R v Kak
[2020] QDC 244
•6 August 2020
DISTRICT COURT OF QUEENSLAND
| CITATION: | R v KAK [2020] QDC 244 |
| PARTIES: | R v KAK |
| FILE NO/S: | 25/2019 |
| DIVISION: | District Court of Queensland |
| PROCEEDING: | Section 29 of the Criminal Code 1899 (Qld) |
| ORIGINATING COURT: | District Court at Townsville |
| DELIVERED ON: | 6 August 2020 |
| DELIVERED AT: | Townsville |
| HEARING DATE: | 9 June 2020 |
| JUDGE: | Coker DCJ |
| ORDER: | 1) The presumption that the Applicant is not criminally responsible is rebutted. |
| CATCHWORDS: | CRIMINAL LAW – CRIMINAL LIABILITY AND CAPACITY – where the accused was 13 years and 5 months old at the time of the alleged offending – where there is a presumption that child is doli capax – where the Crown seek to rebut the presumption – where the Crown seek to rely upon an interview with the child for the purpose of showing that the child had knowledge of the wrongfulness of the acts charged against him – whether the presumption is rebutted. |
| LEGISLATION: | Criminal Code 1899 (Qld) (s29 & s590AA) Evidence Act 1977 (Qld) (s130) |
| CASES: | F v Padwick [1959] Crim LR 439 R v M [1977] SASR 589 RP v The Queen [2016] HCA 53 |
| COUNSEL: | A.Payne for the Crown K.Stone for the Defendant |
| SOLICITORS: | Office of Director of Public Prosecutions for the Crown Rennick Lawyers for the Defendant |
This is an application by the Crown seeking to rebut the presumption that a person under the age of 14 years is not criminally responsible. Such a presumption arises pursuant to the provisions of section 29 of the Criminal Code 1899 (Qld). Section 29 is in these terms:
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.
The respondent to the application is KAK, hereinafter referred to as “the respondent”. He is charged with two counts of indecent treatment of a child under 16 years and three counts of rape.
At the time of the alleged offending, the respondent was 13 years and five months of age. As such, he is entitled, pursuant to section 29(2) of the Criminal Code, to the presumption that he is not criminally responsible for the acts alleged, unless the Crown proves that he had the capacity, at the time of doing the acts to know that he ought not have done so.
The Crown’s argument is based upon five matters which it says constitute the evidence upon which the Court can be satisfied that the respondent had the capacity to know that he ought not have done the acts alleged. Those five matters are:
·The respondent’s interview with the police;
·The respondent’s school records;
·The respondent’s cognitive assessment;
·The respondent’s age; and
·The facts of the offending.
Before addressing each of those matters, however, and the respondent’s position and arguments in respect of each, there is a preliminary matter that needs to be determined. That relates to the Crown’s reliance upon the respondent’s interview with police, which was conducted on the 21st of September 2018, the day of the alleged offending. The respondent argues, that as the Crown had previously consented to not relying on that interview for the purposes of the actual trial, it should not be able to be relied upon, in respect of any determination as to the respondent’s capacity to know that he should not have engaged in the acts as alleged.
In particular, the Crown relies upon an email exchange between the legal representatives for the respondent and the Crown relating to an application which had been proposed to have been brought by the respondent’s legal representatives, pursuant to the provisions of section 590AA of the Criminal Code, so as to exclude the record of interview from the Crown case. Included in that exchange of emails is the following from the Crown:
“I’ve had the chance to consider the interview and the issues raised in advance of the section 590AA hearing. I can confirm that the Crown will not rely upon the defendant’s interviews as part of its case.”
The respondent says that as a result of that indication, the application was discontinued. As such, the respondent says that if it had pursued the application and obtained such an order, then the interview would not have been able to have been utilised for any purpose as it would have been excluded by the Court in its entirety. Accordingly, the respondent submits that it would be unfair to allow the Crown to now rely on the interview for the purposes of this application when it has agreed not to use the record of interview for the purposes of the trial.
