RH v Director of Public Prosecutions (NSW)
[2014] NSWCA 305
•04 September 2014
Court of Appeal
New South Wales
Case Title: RH v Director of Public Prosecutions (NSW) Medium Neutral Citation: [2014] NSWCA 305 Hearing Date(s): 22 August 2014 Decision Date: 04 September 2014 Before: Beazley P at [1];
McColl JA at [3];
Basten JA at [14]Decision: (1) Allow the appeal and set aside the order in the Common Law Division dismissing the appeal.
(2) Allow the appeal to the Supreme Court and set aside the finding of guilt of the applicant at Wentworth Children's Court on 6 July 2012 and the caution administered on 10 August 2012.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: APPEAL - error of law by magistrate - whether, applying correct legal principle to facts, only one conclusion open - whether, if more than one conclusion open, only trial court can make finding - discretion to remit - whether in interests of administration of justice - Crimes (Appeal and Review) Act 2001 (NSW), ss 52, 55
CRIMINAL LAW - age of criminal responsibility - child aged 12 when offence occurred - presumption that child between 10 and 14 years not criminally responsible - whether presumption of no criminal responsibility of child rebutted - subjective test to determine whether presumption rebuttedLegislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 5; Pt 3
Crimes (Appeal and Review) Act 2001 (NSW), ss 3, 52, 53, 55, 65
Crimes Act 1900 (NSW), s 112
Criminal Procedure Act 1986 (NSW), s 16
Supreme Court Act 1970 (NSW), s 101Cases Cited: C (A minor) v Director of Public Prosecutions [1996] AC 1
Director of Public Prosecutions v Priestley [2014] NSWCA 25; 201 LGERA 1
Ex parte Lovell; Re Buckley (1938) 38 SR(NSW) 153
Maritime Authority of New South Wales v Rofe [2012] NSWSC 5; 84 NSWLR 51
R (a child) v Whitty (1993) 66 A Crim R 462Category: Principal judgment Parties: RH (Applicant)
Director of Public Prosecutions (NSW) (Respondent)Representation - Counsel: Counsel:
Mr J Nicholson SC/Mr H T Quilter (Applicant)
Ms A Mitchelmore (Respondent)- Solicitors: Solicitors:
Aboriginal Legal Service (NSW/ACT) (Applicant)
Solicitor for Public Prosecutions (Respondent)File Number(s): CA 2013/175412 Decision Under Appeal - Court / Tribunal: Supreme Court - Before: Hoeben CJ at CL - Date of Decision: 10 May 2013 - Citation: RH v Director of Public Prosecutions (NSW) [2013] NSWSC 520 - Court File Number(s): SC 2012/324592
JUDGMENT
BEAZLEY P: I have had the advantage of reading in draft the reasons of Basten JA and the orders he proposes. I agree with his Honour's reasons. I also agree that this is not an appropriate matter to remit to the magistrate for redetermination, for the reasons given by his Honour.
There is a further reason why that course may not be appropriate. It was indicated in argument that the aggravation of the offence was that it was committed in the company of a child under school age. There was some, but not definitive, support for this indication in the material before the Court. There may be a question whether, if that is correct, the applicant could be guilty of the offence with which he was charged. Given that it is over two years since the proceedings were conducted in the Local Court and over four years since the charge was laid, there seems little point in the matter being remitted where there is a possibility that, in any event, the offence charged could not have been committed by the applicant.
McCOLL JA: I have read the reasons of Basten JA in draft which identify the critical facts and legal issues. I agree that the applicant should have leave to appeal, but disagree (save as to the costs orders his Honour proposes) as to the orders that should be made disposing of the appeal.
Section 55(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (the "CAR Act") enabled the appeal before Hoeben CJ at CL, being one against conviction, to be determined in one of three ways:
"(a) by setting aside the conviction, or
(b) by setting aside the conviction and remitting the matter to the Local Court sitting at the place at which the original Local Court proceedings were held for redetermination in accordance with the Supreme Court's directions, or
(c) by dismissing the appeal."It was common ground before the Chief Judge that the test whether the prosecution had rebutted the presumption of doli incapax in favour of RH was a subjective one: RH v Director of Public Prosecutions (NSW) [2013] NSWSC 520 (at [22]). That being the case, the applicant had established ground 2 of the Amended Summons by which he had appealed from the Local Court decision pursuant to s 52 of the CAR Act.
