2.Set aside orders 4, 5 and 6 of the orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 26 August 2015 and in their place order that:
(a)appeal allowed with respect to counts 2 and 3; and
(b)quash the convictions in respect of counts 2 and 3 and enter verdicts of acquittal.
On appeal from the Supreme Court of New South Wales
Representation
H K Dhanji SC with J L Roy for the appellant (instructed by Legal Aid (NSW))
S C Dowling SC with N J Owens SC and B K Baker for the respondent (instructed by Solicitor for Public Prosecutions (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
RP v The Queen
Criminal law – Criminal liability and capacity – Doli incapax – Where appellant convicted of two counts of sexual intercourse with child under 10 years – Where appellant approximately 11 years and six months at time of offending – Where appellant found to be of very low intelligence – Whether presumption of doli incapax rebutted.
Words and phrases – "doli incapax", "knowledge of the moral wrongness of the act", "merely naughty or mischievous", "morally wrong", "seriously wrong".
KIEFEL, BELL, KEANE AND GORDON JJ. In August 2014, the appellant was tried by judge alone in the District Court of New South Wales (Letherbarrow SC DCJ) on an indictment that charged him with two counts of aggravated indecent assault (counts one and four)[1] and two counts of sexual intercourse with a child aged under 10 years (counts two and three)[2]. He was acquitted of the offence charged in count one and convicted of the remaining offences.
The complainant in each of the offences is the appellant's younger brother. The offences charged in counts two and three are alleged to have taken place when the complainant was aged six years and nine months. The offence charged in count four is alleged to have occurred when the complainant was aged seven years and five months. The trial judge determined that the appellant was aged approximately 11 and a half years at the time of the offences charged in counts two and three. His Honour determined that the appellant was aged approximately 12 years and three months at the time of the offence charged in count four.
The evidence at the trial was wholly documentary. The facts of the offences, contained in an interview between the complainant and the police which took place when the complainant was aged 15 years, were not disputed.
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.
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Details
AGLC
RP v The Queen [2016] HCA 53
Case
[2016] HCA 53
Decision Date
CaseChat Overview and Summary
In RP v The Queen, the High Court of Australia considered an appeal by a young person, RP, who had been convicted of two counts of sexual intercourse with a child under 10 years. RP was approximately 11 years and six months old at the time of the offending and had a very low intelligence. The central dispute concerned whether the presumption of *doli incapax*, which presumes children under 14 lack criminal capacity, had been rebutted by the prosecution.
The legal issue before the High Court was whether the evidence presented was sufficient to rebut the presumption of *doli incapax* in relation to the appellant's offending. This required the Court to consider what constitutes "knowledge of the moral wrongness of the act" for a child of RP's age and intellectual capacity, and whether the specific circumstances of the offending demonstrated such knowledge.
The High Court reasoned that the presumption of *doli incapax* is not automatically rebutted by the commission of an offence. Instead, the prosecution must adduce evidence demonstrating the child's intellectual and moral development, specifically their understanding of the serious wrongness of their conduct. The Court noted that while answers given in police interviews or evidence of school progress and home life can be relevant, the focus must be on the individual child's development. The Court found that the evidence in this case, particularly concerning RP's low intelligence and the nature of the offending, did not sufficiently establish that RP understood the serious moral wrongness of his actions, thereby failing to rebut the presumption of *doli incapax*.
Consequently, the High Court allowed the appeal, quashed the convictions for the two counts of sexual intercourse with a child under 10 years, and entered verdicts of acquittal for those counts.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside orders 4, 5 and 6 of the orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 26 August 2015 and in their place order that:
(a) appeal allowed with respect to counts 2 and 3; and
(b) quash the convictions in respect of counts 2 and 3 and enter verdicts of acquittal.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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. A child will more readily understand the seriousness of an act if it concerns values of which he or she has direct personal experience. For example, a child is likely better able to understand control of his or her own possessions and the theft of others' property compared to offences such as damaging public property, fare evading, receiving stolen goods, fraud or forgery. Answers given in the course of a police interview may serve to prove the child possessed the requisite knowledge. In other cases, evidence of the child's progress at school and of the child's home life will be required. It has been said that the closer the child defendant is to the age of 10 the stronger must be the evidence to rebut the presumption[17]. Conversely, the nearer the child is to the age of 14, the less strong need the evidence be to rebut the presumption[18]. The difficulty with these statements is that they are apt to suggest that children mature at a uniform rate. 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. [17]R (A Child) v Whitty (1993) 66 A Crim R 462 at 465; DK v Rooney unreported, Supreme Court of New South Wales, 3 July 1996 per McInerney J.[18]R (A Child) v Whitty (1993) 66 A Crim R 462 at 465; DK v Rooney unreported, Supreme Court of New South Wales, 3 July 1996 per McInerney J.The evidence The offence charged in count two occurred on an occasion when the appellant had been left in charge of the complainant and two other younger siblings while their father was at work. The complainant and another brother were fighting over who could play with the brother's "stuff". The appellant locked the complainant in a room as punishment. The complainant demanded to be let out. The appellant went into the room and said "if you wanna come out, you gotta let me do this to ya". He put a condom on his penis, took hold of the complainant and threw him onto a bed, pulled the complainant's pants and underpants down and inserted his penis into the complainant's anus and commenced intercourse. The complainant was crying and protesting, saying "no, [RP], no". The appellant put his hand over the complainant's mouth. When the appellant heard the sound of an adult returning to the home, he withdrew his penis and said to the complainant "don't say nothin'". The offence charged in count three took place a few weeks later. The appellant and the complainant had been left alone at their father's workplace. The appellant took the complainant to an office where the appellant exposed his penis. The complainant "went to run away" but the appellant was blocking the door. The complainant "went to call out for" his sister, but the appellant took hold of him and put him face down on a pile of clothing on the floor. The appellant then pulled the complainant's pants down and commenced to have anal intercourse with him. This continued for two or three minutes until the appellant heard their father returning to the office.
Decision
Reasons for decision
KIEFEL, BELL, KEANE AND GORDON JJ
GAGELER J
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL, BELL, KEANE AND GORDON JJ,
GAGELER J