R v IP

[2023] NSWCCA 314

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v IP [2023] NSWCCA 314

Hearing dates:

24 November 2023

Date of orders:

24 November 2023

Decision date:

24 November 2023

Before:

Harrison CJ at CL, Wright and Wilson JJ

Decision:

See [33]

Catchwords:

CRIME – appeals – Crown appeal pursuant to Criminal Appeal Act s 5F(3A) – doli incapax – where respondent aged between ten and fourteen at time of alleged offending – knowledge and development for doli incapax purposes – whether evidence if admitted would substantially weaken the Crown case

Legislation Cited:

Criminal Appeal Act 1912 (NSW) s 5F(3A)

Criminal Code 1899 (QLD) s 29

Evidence Act 1995 (NSW) s 136

Cases Cited:

AL v Regina [2017] NSWCCA 34

BDO v The Queen [2023] HCA 16

R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112

RP v The Queen (2016) 259 CLR 641; [2016] HCA 53

The Queen v M [1977]16 SASR 589

Category:

Principal judgment

Parties:

Director of Public Prosecutions (Appellant)
IP (Respondent)

Representation:

Counsel:
G Wright SC with C Curtis (Appellant)
B J Rigg SC with P Krisenthal (Respondent)

Solicitors:
Office of the Director of Public Prosecutions (Appellant)
Ramsland Laidler (Respondent)

File Number(s):

2022/9349

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Date of Decision:

20 November 2023

Before:

Sweeney J

File Number(s):

2022/00009349

HEADNOTE

[This headnote is not to be read as part of the judgment]

IP is now on trial before a jury and Sweeney J for murder. IP was between the ages of ten and fourteen at the time of the alleged offending (specifically, thirteen) and, as such, before it can prove his guilt the Crown must rebut the presumption of doli incapax.

IP relies on a series of psychological and psychiatric reports and the expert opinions contained therein in his defence to the Crown case. The reports say, inter alia, that IP has Post Traumatic Stress Disorder and Attention Deficit Hyperactivity Disorder, and that these may affect his decision making and impulse control, especially during times of heightened stress. IP relied on these conditions to suggest that at the time of the alleged offending he was doli incapax.

The Crown took objection to this use of the evidence, contending that the state of development relevant for doli incapax purposes is not a dynamic concept that waxes and wanes as stressors make their impact on the child. Thus, according to the Crown, the material in the reports was irrelevant. The objection was not accepted by Sweeney J, who delivered detailed ex tempore reasons noting a line of authority which highlights the need for the inquiry to be individualised to the particular child and particular allegation. Her Honour also emphasised that the relevant state of mind is the child’s state of mind at “the time the young person stabbed Brody Morris”.

The Crown then applied to limit the evidence under the Evidence Act 1995 s 136, so it could not be used for deciding the issue of doli incapax (but was still permissible in, for example, an inquiry into a potential mental health defence or the formation of the requisite intent). Her Honour also refused this application, placing emphasis on her earlier reasoning from which the logical conclusion was that reliance on these reports was not unfairly prejudicial to the Crown case.

The Crown appealed against these rulings pursuant to s 5F(3A) of the Criminal Appeal Act 1912.

IP resisted this on both the relevant law relating to the appeal and on a jurisdictional ground, namely that the admission of the evidence without limitation would not substantially weaken the Crown case.

The Court held (allowing the Crown appeal):

The appeal on the law:

(1)   The question of the state of a child’s knowledge of the wrongness of his or her actions at the time of the alleged offending is not an inquiry about the then current or prevailing emotional state or about his or her ability at that time to control impulses or about whether the child was so affected by strong emotion that it rendered the child incapable of resisting the urge to perform the relevant act: [22]

(2)   There is an important distinction between the existence of a particular state of knowledge in a child and the same child’s ability to act in a way that mirrored the existence of that knowledge. The inquiry into doli incapax turns on the first of these questions and may include having regard to any evidence of the child’s level of intelligence and educational attainment, or of any moral guidance and instruction provided to the child, or evidence concerning the sort of environment in which the child has been raised and from which a sense of morality and rightness and wrongfulness may be derived. It may also include evidence of a mental illness if the disorder of itself prevents the child from reaching a state of moral and intellectual development where the serious moral wrongfulness of the conduct can be understood: [23]-[26]

RP v The Queen (2016) 259 CLR 641; [2016] HCA 53; BDO v The Queen [2023] HCA 16; The Queen v M [1977]16 SASR 589

(3)   The evidence of the experts in this case was not relevant under this rubric to the issue of doli incapax: [27]

Regarding jurisdiction of the Court:

(4)   Doli incapax is a significant issue in this case. The unqualified use of the evidence of the psychological experts would likely substantially weaken the Crown case.

