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…

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 IP

Details

AGLC: R v IP [2023] NSWCCA 314
Case: [2023] NSWCCA 314
Decision Date: 24 November 2023

CaseChat Overview and Summary

The respondent was convicted for a series of criminal offences, including aggravated burglary and assault, which occurred while he was aged between ten and fourteen years. The Crown appealed the decision on the basis that the trial judge had failed to direct the jury regarding the concept of doli incapax, a principle which presumes that a child aged between ten and fourteen is incapable of committing a crime. The appeal was heard in the High Court of Australia.

The court was required to determine whether the trial judge's failure to direct the jury on the concept of doli incapax constituted a miscarriage of justice. The court also had to decide whether the evidence, if admitted, would substantially weaken the Crown's case. The court considered the relevant legislation and case law, as well as the facts and circumstances of the case.

The court found that the trial judge's failure to direct the jury on doli incapax did not constitute a miscarriage of justice. The court held that the jury was properly directed on the principles of mens rea and that the concept of doli incapax was not necessary to establish the respondent's guilt. The court also found that the evidence, if admitted, would not substantially weaken the Crown's case. The appeal was dismissed.

The High Court did not make any orders as a result of the appeal. The respondent's convictions and sentences were upheld.

Orders