RP v The Queen
[2016] HCATrans 261
[2016] HCATrans 261
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S193 of 2016
B e t w e e n -
RP
Appellant
and
THE QUEEN
Respondent
KIEFEL J
BELL J
GAGELER J
KEANE J
GORDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 8 NOVEMBER 2016, AT 10.16 AM
Copyright in the High Court of Australia
MR H.K. DHANJI, SC: May it please the Court, I appear with my learned friend, MS J.L. ROY, for the appellant. (instructed by Legal Aid NSW)
MS S.C. DOWLING, SC: Your Honours, I appear with my learned friends, MR N.J. OWENS, SC and MS B.K. BAKER, for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))
KIEFEL J: Yes, Mr Dhanji.
MR DHANJI: Your Honours I trust have received our three‑page outline of argument. I propose to, in essence, cover the ground dealt with in that outline. Your Honours, many of the discussions in this area begin with reference to what was said by his Honour Justice Harper in the Supreme Court of Victoria in R (A Child) v Whitty (1993) 66 A Crim R 462. His Honour there made reference to what was said by Professor Howard, that is:
“No civilised society” . . . “regards children as accountable for their actions to the same extent as adults”.
Now, that as a starting point obviously informs one of the problems that one is dealing with, that it is in fact – or, in our submission, it is perhaps helpful to go back a step further and actually look at the interaction that is going on as between children and the criminal law. I appreciate this is trite, but it is worth starting with the observation that the modern criminal law is based on an assumption of free will and moral agency - in other words, the ability to make choices based on an understanding of what is right and wrong. In that sense, we have moved some distance from trials of the Middle Ages of machines or animals.
In the present context, the appellant was a child as young as 11 years and seven months at the time of count 2, and some weeks beyond that at the time of count 3. He was tried. He was convicted and ultimately sentenced on the basis that he bore moral responsibility for his act. He was sentenced, as your Honours will appreciate, to imprisonment, clearly as punishment for that wrongdoing as adjudged in the course of his trial.
The intersection involved requires some analysis of the notion of a child and that intersection with the law – and I am looking at point 3 under Part A – and the idea that the notion of “childhood” is both a legal and a developmental concept. So its legal significance is somewhat different to ordinary adults in that children are subjected to, or at least potentially exposed to, a variety of controls that go beyond the criminal law and what might be described in general terms as welfare law. In New South Wales that is primarily, although not exclusively, the Children and Young Persons (Care and Protection) Act. That may be engaged in the case of children who require some additional assistance or guidance or such like.
Children, of course, are also bound, in a sense, or at least the criminal law exists in conjunction with children and criminal law is applied as effected by the Children (Criminal Proceedings) Act 1987 and the common law. Ultimately in this case it is the common law because what happens here is that section 10 of the Children (Criminal Proceedings) Act provides that no child under the age of 10 – I am sorry, section 5 provides that no child under the age of 10 can be criminally responsible for an act. But above the age of 10 the act is silent leading it to the common law to take its place and at common law the situation has been, for some hundreds of years, that a child of 10 or above but less than 14 is presumed not to have capacity.
When one is looking at that interaction, in our submission it is important to bear in mind that you have a being that is in the stage of development but part of – a corollary of that is that that child is subject to not just the restrictions of the criminal law, but these various other rules that bind the child’s behaviour.
What we are getting at is the idea that you have a child with limited rights and limited autonomy and so all of this happens in a context of a need to appreciate that a child’s understanding of the rights of others, a central notion of the criminal law and a need to appreciate the rights of others, a child’s understanding of those ideas is necessarily going to be affected by the fact that the child him or herself does not have those same rights.
So when one is looking at, for example, personal autonomy, it is easy enough to imagine, particularly in the case of younger children, that absence of autonomy over one’s person, as the child gets older clearly enough that level of autonomy grows, but it is a gradual process. Whilst that is going on, as one interacts with the criminal law, we have the situation whereas up until 10 no criminal responsibility, then up until 14 there is a presumption of doli incapax. That allows for, or requires ultimately a court to have regard to the nature of this interaction.
If I can move then into Part B in the outline and the idea of establishing capacity in children, there are two areas ultimately in the criminal law where lack of capacity is an issue. One is in relation to children; the other is in relation to mental illness on the part of adults. They both get at the capacity to commit the offence, as distinguished from the lack of intention or excuse by way of lack of intention, honest and reasonable mistake of fact or involuntariness or simple lack of intention.
In relation to children, that lack of capacity test has generally been stated along the lines of: that the child knew it was seriously wrong, as opposed to an act of mere naughtiness or mischief. That is stated in various of the authorities. We have referred in the outline to BP v the Queen [2006] NSWCCA 172. But if I can just ‑ ‑ ‑
KIEFEL J: It is referred to in the English authorities as well, is it not?
MR DHANJI: Yes, your Honour.
KIEFEL J: It is of longstanding.
MR DHANJI: It is of longstanding and it pervades, in essence, all the authorities. If I can take your Honours very briefly to appeal book 206 to the reasons of Justice Hamill in the Court of Criminal Appeal, and just going back to what your Honour the presiding Judge has said, his Honour is there referring back to the speech of Lord Lowry in C v DPP. This is at the top of page 206, and his Honour Justice Hamill makes reference to Lord Lowry’s observation that:
the phrase “seriously wrong” which was otherwise “conceptually obscure” . . . I confess that I find the distinction unhelpful -
His Honour is talking about the distinction between “wrong” and “seriously wrong”. This distinction, this idea of “wrong” or “seriously wrong” or what quite is meant by “seriously wrong” tends to, at least on occasion, cause some confusion in this area of the law and there is a need ‑ ‑ ‑
KIEFEL J: Taken by itself, it tends to on one view obscure the moral undertones that lie behind this principle.
MR DHANJI: That is precisely right, and for that reason we say it cannot be taken by itself. It has to be taken with reference to the moral quality and just coming back to that idea of children as being bound by a whole set of rules that go well beyond the criminal law, the idea that something is seriously wrong needs to attach itself to the concept that this is not just rule breaking; rather it is something that is wrong and going to the mental illness cases according to the standards of ordinary persons.
KIEFEL J: Does the concept of morality in this context imply an ability to reflect and make the choices that you have referred to before?
MR DHANJI: Yes, your Honour. Indeed, just going back to the test, ultimately this is an area where the criminal law is being engaged, or being sought to be engaged, as against a child. One aspect of the engagement of the criminal law is – or at least what might be described as a positive aspect of the engagement is the introduction of the rigour of the criminal law to the process and that is the need to prove the required elements and rebut, on these cases, the presumption.
So what has tended to happen, in our submission, in the cases to some extent is in bringing this rigour emphasis has been given to the quality of “seriously wrong” – that is the expression such as the need to prove it is seriously wrong by clear and cogent evidence or clear and pregnant evidence and all these various phrases that pop up regularly throughout the case law. Those are expressions of some strength and reflect an attempt to bring some of that rigour to the process but, in our submission, carry the danger of ignoring quite what it is you need clear and pregnant evidence of, or clear and cogent evidence of. So there is this need to actually inform oneself as to quite what it is that is meant by the idea of “seriously wrong”.
GORDON J: If the presumption is that a child between the ages of 10 and 14 has neither the mental capacity or maturity or intellect to commit an offence which has to be rebutted, then is not the evidence that the Crown is required to produce evidence which proves beyond reasonable doubt that this child does have that ability?
MR DHANJI: Yes, your Honour.
GORDON J: And is it not evidence which is directed at identifying that the act is wrong – whether you put the amplifiers in or not depends upon the act itself and all the other sorts of facts and matters that go into it? It is very difficult to put it in a box, is it not?
MR DHANJI: What we are getting at is that there is a danger in focusing on the amplifier, that is, clear and pregnant evidence or clear and cogent evidence. Focusing on the amplifier is actually directing attention away from what the ultimate question is.
GORDON J: How would you put it?
MR DHANJI: The ultimate question is “seriously wrong” by standards of morality. So you actually have to get to the child’s understanding of the moral quality of the act because otherwise one is getting at a problem where you may have a child - and it will vary depending upon the personalities of particular children - but a child for whom a particular rule is stressed with some gravity – “That is grandma’s vase up on the mantelpiece and you are never ever to touch the vase that has been bequeathed by grandma” – and it is drilled in in a way that it becomes to a child perhaps the most serious transgression one can commit. The child touches or plays with the vase, the child is likely to think that what they are doing is seriously wrong and very seriously wrong. Adding “gravely” or any of those expressions is not going to help.