The Crown’s argument is succinctly put in respect of this matter as follows: the prosecution may call any relevant evidence. They rely there particularly upon the comments of Bray CJ in R v M [1977] SASR 589 at 594 to 595. There his Honour, in considering a ground of appeal relating to whether evidence contained in a record of interview could be used by a jury for the limited purpose of deciding whether the appellant in that case knew that he was doing wrong, said the following:
“I must confess that it is startling to me to think that such evidence should be admitted at all, even for the limited purpose just mentioned, though its admission was not made a ground of appeal.”
The authority for admitting it is the case of F v Padwick [1959] Crim LR 439, only reported, as far as I can discover, in the Criminal Law Review. There a boy of eight appealed against a conviction of larceny. The Divisional Court referred to evidence of the child’s home background “and all his circumstances”. They said (page 400):
“This evidence is highly material to the question of whether the child knows that what he is doing is wrong and should be admitted in spite of the risk that it will disclose information highly prejudicial to him.”
A little later on the same page, Chief Justice Bray goes on:
“Finally, I have found again that the analogy of insanity is persuasive. It is common practice when the M’Naghten rules are invoked to give evidence of the previous history of the accused for the purpose of proving or disproving his insanity. I have found it hard to find a reported example, but I think Reg v Leigh 176 ER 846 is one. Indeed, it is impossible to exclude as irrelevant the history of the subject and in particular his past admissions when his knowledge of right and wrong is in question. If the appellant, prior to the day of the alleged crime, knew that it was wrong in the eyes of ordinary people to burn down a school, break into a house or strike his fellows, it is impossible to say that that is not proof and cogent proof that on the 11th of January he knew it was wrong to hit a younger child in the head with a brick. The rule, excluding evidence of past misbehaviour, yields when that evidence is relevant to prove one or more of the elements of the crime in issue, and I think this was so relevant, or, rather, I think that evidence of his admissions during the course of his interrogations about his crimes was so relevant, and that evidence could not be given without disclosing the commission of other crimes. Nor do I think that her Honour was bound to exclude the evidence in the exercise of her discretion. It was, I think, highly probative that the appellant was doli capax, even if it was also highly prejudicial.”
The respondent argues that in that case the charge was murder, and that, as a result of that, the evidence of the appellant’s prior history was especially poignant. However, in respect of the respondent here, it is argued that because the questioning during the interview of the respondent was the subject of a proposed application to exclude, as well as it being agreed not to be relied upon, is such that the evidence contained within the record of interview should be excluded. However, I am not at all satisfied that that is the case, and the agreement to exclude the record of interview from the actual trial does not exclude it from any consideration as to the respondent’s capacity to know that the acts alleged, ought not be done. The interview with the police can be relied upon for the purposes of this application.
Accordingly, the first of the considerations that must be looked at relates to what might be drawn from the record of interview. The Crown argument is that what might be drawn from the interview falls into two distinct areas: firstly, the respondent’s understanding of the questions as well as the concept of right and wrong; and secondly, there are the indications of such knowledge and understanding that arise from the denials by the respondent of certain activities which are contradicted by forensic evidence.
In particular, the Crown says that the reliance upon the interview, for the purposes of negating the presumption of doli incapax is relevant, only in respect of that issue. The Crown relies on the answers given and the respondent’s ability to communicate with the two police officers involved in the interview as evidence of that capacity. In particular, the Crown argues that he was able to articulate his answers to questions and more particularly to articulate when he did not understand a question, and, significantly, it is argued that during the interview, the respondent stated:
“She kissed me and then I went way too far.”
As such, it is argued that the respondent’s interview provides extremely probative evidence as to the respondent’s capacity, including his understanding of the questions, as well as an understanding of issues in respect of right and wrong.
Secondly, the Crown relies upon the respondent’s denials of certain activities, for example, squeezing the complainant’s breasts, penetrating her vagina with his fingers, or penetrating her vagina or mouth with his penis, as being indications of lies told by the respondent to avoid responsibility and that they are directly indicative of the knowledge that the offences, which were alleged, were more than merely naughty behaviour but were wrong and that therefore there was an attempt to hide them from the police.
Further, it is argued by the Crown that the forensic evidence is significant and provides relevant background information, particularly when consideration is required in respect of the complainant’s version of events and what might be the respondent’s version of events. Most significant from the Crown’s perspective, however, is the fact that the police engaged in an exchange between themselves and the respondent in questions which related specifically to the respondent’s capacity to know right from wrong. The line of questioning is contained within the transcript and includes questions about stealing from a store, to which the respondent indicated that that would be the wrong thing to do and that he knew that that was stealing.
