Rigby v ND - [2022] NTSC 51

CITATION:Rigby v ND [2022] NTSC 51
PARTIES:RIGBY, Kerry Leanne

v
ND

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from YOUTH JUSTICE COURT exercising Territory jurisdiction
FILE NO:LCA 42 of 2021 (22100272)
DELIVERED:  6 July 2022
HEARING DATE:  7 April 2022
JUDGMENT OF:  Barr J

CATCHWORDS:
CRIMINAL LAW – CRIMINAL LIABILITY – CAPACITY – Doli incapax – Assault – Respondent youth 13 years 11 months old – Slapped school Principal to face when he intervened in fight between respondent and another girl – Prosecution required to prove beyond reasonable doubt that respondent had “the capacity to know that she ought not to do the act” – Finding of not guilty – Youth Justice Court held evidence incapable of supporting inference beyond reasonable doubt that respondent understood that slapping a teacher was “morally or seriously wrong” – Court applied test stated in RYE v Western Australia [2021] WASCA 43 – ‘Whether at material time child had capacity to know that the conduct in question was seriously wrong by the ordinary standards of reasonable adults’ – Requirement of capacity to know that conduct was ‘seriously wrong’ contrary to decisions of Queensland Court of Appeal – Held correct test is whether respondent had the capacity to know that it was wrong to assault the school Principal – Youth Justice Court erred in law – Appeal ‘might be decided in favour of the appellant’– Alleged offending took place more than two years previously – Appeal dismissed – Inherent jurisdiction of Supreme Court – No substantial miscarriage of justice
Criminal Code Act 1983 (NT) s 23, s 38
Criminal Code 1899 (Qld) s 29(2)
Local Court (Criminal Procedure) Act 1928 (NT) s 163, s 177(2)(f)
Youth Justice Act 2005 (NT) s 144
The Queen v B [1997] QCA 486, R v F, ex parte Attorney-General (1999) 2 Qd R 157; R v JJ; R v JJ; ex parte A-G [2005] QCA 153; R v EI [2009] QCA 177; R v TT [2009] QCA 199, followed
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22, 230 CLR 89; R v DG [2010] VSCA 173, 28 VR 127; Director of Public Prosecutions (Tas) v Chatters [2011] TASCCA 8, 218 A Crim R 156; Harofam Pty Ltd v Scherman [2013] VSCA 104, 42 VR 372, R v XY [2013] NSWCCA 121, 84 NSWLR 363, referred to
RYE v Western Australia [2021] WASCA 43, not followed
RP v The Queen [2016] HCA 53; 259 CLR 641, considered
REPRESENTATION:
Counsel:
Appellant:H Spowart
Respondent:  P Boulten SC, J Bourke
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  North Australian Aboriginal Justice Agency
Judgment category classification:    B
Judgment ID Number:  Bar2207
Number of pages:  22

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Rigby v ND [2022] NTSC 51

LCA 42 of 2021 (22100272)

BETWEEN:

KERRY LEANNE RIGBY

Appellant

AND:

ND

Respondent

CORAM: BARR J
REASONS FOR DECISION
(Delivered 6 July 2022)

