RJ v Dunne - [2021] NTSC 32

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 SPRINGS
RJ 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…

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 RJ v Dunne

Details

AGLC: RJ v Dunne [2021] NTSC 32
Case: [2021] NTSC 32
Decision Date: 24 March 2021

CaseChat Overview and Summary

In the Supreme Court of the Northern Territory, RJ, a 13-year-old child, appealed against findings of guilt made by the Alice Springs Youth Justice Court in relation to four files. The respondent, Andrew Dunne, was represented by counsel from the Office of the Director of Public Prosecutions. The appellant was represented by counsel from the North Australian Aboriginal Justice Agency. The appeal was heard by Riley AJ, who delivered judgment on 24 March 2021. The appeal challenged the Youth Justice Court's findings that the appellant was criminally responsible for the offences in question, and the appellant sought to introduce fresh evidence to support her appeal.

The legal issues before the court were whether the Youth Justice Court had erred in applying the relevant provisions of the Criminal Code and whether the findings of guilt were unsafe and unsatisfactory. The court was also required to determine whether the fresh evidence, which included reports from a forensic psychologist and a multidisciplinary assessment, should be admitted. The court found that the Youth Justice Court had not erred in its application of the law but had not had the benefit of the fresh evidence when it made its findings. The fresh evidence showed that the appellant had Foetal Alcohol Spectrum Disorder and other cognitive impairments, which undermined the finding that she had the capacity to know that she ought not do the acts or knew that her conduct was wrong.

The court found that the fresh evidence showed 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. The court found that the appellant had displayed dysfunctional behavioural and attitudinal traits at the time of her alleged offending conduct, including poor impulse control, problems with learning and retaining new information, and impaired foresight. The court found that the appellant had not possessed the moral and/or emotional capacity to appreciate the seriousness of her actions from a criminal perspective at the time of the alleged offences. The court concluded that the presumption of doli incapax applied to the appellant and that the findings of guilt were unsafe and unsatisfactory. The court quashed the appellant's convictions and set aside the sentences imposed in the Youth Justice Court.

Orders