Additionally, there was an exchange relating to whether or not a punch thrown in a schoolyard would be wrong, and again the respondent indicated that it would be wrong because of the fact that, if that were to occur, you would be hurting someone. The respondent was also asked what he thought might happen if he hurt someone and he indicated that you would get into big trouble.
Finally, and in a similar vein, the police asked the respondent what would be the possible consequences of them breaking a piece of equipment that was found in the interview room, and the respondent indicated that it would be wrong, because it was lying to the boss. What the Crown argue is that those answers, whilst not specifically relating to the type of offending with which the respondent is charged, that show that the respondent had the capacity to understand the difference between right and wrong as well as acknowledging that he knew when a specific action or behaviour was wrong and, more specifically, that he was able to articulate that there would be consequences of hurting someone, such that you would get into trouble.
The respondent’s position in relation to the interview is interesting in that the respondent argues that the interview is indeed indicative of a number of matters but in fact those matters are supportive of the respondent’s lack of capacity, rather than of any indication as to actual capacity. The argument draws a distinction between the simple concepts of right and wrong as discussed between the police officers and the respondent and it was submitted on the part of the respondent, that they in no way touch upon more complex concepts such as sexual offending or questions of consent and an understanding of what might constitute consent.
The respondent then says that the interview provides no evidence that the respondent said anything that could enlighten the Court as to his understanding of the rightness or wrongness of such matters, particularly matters involving sexual offending.
I should note, however, that I do not accept that that submission is absolutely correct. I say that particularly when it is noted that the respondent did indicate in the interview that the complainant had kissed him and he “went too far”. That is, in my assessment, a telling indicator of the fact that the respondent did know that without consent, such actions should not have been taken and that there was an issue of consent and that that consent had not been given.
Such a statement made by the respondent is telling, therefore, insofar as his capacity as well as his actual understanding of the rightness or wrongness of his actions. It was, as stated by Chief Justice Bray in R v M, “highly probative” that the respondent was doli capax.
Further, the respondent argues that even if the interview should be allowed for the purposes of the capacity application, which I have found is the case, it should not be able to be relied upon pursuant to the discretion available to the Court arising from section 130 of the Evidence Act 1977 (Qld). Section 130 is as follows:
Rejection of Evidence in Criminal Proceedings
Nothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence.
The respondent here relies upon an argument as to whether the interview could really be considered voluntary, when there are clear indicators of some confusion held by the respondent. This is emphasised, it is submitted, by consideration of the respondent’s age, ethnic background and the disadvantage of assessed learning difficulties that I shall come to shortly.
Ultimately, the respondent therefore submits that the discretion available to the Court should be exercised to exclude the evidence, as it would be unfair to the respondent to admit it. Though I might agree with such a submission, were it to relate to the admission of the interview for the purposes of the trial, that is not what is being considered in this application and I am not at all satisfied that an issue relating to the fairness or unfairness to the respondent of considering the issues raised within the interview, loom anywhere near as large when the application before the Court relates to the Crown seeking to rebut the presumption of an incapacity. That is, in my view, a significant difference in respect of the use of the interview.
Accordingly, I am not satisfied that there is any basis upon which the respondent seeks to exclude the interview for the purpose of this application which would give rise to its actual exclusion. Rather, as I have already indicated, the interview provides probative evidence as to the respondent’s capacity in this matter.
The Crown also relies on issues arising from school records, as indicating that the respondent had been advised of appropriate behaviours and, as such, ought to have known that raping another student was more than naughty but was, in fact, morally wrong and legally wrong. The respondent, in fact, argues that those school records, if anything, actually illuminate the difficulties that the respondent experiences.
Reference is made by the respondent in their written outline to the statements of a number of the child’s teachers at the time and previously, as well as their assessments as to the child’s capacity. The respondent, in the outline provided, makes reference to the statement of the teacher, Mr G, who was the only teacher who had, what was described as, in-depth involvement with the respondent. He was the respondent’s classroom teacher in his year 8 humanities class in 2018 and there were also other interactions between Mr G and the respondent in 2017. Mr G indicates in his statement that his professional assessment, though as a teacher and not as a medical professional, is that the respondent had:
(a) A low level of literacy and comprehension;
(b) That he required a high level of scaffolding and simple short instructions with take-up time and multiple reminders and checking;
(c) That his ability to retain information and recall information was limited; and
(d) That the respondent experienced difficulty in developing his knowledge and understanding any new concept.