This is a prosecution appeal brought pursuant to s 144(1) of the Youth Justice Act 2005 read with the provisions of s 163(3) and (5) of the Local Court (Criminal Procedure) Act 1928. An appeal under s 163(3) of the Act is limited to errors or mistakes on matters or questions of law alone or matters of question of both fact and law.
The respondent was charged with the unlawful assault of Robert Lee, who was in the performance of his duties at the time of the assault, with the alleged circumstance of aggravation that Mr Lee suffered harm. The alleged assault took place on 17 March 2020.
The charge was heard summarily in the Youth Justice Court by Judge Armitage. Her Honour found the respondent not guilty and dismissed the charge. Her Honour published reasons to the parties.[1]
The respondent was 13 years and 11 months old at the time of the alleged offending in March 2020. She was a student at Palmerston College 7-9 Campus. Mr Lee was the Assistant Principal. Shortly prior to the assault, Mr Lee saw an unusual grouping of girls near the door to the canteen. He heard the respondent screaming at another female Year 9 student, LS, “I’m gonna fight you.” In the opinion of Mr Lee, both girls were willing participants but the respondent was the aggressor. Mr Lee described the ensuing events as follows:[2]
They have come together to fight and I pushed in between both girls in an attempt to stop them hurting each other. LS has fallen over and ND has kept trying to get to LS. I continued to stand in the way of ND with my arms out to my sides stopping her from getting to LS.
I continued stopping ND from getting to LS. ND has said something to me. I don’t remember what she said but immediately after she spoke to me she has used her right hand and slapped me in the face. It hit the left side of my face. I don’t remember feeling any pain at the time but I was focused on ND. My face went red as a result of the strike.
I was surprised and shocked from being hit by a student. As a result of ND hitting me she has been able to push past me and tried to get to LS again. …..
As a result of this assault, I had a red face where she hit me. I believe that I should be able to come to work and not be assaulted by students. ….
A school-based police officer, who had been alerted to the possibility of a fight between two groups of girls, saw Mr Lee standing between two students. The officer said that the respondent was the aggressor and was trying to get past or through Mr Lee to engage in a fight with another female student. Mr Lee had his arms outstretched “in a shepherding gesture” facing the respondent, who raised her right hand and struck Mr Lee with an open hand on the left side of his face. He appeared to be stunned. The respondent then managed to get past Mr Lee in an attempt to get to the other girl.[3]
Although there was little doubt on the evidence that the respondent had intentionally struck Mr Lee, without his consent, her Honour was not satisfied that the prosecution had proved beyond reasonable doubt that, at the relevant time, the respondent had the capacity to know that she ought not to engage in the conduct in which she engaged, namely striking the complainant.[4]
The following statements, taken from her Honour’s written reasons, reflect her reasons for the not guilty finding:[5]
I consider that the evidence establishes that the defendant knew that fighting at school was not acceptable or appropriate. If she engaged in fights she could be suspended and she would only be allowed to return to school if she agreed to adopt different strategies to fighting in the future. However, in spite of these school interventions, it appears that the defendant had difficulty in moderating or changing her behaviour. Given her poor reading and comprehension, it appears possible that she lacked the language skills of other children her age and she may have found it more difficult to resolve disputes through the use of language. The educational authorities recognised that she required additional support to improve her engagement with the school and her social interactions but there was no evidence as to what, if any, support had been provided.
I consider the evidence is incapable of supporting any inference, let alone one beyond reasonable doubt, that the defendant understood or appreciated [that] physical fighting, including slapping a teacher to continue to engage in a fight, was morally or seriously wrong in the sense required to prove criminal responsibility under s 38 of the Criminal Code. Indeed, I consider that the single slap was objectively less serious than the fight itself which was not the subject of a criminal charge. I am unable to find any evidence that points to the defendant having a capacity to understand the difference between the inappropriateness of fighting with other children, and the concept that a single slap aggravated the behaviour to such an extent that she could or should have understood that the slap was seriously or morally wrong.
Issues on appeal
The Criminal Code, s 23, relevantly provides that a person is not guilty of an offence if any act constituting an offence was “authorised, justified or excused”. In Part II, Division 4, under the Division heading “Excuse”, s 38 reads as follows (italic emphasis added):
38.Immature age
(1)A person under the age of 10 years is excused from criminal responsibility for an act, omission or event.
(2)A person under the age of 14 years is excused from criminal responsibility for an act, omission or event unless it is proved that at the time of doing the act, making the omission or causing the event he had the capacity to know that he ought not to do the act, make the omission or cause the event.
For the purposes of the present appeal, and for an adequate understanding of the issue arising from her Honour’s reasons, the italicised words in s 38(2) are crucial.