That position having been reached, it is apparent that the matter proceeded before his Honour on the basis that he should determine whether, applying the correct test, the first ground of appeal, whether the Magistrate erred in law in finding there was evidence capable of rebutting beyond a reasonable doubt the presumption of doli incapax, was made good.
As Mr Nicholson of Senior Counsel, who appeared for the applicant with Mr H T Quilter on the application in this Court, but not before the primary judge, accepted, this inquiry had to be undertaken to determine whether, even if the conviction (it being common ground that the finding of guilt against the applicant was included in the meaning of "conviction" in relation to a decision of the Children's Court under Part 3 of the Children (Criminal Proceedings) Act1987 (NSW): s 3(2) CAR Act) should prima facie be set aside by reason of the Magistrate's application of the wrong legal test, there was sufficient evidence to support the conclusion that the presumption was rebutted to warrant remitting the matter to the Local Court for redetermination in accordance with the court's directions as to the correct legal test.
It is apparent, however, from the primary judge's reasons, and as Ms Mitchelmore who appeared for the respondent before Hoeben CJ at CL acknowledged, that the question whether, should his Honour find the evidence was sufficient, he should make a remittal order rather than dismiss the appeal, was not debated.
That question arises in this Court, Mr Nicholson having sought a remittal order in the alternative to an order setting aside the conviction.
In my view Hoeben CJ at CL did not err in concluding (at [34]) that there was sufficient evidence that the plaintiff knew that what he was doing was seriously wrong and was not merely mischievous. As his Honour said:
"28 The importance of the object of the break-in being a fire station was that it would have been appreciated by the plaintiff that the fire station existed for a specific purpose and that he was not meant to be there. That he was aware of this fact, emerges from statements which he made to CK. Of more significance is the use of a jemmy to break open the padlock. I have concluded that it was well open to his Honour to conclude that this was something which could be taken into account with other circumstances to indicate an awareness on the part of the plaintiff that what he was doing was seriously wrong. This was an obviously wrongful act which required some planning, i.e., having a jemmy available.
...
31 The most important evidence from the point of view of the prosecution was the statements made by the plaintiff to CK. His Honour characterised those statements as 'boasting about what he has done'. The statements do bear that characterisation and it is difficult to see what other purpose RH had in going to the home of CK late at night and telling him about what he had done. That was a finding open to his Honour.
32 It is, however, the actual words used by the plaintiff which I consider are of particular significance in determining his state of knowledge. The words were 'I got drinks and that here, I got them from the fire station, I broke in there, I was in with all the fire trucks, I was searching looking for money. I found drinks and balloons and rulers. Me and S got 'em'. The next day he said to CK 'Look at I got, I got them last night, I got them from the fire station in Xxxxxx'.
33 The plaintiff submitted that the words 'I was in with all the fire trucks' was the sort of expression a young and immature person would use. That may be so, but it says nothing about his understanding of whether what he was doing was seriously wrong. On the other hand, the statements 'I broke in there'; 'I was searching looking for money. I found drinks and balloons and rulers. Me and S got 'em' make it clear that the plaintiff understood that what he was doing was seriously wrong. He was breaking into a fire station with the intention of looking for money and anything else of value. On the basis of that evidence, it was well open to his Honour to find that the plaintiff understood that these were seriously wrongful acts and not acts of mischief."Similar reasoning can be found in R (a child) v Whitty (1993) 66 A Crim R 462 in which Harper J (as his Honour then was) concluded that the presumption of doli incapax was rebutted in the case of a twelve year old girl charged with stealing a pair of track suit pants from Target. In her record of interview when asked what she had done at the plaza where the shop was located, the girl said "went into the shop, Target, and stole those jeans". Harper J regarded her use of the word "stole" as conclusive in circumstances where "[n]obody had used that word before, at least not in the record of interview", indicating she used the word "deliberately and appropriately and knew what is meant": Whitty (at 465).