R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112

JUDGMENT

1. THE COURT: The Director of Public Prosecutions appeals pursuant to s 5F(3A) of the Criminal Appeal Act 1912 from rulings by her Honour Sweeney J on 20 November 2023 dismissing objections taken by the Crown to the admission of certain portions of expert evidence directed to the question of whether the Crown can rebut the presumption of doli incapax.

2. IP is currently on trial for murder. His trial commenced before her Honour on 7 November 2023. The Court heard the Crown’s appeal on 24 November 2023 during a brief pause in the trial. To avoid further delaying the trial, orders were made on 24 November 2023, but our reasons for the orders made were reserved until today.

3. IP was 13 years and 5 months old at the time of the alleged offence. Because he was over the age of 10 years but under the age of 14 years, the Crown must rebut the common law presumption that he was doli incapax, that is, unable to appreciate the difference between right and wrong: see RP v The Queen (2016) 259 CLR 641; [2016] HCA 53 at [8], reproduced below.

4. In dealing with the Crown’s objection to the evidence, her Honour published two ex tempore judgments. In the first of those, her Honour outlined the basis of Crown’s objection to those portions of the experts’ reports:

“The opinions which the Crown objects to may be broadly summarised as opinions that when the young person is in a state of high emotional stress, as distinct from a state of calm, his diagnosed Post-Traumatic Stress Disorder and ADHD adversely affect his ability to know that his act of stabbing Brody Morris was seriously wrong.

The Crown’s position is that doli incapax is about a state of development of the child, that a child’s development is not a dynamic concept that can vary depending on the emotional state of the child and does not concern their varying capacity for self-control at various times. Therefore, the Crown contends that the expert opinions to that effect and opinions or material underlying or related to those opinions in the expert reports are irrelevant and inadmissible on the issue of doli incapax.”

5. Following a detailed review of the authorities, to which reference is made later in these reasons, her Honour concluded as follows:

“In my view, RP, and BDO confirming it, make clear that the state of the individual child’s development is a factor to be considered in deciding whether the Crown has rebutted the presumption, which is the starting point, but the state of the child’s development is not, as I understand the Crown to contend, the beginning and the end of the test. That is not what the High Court said.

I adopt what the Court of Criminal Appeal said in AL, and the High Court said in RP, that there is no prescribed formula for evidence sufficient to rebut the presumption and that evidence to rebut the presumption will depend on the allegation and the child.

In this trial the Crown must prove that at the time the young person stabbed Brody Morris he knew it was seriously wrong to do so. It cannot do so by seeking circumscribe the evidence on that topic in the way it seeks to do.

All the material contained in the expert reports appears to me to be relevant on that issue and able to assist the jury on that issue. Therefore, all of the opinions of the experts which express opinions about the young person’s knowledge of the wrongfulness of his act at the time he performed that act are admissible before the jury.”

6. Following that ruling, the Crown made a further application to limit the experts’ opinions pursuant to s 136 of the Evidence Act 1995, so that they could not be used for the purpose of deciding the issue of doli incapax. Her Honour rejected that application as well in the following relevant terms:

“The Crown’s submission is that all of the evidence which it objected to in the experts’ reports, the jury should not have regard to on the issue of doli incapax.

The Crown asks the court to limit the use to be made of the evidence in that way, because the Crown says there is a danger that use of the evidence in that way might be unfairly prejudicial to the Crown case. The Crown’s position is that the evidence is not admissible on the issue of doli incapax and so for the jury to use it would be unfairly prejudicial to the Crown case.

The Crown case is that the circumstance that the killing of Brody Morris arose out of charged emotional circumstances is not relevant to the issue of doli incapax.

Counsel for the young person opposes the limiting of the evidence sought by the Crown and relies on his submissions made in opposing the previous application made by the Crown.