The appellant and the respondent appear to agree that the italicised words necessarily import consideration of why the act ought not to be done.[6]
The appellant concedes and submits that a proper construction requires the addition of the words “because it was wrong” after the italicised words.
The respondent contends that the appellant’s concession is insufficient, and that a proper construction requires the addition of the words “because it was seriously wrong by the ordinary standards of reasonable adults”.[7] In oral argument, postulated alternatives were “wrong according to the ordinary principles of a reasonable man”,[8] and “seriously wrong by normal adult standards”.[9]
Judge Armitage, correctly, determined that s 38 of the Criminal Code required proof that a child between 10 and 14 years of age has capacity to know, rather than actual knowledge.[10] Her Honour then determined that s 38 required proof [beyond reasonable doubt] that a child had capacity to know that the conduct in question was seriously wrong by the ordinary standards of reasonable adults”.[11] The construction adopted by her Honour relied on the plurality decision in RYE v Western Australia.[12]
The within appellant’s core contention is that the learned judge set the bar too high by requiring proof that the child had capacity to know that conduct in question was seriously wrong, rather than just wrong. The appellant contends that this was an error of law.
Consideration
The legislative provision construed by the Court of Appeal of Western Australia in RYE was in identical terms to s 38(2) of the Northern Territory Criminal Code. Moreover, it is clear that that the construction arrived at by the plurality in RYE was stated as a construction of general application, and not restricted to the circumstances of serious sexual offending alleged against the appellant in that case.[13] I set out the relevant parts below, (citations omitted; underline emphasis added):[14]
In our opinion, the statement in s 29 of the Code as to a child's capacity to know that “he ought not to do the act or make the omission” is a reference to the child's capacity, at the material time, to know that doing the act or making the omission was morally wrong. The requisite capacity to know that doing the act or making the omission was morally wrong is not to be equated with capacity to know that the conduct in question was legally wrong or a breach of the criminal law. See, generally, RP at [11]. Also, the requisite capacity to know that doing the act or making the omission was morally wrong is not to be equated with capacity to know that the conduct in question was naughty, mischievous or rude. See, generally, RP at [9], [11], [33]. A child's capacity to know that “he ought not to do the act or make the omission” in s 29 is concerned with the child's capacity to know that the relevant act or omission was morally wrong as distinct from legally wrong or a breach of the criminal law or merely naughty, mischievous or rude. It is necessary, however, to connect the concept of moral wrongness within s 29 to community standards which give the concept practical meaning and enable the test to be readily understood and applied by a jury or other fact finding tribunal. In our opinion, a child will have capacity to know that doing the relevant act or making the relevant omission was morally wrong if, at the material time, he or she had capacity to know that the conduct in question was seriously wrong by the ordinary standards of reasonable adults. See, generally, R v Porter; R v MacMillan; and R v M. So, the question for the jury or other fact finding tribunal where the State must prove beyond reasonable doubt that a child had the requisite capacity is whether, at the material time, the child had capacity to know that the conduct in question was seriously wrong by the ordinary standards of reasonable adults.
The reference by their Honours in the extracted passage to RP was to the decision of the High Court in RP v The Queen.[15] There the Court considered the rebuttable presumption of doli incapax at common law. The appellant was approximately 11 years and six months old at the time he was alleged to have committed two offences of sexual intercourse with a child under the age of 10 years, the child being his younger brother who was six years and nine months old. The appellant was also alleged to have committed two offences of aggravated indecent assault against the same younger brother, at a time when the appellant was 12 years and three months old and his brother seven years and five months old.
After referring to the conclusive presumption under statute law in New South Wales that no child under the age of 10 years can be guilty of an offence, the majority in RP provided the following summary in relation to the presumption from the age of 10 years and the evidence required to rebut the presumption:[16]
From the age of ten years until attaining the age of fourteen years, the presumption may be rebutted by evidence that the child knew that it was morally wrong to engage in the conduct that constitutes the physical element or elements of the offence. Knowledge of the moral wrongness of an act or omission is to be distinguished from the child’s awareness that his or her conduct is merely naughty or mischievous. This distinction may be captured by stating the requirement in terms of proof that the child knew the conduct was “seriously wrong” or “gravely wrong”. No matter how obviously wrong the act or acts constituting the offence may be, the presumption cannot be rebutted merely as an inference from the doing of that act or those acts. … The prosecution must point to evidence from which an inference can be drawn beyond reasonable doubt that the child’s development is such that he or she knew it was morally wrong to engage in the conduct. This directs attention to the child’s education and the environment in which the child has been raised.