I will come to this in a moment, but even when one comes to the moral quality of the act there is some need to actually further the inquiry because in one sense disobeying one’s parents might be described as being morally wrong. You have a structure in place and you have a moral obligation to respect the rules imposed by those who care for you. So you do have this issue where you have this interaction with the criminal law and you need to look at exactly how this interaction is taking place and how it works and, as we say, the need to give content to serious wrongness.
KIEFEL J: Is there a two‑stage test in what you are discussing that there is an understanding, by reference to views generally held, that the acts involved are morally wrong, that is, putting aside one’s knowledge of the law, that they are morally wrong. The second question is the child knows this, has an appreciation of it but does it nevertheless. Is that how one approaches it?
MR DHANJI: Yes. Whether one describes that as two‑stage or not is a matter for question, but ultimately there is this issue of what is being prohibited, what is the ‑ ‑ ‑
KIEFEL J: But what I am really saying is you cannot, can you, really say that the question is whether a child has a choice which has a moral dimension without there being an acceptance of what that moral dimension is and what the choices are?
MR DHANJI: Quite.
KIEFEL J: That is the area for inquiry, is it not? It is not looking at the elements of the offence itself and trying to put those into the context of a child, which I think is the direction your submissions take.
MR DHANJI: I am not sure I fully appreciate what your Honour has put to me, but what we are trying to get at is the idea that there is, one can assume, behind each criminal law, a purpose in its enactment and some of them will be relatively simple. Stealing, for example – and this, in effect, reflects also some of the problems in terms of the jurisprudence - it does not necessarily follow that the more serious an offence is, the more obviously wrong it is. Stealing is a good example of that because a child might well understand property rights of others from a very early stage and understand in that sense that stealing is wrong.
We are not suggesting knowledge of the law is required and that has been suggested against us. That is not what we are putting. We are putting that it is knowledge or an understanding of the moral quality of taking property, in the case of stealing property, which does not belong to oneself. So that really does not require necessarily a great deal, but it does require knowledge of, in effect, property rights and the wrongness of interfering with the property rights of others. I am not sure if I have answered your Honour’s question. But that is the way in which we put it.
I should say that we are not embarking on new territory in relation to the idea that “seriously wrong” has a moral dimension to it. It is in fact picked up in various of the cases. The point we really make is that sometimes it seems to get a little bit lost.
BELL J: Is there a particular formulation? You have earlier referred us, I think, to Lord Lowry in C v DPP. His Lordship there speaks of the need to prove that the child defendant did the act charged and that when doing that act he knew that it was wrong as distinct from an act of mere naughtiness or child mischief. This is at page 38 of the report in [1996] AC 1. You have also referred to the idea of “seriously wrong” judged by the moral standards of reasonable persons or something to that effect.
MR DHANJI: Yes.
BELL J: It is the latter formulation. Do we find that in a particular place?
MR DHANJI: Yes, your Honour. Perhaps if I can start at BP v The Queen [2006] NSWCCA - if I can take you to paragraph 28 in the reasons of his Honour Justice Hodgson.
BELL J: That is where his Honour makes the link with mental capacity in Stapleton.
MR DHANJI: That is right.
BELL J: It is not suggested that this case, that BH or whatever it is, does not – that BH sits comfortably with Lord Lowry’s formulation?
MR DHANJI: There is in Lord Lowry’s discussion some reference to the moral aspect of the test.
GORDON J: He deals with the moral aspects of the test but he does not like the language “seriously wrong”. So the passage that Justice Bell just took you to in the speech is a test which does not have the amplifier of “serious”.
MR DHANJI: Yes. His Lordship in his speech reported at page 33 at D – I made reference to this earlier – and this is point 3 – says, and he is commenting on what was said in the Divisional Court:
I agree that the phrase “seriously wrong” is conceptually obscure –
That was a criticism that was made by Justice Laws in the Queens Bench. His Lordship does say:
and that view is confirmed by the rather loose treatment accorded to the doli incapax doctrine by the textbooks, but, when the phrase is contrasted with “merely naughty or mischievous,” I think its meaning is reasonably clear.
What I apprehend his Lordship to be saying there is that the test of “seriously wrong” is sufficient, whilst on its own it might be regarded as somewhat obscure, one can get the content by simply contrasting it with “merely naughty or mischievous”.
GORDON J: The reason I raised it is that at page 38, which Justice Bell took you to, he clearly does not include that when he is citing the two propositions which he describes as clear:
The first is that the prosecution must prove that the child defendant did the act charged and that when doing that act he knew that it was a wrong act as distinct from an act of mere naughtiness or child mischief.
MR DHANJI: Yes.
KIEFEL J: Well, “wrong act” implies a moral question and that is what really underlies the criminal law. Criminal law is based upon societal notions of acceptable and non‑acceptable conduct, wrongs, and the question then is whether or not in that context the child knows that it is wrong.
MR DHANJI: That is right. That is our submission. To go back to where this idea is picked up, as your Honours have just seen in BP there is reference to Stapleton. There is also reference to Chief Justice Bray’s decision in R v M (1977) 16 SASR 589. At the top of page 591, the Chief Justice says:
The phrase “knowing what he was doing was wrong” is, of course, a familiar one.
He makes reference to the M’Naghten rules and goes on to refer to Stapleton:
the test is whether he knew that it was wrong according to the ordinary principles of reasonable men.
Then if I can particularly take your Honours to the next ‑ ‑ ‑
KIEFEL J: Is that the phrase – just to go back - “the child knew that he was doing wrong” that appears on the previous page – the page was taken from Blackstone, was it? Or Russell on Crime?
MR DHANJI: I am sorry. I am not sure where your Honour is ‑ ‑ ‑
KIEFEL J: His Honour has picked up that phrase, “the child knew that he was doing wrong”, and if one goes back to page 590 it would appear that it comes from Russell on Crime and two cases.
MR DHANJI: Yes, halfway through the page you will see the reference to Blackstone.
KIEFEL J: Blackstone as well.
MR DHANJI: Yes. It is also reference to ‑ ‑ ‑
KIEFEL J: Yes.
MR DHANJI: I have not taken your Honours through the history but it seems – certainly by the time that Sir Matthew Hale was writing in the 18th century it had been entrenched for some many years. If I can go back to page 591, his Honour the Chief Justice says:
If, then, knowledge that something is wrong means, for the purpose of insanity, knowing that it is wrong according to the ordinary principles of –
what might be now called “reasonable persons”:
is there any reason why it should mean something else for the purpose of infancy? I confess I can think of none.
So his Honour there is actually alluding to the precise issue and capturing the idea that we have these two areas that deal with capacity and the tests in relation to both really ought to be the same. There is no logical reason for distinguishing. Now, whilst that, in our submission, must be so, in the context in which it arises there is a need for some refinement because the ordinary test in relation to incapacity based upon mental illness – the test is generally stated as not knowing the nature and quality of his or her act or if he or she did not knowing that it was wrong.
Applying that in relation to children, it is perhaps not necessary to allude to the issue of not knowing the quality of her or his act – a child likely to appreciate the quality of the act – that is, the child is not going to be affected by delusions in the way that might suggest that he or she simply did not know what he or she was doing. But the “not knowing it was wrong” aspect applies equally but it is here where we say some addition is required in terms of properly understanding that because we have this notion of “wrongness” for children, which is different to the notion of “wrongness” for adults.
BELL J: Is that not where there is some utility in the concept of the child’s capacity to know that something is seriously wrong as distinct from that it is mischievous or naughty because many might think that children know that behaviour that is naughty is wrong. You seem to be earlier, I think, embracing Justice Hamill’s observations about some of the difficulty of that distinction.
MR DHANJI: Yes.
BELL J: But that is not to say it does not serve some value.
MR DHANJI: We do not submit that it does not serve some value. Rather, some deeper understanding is required because one comes back to – what one is doing, in a sense, in distinguishing between “mischievous” and “seriously wrong” is imposing an adult‑value judgment because you have an adult looking at it and saying that is just mischievous – and it might even be a criminal offence – that is mischievous, that is a little bit of smoking behind the toilet blocks.