Because I have taken the view, which I maintain, that the evidence which the Crown objected to is relevant to, and admissible on, the issue of doli incapax, it cannot be, in my view, unfairly prejudicial to the Crown for the jury to use, have regard to, or place weight on, that evidence. Therefore the Crown’s application to limit the evidence it objects to in the proposed experts’ reports, pursuant to s 136 of the Evidence Act is refused.”

7. Although the Director’s Notice of Appeal originally sought to challenge both of her Honour’s rulings, the only order sought in this Court was that the use to be made of the specific portions of the experts’ reports to which objection was taken be limited under s 136 in the way described earlier.

8. The Director’s submissions in this Court were as follows. She submitted that there is a distinction between understanding moral wrongfulness on the one hand and a reduced ability to act in accordance with that understanding on the other hand. To the extent that the experts are of the opinion that the young person’s abilities were compromised by emotional and other dynamic circumstances arising at the time of the killing, those opinions are not relevant to the legal question of doli incapax. The Director submitted that while IP’s youth, his Attention Deficit Hyperactivity Disorder (“ADHD”) and Post Traumatic Stress Disorder (“PTSD”) and the heightened emotional circumstances in which he found himself might be relevant to the assessment of his capacity for self-control or to a propensity to engage in impulsive behaviour, they cannot change his underlying understanding of the moral wrongfulness of that conduct.

9. The Director acknowledged that the portions of the experts’ reports to which objection is taken will be elicited in the trial in any event on the question of intent. However, she contended that properly instructed, these opinions should not be before the jury on the question of doli incapax. The Director submitted that the jury should be directed that in considering whether or not the Crown has proved beyond a reasonable doubt that IP knew that what he did was seriously wrong, it is his general state of knowledge that the jurors are concerned with, not the question as to whether that knowledge was somehow temporarily suspended when he stabbed Brody Morris on account, or by reason, of external events or circumstances.

10. It is evident from the respondent’s submissions that there is no issue about the test to be applied, or the inquiry that is to be made, for the purpose of assessing doli incapax. The respondent submitted that understanding in the abstract that certain criminal offences are wrong is relevant to the question of whether the Crown has rebutted doli incapax, but it is not the question itself. The question is always concerned with actual knowledge at the time of the performance of the particular conduct that that conduct is seriously or gravely wrong: the test is concerned with the existence or absence of knowledge of the moral wrongfulness of the specific conduct engaged in, regardless of whether the child knows that it constitutes a crime or what the criminal offence is.

11. The respondent submitted that the issue to be proved by the Crown is whether the particular actually child knew, at the time of committing the particular conduct charged, that his conduct was seriously or gravely morally wrong. However, the respondent also submitted that “it is essential that the conduct in the particular circumstances in which it occurred was known to the child to be seriously wrong at the time”. The italicised words effectively represent the difference between the parties in this appeal.

12. Finally, on the question of jurisdiction, the respondent maintained that it is not clear that rejection of the request to limit the use of evidence in question has substantially weakened the Crown case.

13. The authorities to which both parties referred, both before the trial judge and in this Court, are relevantly as follows.

14. The High Court in RP v The Queen dealt with the issue at [8] to [12] as follows:

“Doli incapax

[8] The rationale for the presumption of doli incapax is the view that a child aged under 14 years is not sufficiently intellectually and morally developed to appreciate the difference between right and wrong and thus lacks the capacity for mens rea. The presumption of doli incapax at common law is irrebuttable in the case of a child aged under seven years. From the age of seven years until attaining the age of 14 years it is rebuttable: the prosecution may adduce evidence to prove that the child is doli capax.

[9] The age at which a child is capable of bearing criminal responsibility for his or her acts has been raised by statute in New South Wales. Under s 5 of the Children (Criminal Proceedings) Act 1987 (NSW) (‘the Act’), there is a conclusive presumption that no child under the age of 10 years can be guilty of an offence. The Act does not otherwise affect the operation of the common law presumption of doli incapax. From the age of 10 years until attaining the age of 14 years, the presumption may be rebutted by evidence that the child knew that it was morally wrong to engage in the conduct that constitutes the physical element or elements of the offence. 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. To the extent that the decision of the Court of Appeal of the Supreme Court of Victoria in R v ALH suggests a contrary approach, it is wrong. 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.