It is submitted on the part of the respondent that these kinds of issues, as well as behavioural issues, which were referred to by Mr G as including ignoring the teachers and being disruptive or failing to produce written work, were behavioural issues that were considered at a “low level” and were therefore easy to understand and yet there were difficulties still experienced by the respondent. It is contrasted on the part of the respondent with the complexity that is arising in respect of offences of a sexual nature and with the concept of consent. As such, the respondent seeks to rely upon the statements of Mr G, indicating that he is in a “privileged position”, because of the contact that he had with the respondent and that therefore his impressions of the respondent and his responses were of some significance.
Additionally, the deputy principal of the respondent’s school described the respondent as having learning difficulties and hearing impairment and noted that the respondent was:
“…provided with focused literary support to assist him with his reading and writing skills and also an individual support plan which outlines strategies to use to assist with difficulties he faced as a result of his hearing loss.”
As such, it is argued on the part of the respondent that the respondent is not the same as most 13 year old children in a school situation and that he requires higher levels of scaffolding, to assist with comprehension and understanding. It is relevant also in that regard, with respect to any argument as to the respondent approaching 14 years of age, however, I shall come to that shortly. As such, the respondent submits that any evidence that might be able to be drawn from school records suggest that there are real doubts that must arise, in relation to the respondent’s understanding and comprehension of directions given and expectations that might arise.
Additionally an affidavit provided by Ms Z, the year 7 level coordinator, suggests that:
“When discussing concerns or behaviours with KAK, his understanding was unclear. KAK would often nod or agree, however did not appear to correct behaviours.”
As such, it is argued on the part of the respondent that this is indicative of a lack of capacity on the part of the respondent to understand what might be directed and that this goes to the very crux of the application. Therefore, the respondent submits that this evidence, if anything, highlights difficulties with regard to the respondent’s capacity to understand whether or not he ought do the sexual acts that are alleged to have occurred and that this gives rise to a reasonable doubt as to such capacity.
Finally, the respondent seeks also to rely upon the comments of a teacher, Ms B, who had some involvement with the respondent. She refers to incidents which she observed involving the respondent and a lack of behavioural change, such that the respondent submits that there is a real doubt that the respondent had the capacity to understand the directions given, the consequences of sanctions that might have been imposed and therefore had a lack of capacity to understand the rightness and wrongness of more general behaviours, let alone those that were involved in more significant behaviours.
There is, in my view, some strength in this argument, at least insofar as what guidance or direction has been provided by the school and whether it might have extended to behaviours beyond what might be considered low-level misbehaviour or even skylarking. However, it is clearly only one part of the many matters that need to be considered and it does not at all give rise, of itself, to a final determination as to the respondent’s capacity specifically in respect of this offending.
Issues also arise for consideration in respect of the respondent’s cognitive ability. Reference is specifically made to a cognitive assessment which was made by Ms W, a regional psychologist, on the 4th of December 2018. That report is extensive but does include matters which give rise to some further concerns. In the assessment, under the heading, ‘Summary and Recommendations’, Ms W notes as follows:
“KAK’s primary index score, the non-verbal index, was 61, falling within the extremely low range. KAK’s GAC score (General Adaptive Composite) was assessed to be 79, which falls within the low range. KAK’s scores indicate a potential diagnosis of intellectual disability for which the following criteria must be met for this to be considered.”
Thereafter, Ms W details those particular matters and comments upon other information that was available to her, leading to an assessment that:
“KAK meets criteria for a mild intellectual disability (intellectual development disorder), 317 (F70).”
Thereafter, she goes on to make certain recommendations, including the referral of the respondent to a speech and language pathologist for assessment and potential intervention, as well as further behavioural assessment, assessment of the respondent’s executive functioning, and further suggests the use of visual prompts to be provided when providing task-specific information and, where unable, that task information be broken down into smaller parts.