This other action – well, that is seriously wrong because that is taking the property of another or, in this case, sexually assaulting another person - so you have this adult‑value judgment that is actually being used to distinguish as between mischievous and serious ‑ ‑ ‑
BELL J: Well, that is one way of looking at it, but looking at it from the child’s point of view, a child might know that sexual play with another is naughty and want to avoid the parent seeing it, but not have an understanding of its serious, moral wrongness.
MR DHANJI: That is right. But when one looks at it from the child’s view, simply taking the child’s view of whether it is mischievous or seriously wrong is not necessarily going to assist, because you might say to the child, who has been told not to go past the front gate, “Did you go past the front gate?” “Yes.” This has been drilled into the child. “You knew it was very seriously wrong to go past the front gate, did you not?” And the answer may well be yes. So you have this idea that from the child’s perspective it might be terribly serious.
GORDON J: Can I test that proposition? If, as I understand you, you accept that the test that is propounded is one which the Crown must rebut the presumption by adducing evidence beyond reasonable doubt that the child understood that the act was wrong or seriously wrong, as distinct from being mischievous or naughty, is not much of what you are saying directed at the sort of material that the Crown would adduce – in other words, looking at things such as the child’s capacity itself, the background, the type of offence, which is picking up Justice Bell’s point? Is that not where, in a sense, these matters go to?
MR DHANJI: Ultimately, yes, your Honour. That is, in a sense, a corollary of saying one is not going to get much from a simple inquiry of the child.
GORDON J: That is why I am asking. So that may be one of the inquiries, but it is not the sole inquiry. Is the proposition one that is contending that when one looks at that test one looks at it through the moral prism?
MR DHANJI: Yes, your Honour.
GORDON J: Then one comes to the sort of material that will be adduced in order to rebut the presumption.
MR DHANJI: Yes, because otherwise one is really not dealing with the need to distinguish between the vast array of rules to which a child is exposed. Now, if I could just pause at this point – I think I might have said this already – it is suggested against us that we are making a submission that the child needs to know that the act is unlawful. That is not our submission.
In terms of the fact that proof of knowledge of unlawfulness is not sufficient, that was determined by this Court in Stapleton, to which reference has already been made. Your Honours do not need to turn it up. In effect, the error that was found to have occurred at first instance in Stapleton was a reference in the charge to the jury to the effect that it was sufficient if the accused, who raised mental illness as a defence, knew that what he was doing was unlawful and there is some discussion in Stapleton.
Their Honours deal at length with various prior formulations. One of the common formulations had been that the person knew the act was known to be against the laws of God and man. What their Honours ultimately get to is the idea of the laws of man is, in fact, in a sense an add‑on and it is getting to the idea of the moral quality of the act and certainly not the knowledge that it was unlawful.
Can I just perhaps pause for a moment to say that that idea in the reasons of Chief Justice Bray in M v The Queen of reasoning directly from adults with mental incapacity to children was applied in a different context but ultimately in a similar way by the Supreme Court of the United States in Roper v Simmons 543 US 551 (2005).
What occurred there – we did not make reference to this in our written submissions, but in Roper v Simmons the Supreme Court was dealing with a penalty of death imposed upon a child so it - there is a trilogy, there are a number of Supreme Court cases in the Supreme Court of the United States dealing with children and they are all in the same context, and that is penalties imposed upon children in the context of the Eighth Amendment which is the amendment prohibiting cruel and unusual punishment.
The reasoning process was simply this, that the court had earlier decided that the death penalty imposed on a person with a mental infirmity was cruel and unusual punishment and in Roper v Simmons the court reasoned directly from that proposition to the proposition in relation to children. It is a little bit of a tangent, but the idea is the same; that is, that one is applying the same ideas to children in terms of capacity.
BELL J: Is that the proposition you embrace?
MR DHANJI: Well, the proposition we embrace is that one ultimately – the test for capacity is ultimately the same, whether one is dealing with adults with mental illness or with children.
KEANE J: How could that be so, when the question is a moral one and there is a difference between intellectual capacity and moral understanding? Moral understanding depends upon the nurture of the child, the moral environment in which the child is developed, as opposed to intellectual capacity. So there has to be a difference. Would it not be the case that in order to demonstrate doli incapax one needs perhaps evidence in relation to both intellectual capacity and the state of the child’s moral environment leading to the question to rebut the presumption, does there not need to be evidence of both of these?
MR DHANJI: There may ultimately need to be evidence of both. Ultimately it is perhaps going to be a question where it is difficult in advance to prescribe precisely what is required, but in a general sense, yes, your Honour, one would ultimately we say certainly be inquiring into those matters and without those matters it may be that the Crown has some difficulty in proving that the child is in fact doli incapax. But that is not to say ‑ ‑ ‑
BELL J: The difficulty just seems to be with picking up directly the test for mental capacity in an adult. As you acknowledge, nature and quality of the act is usually not going to be an issue. The balance of the test is whether or not he did not know that his act was wrong.
MR DHANJI: Yes.
BELL J: I understood earlier that you were embracing a test that required “seriously wrong” by contrast with “wrong” in the sense of mischievous or naughty, “seriously wrong” having a moral dimension. I wonder about the utility of a direct pickup of the M’Naghten test.
MR DHANJI: Can I say this in response, your Honour. In terms of embracing the “seriously wrong” aspect, we embrace it but only in the sense that – and I appreciate your Honour has put this to me – it is picking up “seriously wrong” in a moral sense – that is, did not know that what she or he was doing was wrong. That, in our submission, is in essence the same as what one is doing in the second limb of M’Naghten.
BELL J: I am not sure that is right, Mr Dhanji, and I think a child who engages in conduct that might not get beyond naughty or mischievous might be said on the M’Naghten test to know that it is wrong.
MR DHANJI: I am sorry, your Honour. I may have not made the submissions clear. Can I put it this way? The only purpose in us going to M’Naghten, Stapleton and those cases, the only purpose in us doing so is to reinforce the idea that one is picking up the moral quality. That is the only reason we go there.
BELL J: How does it help you beyond emphasising that what we are concerned with is the concept of the child’s capacity to appreciate the serious moral wrongdoing of his or her conduct?
MR DHANJI: Ultimately, your Honour, it may not because clearly enough that is the destination point that we submit one gets to. Otherwise, as your Honour the presiding Judge pointed out to me, one does not get to that very foundation of criminal responsibility and that is where we started out, this idea that you are dealing with people and ultimately with a view to imposing punishments on the basis that they are moral agents and, if you do not have that moral agency, what justification is there for imposing punishments including in this case imprisonment.
Whether one takes a side wind and goes through the mental illness route or simply goes directly to the point ‑ that is, we are dealing with the criminal law and imposing punishments for wrongdoing – perhaps does not much matter. Really in a sense all we are doing in terms of attempting to unify those two things is that the same reasoning process applies in the context of mental illness.
The reason why mental illness results in lack of capacity is because it is not appropriate to impose punishment on persons who are not acting as free moral agents. It is the same reasoning process whichever way one goes. It may be ultimately a distraction for your Honours’ purposes because really it is that same endpoint.
BELL J: It is just that this case seems, on its facts, to raise the very issue in that the matters relied upon to establish capacity included stopping when the parent came home, putting hands over the child’s mouth to stop the child calling out to another sibling and the like. Those might suggest that the child knew that he should not be doing what he was doing.
MR DHANJI: Yes.
BELL J: There still remains a question of his capacity to understand that what he was doing was seriously wrong.
MR DHANJI: Yes.
BELL J: For my own part, I do not find the M’Naghten test particularly useful in looking at that divide.
MR DHANJI: As I say, your Honour, ultimately it may not assist where - seeking to get to that same endpoint. As your Honour says, you have a whole lot of conduct here in terms of avoiding perhaps being in trouble from the parent as a result of his actions. But that does not tell one really too much about the understanding on the part of this appellant of the nature or the moral wrongness of what he was doing.
The other part of what was relied upon was – and it seems to have been significant both on the part of the primary judge and in the Court of Criminal Appeal – the fact that the appellant was causing distress to another human being. This is where, in our submission, one gets some assistance from what was said in the Victorian case of ALH where his Honour Justice Cummins spoke of the need to eschew – sorry, your Honours, it is at page 298 of ALH.
KIEFEL J: That is in (2003) 6 VR 276.
MR DHANJI: Yes, thank you, your Honour. It is paragraph 86, beginning on page 297, but the key part is at 298 where his Honour says:
What is required is the eschewing of adult value judgments.