[10] The history of the common law presumption is traced in C (A Minor) v Director of Public Prosecutions. It appears to have been settled by the first half of the 17th century that it applied to children aged under 14 years. The presumption served to ameliorate the harshness of the criminal law. Its survival in the case of children above the age of criminal responsibility but under 14 years has attracted criticism. Writing in the middle of the last century, Professor Glanville Williams observed that the paradoxical result of its operation is that ‘the more warped the child's moral standards, the safer he is from the correctional treatment of the criminal law’. Putting to one side that the offence under s 66A(1) of the Crimes Act 1900 (NSW) carried a maximum penalty of imprisonment for 25 years, the ‘correctional treatment’ accompanying a conviction for the offence includes registration for a Class 1 offence under the Child Protection (Offenders Registration) Act 2000 (NSW). In the case of an accused who is a child at the date of the offending conduct, it is not self-evident that the policy of the law is outmoded in requiring that the prosecution prove the child understood the moral wrongness of the conduct.

[11] In R v M, Bray CJ commenced his analysis of the nature of the knowledge required to rebut the presumption of doli incapax by considering whether it is knowledge that the act is contrary to law, or is wrong judged by the standard of the ordinary person or is wrong according to the child's subjective and perhaps idiosyncratic ethical standards. His Honour drew an analogy with proof of insanity under the second limb of the M'Naghten Rules, which requires knowledge that the act is wrong according to the principles of reasonable men. The analogy is apt insofar as the knowledge in each case is of the wrongness of the act as a matter of morality and not law. There is, however, in the case of the child defendant, the further dimension of proof of knowledge of serious wrongness as distinct from mere naughtiness.

[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.” [citations omitted]

15. More recently, in BDO v The Queen [2023] HCA 16, the High Court confirmed, in the context of considering the test in the Queensland Criminal Code, that doli incapax is concerned with the state of a child’s intellectual and moral development, continuing to approve the distinction between knowledge of wrongfulness and knowledge of naughtiness. The Queensland provision, however, is relevantly different to the common law, instead propounding a test based upon a child’s capacity to know, as opposed to the child’s knowledge. Section 29(2) of the Queensland Criminal Code makes this clear:

(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 the capacity to know that the person ought not to do the act or make the omission.

16. In her first judgment, the trial judge indicated that the High Court statements in RP and BDO were “to be preferred as authoritative rather than the statements of Bray CJ in M”, which her Honour described as obiter “but also not consistent with the High Court’s more recent statements of the law”. One particular passage from the judgment of Bray CJ in The Queen v M [1977]16 SASR 589 at 593, to which her Honour was referring, is as follows:

“Mr Borick placed some reliance on the opinion of the psychiatrist called by him that the appellant was liable to act compulsively and without thinking, but the same can be said of many adult offenders. It is the appellant’s general knowledge of right and wrong on the day of the killing which is important. He is not required to be cogitating on the ethical correctness of hitting another child on the head with a brick at the time he actually delivers the blow.”

17. Her Honour endorsed this Court’s decision in AL v Regina [2017] NSWCCA 34 as “authoritative”. Her Honour quoted what was said in that case at [149]:

“There is no prescribed formula for evidence sufficient to rebut the presumption; that will depend on the circumstances in individual cases.”

18. In oral submissions in the court below, Mr Krisenthal of counsel for the accused, submitted as follows:

“[I]n my submission, the appropriate time to be considered is at the time of the actus reus and, therefore, the relevant time and the only relevant time…is at the time of the stabbing that [the accused] knew – whether [he] knew that it was seriously or morally wrong to engage in the behaviour that he did…At paragraph 12 of [RP] the court indicated that what suffices to rebut the presumption of that child is doli incapax will vary according to the different cases, to the nature of the allegation and also the child.”

19. Mr Krisenthal also submitted that “one needs to look at the individual at the time of the offence, the evidence of the disposition of the child may be of assistance in resolving the question of doli incapax.” Mr Krisenthal continued:

“…the High Court in RP has not limited, or restricted, in any way evidence that can be utilised when considering if the presumption has been rebutted, but rather it left it open, as in each case the evidence must relate to the child’s intellectual and moral development of a particular child and might include evidence of the disposition of their inherent qualities of mind and character. The test is, therefore, wide ranging and can include evidence…of intellectual and moral development of the qualities of mind and character. Necessarily…it includes evidence relating to the knowledge of, and the decision making process of, the child at the time. This is confirmed in BDO…which was a case involving the interpretation of the relevant Queensland statute, which required a child to have capacity to know the difference between right and wrong.”