…. the knowledge in each case is of the wrongness of the act as a matter of morality and not law. There is, however, in the case of the child defendant, the further dimension of proof of knowledge of serious wrongness as distinct from mere naughtiness.
In a separate judgment, Gageler J stated the prosecution onus as follows:
The prosecution must prove beyond reasonable doubt that the child understood that the child’s conduct which constituted the offence was seriously wrong by normal adult standards.[17]
Mr Boulton SC submits that the above statements in relation to the common law presumption would apply equally to offences contrary to the Northern Territory Criminal Code, because “in all relevant respects …the tests under s 38 of the Code and the common law are in substance the same”.[18] Mr Boulton contends that the use of adverbs such as ‘seriously’ and ‘morally’ by Judge Armitage in the present case were “simple glosses on the word ‘wrong’ which have been employed interchangeably with that word for at least 100 years”.[19]
In my opinion, however, combining the qualifying adverb ‘seriously’ with the adjective ‘wrong’ is not a “simple gloss”. It clearly raises the bar. In this respect, decisions of the Queensland Court of Appeal over many years in relation to s 29(2) Criminal Code 1899 (Qld) – a provision nearly identical to s 38(2) – have not imported the concept implicit in the word ‘seriously’, and indeed have ultimately rejected any requirement that the prosecution prove that capacity to know that the conduct in question was seriously wrong.
In R v B,[20] the Court considered the case of a male youth, just over 12 years of age, who was charged with assault after threatening his school principal with a knife. He had stepped forward toward the complainant in a menacing way pointing a knife. Pincus JA (Davies JA and de Jersey J agreeing) emphasized the need to prove that at the relevant time the person had capacity, explaining that that was different from proving actual knowledge. His Honour then said:
The only question is whether there was sufficient evidence to support the conclusion of which the jury arrived, on the issue. One would expect a child as old as 12 to have the capacity to know that threatening a teacher with a knife is wrong, but this expectation does not affect the existence of the presumption; it only affects the strength of the evidence likely to be necessary to rebut it.
After then reviewing the evidence in relation to capacity, Pincus JA continued:
But there is really nothing in her [the complainant’s] discussion of the boy to lead one to suspect that he was possessed of such an unusually immature moral sense as to be incapable of understanding that it was wrong to threaten a teacher with a knife.
It is clear from the judgment extracts in [21] and [22] that s 29(2) of the Criminal Code 1899 (Qld), which required proof that “the person had the capacity to know that the person ought not to do the act” required no more than that the person was capable of understanding that it was wrong to do the act.
In R v F, ex parte Attorney-General,[21] the Court considered the case of a male youth aged 14 years and 9 months at the time of the first lot of offending (assault occasioning bodily harm, breaking and entering with intent to commit that offence) and 14 years and 11 months at the time of the second lot of offending (armed robbery in company with personal violence, and deprivation of liberty).[22] The trial Judge had held that to rebut the presumption in s 29(2), the Crown was required to call “strong and pregnant evidence that the accused understood that what he did was seriously wrong and not merely naughty or mischievous”. Davies JA (McPherson JA and Shepherdson J agreeing) said that that was not a correct statement of the principle in s 29(2).[23] As to the suggested requirement that it be proved the accused understood that what he did was “seriously wrong”, Davies JA observed:[24]
It is preferable in my view, if the phrase “that the person ought not to do the act” needs to be paraphrased, and I doubt if it does, to use the phrase “that the act was wrong according to the ordinary principles of reasonable man”: R v M (1977) 16 SASR 589 at 591.
In R v JJ; R v JJ; ex parte A-G,[25] the appellant had been found guilty of one count of rape. At the time of the offending, the appellant was just 14 years old,[26] and the complainant (his younger sister) was about 9 or 10 years old. The appellant had denied the complainant’s evidence about the incident, and the issue of capacity was not an issue at trial. On appeal, McPherson JA (Williams JA and Jerrard JA agreeing) referred to the judgment of Pincus JA in R v B for the proposition that the question was not whether the accused knew he was doing wrong, but whether he had the capacity to know he ought not to do the act in question. The evidence of the complainant was that she had told the appellant that she was too young and that, as her brother “you don’t do that to me”. The appellant had replied to the effect that he could do what he was intending to do and that he would hurt the complainant if she told their parents. McPherson JA held that the uncontradicted evidence of the complainant was sufficient to satisfy the jury that the appellant had “the capacity to know he ought not to rape her”.[27] His Honour did not explore whether a person’s capacity to know that he ought not to do the act in question required an understanding that the act was ‘wrong’ or ‘seriously wrong’; his Honour simply applied the words used in the legislation. In my opinion, there is much to be said for that approach, which reflects the view expressed by Davies JA in R v F, ex parte Attorney-General that the phrase “that the person ought not to do the act” did not need to be paraphrased.