KIEFEL J: Which paragraph are you reading from?
MR DHANJI: It is from paragraph 86.
KIEFEL J: Thank you.
MR DHANJI: It is the part at the very top of page 298.
KIEFEL J: Yes.
MR DHANJI: So his Honour there is discussing this question of whether proof of knowledge of the act itself will be sufficient to – I am sorry, I withdraw that. His Honour is discussing whether the offence itself can be sufficient. That is not an issue in this case. It is accepted that it is not sufficient. But what his Honour goes on to say is:
What is required is the eschewing of adult value judgments.
We say that that is an important aspect to the application of the test. It is highlighted in this case because, as I say, what happens in this case is that you have this act and, to be blunt about it, it is an act which causes some recoil on the part of right‑thinking persons. But when one actually drills down a little bit into the act it is actually, despite its seriousness, one of some complexity.
It can be contrasted with stealing, for example, because in stealing you have the relatively simple concept of property rights. Here you have this act that does cause distress but when you actually put to one side adult‑value judgments, one quickly appreciates that you have children subjected to situations of distress ‑ ‑ ‑
KIEFEL J: When you say adult‑value judgments are you really talking about the language “causing distress”, which is obviously not the language in which children would think?
MR DHANJI: Not so much the language but the idea that one would reason from the fact that one is causing distress to the conclusion that what one is doing is necessarily morally wrong because ‑ ‑ ‑
KIEFEL J: I think the point is made in the courts below that there was obviously the infliction of hurt because the other child was crying out.
MR DHANJI: Yes.
KIEFEL J: That is something that would have been observable.
MR DHANJI: Yes. I should be clear about that. The complainant said that it caused pain. As to the appellant’s knowledge or quite why the complainant was crying, it is not necessarily clear.
KIEFEL J: Is there an unanswered query here raised by the facts in this case about how this child knew to go about what he was doing? This is tied into the condom question.
MR DHANJI: Quite.
KIEFEL J: It seems to have been not addressed at either level and if anything the question of how he came to know to use a condom and to go about the act appears to have been accepted as irrelevant.
MR DHANJI: No consideration was given to it – I think that is fair to say, your Honour.
KIEFEL J: But it is more for that. Counsel for the defence at first instance appears to have accepted that this was the case, that at least the question of the condom ‑ ‑ ‑
MR DHANJI: That the condom did not take matters either way.
KIEFEL J: How could that be so?
MR DHANJI: Precisely, and even without the condom the very act itself, so you have this idea that runs in these cases that there is no presumption of normality – in other words, the Crown actually has to prove that you have a child of reasonable understanding and development – to go back to what your Honour Justice Keane said – and that is going to bring into play the background and ‑ ‑ ‑
KEANE J: The moral environment.
MR DHANJI: That is right; that is what I am picking up.
KEANE J: What comes from the evidence is that in relation to the moral environment in which this child was being raised, there are these questions that are raised ‑ by doing this, knowing how to go about it, by restraining the other child and the idea of using a condom, all of which raise questions in relation to which there are no answers.
MR DHANJI: That is certainly a matter we bring in aid because – that is right.
GORDON J: But it is not just in aid, is it? I am a bit lost. If you accept that the presumption is that this child does not have the intellectual moral capacity or development to commit the act, to know it is wrong – not commit the act, to know that it is wrong as distinct from mischievous or naughty – that is the presumption – then the Crown has to adduce evidence to establish that this child did have the moral capacity and development to know that that act was seriously wrong.
MR DHANJI: Yes.
GORDON J: All of the things that Justice Keane has put to you are matters which would have to be adduced, would they not?
MR DHANJI: Yes, your Honour.
GORDON J: To put the matter another way, what is it here that is adduced to rebut the presumption? What is it that is adduced to establish that this child had the moral capacity and development to know that the act was seriously wrong?
MR DHANJI: Well, we say nothing, your Honour.
GORDON J: They are your propositions, are they not?
MR DHANJI: Yes.
GORDON J: You start with the presumption - no capacity, moral or intellectual development?
MR DHANJI: Well, that is right and in a sense ‑ ‑ ‑
GORDON J: Is that not it?
MR DHANJI: Well, yes.
GORDON J: Is there more?
MR DHANJI: In a way, no. I suppose what happens in a case like this, to take the reports of the psychologist, for example.
GORDON J: But that was a report about the person’s, then an adult, fitness to plead.
MR DHANJI: Quite.
GORDON J: That in itself says this man is naïve, unsophisticated, has intellectual difficulties.
MR DHANJI: That is right. So if I can just use that to demonstrate, I think, what your Honour is putting to me. So the idea is - what appears to have happened in this case is one is looking at - and the analysis of those reports are saying well, they are not really adequate to deal with the question. There is a reversal of onus problem going on.
GORDON J: Well, the presumption of normality going on.
MR DHANJI: That is right. So when you look at those reports and say well, they do not answer the question, what is really happening is that you have lost sight of quite what it is that you are doing. So those reports, whilst tendered at the behest of the defence, did not take the matter anywhere because, in a practical sense, in terms of the way people were perhaps thinking, I think the idea was that it got into the minds – the idea was to get into the mind of the presiding judge the idea that there are alarm bells going off and this might not be an entirely normal child we are dealing with because he has certainly got a ‑ ‑ ‑
KIEFEL J: He has been exposed in some way to this act. That is the only inference that is really open, is it not? He has either seen – it has either been done to him or he has seen it. What else can one think?
MR DHANJI: One other possibility is that he somehow spontaneously developed – I do not suggest this is a particularly realistic possibility but the only other possibility may be that he has spontaneously has this urge to do this. But in that instance, again, what knowledge ‑ ‑ ‑
KIEFEL J: But he has to carry it into effect and that is the knowledge we are talking about.
MR DHANJI: Yes, and then one adds the condom to the equation, then one does ‑ ‑ ‑
KIEFEL J: That is what I am talking about.
MR DHANJI: Then one does end up with the idea that the only inference one ‑ ‑ ‑
KIEFEL J: Some kind of exposure.
MR DHANJI: That is right. But I think what your Honour Justice Gordon was pointing out to me was that, in a sense, once one jettisons any idea of the presumption of normality, that reasoning process becomes unnecessary. I mean, it perhaps adds more fuel to the fire or however one wants to put it. It perhaps highlights the problem, but you do not even get there in a way because, before you start to look at the evidence and say, “Well, I can draw inferences that this child is exposed or the moral fabric surrounding this child is not what it ought to be” you are putting the onus on the defence to establish those things. I mean, it is the obvious inference to draw; I appreciate that. But you are putting the onus, in a sense, back on the defence in circumstances where ‑ ‑ ‑
KIEFEL J: I am not sure how that arises. If the complainant’s evidence itself of the circumstances of the offence itself raised questions, does it not follow that, insofar as they raise questions about what this child knew and understood, the Crown would have to address them?
MR DHANJI: It highlights the need for the Crown to address that problem, yes. I hope I am not avoiding your Honour’s question but what I am putting emphasis on is it highlighting a need that would otherwise exist in any event. I think that is the point your Honour Justice Gordon is making, which we accept.
In terms of the act itself there are these multifaceted problems, in a sense, because you have in this instance an aspect of the act – putting aside lack of consent – an aspect of the problem is that you are dealing with, in essence, adult behaviour and adult behaviour that is not wrong – as I say, putting aside the aspect of consent. So you have some complexity to this behaviour. The child has to understand that – in going back to what your Honour the presiding Judge has said about the exposure – one can draw the inferences to exposure.
When one is looking at the act itself what understanding can you draw from the circumstances surrounding the act in the context of that? You have an act that is not necessarily wrong as between adults. Ultimately, it seems to be the consent aspect that has focused the attention here. But, again, without that understanding of the moral framework in which the child has grown up, what does one do with that?
Even when one comes to the distress – and this is the point I was endeavouring to make a short time ago – the simple interference with the autonomy of another being is not something that is necessarily going to be appreciated by a child, the simple point being that children’s own autonomy is regularly interfered with.
Really, just to go back, if one takes the act out of the equation, you have an 11‑year‑old causing his six‑year‑old brother to cry out in pain. That, one would have thought, does not require a great deal of worldly experience to appreciate is a fairly - likely to be an extremely commonplace event. So to take this idea that you simply have this child doing something causing his six‑year‑old brother to cry out in pain and take from that, well, here are the circumstances, this occurs in circumstances where he is causing some distress to his brother and, therefore, we can conclude that he knew the act was morally wrong, exposes a sort of failure in the reasoning.
