R v. R

[1995] QCA 152

IN THE COURT OF APPEAL  [1995] QCA 152

SUPREME COURT OF QUEENSLAND

C.A. No. 49 of 1995.

Brisbane

[R v. R]

THE QUEEN

v.

R

Appellant

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Pincus J.A.

de Jersey J.

Ambrose J.

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Judgment delivered 28/04/1995

Judgment of the Court

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APPEAL AGAINST CONVICTION DISMISSED
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CATCHWORDS: CRIMINAL LAW - conviction - whether trial judge erred in granting crown permission to re-open its case in order to discharge the onus under s. 29(2) Criminal Code - issue not previously raised by the defence - onus of proof of age of the offender - circumstances of discretion to allow Crown to re-open case. 

S. 29 Criminal Code.

Dwyer v. Bridges ex parte Bridges (1951) Q.S.R. 90.

Francis (1990) 91 Cr.App.R. 271

Brown [1985] 2 Qd.R. 126

Counsel:Mr D R Lynch for the appellant.

Mr B G Campbell for the respondent.

Solicitors:Legal Aid Office for the appellant.

Director of Prosecutions for the respondent.

Hearing date:               19 April 1995

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 28/04/1995

The appellant was convicted in the District Court of having, on 19 September 1993, committed the offence of assault occasioning bodily harm in company; the sentence was 12 months probation. The ground of appeal is that the trial judge wrongly announced that the Crown might re-open its case in order to advance the proof made necessary by s. 29(2) of the Criminal Code.  The whole of that section reads as follows:

"29(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 15 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. "

A peculiarity of the case is that the Crown did not make use of the permission granted by the judge to re-open, of which complaint is made;  the argument is that the judge's announcement that the Crown might do so induced the defence to make an admission which rendered it unnecessary to prove the appellant's capacity.

Section 29(2) places an onus on the Crown, where a person under the age of 15 years is charged with an offence, to prove that the accused had the capacity mentioned in the subsection. A complication is that the appellant was not shown to be under the age of 15 years; there was no evidence as to his age. During the course of submissions counsel for the appellant told the trial judge that his client was born on 12 October 1978; if that was correct, then on the date of commission of the offence of which he was convicted he was a few weeks short of his 15th birthday. There was some discussion in this Court of the question whether the Crown must prove, where an accused is a person who appears to be about the age of 15 years, what his true age is. A similar question arose in Dwyer v. Bridges, ex parte Bridges (1951) Q.S.R. 90.  There, the issue was whether the victim of an assault was under the age of 17 years; if so, then the assault was one of an aggravated nature under s. 344 of the Code, in its then form.  Both Mansfield A.C.J. (98, 99) and Stanley J. (104) discussed the possible use of the complainant's appearance to determine her age and Stanley J. held that if appearance is relied on it is itself a fact which must be proved.  Here there was no evidence as to the appellant's appearance except that a Crown witness described him as "quite tall for his age", language which supports the contention of Mr Lynch, for the appellant, that the Crown must have been aware of his age.

If the proper view is that the Crown must prove the age of every teenager who is accused of an offence, where the accused's appearance or other circumstances make it seem possible that he is not yet 15, then practical difficulties may arise in the application of s. 29, particularly with respect to persons born in foreign countries; proper evidence of the birthdate may be unobtainable. This consideration suggests that Parliament may not have intended to place the onus of proving the accused's age on the Crown, where no issue as to the application of s. 29 is raised.

Here, as Mr Lynch pointed out, the assertion made below on behalf of the defence with respect to the date of birth was not challenged. That does not necessarily mean that the Crown knew the date, but it justifies our proceeding on the assumption that the appellant was not yet 15 on the date charged. So it becomes unnecessary to determine on whom the onus of proof of age falls, for the purposes of s. 29.