The evidence

20. Although it is unnecessary to do so, a better understanding and appreciation of the differing contentions of the parties can be gleaned from a consideration of the disputed material. While views may differ about whether the determination of the doli incapax question is even or ever a matter for expert evidence, or whether such opinions can legitimately assist a jury in deciding the fact, several psychiatrists and psychologists have been qualified for that purpose by the parties in this trial. The disputed passages or extracts are set out in the following Schedule:

SCHEDULE

Report of Katharine Cook, psychologist, dated 11 May 2023

[31] The conclusion as to the young person’s knowledge and understanding, to the extent that “at the time” is intended to refer to the circumstances affecting the young person at the time of the stabbing.

Report of Dr Gerald Chew, psychiatrist, dated 8 July 2023

[39] The brains of adolescents struggle to manage impulses and fully comprehend potential consequences to the standard of a reasonable adult.

[42] He displayed a heightened emotional response to the arguments and interactions with his peers, he displayed poor judgment with a lack of ability to plan coherently, inhibit his impulses and think consequentially.

Report of Dr Emma Collins, psychologist, dated 22 September 2023

[41] Such difficulties could have affected [IP]’s capacity to process information, including consequential thinking particularly when under heightened stress. The fact that [IP] stabbed the victim while being filmed and in front of other peers who can identify him is suggestive of not considering his actions to be seriously wrong, and generally poor consequential thinking.

[43] Capacity to regulate one’s emotions, demonstrate behavioural self-control…Capacity to consider the consequences of one’s actions…[IP] displays poor emotional and behavioural regulatory skills…This means that he is likely to react impetuously to events, with reduced capacity to problem solve or manage emotions adequately.

[44] History of trauma complicate how he manages emotions, amongst other things…He is likely to make hasty decisions without forethought…At a time of threat or stress, [IP]’s already poor consequential thinking deteriorated further. As such, his ability to both problem solve and consider the consequences of his actions was compromised. [IP]’s actions in committing the offence, combined with the acts of bravado he engaged in leading up to the offence, are strongly suggestive that he did not consider that his actions at that time were seriously wrong.

[48] It is my opinion that [IP] did not know that his actions were seriously wrong at that time. The combination of ADHD and PTSD symptomatology, complicated by his confused identity and core beliefs related to masculinity, destabilised his already poor ability to process information, manage his emotions, problem solve and engage in consequential thinking.

Report of Dr Andrew Ellis dated 8 August 2023

Page 13: These conditions impact upon decision-making, particularly in times of heightened emotional stress. In calm, low stakes situations the diagnoses are likely to be less relevant.

Page 14: As he has two conditions that can affect impulsive decision-making and more reflexive reactivity under situations of threat, it is likely that at the time of the allegations his ability to separate his “natural instincts”, as he puts them, aggressive, self-protective and impulsive reactions from considerations of serious wrongfulness would likely be impaired.

The impact of his psychiatric conditions would have led to more automatic thinking, and less ability to disentangle fantasy from his actual situation and consequences.

Page 15: The issue would be whether he was able to retain this concept in his mind at a time when he was in an emotionally charged situation.

Page 16: Impulsive choice in a heightened emotional state.

Report of Dr Susan Pulman dated 13 October 2023

Page 11: This does not mean that under heightened emotional states, his ability to focus would be intact given the different emotional states present in a structured testing environment compared to a fight with one of his peers in the presence of his peer group.

Although the diagnosis of ADHD and PTSD impact decision making especially at times of heightened emotional distress.

The issue is whether an individual acts in accordance with their moral reasoning as there is often a disconnect between adolescents’ moral thoughts and actions. However, the relationship between moral reasoning and illegal behaviour may be curvilinear rather than linear as typically developing children often show fewer behavioural problems in earlier and later moral reasoning stages. In addition, internalisation of criminal sentiments (e.g. tolerance for law violation or identification with criminal others) has been found to undermine this “buffer” between moral sociomoral reasoning and delinquent behaviour.

Page 12: While adolescents may have the capacity to behave consistent with their moral values, their ability to put behaviour into action by inhibiting emotional impulses in situations with heightened arousal is less developed. Dreyfuss et al (2014) found that negative emotional cues diminished cognitive control among adolescents relative to adults using an emotional go-no-go task. When under threat, 13-17-year-olds and 18-21-year-olds performed significantly worse than young adults (22-25; Cohen et al, 2016). Similarly, adolescents and young adults showed diminished performance in response to fear cues relative to older adults.