In R v EI,[28] the circumstances considered by the Court were that the appellant had been convicted of one count of rape at a time when he was 12 years and 5 months old, possibly as old as 12 years and 10 months. The complainant was a boy aged about four. McMurdo J (Holmes JA and Applegarth J agreeing) referred with apparent approval to the decision of Pincus JA in R v B, in particular the identification of the relevant question by his Honour: whether the appellant had the capacity to know that what he was doing was ‘wrong’.[29] It is apparent that McMurdo J equated the appellant’s capacity to know that his actions were wrong with the capacity to know that he ought not to have committed the acts charged. [30] In referring to the probative value of evidence of a reasonably contemporaneous police interview with the appellant, McMurdo J said, “… it went to the question of capacity by exploring the appellant’s ability to distinguish between right and wrong”.[31] His Honour then said that “[the appellant’s] answers contain some explanation which demonstrated an understanding of right and wrong”, which left it open to the trial judge to conclude that the appellant had the capacity to know that he ought not to do acts of the kind involved in the offences.[32] Although his Honour did not state a specific test to that effect, it would appear that the test of the relevant capacity adopted by him was the capacity to understand and distinguish right and wrong.
In R v TT,[33] the appellant, aged 12 years and 10 months, had assaulted a wheelchair-reliant victim. The trial judge had found that the appellant’s answers to questions asked by police indicated “a capacity to know right from wrong”. The trial judge had concluded that the appellant “clearly had the capacity to know that he ought not to have done the act at the time”. In the following passage from the appeal judgment, Keane JA (Chesterman JA and Wilson J agreeing) stated and then dealt with a ground of appeal in relation to insufficiency of evidence of capacity:[34]
The second ground of appeal was that there was insufficient evidence for the learned trial judge to be satisfied beyond reasonable doubt that the appellant knew that the offences with which he was charged were “seriously wrong”. This ground of appeal is quite misconceived. What the learned trial Judge had to decide was whether he was satisfied beyond reasonable doubt that the appellant had the capacity to know it was wrong to assault another person.
Keane JA considered the trial evidence and found that it was “not difficult to infer as a fact from the circumstances of the case that the appellant had the necessary capacity”.[35] His Honour then said:
It was open to the tribunal of fact to reason that the most basic level of understanding would suffice to enable a child of 12 years to understand that it is wrong to punch a wheelchair-bound person without provocation.
It is apparent from the extracts in [27] and [28] that the Queensland Court of Appeal again equated “capacity to know that the person ought not to do the act” with the capacity to know that it was (or would be) wrong to do the act.
In summary, not only do the decisions of the Queensland Court of Appeal not import the requirement, for rebuttal of the presumption, that the prosecution prove that the accused had the capacity to know that the conduct in question was seriously wrong, but the Court in R v TT went so far as to as to describe that suggested requirement as “quite misconceived”.
The plurality in RYE, in considering the appellant’s capacity to know that “he ought not to do the act or make the omission”, referred with apparent approval to the judgments of Pincus JA in R v B, Davies JA in R v F, McMurdo J in R v EI, and Keane JA in R v TT.[36] However, the latter reference was to par [20] of the judgment of Keane JA in R v TT, without reference to par [19] of the same decision.[37]
The plurality in RYE expressed this conclusion:[38]
In our opinion, the word “ought” in s 29 connotes, in context, duty or rightness. The words “ought not” in s 29 are the negative form of the word “ought”.
The plurality then determined that the statement in s 29 of the (WA) Code as to a child’s capacity to know that “he ought not to do the act or make the omission” was a reference to the child’s capacity, at the material time, to know that doing the act or making the omission was morally wrong.[39] Par [51] of the plurality’s decision is set out in [15] above. It can be seen that their Honours’ process of reasoning ultimately led to the test stated by them, namely, whether, at the material time, the child had capacity to know that the conduct in question was seriously wrong by the ordinary standards of reasonable adults.