There are a number of matters addressed by Ms W in the report, including steps that might be taken with regard to the respondent’s capacity to engage in his educational progress. She notes, however, that the respondent is:
“…suited for continuing education, however may need flexibility and/or modifications to his learning plan to ensure he remains engaged.”
The report clearly notes difficulties but does not go on to suggest that there are matters which might, of themselves, suggest a lack of basic capacity to understand the difference between right and wrong.
The respondent also relies on evidence with regard to the respondent’s intellectual limitations, albeit that some of those matters are drawn from an assessment relating to the respondent’s speech and language pathology, as well as from a guidance report prepared in 2014, when the respondent was only nine years of age. Those reports also confirm difficulties or limitations similar to those which are referred to within the cognitive assessment.
These assessments all clearly indicate that the respondent experiences intellectual limitations, but, as argued by the Crown, that does not of itself preclude a finding that the presumption is able to be rebutted. What it does emphasise, rather, is the need for there to be clear evidence, otherwise available, as to the possession of the requisite understanding. I shall come to that particular matter shortly but acknowledge that there must be clear evidence of that requisite understanding or capacity.
The Crown also relies upon the fact that the respondent was 13 years and five months at the time of the alleged offending. They argue that that holds some significance here because there are obvious intellectual limitations but that at that age and with the abilities that are identified, the respondent would have some reasonable capacity to know the difference between right and wrong. The respondent, however, argues that the proximity of the respondent to 14 years of age is irrelevant in this particular instance. That is because much of the other evidence, it is argued, shows that there are real limitations in the respondent’s general intellectual capacity and understanding. The respondent specifically makes reference to the comments of the High Court in RP v The Queen [2016] HCA 53 at paragraph 35, where the following is noted:
“While the evidence of the appellant’s intellectual limitations does not preclude a finding that the presumption had been rebutted, it does point to the need for clear evidence that, despite those limitations, he possessed the requisite understanding.”
As such, the respondent argues that the Crown has not shown that the respondent understood that he ought not act in a sexual way towards the complainant or that he ought not do so without the complainant’s consent. However, there are, in my assessment, some significant matters that lead me inextricably to the conclusion that the respondent had the capacity to understand that what is alleged to have been done ought not to have been done by him, at least without the clear consent of the complainant. These include, obviously, the evidence of the complainant, though that is still to be tested, as well as the respondent’s own words in the interview. In particular, the complainant’s evidence, though subject to testing, includes the following matters:
(a) The defendant looked over his shoulder as he dragged the complainant towards J Block and told her that he would strike her if she screamed.
(b) Once they were at J Block, the defendant pushed the complainant so that her back was up against the brick wall in the alcove and he kissed her as he pinned her arms against the wall. The complainant told the respondent to stop but he did not, he slapped one of her breasts and continued to kiss her.
(c) The respondent kissed the complainant on the nipples in an action that she described as an opened-mouth tongue kiss and squeezed and groped her breasts with his hands.
(d) The respondent pulled the complainant’s skirt up, moved her underwear to one side and inserted two fingers into her vagina.
(e) He pushed her to the ground and inserted his erect penis into her mouth and thrust for about a minute or two.
(f) The respondent pulled the complainant up. He turned her around and forcefully penetrated her vagina, thrusting back and forth. During that action, he told her a number of times not to scream.
(g) After removing his penis from her vagina, he then masturbated to the point of ejaculating into his hand, which he wiped on the brick wall.
(h) He told the complainant, “Don’t tell anyone or I will come and find you.” He additionally told her to count to 20 and, once she could not see him any more, that she should count to 20 again.
The Crown argues that this is significant because, if it is found to be accurate and reliable, it indicates more than naughty experimentation and more significantly it indicates a knowledge that it was wrong, suggesting that the respondent sought to ensure that no one saw he and the complainant behind the wall in J Block, that the complainant was told not to scream and that the complainant was told not to tell anyone or he would come and find her. Additionally, and perhaps most significantly, however, there is also the respondent’s own words when, in the interview, he stated that he went way too far.
As such, I am satisfied, when consideration is given to all of the evidence sought to be relied upon by the Crown, that the presumption of a criminal incapacity is rebutted, and I direct that a presumption that the respondent was not criminally responsible for such an act is rebutted and that the respondent had the capacity to know that he ought not to do the act as alleged.
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