I agree, however, with Basten JA (at [43]), that having regard to the Magistrate's reasons that the Chief Judge could not find that, applying the correct test, only one conclusion was open. There being evidence which is, however, capable of supporting a finding that the presumption had been rebutted, I would not favour simply setting aside the conviction without more. Breaking into the Rural Fire Services premises was a serious offence as the terms of the charge indicated.
In my view, the Court should set aside the conviction and remit the matter to the Local Court for redetermination in accordance with the Court's directions, with no order as to costs.
BASTEN JA: The applicant is a young person, under 16 years of age. In October 2010, when he was aged 12, he broke into a country fire station, with a young girl, and they took a computer belonging to the Rural Fire Service together with several rulers, balloons and cans of soft drink. He was charged with an offence of aggravated breaking and entering, contrary to s 112(1) of the Crimes Act 1900 (NSW). He appeared before Magistrate Dunlevy in the Children's Court on 6 July 2012 and was found guilty. On 10 August 2012 the charge was dismissed, with a caution.
There was no dispute that the applicant undertook the acts the subject of the charge: the only issue was whether he could be held criminally responsible for his conduct, having regard to his age.
For children under the age of 10 years, by statute they cannot be guilty of a criminal offence: Children (Criminal Proceedings) Act 1987 (NSW), s 5. (The principle is sometimes referred to using the Latin phrase doli incapax.) However, above the age of 10, general law principles apply. The relevant principle was succinctly stated by the House of Lords in C (A minor) v Director of Public Prosecutions [1996] AC 1, in giving an affirmative answer to the following question set out by Lord Lowry at 21:
"Whether there continues to be a presumption that a child between the ages of 10 and 14 is doli incapax and, if so, whether that presumption can only be rebutted by clear positive evidence that he knew that his act was seriously wrong, such evidence not consisting merely in the evidence of the acts amounting to the offence itself."
The principle was subject to a scathing review by Laws J in the same case, in the Divisional Court from which the appeal was taken to the House of Lords. However the operation of the principle in this jurisdiction is not in doubt. The question is whether it was properly applied by the Magistrate in finding the applicant guilty of the offence.
The applicant appealed from this finding to the Supreme Court, pursuant to s 52 of the Crimes (Appeal and Review) Act 2001 (NSW) ("Appeal and Review Act"). (The finding relevantly constituted a "conviction" for the purposes of the appeal provisions: Appeal and Review Act, s 3(2).) Section 52 provides for an appeal from a conviction in the Local Court, "but only on a ground that involves a question of law alone." (There is a more extensive appeal, on a question of fact or a question of mixed law and fact, but only by leave of the Supreme Court, which was not invoked in the present case: Appeal and Review Act, s 53(1)). The matter came before Hoeben CJ at CL in May 2013, who dismissed the appeal: RH v Director of Public Prosecutions (NSW) [2013] NSWSC 520. The applicant now seeks leave to appeal to this Court on the basis of error on the part of the Chief Judge.
Although the matter involves a question of law only and relates to the correctness of a criminal conviction, leave is required to appeal: Supreme Court Act 1970 (NSW), s 101(2)(r). In resisting the application for leave, the Director referred to the following statement of principle in Director of Public Prosecutions v Priestley [2014] NSWCA 25; 201 LGERA 1, where Gleeson JA (with whom Beazley P and Emmett JA agreed) said at [15]:
"The matters which are relevant when considering an application for leave to appeal to the Court are summarised by Basten JA (Tobias AJA agreeing) in Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[37]. An applicant for leave must establish something more than that the primary judge was arguably wrong in the conclusion arrived at: Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 (Sheller JA); Zelden v Sewell [2011] NSWCA 56 at [20]-[22] (Campbell JA, Young JA agreeing). Ordinarily, leave will only be granted in matters which involve issues of principle, questions of general public importance, or an issue which is reasonably clear in the sense of going beyond what is merely arguable."