One interesting conclusion to draw from these findings regarding cognitive control in neutral and emotional contexts is that while adolescents are capable of complex cognitive tasks in general, they are less able than adults to apply this control consistently across contexts (i.e., in neutral compared to emotional situations) and within affectively charged situations in particular.

Page 13: Basic cognitive capacities not sufficient under relatively more arousing situations.

Page 15: Possibility he acted impulsively... It is possible that in a highly emotional state, [IP] was not thinking through the consequences of his actions but was attempting to appear cool and tough to prevent others from attacking him or teasing him in future without any intention of killing the deceased or causing serious harm. His diagnosis of ADHD indicates he may act impulsively when in a heightened emotional state and when feeling under threat and at risk of humiliation in front of his peers.

Page 15-16: His ability to behave in accordance with his knowledge [of serious wrongdoing] was likely to have been significantly impaired when in a heightened emotional state particularly in light of his diagnosis of ADHD and PTSD.

Page 16: The issue is whether [IP] had the capacity to act in accordance with his moral reasoning about such behaviour. As a young adolescent with ADHD and PTSD and in a heightened emotional state, his level of impulsivity and apparent “normalisation” of violence within a peer context, may have overridden his capacity to connect his moral reasoning to his moral actions.

21. It is apparent that significant portions of the extracted opinions deal with matters that range beyond the single inquiry about whether IP knew that his actions were seriously morally wrong as opposed to simply naughty.

Consideration

22. The question of the state of IP’s knowledge of the wrongness of his actions at the time he stabbed Brody Morris is not an inquiry about his then current or prevailing emotional state or about his ability at that time to control his impulses or about whether he was so affected by strong emotion that it rendered him incapable of resisting the urge to perform the relevant act. Nor are the possible effects upon him of PTSD or ADHD (as disclosed in the expert evidence in this case) of relevance in the assessment of his knowledge of wrongness. It is obvious that issues such as these have the potential to become significant in the determination of things such as mental illness or voluntariness, and whether he acted deliberately or whether he performed a deliberate act with the necessary intention. They are not relevant in this case to his state of knowledge of the wrongness of his actions.

23. The burden of IP’s submissions made to her Honour in the trial and on behalf of the respondent in this Court was that incapacitating circumstances affecting IP’s judgment or decision making abilities that were arguably present at the time, or which may have become affected in the course, of the fatal stabbing of Brody Morris were legitimate matters for a jury to consider on the issue of whether the Crown has rebutted the presumption of doli incapax. However, there is an important distinction between the existence of a particular state of knowledge in a child on the one hand and the same child’s ability to act in a way that mirrored the existence of that knowledge on the other hand. The first is directed to whether a child between the ages of 10 and 14 lacks the capacity for mens rea because of the child’s state of moral and intellectual development, consistent with RP; the second is concerned with whether the Crown is able to prove the elements of the charge beyond reasonable doubt.

24. The respondent’s submissions should be rejected. The extracted portions of the experts’ opinions conflate these separate questions. Having regard to their particular specialties, and the fact that their various reports were clearly prepared for more than one purpose, that should not be taken as a criticism. However, opinions about capacity or emotional maturity in the context of assessing issues such as whether the relevant act was deliberate or was performed with the requisite intention should not be permitted to degrade or infect the separate factual inquiry about the existence of a particular state of moral and intellectual development and knowledge.

25. That inquiry focuses attention on the state of development of the child: is there evidence capable of rebutting the presumption that the child is doli incapax at the time of the commission of the alleged offence, by reference to the stage of moral and intellectual development the child has reached? This may include having regard to any evidence of the child’s level of intelligence and educational attainment, or of any moral guidance and instruction provided to the child, or perhaps evidence concerning the sort of environment in which the child has been raised and from which a sense of morality and rightness and wrongfulness may be derived. It is not necessary to that end that the evidence establishes, to adopt the phrase used by Bray CJ in The Queen v M, that the child is “cogitating on the ethical correctness” of the voluntary act at the exact moment the act is carried out. What is required is that the child has reached a developmental stage where he or she is able to and does comprehend the serious moral wrongfulness of the act, and to discern right from wrong.