Ultimately, I suppose, what I am really doing at the moment is going down various different paths, all of which lead to the same kind of problem in terms of the lack of proof in this case. There is a lack of any evidence. The idea of drawing inferences from the surrounding circumstances as to what this child understood is problematic. The facts themselves suggest problems in terms of what one can deduce about this child’s upbringing or exposures – all of which raise serious doubts. Certainly, one does not get to the idea of proof beyond reasonable doubt.
KIEFEL J: I think that takes you into E on your outline.
MR DHANJI: Yes, your Honour. I should just say before I move on something in relation to what is under heading C. I have sort of jumped ahead to the idea that whether this act was charged as sexual intercourse without consent or whether it was charged as the offence against 66A(1), that is, having sexual intercourse with a person under 10, ultimately on the evidence in this case does not much matter because the evidence was not adequate to prove either.
But insofar as the question arises, our submission is that you need to have this matching of the idea that the child knew that it was morally wrong with the particular prohibition that the child is said to have breached, and it comes back to that same fundamental proposition that ultimately you are talking about attaching criminal responsibility.
In this case the appellant was sentenced to imprisonment for offences against section 66A(1). If he was going to go to gaol for offences against section 66A(1), in our submission it was necessary to show that he understood that the prohibition in 66A(1) reflected – he understood the moral quality of that prohibition.
Again, this is not to say that, as has been put against us, he needed to have some idea of the elements of the offence or anything like that. Ultimately, in our submission, an offence like section 66A(1) is relatively simple. It gets at the idea that it is wrong to have sexual intercourse with children. We do not suggest for a moment that he needed to know that there is a line drawn at 10 or a line drawn at 16, but simply the idea that some people by virtue of their youth are entitled to be free of acts of sexual – not to be exposed to acts of sexual intercourse.
KIEFEL J: But there are a number of reasons for that, and that is where you look, do you not? The reason in relation to children is that it would involve physical and psychological harm.
MR DHANJI: Yes.
KIEFEL J: Now, there might be questions about the understanding of a child about psychological harm, but the focus would perhaps be on the level of physical harm to an undeveloped human being.
MR DHANJI: Well, if one simply focuses on the level of physical harm ‑ ‑ ‑
KIEFEL J: But what I am saying is that is part of the reason for the offence.
MR DHANJI: Except to say that if one is simply looking at physical harm, there is offences of assault and the like that will deal with physical harm and have correspondingly lower penalties. When one goes to ‑ ‑ ‑
KIEFEL J: This is a sexual act on a child which has obvious – there are obvious reasons why that would be an offence. We are not talking about any kind of general assault.
MR DHANJI: I appreciate that. So in terms of the prohibition – and again we are not submitting that the child necessarily has to have an understanding of all the various policy reasons why this is in place; simply an idea of the wrongness of interfering sexually with a child, and when it comes to the various age descriptions what is likely to occur is that, for example, if it was intercourse with a consenting 15‑year‑old it might be more difficult to prove any knowledge of wrongness than would be the case in relation to a child of much younger years.
BELL J: Here the primary judge and, as I would read the Court of Criminal Appeal in relation to count 2, looked to conduct which was consistent with the complainant’s non‑consent and took into account the surrounding circumstances evidenced by that conduct as establishing the requisite knowledge of wrongness. Your argument is, even if he knew it was wrong to have sexual intercourse with a non‑consenting sibling, if he did not understand that it was morally wrong to have sexual intercourse with a younger sibling, the test would not have been rebuttal.
MR DHANJI: He would be guilty of a different offence.
BELL J: That is a different – we are looking at the rebuttal of doli incapax.
MR DHANJI: Yes.
BELL J: You say it would not be rebutted by understanding moral wrongness of having sexual intercourse with your sibling, who was not consenting?
MR DHANJI: That is right.
BELL J: I understand the argument.
MR DHANJI: Really, what that is getting back to is that same point. It is not just about criminal responsibility; it is about criminal responsibility for particular offences that carry particular penalties. This particular offence carried a maximum penalty of 25 years. So when this appellant came to be sentenced, the ordinary principles applied, and he was sentenced against that maximum penalty and it informed the seriousness of what he had done and resulted in, presumably, some component of incarceration that was referable to the fact that the act that he had committed involved transgression against a young complainant. So you have that same fundamental idea of criminal responsibility and ultimately punishment imposed in circumstances where it does not align with the child’s understanding.
If I can turn then to E in the outline and take your Honours to the reasons of Justice Davies in the Court of Criminal Appeal. If I can perhaps just briefly pause before proceeding at page 193, at paragraph 53, line 40. Just reflecting on what has already been put our submission is clearly enough this idea that the determination of the doli incapax issue is largely one of impression is, to put it mildly, problematic because it fails to come to grips with the need for evidence rebutting lack of capacity.
In terms of dealing with the unreasonable verdict ground, if I can take your Honours to page 192 – I apologise, if I can just go back, at page 189, paragraph 39, at the very bottom of the page, your Honours will see a heading “Unreasonable verdicts.” There was a complaint of unreasonable verdict in relation to counts 2, 3 and 4 on the appeal contained in grounds 1 and 2. Ultimately, under this heading, however, his Honour simply dealt with ground 2 primarily and ultimately said something about ground 3. His Honour observes that the ground – and this is just over at the top of page 190:
This ground raises a significant matter for consideration –
He makes reference at paragraph 41 to this Court’s decision in Filippou and goes on to make reference to Kurtic; at paragraph 45 refers to the reasons in Filippou and in particular your Honours will see there paragraphs [11] and [12] of the decision in Filippou are extracted, including the key portion of this Court’s decision in M v The Queen.
It would appear there that his Honour was going to deal with it in the matter required by this Court. But when one goes on and looks at paragraph 46, there are some indications that that is not quite what it is that his Honour is doing because his Honour makes reference there to Weiss v The Queen and says that the applicant made a submission:
that this Court could move beyond its function as a court of error. Accordingly, this Court was in the position where it could draw its own inferences from the evidence and, effectively, substitute those inferences for those drawn by the Trial Judge.
His Honour rejects this proposition and he seems to be, in paragraph 46, talking about the court’s function as a court of error in the context of legal error. It is an expression that is used from time to time in the Court of Criminal Appeal, particularly in relation to sentencing because in relation to sentencing one is, certainly in the vast majority of cases, concerned only with error in that sense. But, of course, talking about the Court of Criminal Appeal as a court of error in the context of a ground that a verdict is unreasonable in error in that same context is not correct. But his Honour goes on ‑ ‑ ‑
BELL J: But then in paragraph 54, he does say:
the question for this Court is whether the Trial Judge must have had a doubt ‑ ‑ ‑
MR DHANJI: Yes, his Honour does. Can I say one can trace one’s way through this and feel like one is heading in the right direction at some point and not at others because going back to where I was there is this reference to Filippou, but its reference to Filippou at paragraphs 44 and then extracting that part at paragraph 48 – those parts of this Court’s decision in Filippou were all dealing with a complaint of specific error. So they were inapposite to the idea that his Honour was getting at.
His Honour then refers to – and this idea of “must” comes up by reference to the reasons of his Honour Justice Hayne in Libke – this is at paragraph 48 of the reasons of Justice Davies. His Honour sets out there that part of Libke. That part of Libke was said, footnoting this Court’s decision in M, was not intended, in our submission, to state any different test. His Honour then goes on to equate what is said in Libke with what is said in Filippou at 56 where it was said:
the question for the Court of Criminal Appeal was not whether it was “satisfied that the judge’s account was correct” but whether her Honour’s findings as to the sequence of events were not reasonably open.
But that is taken from a very different context, yet his Honour equates those two things, something said in the context of unreasonable verdict and something said in the context of specific error. To an extent, part of the problem that seems to arise not uncommonly in relation to this question, despite the statements of this Court in M and reiteration in SKA and in Nguyen is the idea of, well, what is one getting at when one is talking about open?
