R v Kak

[2020] QDC 244

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

1. 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.

1. 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.

1. 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. 

1. 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.

1. Before addressing each of those…