26. A mental illness or other disorder may have an impact upon the child’s ability actively to access the knowledge of serious moral wrongfulness at the moment the relevant act is performed, or to be restrained by it, but that is a separate question. Evidence of a disorder that has or may have that effect could be relevant to a defence of mental health impairment, or substantial impairment, or it may be relevant to the capacity to form the necessary intent; it is not relevant to doli incapax (unless the disorder of itself prevents the child from reaching a state of moral and intellectual development where the serious moral wrongfulness of the conduct can be understood). For example, a child who has reached a stage of development allowing that child to understand the serious moral wrongfulness of hitting another person in the head with a brick, to again borrow from Bray CJ in The Queen v M, and thus be doli capax, will not be returned to a state of doli incapax only because an active psychotic disorder severely clouded the child’s mind at the precise moment of doing the relevant act. Evidence of the psychotic illness will be relevant to go to a defence of mental health or substantial impairment, or the question of intent, but not to the jury’s consideration of the rebuttal of the presumption. It could be relevant to doli incapax only if the child’s mental illness had adversely impacted upon intellectual and moral development.

27. The expert evidence to which objection was taken in this matter is not admissible to go to the question of doli incapax and the Crown’s appeal must be upheld.

The jurisdictional issue

28. Although it was raised but faintly, the respondent additionally referred to the prospect that the trial judge’s rejection of the Crown’s application to limit the use to be made of the expert evidence did not “eliminate or substantially weaken the prosecution’s case” such as to enliven the Court’s jurisdiction under s 5F(3A) of the Criminal Appeal Act. The provision is in these terms:

(3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution’s case.

29. The operation of the provision has been considered by this Court on a number of occasions. In R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 Spigelman CJ observed:

“[29] In accordance with the authorities, this Court must assess the Crown case in order to determine whether or not the excluded evidence substantially weakens it. (See e.g. R v NKS [2004] NSWCCA 144 at [17]; R v Lameri [2004] NSWCCA 217 at [35]-[36]; R v Milakovic [2004] NSWCCA 199 at [10] and [31].)

[30] The Crown bears the onus of establishing that the exclusion of the evidence substantially weakens its case.

…

[40] This Court should determine whether or not a ruling on the admissibility of evidence ‘substantially weakens’ the Crown case by asking whether or not that would be the effect, on the assumption that the jury accepted the evidence, as long as the evidence was fit to be left to the jury. It is not desirable for this Court to undertake an investigation into the weight of the evidence based on credibility or reliability considerations.”

30. In this case, one of the principal issues, perhaps even the principal issue, for the determination of the jury is whether the Crown can rebut the presumption of doli incapax. The Crown has available to it a weight of evidence that a jury might accept as rebutting the presumption. This evidence includes evidence from the respondent’s teachers at school that points to him being a capable if disruptive student of at least average intelligence. There is evidence to the effect that the respondent, in common with other students at his school, was provided with information, in class and at assembly, as to the dangerousness of knives in the context of a ban on knives being brought to school. The Crown intends to tender evidence of telephone messages exchanged between the respondent and others in which IP acknowledged that using a knife in a fight could lead to his arrest and imprisonment. There is also evidence that the respondent was specifically warned by his brother and another older boy against the use of knives in a fight; the warning delivered by IP’s brother related to IP taking a knife to the fight with Brody Morris in which Brody Morris was killed. The Crown can lead evidence that, having secretly taken a knife to his fight with Brody Morris despite the warning, and used it to stab Brody Morris three times, the respondent hid the knife and lied about its use, telling others that he had used a stick.

31. The jury can properly have regard to this and other evidence in deciding whether the presumption is rebutted. The opinions of experts, layering a medical question over what should be a factual one, would have the likely effect of depriving the evidence of its force and capacity to rebut the presumption. This would in our conclusion substantially weaken, if not eliminate, the Crown case against IP.

32. The Court was thus seized with jurisdiction to make the orders the Crown seeks.

33. Accordingly, the orders of the Court were as follows:

1. Allow the appeal.

2. Set aside the orders made by her Honour Sweeney J on 20 November 2023.

3. In lieu thereof, order that the evidence of the experts described in the Schedule appended to these orders be admitted, limited pursuant to s 136 of the Evidence Act 1995 to issues in the trial excluding the issue of doli incapax.

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Decision last updated: 28 February 2024