RJ v Dunne
[2021] NTSC 32
•24 March 2021
CITATION: RJ v Dunne [2021] NTSC 32
PARTIES:RJ
v
DUNNE, Andrew
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY exercising appellate jurisdiction
FILE NOs:22009045, 22017681, 22010546 & 22009050
DELIVERED: 24 March 2021
HEARING DATE: 24 March 2021
JUDGMENT OF: Riley AJ
REPRESENTATION:
Counsel:
Appellant:L Patterson
Respondent: S Lapinski
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: C
Judgment ID Number: Ril2101
Number of pages: 12
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGSRJ v Dunne [2021] NTSC 32
Nos. 22009045, 22017681, 22010546 & 22009050
BETWEEN:
RJ
Appellant
AND:
ANDREW DUNNE
Respondent
CORAM: RILEY AJ
REASONS FOR JUDGMENT
(Delivered 24 March 2021)
The appellant is a 13-year-old child from the Utopia community. She came before the Alice Springs Youth Justice Court in September 2020 in relation to four different files. At that time the Youth Justice Court considered the issue of her criminal responsibility and whether it had been established by the prosecution in relation to material acts, that she had the capacity to know that she ought not do the acts or knew that her conduct was wrong – commonly referred to as the presumption of doli incapax. The onus is, of course, upon the prosecution to adduce evidence to rebut the presumption to the criminal standard of proof.
Three of the files related to non-schedule 1 offences under Part II of Division 2 of the Criminal Code. In relation to those three matters, the Youth Justice Court considered whether, pursuant to s 38 of the Criminal Code, the appellant should be excused from criminal responsibility for certain acts on the basis that at the time of the acts she did not have the capacity to know that she ought not do the acts.
The offences were: (a) File 22009050 – attempting to steal hair products from Kmart; (b) File 22009045 – stealing $500 from KP; and (c) File 22010546 – stealing a quantity of clothing and other items from Kmart, unlawfully entering Kmart at night time with intent to steal, and carrying a controlled weapon, namely a knife. The appellant was found guilty in relation to the offences referred to in (a) and (b) above, and also of the first count in (c) above. In relation to each of the matters, the Youth Justice Court found the presumption of doli incapax had been overcome and the appellant was not excused from criminal liability. The appellant was found not guilty of the other two matters in (c) above.
In relation to the remaining file (File 22017681), a Schedule 1 offence under Part IIAA of the Criminal Code, the Youth Justice Court considered whether, pursuant to section 43AQ of the Criminal Code the appellant, being a child aged 10 years or more but under 14 years, was criminally responsible for an offence because she knew that her conduct was wrong. This related to an offence of damaging a shopfront window. The Youth Justice Court found the presumption of doli incapax had been overcome and the appellant knew that her conduct was wrong. The appellant was found guilty.
Fresh Evidence
The appellant has appealed against each of the findings of guilt on the grounds that the learned Youth Justice Court Judge erred in her application of the two sections of the Criminal Code referred to above and, further, that each finding of guilt was unsafe and unsatisfactory.
In addition, the appellant sought to tender fresh evidence on the hearing of the appeal. By operation of s 176A of the Local Court (Criminal Procedure) Act this Court, unless it is satisfied that the evidence would not afford a ground for allowing the appeal, is to admit the evidence in circumstances where it appears the evidence is likely to be credible and would have been admissible in the proceedings below, that the evidence was not adduced in those proceedings and there is a reasonable explanation for the failure to adduce it.
The evidence sought to be adduced is a report by Dr Lorraine Lim, a forensic psychologist. There is no dispute that Dr Lim is suitably qualified to express an expert opinion pertinent to the issue of doli incapax relating to the appellant. There is no challenge to the submission that the evidence is likely to be credible and would have been admissible in the proceedings below.
The explanation for the failure to adduce the evidence was that, at the time of the evidence and submissions being completed in the Youth Justice Court on 1 September 2020, counsel was not aware of any cognitive impairments or disability suffered by the appellant. However, counsel later reviewed a school psychology report which indicated the appellant had low adaptive functioning skills and a “low average” general cognition. On 24 September 2020 the Youth Justice Court made the rulings now the subject of challenge and the matter was adjourned to 5 October 2020 for sentencing submissions. On that day, in light of the information contained in the school psychological report, defence counsel sought a full multidisciplinary assessment of the appellant and the Court so ordered. In the meantime, counsel also sought a report from Dr Lim. The multidisciplinary assessment prepared by PATCHES Clinical Services dated 7 December 2020 reported that the appellant had a diagnosis of Foetal Alcohol Spectrum Disorder and also had a Severe Language Disorder. The report of Dr Lim did not become available until January 2021.
Whilst it may be thought that counsel should have been alert to the need for further advice at an earlier time and sought an adjournment to enable that evidence to be obtained, it seems to me that, in all the circumstances, there is a reasonable explanation for the failure to adduce the evidence before the Youth Justice Court before the decision was handed down on 24 September 2020.
