapax can, as in this present appeal of GW lead to unfairness to the community. In Re C (A Minor) at [60] in dealing with the written submissions from the respondent (prosecution) Lord Lowry said:

“…His (Henriques QC) written case contained submissions based on the current educational standards of children and on the ever earlier onset of their physical and psychological maturity as witnessed by the recent statutory abolition of the irrebuttable common law presumption that boys under 14 are incapable of offences involving sexual intercourse on their own part…The written case also listed examples of legislative and judicial changes of attitude towards young children called as witnesses…”

40. As the learned Magistrate in the matter presently under consideration observed, the bail report demonstrated that the young person had “interfaced” with the criminal justice system a number of times. I am aware of situations where several teachers from a school were required to attend court to give evidence for the prosecution on this issue of doli incapax, thereby depleting the school of several members of teaching staff for the day or the better part thereof.

41. Drawing on several years’ experience as a Magistrate and several years as a judge hearing appeals from the Children’s Court it seems to me that the issue of doli incapax requires urgent attention by the legislature. As the law stands at present I am very firmly of the opinion that it is simply too open to abuse. As previously stated, as the law stands at the moment there is no requirement for the young person or his/her representative to put the court or the prosecution on notice that doli incapax is going to be an issue at any hearing of the matter.

42. For the reasons enunciated by the learned Queen’s Counsel for the respondent in Re C (A Minor) as set out in the speech of Lord Lowry at [60] doli incapax ought be abrogated by statute, or at the very least the age reduced from 14 years of age to 12 years of age.

43. This is not the first time I have made strident recommendations in this regard. It is entirely a matter for the Director of Public Prosecutions as to whether he wishes to send these recommendations to the Director of the Criminal Law Review Division.

44. However, I recommend in the strongest of terms that there at least be a requirement for the legal representative of a young person (or if unrepresented, the young person themselves) to indicate at the time of the plea of not guilty being entered as to whether doli incapax is an issue.

45. Further, I recommend that if the law remains as it is - ie. there remains a rebuttable presumption that children aged between 10 and 14 years are doli incapax – then there be legislative change in order that if the young person has been found guilty of an offence then the formal criminal history (sometimes known as the fingerprint report) be admissible in evidence to rebut the presumption of doli incapax without any further evidentiary requirement.

46. In this regard, it would not be difficult to implement a procedure whereby the criminal history formed part of the brief of evidence served on the young person or the young person’s legal representatives. As I recommended above, once served that record would be admissible without further evidentiary requirement but limited to the issue of doli incapax. Alternatively, provision could (and should) be easily made to allow for the prosecution to call evidence in reply, with an adjournment of the hearing, if necessary.

Formal Orders

47. The appeal is upheld. The finding of guilt and any consequential orders

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Decision last updated: 29 May 2015