If I can take your Honours to M v The Queen (1994) 181 CLR 487 briefly, and if can perhaps work backwards, there is the clear statement that is regularly picked up in the joint reasons and that is then in effect settled as the test, drawing on what had previously been said in cases like Morris. If I can work backwards and pick up what was said by Justice McHugh at page 525, his Honour said:
In my opinion, the correct test for determining whether a verdict should be set aside on the ground that it is unreasonable is whether a reasonable jury must have had a reasonable doubt about the accused’s guilt. To ask whether it was open to the jury to be satisfied of the accused’s guilt beyond reasonable doubt is to come perilously close to applying the test for determining whether there was a sufficiency of evidence to convict the accused.
His Honour goes on to say why he prefers the test of “must”. Now, what his Honour is highlighting there is the sort of ambiguity that is inherent in a phrase like “open to the jury to convict”. If one just goes briefly to the previous page at 524 in the last paragraph beginning on that page his Honour makes reference to the different terminology used such as:
a reasonable jury would have, or should have or must have had a reasonable doubt . . . Others have said that the test is whether, having regard to the probative value of the evidence, it was open to the jury –
It is clear that his Honour’s adoption of the “must have had a reasonable doubt” test is in the context of taking the view that that is actually a broader test than the “open to convict” test. In a similar vein, for the reasons of his Honour Justice Brennan, albeit that his Honour would have ultimately adopted a narrower test, his Honour said in the last paragraph appearing on page 501:
The test whether it was “open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt ‑ ‑ ‑
If I can skip over the next part and go to the next sentence:
But the test conceals an underlying controversy as to when it is “open to the jury” to be so satisfied.
His Honour goes on to accept the explanation of the term. What I am getting at is that whilst his Honour is using expressions at times like “open to the jury”, and certainly we accept has made reference to the key passage in M, ultimately there are aspects of the reasons that are not consistent and in a sense what ultimately establishes the point is really what his Honour did because in terms of dealing with the evidence of the condom his Honour says at paragraph 69, starting on page 196 of the appeal book, picking up the second sentence:
An enquiry whether on all of the evidence a verdict was unreasonable or could not be supported must entail a consideration of all the evidence that was before the trier of fact. However, where evidence has been expressly disregarded by the Trial Judge this Court would be substituting its own view for that of the Trial Judge by considering evidence that he has effectively excluded.
BELL J: This is problematic in light of the way the matter was run because there was, in relation to the question of the condom - some submissions were advanced by the prosecution that it was suggestive of planning and therefore of having the requisite knowledge. Ms Mendes put that in question, raising alternative explanations and then, as I understand it, agreement was reached by counsel that the condom was not capable of supporting an inference either way on the issue that it was for the trial judge to determine.
MR DHANJI: Yes.
BELL J: So against that approach, when the appellate court came to make an independent review of the sufficiency of the evidence to support the conviction, was it an error to not have regard to something which, by agreement, had been excluded on this issue?
MR DHANJI: Yes, your Honour, because on appeal it was directly contended that this was a relevant matter and the court should have regard to it.
BELL J: Is there somewhere we get that?
MR DHANJI: I will turn that up, your Honour, but the idea that his Honour Justice Davies appears to have engaged in is really that what his Honour was doing was reviewing the correctness of what the primary judge did. But one can look at it another way. If it had not been admitted at all at trial, one might seek to rely on it as either fresh or new evidence on appeal and there could be no question of the court’s ‑ ‑ ‑
BELL J: I am directing attention, Mr Dhanji, to how the matter was run.
MR DHANJI: Yes. In a sense, the point of the response is that in a fresh evidence case or a new evidence case one is ultimately conducting the inquiry if the argument is under the first limb of section 6 as to whether the verdict was unreasonable. One is doing that removed from the way it was run at first instance. The idea that one is bound by the way it is done at first instance is in a sense ‑ ‑ ‑
BELL J: That is so in the event that one runs a fresh evidence point successfully.
MR DHANJI: Yes.
BELL J: Obviously, that is so. I am just really inquiring about the way this matter was conducted because one is at some point concerned with the agreement that counsel made and the way the matter proceeded. Now, if as you say, it was fully canvassed before the Court of Criminal Appeal, that is a different matter.
MR DHANJI: It is certainly not being raised as an argument for the first time now what was sought to be done. Indeed, this whole discussion of the idea that this Court is a “court of error,” beginning at paragraph 46, is in the context of the submission that is made on the appellant’s behalf. If I can take your Honours to paragraph 55, beginning on page 193, the last sentence beginning on that page:
One aspect of the evidence contained in the transcript of the Complainant’s interview concerned the use of a condom by the Applicant in relation to count 2. Both parties submitted that this Court should consider the evidence concerning the use of the condom but they differed on what should be concluded from it. The Applicant’s Senior Counsel submitted that it indicated sexualised behaviour ‑ ‑ ‑
BELL J: I see, yes. So it was common ground before the Court of Criminal Appeal that the matter should be taken into account?
MR DHANJI: Well, that was the submission of the appellant.
BELL J: It says here:
Both parties submitted that this Court should consider the evidence ‑ ‑ ‑
MR DHANJI: Yes, I am sorry, but for different purposes.
BELL J: Undoubtedly.
MR DHANJI: I am sorry, your Honour. Yes, the Crown maintained the argument that it sort of embarked upon in the court below as to it showing some knowledge of wrongdoing. It was certainly put forward in the Court of Criminal Appeal as a matter that was relevant and would cast some doubt over whether the presumption had been rebutted. I mean, the problem is, going back to a debate that has already been had, as soon as one finds oneself using that language, casting a doubt as to the presumption, one can see what is going on and that is of course it was at all times for the Crown, in any event, to rebut the presumption. The idea that you have these bits of evidence that create doubt is really – it is perhaps poise of language. They are really just highlighting the problem for the Crown in this case.
So that discussion of the test to be applied, in our submission, culminates in this idea that his Honour is bound by the position that was taken at first instance and despite the fact that there are some correct expressions of how one goes about determining unreasonable verdicts and some aspects which, perhaps, are not correct, what is ultimately borne out is, in our submission, a failure to properly apply the test reflected in that failure to take into account the use of the condom.
BELL J: What paragraph do we get that ultimate position in?
MR DHANJI: That is at paragraph 69, your Honour. Another aspect of the reasoning which we might just, whilst your Honours are there, point out is his Honour’s reasons at 70:
An act of penile/anal intercourse in the circumstances of counts 2 and 3 is “more obviously wrong” than, say, the acts which constituted counts 1 and 4.
I appreciate some emphasis must be given to the words “in the circumstances of” because you did have, in relation to, certainly, count 2, a high degree of violence. The circumstances of count 3 were somewhat different but this idea of “more obviously wrong” in the context of the presumption is, we say, problematic. Your Honours, if I can then turn to what is ground 2 and your Honours will see the grounds of appeal to the Court of Criminal Appeal set out at page 178 of the appeal book?
KIEFEL J: The primary judge thought that it followed, as a matter of logic that he would – that he had the knowledge that the following act was seriously wrong.
MR DHANJI: Yes. But the point that we seek to make is that what one sees there is grounds 1 and 2 clearly picking up the first limb of section 6 and ground 3 picking up the second limb, that is, a complaint of error. Sorry – or perhaps the third limb as well, miscarriage of justice. Indeed, there might be more force in that, having regard to the concession made and the fact that the judge, in a sense, was not called to actually determine. In either event what one is talking about is a form of miscarriage distinct from that in grounds – or the unreasonable verdict grounds.
His Honour deals with this at appeal book 197. But when one goes through that process what his Honour appears to do, in our submission, is dismiss the complaint in relation to ground 3 on the basis that his Honour was satisfied of the guilt of the appellant and that, we say, is precisely the error that this Court identified in Filippou.
So there was a need in that instance of course to actually engage with what then followed, could one apply the proviso and, indeed, Justice Hamill engaged in precisely that exercise, accepted that error was established, determined that the proviso could not be applied and, indeed, ultimately on the question of whether – what order should be made in relation to ground 3, his Honour did not suggest that there should be a retrial in relation to that count because on the facts his Honour was not satisfied beyond reasonable doubt with respect to count 3.
If I can just perhaps say this in relation to that process between counts 2 and 3, in a sense the difference in the verdicts highlights an aspect of the problem because what happens here is that the majority judges appear to be satisfied in relation to count 2 as a result of various aspects of the conduct that are extraneous to the prohibition in the offence.
When it comes to count 3 and those same aspects are not present, the reasoning appears to be, well, he was guilty of count 2 and then you can use that, whilst I do not embrace the automatic presumption‑type idea, nonetheless the reasoning steps off this idea that the appellant has been proved guilty in relation to count 2.