The plurality in RYE referred to the Queensland authorities in which the test of capacity had been stated in terms of capacity to know that it was wrong – not seriously wrong – to do the charged act. However, as I conclude in [30] above, the Queensland Court of Appeal had rejected a ground of appeal seeking to incorporate “seriously” as misconceived. The plurality in RYE did not criticize or seek to distinguish the Queensland decisions, and it is therefore difficult to understand, in the absence of specific reasons, how the plurality in RYE ultimately set the test of the requisite capacity as “the capacity to know that the conduct in question was seriously wrong by the ordinary standards of reasonable adults”.
Resolution of the issues in the present appeal
The principle of judicial comity has application. Intermediate appellate courts and trial judges in Australia should not depart from the decisions of intermediate appellate courts in another jurisdiction on the interpretation of “uniform national legislation” unless convinced that the interpretation is plainly wrong.[40] Unlike the Corporations Law, the relevant criminal codes of Northern Territory, Queensland and Western Australia are not to be characterized as uniform national legislation, but in relation to “immature age” (the section heading to s 38 of the Northern Territory Criminal Code), they are practically identical. In principle, I should follow the decision(s) of the intermediate appellate courts of Queensland and Western Australia concerning the meaning of s 38(2) Criminal Code, which is in pari materia with the code provisions of those jurisdictions, unless persuaded that the decision(s) is/are wrong.[41] The difficulty in the present case is that I am faced with apparently conflicting approaches adopted by the intermediate appellate courts of those two states. I therefore need to determine for myself the correct approach to the statutory provision, giving proper consideration to the reasoning and conclusions of the authorities in the Queensland and Western Australian appellate courts.[42]
In my opinion, with respect, the plurality’s interpretation in RYE is not correct as a general statement of interpretation. The correct interpretation is that derived from the decisions of the Queensland Court of Appeal, which do not import the requirement of proving the capacity to know that the conduct in question was seriously wrong. The Queensland decisions are more closely aligned with the specific text of s 38 of the Northern Territory Criminal Code and its Queensland and Western Australian equivalents: “the capacity to know that he ought not to do the act”. The Queensland decisions avoid the false dichotomy of “seriously wrong” as opposed to “merely naughty, mischievous or rude” by providing a ‘middle ground’. Moreover, the Queensland decisions make greater practical sense, in stating a logical principle of construction of general application to different kinds of offending. To my mind, it would not make sense for the prosecution to be required to prove, in relation to a child charged with a relatively low level offence (for example, and depending on the circumstances: shop lifting or similar types of stealing; fare evasion; receiving stolen goods; removal of an article on display in a public place, short of stealing; criminal trespass without damage) that the child had capacity to know that the conduct in question was seriously wrong by the ordinary standards of reasonable adults, in circumstances where the conduct may not be seriously wrong by such standards.[43]
The learned Youth Court judge considered that she should apply the reasoning of the majority in RYE to s 38 of the Criminal Code, the relevant capacity being “the capacity to know that the conduct in question was seriously wrong by the ordinary standards of reasonable adults”.[44] For reasons explained, I consider that her Honour erred in law. That error contaminated her Honour’s ultimate findings, extracted by me at [7] above, evidenced by her references to “morally or seriously wrong” or “seriously or morally wrong”.
Her Honour referred to evidence given by the school Principal in relation to the respondent’s school records, specifically records of behavioural incidents.[45] I note that the respondent was suspended on 6 September 2018 because she had gone into a classroom, which was not her classroom, grabbed another student by the hair, thrown her off her chair and onto the floor, and then hit her.[46] Before suspending the respondent, the Principal spoke with her and told her that her behaviour was not acceptable behaviour.
The respondent had been suspended previously, on 22 June 2018. On that occasion, she had assaulted another student twice in class, repeatedly punching her both times. Two teachers broke up the “fight” but the respondent broke free and punched the other girl again. The respondent was suspended for five days. After that time, the Principal conducted a ‘re-entry interview’ with the respondent and her mother. The principal told the respondent that her conduct had been inappropriate and discussed with her what could be done in future to avoid the recurrence of such incidents.[47] The respondent presented as “calm, polite and responsive to the conversation”. The Principal was confident that the respondent would be able to re-engage, and allowed her to return to school. It would seem that her confidence was (to some extent) misplaced.