That was a case in which the Director sought leave to appeal from an acquittal, contending that the public interest lay in resolving a lack of clarity in the statutory provision creating an offence. Neither the statement of principle, nor the outcome in that case, is to be doubted. However, the question of public interest has quite a different connotation with respect to a challenge to a criminal conviction, based on an error of law. There being a real issue in the present case as to whether the Chief Judge erred in the approach he took with respect to the question of law before him, the applicant should have leave to appeal.
The issue raised by the appeal can be shortly stated. It arose in circumstances where the Chief Judge was satisfied that the magistrate had committed at least two errors of law in reaching his conclusion that the applicant had criminal capacity. (The findings of error, which were not challenged on appeal, will be noted shortly.)
What happened thereafter is a little unclear. The Chief Judge continued at [25]:
"This does not end the matter. What it means is that when considering the evidence which was before his Honour, I have to ignore that finding."
The error relied upon in this Court is that, having found legal error on the part of the magistrate, the Chief Judge asked "whether by reference to the evidence as a whole, it was still open to his Honour find that the presumption had been rebutted": at [25]. The Chief Judge continued:
"Put another way, had the Crown on the evidence established beyond reasonable doubt that RH knew that what he did at the fire station was seriously wrong as distinct from an act of mere naughtiness or mischief."
The course being undertaken at that point involved one of three possibilities. The first possibility derived from the grounds of appeal. The Chief Judge upheld ground 2, which alleged that the magistrate had erred in law in applying an objective test in deciding whether the presumption of incapacity was rebutted beyond reasonable doubt. It is possible that the Chief Judge was then turning to the first ground which alleged error on the part of the magistrate in finding that "there was evidence capable of rebutting" the presumption beyond reasonable doubt. However, that seems unlikely, the language at [25] being directed to the consequence of a finding of error under ground 2.
The second possibility was that the Chief Judge had turned directly to considering final relief under s 55 of the Appeal and Review Act. That provision, so far as relevant, stated:
55 Determination of appeals
(1) The Supreme Court may determine an appeal against conviction:
(a) by setting aside the conviction, or
(b) by setting aside the conviction and remitting the matter to the Local Court ... for redetermination in accordance with the Supreme Court's directions, or
(c) by dismissing the appeal.Although the Chief Judge did in fact dismiss the appeal, pursuant to s 55(1)(c), to do so after concluding that there was legal error required consideration of matters which were not to be found in s 55(1) itself.
The third possibility was that the Chief Judge was seeking to apply s 65 of the Appeal and Review Act, which states:
65 Appeal not to succeed on narrow technical grounds
(1) A conviction, order or sentence is not to be set aside on an appeal merely because of:
(a) an omission or mistake in the form of the conviction or order, or
(b) an error in law in the order or sentence,if it appears to the appeal court that there were sufficient grounds before the Local Court to have authorised a conviction, order or sentence free from the omission, mistake or error.
(2) In such a case, the appeal court:
(a) may amend the conviction, order or sentence and determine the appeal as if the omission, mistake or error did not exist, or
(b) may remit the matter to the Local Court to make the conviction or order, or impose the sentence, authorised by law and to amend the conviction, order or sentence accordingly.Again, this is a possibility, but the Chief Judge did not refer expressly to s 65 and, according to the submissions before this Court, its operation was not raised in the hearing before him. Certainly it was not raised in the written submissions in this Court. If it had been relied upon, one would have expected a careful consideration of its scope. The application of the wrong test to the critical question in issue before the magistrate did not involve a mistake in the form of any conviction or order for the purposes of s 65(1)(a). Nor did it involve "an error in law in the order or sentence" within the scope of paragraph (b). Provisions of this kind have a long history since the enactment of Jervis' Act in England in 1848. They are designed to ensure that orders, convictions and sentences are not set aside for mere want of form or for breach of a technicality not casting doubt on findings as to all the ingredients of the offence: see Ex parte Lovell; Re Buckley (1938) 38 SR(NSW) 153 at 167-168 and 173-174 (Jordan CJ; Davidson and Halse Rogers JJ agreeing). (Similar principles operate in relation to s 16 of the Criminal Procedure Act 1986 (NSW).)