The report of Dr Lim will be received into evidence as part of the appeal.
Further, the appellant seeks to rely upon the report from PATCHES which, of course, was not available at the time the Youth Justice Court Judge considered the issue of doli incapax. The report was ordered for the purposes of determining an appropriate sentence.
In my opinion this report should also be received as fresh evidence as part of the appeal.
In the Youth Justice Court the Judge reviewed the relevant law including the authorities of KG v Firth [2019] NTCA 5 and the leading High Court authority relating to the common law position, RP v The Queen (2016) 259 CLR 641. Her Honour then undertook a detailed consideration of each of the offences and the role played by the appellant in each of those offences. Her Honour noted that there was no evidence before the Court regarding the appellant’s background, intellect or education that would assist with the assessment to be made of her capacity to morally reason. Her Honour then observed:
I do consider, however, in cases like those presently before the court, where it is primarily conduct and circumstances surrounding the offending alone relied upon by the prosecution that the inferences drawn by the court need to be very strong inferences for the presumption to be overcome to the requisite standard.
Her Honour was only able to consider “conduct and circumstances surrounding the offending” because she did not have the benefit of any evidence regarding the particular circumstances of the appellant or of her psycho–social background. There was no direct evidence of the cognitive capacity of the appellant or of her moral development. There was no evidence of the level of the appellant’s insight other than the information to be gleaned from examining the surrounding circumstances of the particular offences. As her Honour noted in relation to each of the files, the prosecution relied exclusively on the evidence of the conduct of the appellant at the time the offences were alleged to have been committed and the surrounding circumstances of each offence. Her Honour was invited to draw conclusions, and did draw conclusions, from the objective circumstances of each offence in relation to the questions to be answered under s 38 of the Criminal Code (ie whether the appellant had capacity to know that she ought not to do the act) and s 43AQ of the CriminalCode (ie whether the appellant knew that her conduct was wrong).
The appellant, in written submissions, provided detailed criticism of her Honour’s consideration of the relevant circumstances and the conclusions drawn. In my opinion it is not necessary to review those criticisms in detail because, with the fresh evidence, this Court has direct evidence of the relevant circumstances of the appellant to consider along with the matters addressed in the Court below. The reports shed light upon the cognitive capacity and knowledge of the appellant at the relevant time.
The PATCHES multidisciplinary assessment report concluded that the appellant suffered from Foetal Alcohol Spectrum Disorder (FASD) at the time of the offending. This conclusion was reached after a detailed assessment by relevant specialists including a paediatrician, a speech pathologist and a forensic psychologist. Those specialists separately consulted directly with the appellant. In addition, in reaching the conclusion of FASD, regard was had to the school psychology report, medical records from the Alice Springs Hospital and an assessment carried out at the Central Australian Aboriginal Congress in Alice Springs. A range of neuropsychological tests were undertaken on behalf of the appellant and relevant psychological assessment questionnaires were also addressed by the appellant.
In the part of the report relating to the findings of the neuropsychologist, the appellant’s cognition was assessed as being within the extremely low range with an IQ score of 64 – 76 and at a 2nd percentile compared to her similarly aged peers.
Other observations and conclusions which were revealed in the report included:
(a) that the appellant suffered conductive hearing loss in both ears;
(b)her general cognitive ability was assessed in the low average range;
(c) her non-verbal IQ fell within the extremely low range (better than 2% of her peers);
(d) her executive functioning, which includes higher order thinking skills such as planning and organisation, fell within the extremely low range and she had significant difficulties with inhibiting her responses and self-monitoring her behaviours;
(e) her basic academic skills fell within the extremely low range;
(f)her adaptive functioning which includes skills necessary to navigate everyday living activities was in the low range scoring better than less than 1% of her peers; and
(g) her socialisation domain, which reflects her functioning in social situations, was in the low range.
It was noted that her performance in the testing conducted was in keeping with a diagnosis of FASD and that she had significant impairments in the domains of cognition, academic achievement, executive functioning and affect regulation. She suffers a neurological disability.
That report was provided to the Forensic Psychologist, Dr Lorraine Lim who, in turn, provided the report dated 18 January 2021 which I have now received into evidence. In preparing her report, Dr Lim reviewed transcripts of the proceedings in the Youth Justice Court, conferred with the appellant’s grandmother and social worker and conferred with the appellant on two separate occasions.
Dr Lim accepted the assessment of the multidisciplinary team at PATCHES that the appellant suffered from FASD. She recounted the family background and the developmental and psychosocial history of the appellant. In summary form the information included the following. Her biological mother voluntarily relinquished her care when the appellant was a few months old. The mother struggled with abuse of alcohol and drank alcohol throughout her pregnancy. Her father has never been a feature in her life. She was raised at Soapy Bore, a remote community in the Northern Territory, which reportedly had significant social and welfare issues. In recent years she has spent time in Utopia and in the Hidden Valley town camp in Alice Springs. Her grandmother and an aunt were central figures in her upbringing. She had delayed academic abilities in comparison to her school peers.