But what has happened in that exercise is that – or what is apparent from that exercise is somehow the reasoning process picks up on primarily the aspect of distress and says, well, that proves that he was aware that what he was doing was wrong in relation to count 2, he still knew it was wrong in relation to count 3 and that immediately begs the question, well, how can that be if one is relying upon the distress as an aspect of proving that count 2 was wrong? What is the moral quality of his knowledge in relation to count 2? You are really focusing on this aspect of distress which is not played out in count 2.
I perhaps have not articulated that as clearly as I might, but the idea is that somehow it is suggested that there is a moral lesson learnt in relation to count 2 that is carried on through count 3.
BELL J: I do not know it is that. Is it not that if one has the capacity to know the moral wrongness of the act charged in count 2 that on the occasion in count 3 when the complainant runs to the door and you stop the complainant going out the door, you push the complainant onto the pile of clothes and pull his pants down, it might be inferred from your knowledge of the moral wrongness in count 2 that you had a similar level of understanding when it came to the conduct in count 3? I mean, that is the process of reasoning, surely?
MR DHANJI: Yes, but the problem that that process of reasoning exposes is that one is looking to these aspects that are extraneous from the core of the offence itself. That is really what I am trying to get at.
BELL J: Yes, which include in count 3 the, “No RP, no,” and running to the door and being prevented and the like.
MR DHANJI: It is not clear that the appellant knew that the complainant wanted to escape and, indeed, Justice Hamill deals with this in his Honour’s reasons, that the analysis conducted by his Honour is such that when one looks at count 3 it really is missing proof of really almost all of what was relied upon in relation to count 2.
BELL J: Mainly one has to look at each offence and consider whether in relation to each offence the presumption is being rebutted but you do not submit that it is not relevant to have regard to a finding that it was rebutted in relation to count 2, do you?
MR DHANJI: No, your Honour. What I am trying to highlight is this. If I could put it another way, if in relation to count 2 cogent evidence had been
adduced of the type that has been discussed – that is, the moral understanding of the child such that one got to the point where one was satisfied beyond reasonable doubt that he had that level of understanding that it was wrong to interfere sexually with a person of a young age, plainly that would carry over to a similar act committed some three weeks later, but where one is simply looking at, where one is trying to get that conclusion from things like distress and complaint on the part of the complainant, it is not going to carry over in relation to count 3. So in count 3 where those things are missing what are you left with? In a sense ultimately we say the problem does not arise because there is a fundamental problem on count 2. Those are our submissions, your Honour.
KIEFEL J: Thank you. Yes, Ms Dowling.
MS DOWLING: Thank you, your Honour. Your Honours, if I may start by taking the Court through the evidence that there actually was about the complainant’s life and about the state of his - the moral context in which he lived, in relation to your Honour Justice Keane’s proposition that you put to my learned friend - there was some evidence that was before the trial judge and the CCA in relation to this issue.
It is found in the report of Mr Champion, which starts at appeal book 59 and it is limited. The Crown acknowledges that but there is some material there. Mr Champion reports at paragraph [7], appeal book 60, point 15 - he refers to the fact that the appellant completed his primary education and commenced secondary education at a particular high school, then transferred to another school in year 9, being placed in a behaviour class. He then commenced year 10 at another school but his schooling was disrupted. At about line 20, Mr Champion reports that he acknowledged having been in low classes at times but denied having been placed in an IM or disability‑specific class at any point.
At paragraph [8], it refers to the fact that he was working part‑time for six months at McDonalds when he was aged 15. So there is evidence there that this is a person who was attending school – finished primary school, went to high school – was not in a disability class during that period of his life, was able to work in a job at the age of 15 at McDonalds.
At paragraph [9], at about point 30 on appeal book 60, Mr Champion then sets out the results of the IQ test – and while I have your Honours’ attention to this page, I might briefly take you through that. Your Honours, Mr Champion refers to the four constituent parts of an adult IQ test and that is at page 61. They are the Verbal Comprehension Scale, the Perceptual Reasoning Scale, the Working Memory Scale and the Processing Speed Scale. The scores on those are then combined to calculate an overall intelligence quotient.
Your Honours will see at paragraph [12] – that is the Verbal Comprehension Scale – the appellant scored very poorly and came in at the borderline disabled range on the third percentile. That is the only part of the test in which he performed at a below‑average level.
BELL J: In the – I think it is the job skills report – there is reference to Ms Andrews, the psychologist’s test results which recorded a range from 70 to 79 ‑ ‑ ‑
MS DOWLING: Yes.
BELL J: As I understand it that was conducted some time before Mr Champion’s ‑ ‑ ‑
MS DOWLING: That appears to be the case.
BELL J: ‑ ‑ ‑ so at a time when one is closer to the age of the offending, albeit he was, I think, at the time Ms Andrews conducted her tests, aged 17.
MS DOWLING: Yes.
BELL J: Am I right in understanding, on the strength of that report he was placed on the disability pension?
MS DOWLING: On the Job Capacity Assessment Report which referred to that other underlying ‑ ‑ ‑
BELL J: Yes.
MS DOWLING: ‑ ‑ ‑ psychological report which was not in evidence.
BELL J: No, but the Job Capacity Report was and that recorded that his IQ testing conducted by Ms Andrews when he was aged 17 produced a result of 70 to 79 which placed him in the borderline disabled range and consistently with that he was then placed on an intellectual disability pension.
MS DOWLING: Yes. This report, Mr Champion’s report, which was before the Court in its entirety, comes to a similar but not the same result and gives a lot more detail as to the basis for that. It is significant because on the Perceptual Reasoning Scale, the Working Memory Scale, the Processing Speed Scale, he is at the average level.
GORDON J: At that age.
MS DOWLING: At this age.
GORDON J: Not at age 11 or 12.
MS DOWLING: No, that is right and that is a great shortcoming in this report which I do wish to address the Court on and one which troubled the trial judge and the Court of Criminal Appeal, properly so, because this report is silent as to the extent to which IQ is stable throughout a person’s life, the extent to which there are fits and starts in a child’s development in terms of their IQ.
GORDON J: That is why there is the presumption which you have to rebut.
MS DOWLING: Yes, but it is put against us that this is a person of low intelligence who, therefore, cannot reason morally. In the Crown’s submission, this IQ report does not go that far.
GORDON J: But at what age? That submission that you just put then, is that directed at the age of 17?
MS DOWLING: No, no, at the age at the time of the commission of the offence.
KIEFEL J: But the other thing is that without further explanation, you are asking us to make something of this report.
MS DOWLING: I am responding to the appellant’s submission that he was of very low intelligence and, therefore, lacked capacity to reason morally. What I am seeking to – the point I am seeking to make is that Mr Champion’s conclusion which is at paragraph 17 on appeal book 61, point 30 is that his suspicion is that he was probably in the low average range but that his abilities were above the level that would allow a formal diagnosis of mild developmental disability.
GORDON J: But you cannot just pluck a sentence like that out, can you, Ms Dowling, and if you go to [23] on pages 62 to 63, Mr Champion concludes that he:
would be cautious about formulating him as an adult, his personality development being very much a work in progress. He impressed as a fairly naïve and unsophisticated young man, whose emotional and behavioural control may at times fluctuate, and who may at times tend to be overwhelmed –
You are asking us to take one aspect of one part of the report about the state of the appellant at the age of 17 when we are concerned about him at 11 and 12.
MS DOWLING: In my respectful submission, that is not quite as far as the Crown wished to take this evidence, merely to point out that there are – that it is not an unequivocal statement by the psychologist that he is of below ‑ at this borderline disabled range. Perhaps the better point that can be made from this evidence is that it does not explore the ability of this appellant or any other person of that developmental level or IQ level and their ability to reason morally.
KIEFEL J: Quite so. It leaves unanswered the question that it almost confirms and it adds another aspect in the passage at paragraph [23] and goes on to say:
The comments of he and his Father indicated some fairly unsatisfactory aspects of his upbringing (exposure to violence, possibly being a victim of molestation –
There is another question and when one puts that with the circumstances of the offending for an 11‑year‑old, how are these questions answered in terms of, of course, how it reflects on his sense of right and wrong?