It is no doubt correct, as stated by Brereton J in Maritime Authority of New South Wales v Rofe [2012] NSWSC 5; 84 NSWLR 51 at [107]-[108], that an appeal will not be upheld if an identified error "has not affected the order" or "could have made no difference to the result." However, the manner in which such considerations operate in a criminal case will differ from civil cases, whence Brereton J derived the language used in that passage. It would be a startling result to conclude that the error of the trial judge in applying an objective rather than a subjective test in determining the capacity of the accused "could have made no difference to the result", the result being dependent upon the court being satisfied by the prosecution beyond reasonable doubt. Nor did the Chief Judge make such a finding.
The two questions identified at [22] above were not in fact the same: the first asked whether it was "open" to the magistrate to reach the conclusion he did; the second required the Supreme Court to answer the factual question. As the following passages in his reasons revealed, the Chief Judge approached it on the former basis. He stated at [34]:
"When one leaves out his Honour's finding as to the plaintiff's maturity, and when one leaves out the finding that the plaintiff made some effort to hide the items which he stole, was there sufficient evidence to allow his Honour to find beyond reasonable doubt that the plaintiff knew that what he was doing was seriously wrong and was not merely mischievous. In my opinion, there was sufficient evidence and it was open to his Honour to make such a finding."
The matters referred to at the beginning of this passage refer to findings made by the magistrate which had been held to be erroneous and were therefore excluded by the judge from his assessment of the "evidence". The first error was that the magistrate had applied an objective test to question of capacity. The magistrate had stated (in a passage set out by the Chief Judge at [20]):
"I have also taken into account the young person's maturity. He is not that young and by the age of 12 he should be well aware that you cannot break into fire stations, particularly in the modern era of universal education, access to the internet, television, radio and so on."
As the Chief Judge noted at [22]:
"It was common ground that the relevant test was a subjective one and concerned the state of mind of the particular minor. It could not be applied on the basis of what a normal child of 12 would have known or thought."
The second error identified was the finding in the first sentence of this passage by the magistrate as to the applicant's "maturity". The applicant had submitted before the Chief Judge that the evidence before the magistrate was insufficient to support the finding that he had "the level of maturity ... of a normal 12 year old": at [23]. The Chief Judge accepted that submission, hence his statement in his final conclusion that he would leave out of account the magistrate's finding as to the plaintiff's maturity: see at [29] above.
The second factual finding rejected by the Chief Judge related to the magistrate's conclusion that the applicant had "subsequently made some attempts to secrete a number of items which he took." The Chief Judge noted that that conclusion was without foundation in the evidence. He stated at [30]:
"The evidence from his mother was that there were rulers with 'Fire Brigade' written on them and little packets of coloured pencils in the kitchen. There does not seem to have been any attempt to hide those. The police officers who searched the home had no difficulty in finding a number of Rural Fire rulers in a hallway cabinet. The only evidence concerning the finding of the laptop was that it was located 'inside a television cabinet'. There was no evidence of a description of the cabinet or of where in the cabinet it was found. I have concluded that it was not open to his Honour to find that the plaintiff had 'made some attempts to secrete a number of items which he took'."
The last conclusion explained the reason for leaving out of account the second matter identified by the Chief Judge set out at [29] above.
The Chief Judge identified a number of other factual findings relied on by the magistrate. One was that, in the language of the police officer who attended the premises, the place had been "ransacked". The magistrate had said:
"... another reason why I feel that this offence goes beyond mere mischief or being naughty and can obviously be seen to be very wrong and very much a culpable act is that the office was ransacked and so the young person committing this offence has not just gone in and taken a number of items. He has severely messed up the place so to speak."
The Chief Judge dealt with this matter at [29] in the following terms:
"The difficulty for his Honour, and for this Court, is that what was meant by the word 'ransack' was never explained by the two police officers who used it. In the absence of any explanation, I would not be prepared to interpret the word as indicating anything more than it was obvious to an observer that drawers and cupboards had been opened (and perhaps left open) consistent with the search for money, which was one of the [applicant's] purposes in breaking into the premises."