The respondent had been earlier suspended, on 13 June 2018, for verbal abuse of school staff. She had been disruptive in class and when asked to settle down and re-engage in classwork had sworn at the teacher. She was suspended by the Principal for two days. The Principal conducted a “re-entry interview” with the respondent and her mother. The Principal’s evidence as to that interview was as follows:
… So with the suspension, ND had been disruptive and been asked to … settle down and re-engage in classwork, had sworn at the teacher. So we unpacked that and again, “So what happened, is it reasonable that you are asked to sit down?” We went through what happened in it and what’s reasonable and what’s not reasonable. “Is it okay to swear at teachers? No, it’s not”. I brought the school value of respect into it, so we treat people with respect. … and then we had an expectation contract that we went through … I don’t remember what I said in my statement, we covered attending lessons, appropriate behaviour, expected behaviour in the classroom.
Of significance, no teachers had spoken to the Principal of concerns held by them about ND having a disability or inability in understanding. Moreover, the Principal herself had no concerns, in her dealings with ND, as to whether ND had any difficulties in communicating with her. There was clear evidence that the respondent had been spoken to and counselled in relation to her conduct, that she had been suspended from attending school as a consequence of such conduct, and that she understood why she had been suspended.
Her Honour correctly identified that the respondent’s results were well below the national academic standards and that her attendance at school was poor and declining. However, it is difficult to see how, if the correct test were applied, the respondent did not have the capacity to know, at the time, that it was wrong to strike a teacher, the Assistant Principal, in her attempt to fight another student. She had already been suspended for attacks on other students (euphemistically for “fighting”). She had already been suspended for swearing at a teacher. She had engaged in a responsive manner in re-entry interviews. In my opinion, there was clear evidence that the respondent had the capacity to know that it was wrong to strike the Assistant Principal to the face.
In referring to the possibility that the respondent may have found it “more difficult to resolve disputes through the use of language”, rather than violence, her Honour appears to have conflated the respondent’s capacity to know right from wrong with her capacity (or willingness) to exercise self-control.
Notwithstanding the evidence referred to in [38] – [41], and the observations made by me in [42] – [43], I do not consider that it would be appropriate on this appeal to make findings beyond reasonable doubt, to find the respondent guilty. I cannot be confident that the interpretation of s 38 stated by me would have necessarily resulted in a different outcome to which I should give effect. As a result, if the appeal were allowed, the preferable course would be to remit the matter for rehearing, pursuant to s 177(2)(d) of the Local Court (Criminal Procedure) Act 1928.
As to whether the appeal should be allowed, this is a case in which all grounds of appeal “might be decided in favour of the appellant”. However, I propose to dismiss the appeal, pursuant to s 177(2)(f) of the Act, on the basis that no substantial miscarriage of justice has actually occurred; alternatively in the inherent jurisdiction of the court.
In this context, it must be acknowledged that Judge Armitage carefully considered the evidence adduced in the Youth Justice Court hearing, and provided detailed written reasons which were the product of that consideration. After reviewing the authorities to which she had been referred in submissions, her Honour concluded that she should apply the test stated by the plurality in RYE v Western Australia, and diligently applied the test in finding the respondent not guilty.
Although this prosecution appeal has established an error of law in her Honour’s reasoning, I do not consider that it would be in the interests of justice to remit the matter for rehearing in the Youth Justice Court. The alleged offending occurred on 17 March 2020; the respondent was charged on 4 December 2020; the hearing took place on 27 October 2021, the charge was dismissed on 30 November 2021 and the appeal came on for hearing on 7 April 2022. It was then more than two years since the assault, and it would now be another 4 to 6 months (if that) before the matter were reheard.
Accordingly, the appeal will be dismissed.
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[1]Rigby v ND [2121] NTLC 034 (YJC).