It is desirable to give a fuller account of what happened below. After the evidence of one G T Pascoe was concluded, the prosecutor announced "That is the Crown case". Defence counsel then made a submission that there was no case to answer because the requirements of s. 29 had not been fulfilled. In the course of discussing that, the judge suggested that the content of a record of interview which, it appears, set out the content of a conversation between the appellant and police, might have induced the Crown not to expect the question of capacity to be raised. Later, the judge remarked that there were counsel on both sides and that the prosecution does not proceed "on the basis of calling evidence to cover every possible opportunity (sic)". His Honour said that the record of interview indicated that the appellant "is a person of if not average intelligence, probably above average intelligence, so I don't intend to waste too much time on the matter". He told counsel for the prosecution that he could re-open the Crown case "because it seems to me you were taken by surprise". Counsel for the Crown said that he wished to play the tape of the interview and bring out the appellant's past dealings with the police. It appears from the record that by the date of the offence charged, 19 September 1993, the appellant had committed over 100 offences, most of which consisted of breaking and entering with intent and stealing; the sums involved were substantial and he had been punished for most of these offences.

After further discussion, counsel for the appellant told the trial judge that he might get instructions to make an admission and the court adjourned; on resumption, counsel said he was prepared to admit "that the second paragraph of section 29 is not contested and that at the relevant time he had the capacity to know that a person ought not assault another person". On the following morning, counsel said he then had instructions not to make that admission. His Honour declined to allow the admission to be withdrawn and no complaint is made about that refusal, in this Court. When the judge summed-up, he mentioned the admission to the jury and told them that there was no issue about that point.

An application by the Crown to re-open can more readily be accepted where (as here) the purpose is not to rebut evidence called on behalf of the defence, but to fill a gap in the Crown evidence which has been noticed.  In McKenna (1956) 40 Cr.App.R. 65, a "highly technical" point was taken by way of submission of no case and the Crown was allowed to re-open, the Court holding that in those circumstances there was a complete discretion whether a witness could be recalled.  More recently, in R v. Central Criminal Court, ex parte Garnier [1988] R.T.R. 42, and Francis (1990) 91 Cr.App.R. 271, it has been held that there are two exceptions to the rule that the prosecution must call the whole of its evidence before closing its case; the first is that evidence may be called to deal with a matter which could not have been foreseen before the defence raised it; the second is that formal matters may be proved.  But according to English practice, the discretion to admit evidence after close of the prosecution case is not confined to those two exceptions; "it is of the essence of any discretion that it should be kept flexible" (Francis at 275).  It appears to us that the law as laid down in these two cases is likely to provide a sound guide to the exercise of the discretion, as long as it is kept in mind that allowing a re-opening is an exceptional course.

In Brown [1985] 2 Qd.R. 126, the appellant was convicted of having at his disposition a sum of money held by a bank in certain circumstances. Evidence was called by the Crown, when allowed to re-open, "as to the balance in the account at the relevant time" and that was described as being of a "non-controversial kind" or "formal, technical or non-contentious". The expressions "non-controversial" and "non-contentious" refer, we think, to the unlikelihood of the evidence itself being in contest; they are not used to suggest that the evidence went to no issue.

Here, it appears that the judge took the view that the Crown could not have been expected to lead any evidence on the s. 29 point, as nothing relevant to it had been raised by the defence. It appears to us likely that the matter was simply overlooked by the Crown. If, there being no evidence as to the appellant's age, the onus fell on the Crown to prove the matter mentioned in s. 29 (the point discussed above) then the most likely reason this was not done was that it was not thought about, rather than because it was assumed that the conduct of the defence implied a concession.

In determining that further evidence could be called, the judge was influenced by a view he held, not challenged here, that there could hardly be any serious argument about the appellant's capacity under s. 29, because of the self-serving nature of the record of interview. When one takes into account that before the relevant date the appellant had been charged with and punished for numerous offences, it must have seemed evident that in fact the appellant had the capacity to know that he ought not to commit the offence in question. In these circumstances the Crown's mistake, if there was one, was not very culpable. But even if it had been, the exercise of discretion by the primary judge would have been defensible: the evidence which the Crown was to be allowed to call to supplement its case was not of a controversial kind, as there was no reason to think that either the taped interview or the criminal record would be disputed.

The appeal will be dismissed.