Although no express finding was made, that appears to have been another factual consideration which the Chief Judge dismissed, at least in assessing whether the conclusion reached by the magistrate was open on the evidence.
There is, however, a further matter of some significance given the common ground that the test to be applied was subjective and not objective. The magistrate had commenced his assessment of the evidence stating:
"In terms of the offence itself, it is notable that the offence was committed on a fire station that is an Emergency Services building. That lends an additional sinister aspect to this case. It marks it as being a very wrong act."
The Chief Judge dealt with this passage at [28] in the following terms:
"The importance of the object of the break-in being a fire station was that it would have been appreciated by the [applicant] that the fire station existed for a specific purpose and that he was not meant to be there. That he was aware of this fact, emerges from statements which he made to CK." (Emphasis added.)
The evidence of CK was that he saw the applicant on the street throwing a large bag of balloons up in the air and, when they fell on the ground, jumping on them so that the balloons went all over the road. The applicant left the balloons lying in the road and said to CK, "Look [what] I got, I got them last night, I got them from the fire station ...". What the evidence revealed was, of course, that he knew he had been in a fire station: what it did not reveal was that he knew that this was a "sinister" matter. The point is of some importance, because the Chief Judge himself adopted the language of an objective test, "it would have been appreciated by the [applicant]", with relation to the significance of the fire station and a subjective test only as to his awareness that he had been in the fire station.
The critical issue for present purposes, however, is the acknowledgment by the Chief Judge that the magistrate had applied a wrong test. The application of the objective test no doubt followed from the stark absence of evidence relating specifically to the knowledge and state of mind of the applicant. That fact, however, merely demonstrated that there was only sparse material from which a finding could be made beyond reasonable doubt as to the particular knowledge and state of mind of the applicant. It did not justify substituting an objective test for that required by law.
It was, of course, necessary for the Chief Judge, having found legal error, to determine whether those legal errors were material in the circumstances. The answer to that question could not have been in doubt: the test and the standard to be applied were central to the issue being determined by the magistrate.
There was a further problem with the subtraction of two findings from the matters relied upon by the magistrate, while maintaining that he would have come to the same conclusion absent those findings. Thus, having identified some five matters relevant to that issue the magistrate concluded (LC Tcpt, 06/07/12, p 6(5)):
"And so, again, conglomerating all of those conclusions I find that doli incapax has been negatived by the prosecution and so, therefore, each element ... has been proved beyond a reasonable doubt.
There is no doubt that the magistrate relied on the cumulative effect of all the matters to which he referred: to remove two features was to make a fresh finding of fact, a course not open to the Chief Judge on this appeal.
On an appeal limited to a question of law, the findings as to error dictated the outcome, unless it could be said that, applying the correct test, there was only one conclusion open to the magistrate. The Chief Judge did not reach that conclusion, nor could he have done so on the material before him. Accordingly, the only course open was to set aside the conviction. The fact that it was open on the evidence for the magistrate to conclude beyond reasonable doubt that the applicant had criminal capacity merely meant that the matter could be remitted for a further hearing, rather than the charge being dismissed. It would have been open to the Chief Judge to set aside the decision and remit it pursuant to s 55(1)(b); that course was not taken.
The appeal should be allowed. There is then a question for this Court as to whether the matter should be remitted for redetermination by the Children's Court. It is now four years since the offence was committed. On sentence, the magistrate, having found the applicant guilty, dismissed the charge with a caution, pursuant to s 33(1)(a) of the Children(Criminal Proceedings) Act. In these circumstances, the administration of justice would not be served by returning the matter to the Local Court with an invitation to the parties to relitigate the issue on the basis of further evidence, nor would it be sensible to invite the magistrate to re-decide the case, more than two years after he had heard the evidence and four years after the conduct occurred.
The Court should make the following orders:
(1) Allow the appeal and set aside the order in the Common Law Division dismissing the appeal.
(2) Allow the appeal to the Supreme Court and set aside the finding of guilt of the applicant at Wentworth Children's Court on 6 July 2012 and the caution administered on 10 August 2012.
The applicant's counsel did not seek costs, it being in the nature of a criminal proceeding and no order should be made as to the costs in this Court.
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