Dr Lim reviewed all of the available material including the product of her interviews with the appellant and concluded that the appellant’s moral and emotional development had been significantly compromised “due to a range of cultural and environmental factors relating to her upbringing and the impairments associated with her FASD diagnosis”. Those factors included “familial dysfunction, gestational abuse due to maternal substance use, potential emotional neglect (due to her caregivers’ own significant health and personal crises and need to support other family members concurrently), and limited exposure to positive role modelling from peers and other adults in her environment”. Dr Lim noted that there had been a lack of discipline and clear routine/structure in the life of the appellant thus far and that was required by most children “to develop a strong moral compass, and good cognitive reasoning and self-regulatory skills”.
Dr Lim went on to observe:
The diagnostic features of FASD that are relevant from a forensic perspective, especially in an adolescent who is still maturing, are characterised by poor impulse control, problems with learning/retaining new information, egocentricity (which is related to the lack of capacity to appreciate the consequences of their actions on others or engage in perspective taking or victim empathy), as well as impaired foresight and the restricted ability to engage in consequential analysis of their behaviours. In my opinion (the appellant) had displayed all of those dysfunctional behavioural and attitudinal traits at the time of her alleged offending conduct.
Later in her report Dr Lim commented:
Based on the outcome of my assessment with (the appellant), I therefore do not believe that she had possessed the moral and/or emotional capacity to appreciate the seriousness of her actions from a criminal perspective at the time of the four alleged counts of offending between March to April 2020. (The appellant) would have understood that her behaviour was wrong/naughty/bad and there was a likelihood that they were likely to get her into trouble with the authorities, hence her attempts to run away when she was caught. However, her understanding of the wrongfulness of her conduct is likely to only be a superficial one at that stage and was unlikely to have been underpinned by any deeper or more meaningful understanding of the construct of criminal responsibility…. Furthermore, the impairments related to her FASD also predispose her to become easily susceptible to negative peer influences, impulsivity and recklessness, poor moral reasoning and insight, and an impaired capacity to perceive the longer term consequences of her actions beyond ’instant gratification’.
Dr Lim therefore concluded that the presumption of doli incapax applied to the appellant. In this regard I note the observations of the Court of Appeal in KG v Firth [2019] NTCA 5 at [29] that ordinarily the evidence of an experienced child psychologist in relation to a child’s ability to understand right from wrong in a particular context will be given significant weight in determining whether the presumption has been rebutted. Dr Lim has the relevant expertise. The conclusions of Dr Lim are not challenged by the respondent.
In reaching her conclusions that the presumption had been overcome the Judge of the Youth Justice Court purported to apply the observations of the plurality in the High Court decision of RP v The Queen [2016] 259 CLR 641 where their Honours said at [12]:
What suffices to rebut the presumption that a child defendant is doli incapax will vary according to the nature of the allegation and the child. The child will more readily understand the seriousness of an act if it concerns values of which he or she has direct personal experience…. The only presumption which the law makes in the case of child defendants is that those aged under 14 are doli incapax. Rebutting that presumption directs attention to the intellectual and moral development of the particular child. Some 10 year old children will possess the capacity to understand the serious wrongness of their acts while other children aged very nearly 14 years old will not.
In the reasons for decision in the Youth Justice Court emphasis was placed upon the particular offences as being “straightforward, obvious and uncomplicated wrongs” not underpinned by any conceptual complexity. Her Honour then considered the conduct of the appellant in relation to each offence. For example, in relation to the charge of stealing on file 22009050, her Honour had regard to the appellant concealing items in her bag, avoiding someone who was watching her, avoiding detection and taking flight. In relation to file 22010546, a charge of stealing, her Honour had regard to the fact that the premises were in darkness and the appellant carried a torch and then fled the scene. In relation to file 22017681, damaging a shopfront window, her Honour considered the fact that it happened in the middle of the night when the shop was unattended, the shop windows were secured by security screens, an alarm was triggered and the appellant took flight.
Whilst those are significant matters to be taken into consideration, her Honour did not give consideration to the circumstances of the child. Her Honour did not have the benefit of information of the kind found in the fresh evidence admitted on appeal. At its highest, her Honour had CCTV images showing how the appellant physically appeared at the time of some of the offending. Very little was known of her circumstances.
With the benefit of the fresh evidence obtained from the reports of PATCHES and from Dr Lim, it is possible to give appropriate consideration to the circumstances of the child. Given the information recited above regarding the circumstances of the appellant, it is apparent that the finding that the prosecution had rebutted the presumption of doli incapax cannot be sustained. Counsel for the respondent frankly and properly acknowledged that to be so and conceded that the appeal should be allowed and the appellant’s convictions quashed.
The appellant’s convictions in all matters are quashed and the sentences imposed in the Youth Justice Court are set aside.
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