[2] Exhibit 2, statutory declaration Robert Lee, pars, 3-6, 8.

[3] Exhibit 1, statutory declaration Senior Constable Tanith Blair, pars 3-4.

[4] In addition, her Honour found – without giving reasons – that she was not satisfied that the prosecution had proved the alleged circumstance of aggravation, namely the causing of harm. The definition of ‘harm’ in s 1A(1) Criminal Code is “physical harm”, temporary or permanent, and “physical harm” is defined in s 1A(2) to include “any physical contact with a person that a person might reasonably object to in the circumstances”. Mr Lee did not give express evidence that he objected to being struck to the face, but Mr Lee's evidence was that: (1) he was “surprised and shocked” by being hit by a student, (2) his face “went red as a result of the strike” and (3) he believed that he should be able to come to work and not be assaulted by students. That evidence permits a clear inference beyond reasonable doubt that he objected, reasonably, to being struck by the respondent. In any event, the definition imports an objective test: “any physical contact that a person might reasonably object to in the circumstances” and “whether or not the person is aware of it at the time”. It is beyond reasonable doubt that a student slapping the face of the Assistant Principal (without his consent) constitutes “physical contact with a person that a person might reasonably object to in the circumstances”.

[5]Rigby v ND, at [41] – [42].

[6] Respondent's submissions, par 27.

[7] The respondent relies on RYE v Western Australia [2021] WASCA 43 at [51] per Buss P and Mazza JA (“RYE”).

[8] Ibid at [91] per Vaughan JA, citing R v F; Ex parte Attorney-General (Qld) [1999] Qd R 157 at 160 per Davies JA (McPherson JA and Shepherdson J agreeing).

[9] See RP v The Queen [2016] HCA 53; 259 CLR 641 per Gageler J at [38].

[10] Rigby v ND, at [28].

[11] Rigby v ND, at [29].

[12] RYE, at [51].

[13] At the time of the alleged offending, the appellant was about 13 years and three months old. The complainant was seven or eight years old. There were three separate incidents alleged. All took place beneath the floorboards of the complainant's parents’ home. In the first incident, the appellant fondled the complainant's penis, performed fellatio on the complainant and, at the appellant's direction, the complainant performed fellatio on the appellant. The second and third incidents were similar.

[14] Ibid, at [51], per Buss P and Mazza JA.

[15]RP v The Queen [2016] HCA 53; 259 CLR 641.

[16] Ibid. at [9], [10] per Kiefel, Bell, Keane and Gordon JJ. (citations omitted).

[17]Ibid. at [38].

[18]Respondent's submissions, page 11, par 51. The respondent does acknowledge that there is a distinction between proof of a capacity to know (s 38) and actual knowledge (the common law).

[19]Respondent's submissions, page 7, par 30.

[20] The Queen v B [1997] QCA 486.

[21] R v F, ex parte Attorney-General (1999) 2 Qd R 157.

[22] As s 29(2) Criminal Code 1899 (Qld) stood in 1996, the stated age was “under the age of 15 years”.

[23] The reference to “strong and pregnant evidence” had come from the judgment of Lord Parker LCJ in B v R (1958) 44 Cr App R 1, cited with approval by the Queensland Court of Criminal Appeal in R v B (an infant) [1979] Qd R 417 at 425. Davies JA said that the context in which Lord Parker's statement had been cited was the need for the calling of proper and admissible evidence and the absence, in that case, of any evidence at all.

[24]R v F, ex parte Attorney-General (1999) 2 Qd R 157 at 160.20.

[25] R v JJ; R v JJ; ex parte A-G [2005] QCA 153.

[26] The appellant's criminal responsibility fell to be determined as at 1991, when the age specified for the purposes of s 29(2) was 15 years, not 14 years. The age 14 years in s 29(2) Criminal Code 1899 (Qld) was substituted only in 1997.

[27]R v JJ; R v JJ; ex parte A-G [2005] QCA 153 at [9].

[28]R v EI [2009] QCA 177.

[29]Ibid. at [16].

[30]Ibid. at [17].

[31] Ibid. at [19].

[32] Ibid. at [20].

[33] R v TT [2009] QCA 199.

[34] Ibid. at [19].

[35] Ibid. at [20].

[36] RYE, at [45] – [49].

[37]The statement of Keane JA in [19] of R v TT is extracted in [27] above.

[38] RYE, at [50].

[39]It may be noted that Vaughan JA, at [91], had concerns about the incorporation of the concept of “moral wrongness”. His Honour preferred the exposition of Davies JA in R v F, extracted in this Decision at [24] above.

[40] Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492, per the Court; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [135]; R v DG [2010] VSCA 173; 28 VR 127 at [54].

[41]Director of Public Prosecutions (Tas) v Chatters [2011] TASCCA 8; 218 A Crim R 156 at [42]; Harofam Pty Ltd v Scherman [2013] VSCA 104; 42 VR 372 at [30].

[42] That would accord with the approach taken by Basten JA in R v XY [2013] NSWCCA 121; 84 NSWLR 363 at [40].

[43] Whereas, for example, there is no doubt that forced non-consensual sexual engagement is seriously wrong by the ordinary standards of reasonable adults.

[44] Rigby v ND, at [29].

[45] Rigby v ND, at [34] – [35].

[46]Transcript 27/10/2021, p 30.

[47] Transcript 27/10/2021, p 35.