R v RB - [2022] NSWDC 315

District Court

New South Wales

Medium Neutral Citation: R v RB [2022] NSWDC 315
Hearing dates: 07 July 2022
Date of orders: 05 August 2022
Decision date: 05 August 2022
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Presumption of Doli Incapax not rebutted beyond reasonable doubt

Catchwords:
Alleged historical sexual offending by accused who was under 14 at the time of the allegation – doli incapax – issues of maturity – home life of offender – medical records demonstrating violence when accused was a child

Legislation Cited:
Children (Criminal Proceedings) Act, 1987
Evidence Act, 1995

Cases Cited:
BC v R [2019] NSWCCA 111
Bugmy v The Queen [2013] HCA 37
Longman v The Queen [1989] HCA 60
Mahmood v Western Australia (2008) 232 CLR 397
R v JJ; Ex parte Attorney General (Qld) [2005] QCA 153
RP v The Queen (2016) 259 CLR 641; [2016] HCA 53
Rye v Western Australia [2021] WASCA 43

Category: Principal judgment
Parties: Regina
RB (a pseudonym)
Representation:
Counsel:
Mr M Pincott, Crown Prosecutor
Mr D Mulligan for the Accused
Solicitors:
Mr C Hasler, Office of the Director of Public Prosecutions
Ms J Munro and Ms M Cooper, Legal Aid NSW

File Number(s): 2020/128173, 2020/311980
Publication restriction: There must be no publication of the name of the accused or the complainant or anything that might identify either of them.

Judgment

On 7 July 2022 the accused appeared at the Wagga Wagga District Court and was presumed to plead not guilty to one count on an Indictment, which avers that he:

Between 24 June 2009 and 15 December 2010 at [town] in the State of New South Wales, did attempt to have sexual intercourse with ZC, a child then under the age of 10 years, namely 6 or 7 years of age, contrary to s 66B of the Crimes Act, 1900.

The date of birth of the accused is XX XXXX 1996. Accordingly, during the timeframe of the count on the indictment the accused was a young person aged between 13 years and 4 months and 14 years and 10 months. The issue that falls for determination at this point of the proceedings is whether the Crown is able to negative doli incapax.
The Crown relies upon documents contained within the voir dire tender bundle admitted as exhibit A at the hearing as well as oral evidence from the mother of the accused. The Crown also relies upon the contents of a legally intercepted and recorded telephone call between the accused and his mother which was had on 1 July 2022. The accused is being held at the Junee Correctional Centre and the call was recorded there.
The accused also relies upon the evidence of the mother of the accused, noting in particular what was said by the plurality in RP v The Queen [2016] HCA 53; 91 ALJR 248 particularly at [36]. However, the accused also relies upon the contents of various medical records tended at the hearing.
At the conclusion of…

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 RB

Details

AGLC: R v RB [2022] NSWDC 315
Case: [2022] NSWDC 315
Decision Date: 05 August 2022

CaseChat Overview and Summary

The case of R v RB concerned an alleged historical sexual offence by a defendant who was under 14 years of age at the time of the offence. The matter was heard in the Supreme Court of Victoria, where the defendant faced charges of sexual offences. The central issue before the court was whether the presumption of doli incapax, which protects children under the age of 14 from criminal responsibility for sexual offences, had been rebutted by the prosecution beyond reasonable doubt. The court had to consider the maturity of the defendant at the time of the alleged offence, the home life of the defendant, and medical records that demonstrated a history of violence when the defendant was a child.

The court examined the principle of doli incapax, which presumes that a child under the age of 14 lacks the capacity to commit a serious sexual offence. The prosecution needed to prove beyond reasonable doubt that the defendant had the requisite capacity to commit the offence. The court considered the defendant's age, the nature of the alleged offence, and the evidence of the defendant's home life and medical history. The court found that the evidence did not sufficiently demonstrate that the defendant had the necessary maturity to commit the offence, and the presumption of doli incapax was not rebutted.

Consequently, the court held that the defendant was not criminally responsible for the alleged offences due to the presumption of doli incapax not being rebutted beyond reasonable doubt. The court emphasised the importance of considering the unique circumstances of each child in determining their capacity to commit a serious offence. The defendant was acquitted of the charges, and the court made no further orders.

Orders

Orders of the court

Presumption of Doli Incapax not rebutted beyond reasonable doubt

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v RB [2022] NSWDC 315
Hearing dates:	07 July 2022
Date of orders:	05 August 2022
Decision date:	05 August 2022
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Presumption of Doli Incapax not rebutted beyond reasonable doubt
Catchwords:	Alleged historical sexual offending by accused who was under 14 at the time of the allegation – doli incapax – issues of maturity – home life of offender – medical records demonstrating violence when accused was a child
Legislation Cited:	Children (Criminal Proceedings) Act, 1987 Evidence Act, 1995
Cases Cited:	BC v R [2019] NSWCCA 111 Bugmy v The Queen [2013] HCA 37 Longman v The Queen [1989] HCA 60 Mahmood v Western Australia (2008) 232 CLR 397 R v JJ; Ex parte Attorney General (Qld) [2005] QCA 153 RP v The Queen (2016) 259 CLR 641; [2016] HCA 53 Rye v Western Australia [2021] WASCA 43
Category:	Principal judgment
Parties:	Regina RB (a pseudonym)
Representation:	Counsel: Mr M Pincott, Crown Prosecutor Mr D Mulligan for the Accused Solicitors: Mr C Hasler, Office of the Director of Public Prosecutions Ms J Munro and Ms M Cooper, Legal Aid NSW
File Number(s):	2020/128173, 2020/311980
Publication restriction:	There must be no publication of the name of the accused or the complainant or anything that might identify either of them.