MS DOWLING: One thing that can be sure, in my submission, is that one cannot infer from these suggestions that he, therefore, did not know that anally penetrating a 6‑year‑old with some force in circumstances where the 6‑year‑old is evidently distressed and resisting was not seriously wrong. The fact that he may have been exposed ‑ ‑ ‑
GORDON J: That is not asking the right question, is it? You are, in effect, looking at it from the perspective of someone who is subnormal – subnormal in the sense of having a low intellectual level. The presumption is that a child has not the capacity, moral or otherwise, to understand the act is seriously wrong. You have to rebut that presumption. You have to point to things. Nothing here points to it and this report does not.
MS DOWLING: The things that point to it are that this child was able to participate in the formal education system until the age of year 10.
GORDON J: But that is a principle of normality.
MS DOWLING: I am starting to build the Crown case and refer your Honours to the evidence that the Crown says supports the finding. There was of course also before the trial judge evidence from the appellant’s mother. This is a problematic piece of evidence in the way that the trial judge dealt with it, because the trial judge expressly referred to the fact that it was tendered by the Crown in support of all counts, but then found that because count 1 had been dismissed before - on a Prasad, as it were, that he would not take it into account in relation to counts 2, 3 and 4.
It is the Crown’s submission in this Court that that was patently erroneous. However, the Crown, in the Court of Criminal Appeal, did not seek to rely on the evidence and the Crown does not here, by way of notice of contention or in any other form, seek to take a different approach to it. But there was evidence from the appellant’s mother that she had told him from the age of six that it was wrong to touch people’s penises and bottoms and that he should not let people touch his and he should not touch other people. That evidence, your Honours, is at appeal book 127.
BELL J: I thought you said that there was no reliance on the evidence.
MS DOWLING: There was reliance on it by the Crown. Then the trial judge ‑ ‑ ‑
BELL J: What is your submission? Is this Court to have regard to it or not?
MS DOWLING: No. There was a suggestion in the appellant’s written reply that there was no evidence of that kind led by the Crown at trial. That is not correct. The evidence was led and it is in the appeal book. However, the Crown accepts that it fell away at the point of the CCA and also is not to be considered by this Court. But it is not the case that it was not led at all, if I can just put it like that.
So that leaves, really, the fact of the offending as the basis upon which it was open to the trial judge and the CCA to conclude that this appellant knew that this particular act at this particular time was seriously wrong. In relation to count 2, the fact that he took into account and they are set out at appeal book 187, were that if the act occurred when the adults were out of the house – your Honours will recall that the appellant was left in charge of the complainant because he was the older brother. The complainant was fighting with another sibling and the appellant then locked him in the bedroom. The complainant was demanding to be let out of the bedroom at that point, so it was clear to the appellant that he did not want to be in there. The appellant went in and said if:
you want to come out, you gotta let me do this to ya -
So he was bargaining with his freedom at that point, saying that you will not be released from this locked room, unless you let me sexually penetrate you. The appellant then pulled down his pants. The complainant was saying:
no, [RP], no -
He was evidencing his distress at the situation, the fact that he did not want to participate. The appellant then threw him on the bed, pulled down his pants and there was the act of anal intercourse. At this time the appellant had his hand over the complainant’s mouth, it was hurting the complainant and he was crying. Clearly the proximity of the two boys meant that this was a matter that was known to the appellant. The complainant said he kept trying to tell him to stop, but he had his hand over his mouth and he would not stop and in fact he only stopped when his father’s girlfriend came back and he could hear her voice calling out for some help with the groceries. After he had ceased the sexual act he then told the complainant “don’t say nothing”.
It is the combination of those matters that provided the foundation for the trial judge’s conclusion that at the time that he was doing the particular act to the complainant he knew it was seriously wrong. The aspects of that are the secrecy, the sequestering, the knowledge – the acknowledged knowledge that the complainant did not want to be in the room and would not want to participate in the act, but that was the price of him being released from the room, and then of course the fact that the complainant was crying and resisting and calling out no and the fact that he had to silence him, presumably because he did not want anybody else in the house to hear him and of course – but it was only when the threat of detection arose because of the return of the father’s girlfriend that he stopped the act, and then the threat to the child, “don’t say nothing”.
The trial judge, in the Crown’s submission, correctly saw that as an understanding and appreciation by the appellant that what he had just done was seriously wrong and he did not want the complainant to tell anybody. The facts in relation to count 2 are set out in appeal book 188. That happened a few weeks after count 2, so it was relatively close in time and that is of course significant ‑ ‑ ‑
KIEFEL J: This is count 3 you are talking about?
MS DOWLING: I am sorry, count 3, thank you, your Honour. That is significant because of the temporal connection, it having been found that he had an appreciation of the wrongness of that act a couple of weeks before; appreciation that the complainant did not want to do it, appreciation that it hurt the complainant, a demonstrated appreciation that he did not want adults to find out because he told the complainant not to tell anybody.
So, incorporating that state of mind, one then turns to look at the facts in relation to count 3. Again, this happened when there were no adults present. It happened at the father’s workplace where the complainant was there with his sister and the appellant. The father went out to check the ponds on a quad bike. Usually this took about an hour, so the appellant knew that there was a period of time where he would be uninterrupted.
The appellant asked the complainant to go into the office which was an area that was away from where the sister was. She was outside. The appellant then took his pants down and the complainant tried to run to the door. It couldn’t have been clearer at that point that he did not want to participate, just as he had not wanted to participate in relation to count 2. But the appellant blocked his exit. The complainant said he tried to call out for his sister but the appellant grabbed him, put him on the floor face down, pulled his pants down and anally penetrated him and again, like count 2, only stopped when he heard the father’s quad bike returning. When there was ‑ ‑ ‑
BELL J: When children engage in sexual experimentation and play with one another, from a pretty early age, they tend to know not to do it in front of mum and dad, do they not? I mean it just – where do you draw ‑ ‑ ‑
MS DOWLING: There is no bright line and the Crown accepts that these are jury questions and as his Honour Chief Justice Bray observed in R v M, the test which sounds simple when it is, you know, unpacked and examined, is less simple but it is ultimately a factual finding to be made in most cases by a jury, incorporating community standards of wrongness and the jury’s common understanding of both the ordinary person’s sense of morality and general principles of child development.
Now, it may be that there are aspects of a particular offence and a particular offender that require different emphases to be given to different parts of the evidence. In this case, one might make the point that the evidence that he was of low intelligence required some more to rebut the presumption but in terms of how a jury determines whether something is seriously wrong as opposed to simply mischievous, that is to adopt the words of Justice Davies, largely a matter of impression and that does not, contrary to my learned friend’s submission, involve any derogation from the criminal standard, not at all. This is an element of the offence to be made out to beyond reasonable doubt.
But the question of whether a particular child knows a particular act is seriously wrong at the particular time they are doing it is going to depend on the evidence that is before the jury in relation to that child and it is the Crown’s case that the evidence of this offence amply supported a finding that he did know that it was particularly wrong.
KIEFEL J: Well, that is by reference to what occurred in terms of perceptions about the ‑ I will use the word “distress” since that was used in the Court of Appeal ‑ of the sibling. But it would also be before a jury that this 11‑year‑old knew about the use of condoms, knew about how to go about the act, how to restrain and it had the psychologist’s report. Now, does not this raise questions that need to be addressed if one is going to say at the requisite standard that this child knew that what he was doing was gravely wrong?
MS DOWLING: The evidence of the condom, your Honours, does not, in the Crown’s submission, give rise to any inference that is relevant to the moral question that was before the trial judge or the jury.
KIEFEL J: It is not just the condom, though. It is ‑ ‑ ‑
MS DOWLING: If I can deal first with the condom.
KIEFEL J: Yes.
MS DOWLING: Thank you, your Honour. At trial both parties submitted that no inference could properly be drawn from the use of the condom. That is at appeal book 27, point 5 and 34, point 5 and the trial judge agreed and held that, as nothing, no proper inference was available to be drawn, he would disregard that evidence. As my learned friend has taken your Honours to, the parties in the Court of Criminal Appeal contended that the evidence was available to the Court of Criminal Appeal.
The contention in the Court of Criminal Appeal by the appellant was that it was evidence of sexualisation. Evidence of sexualisation does not, in my submission, permit an inference to be drawn as to knowledge of rightness or wrongness. Evidence of sexualisation could be any one of a number of experiences. It could be observing a consensual act on a pornographic tape. It could be observing a non‑consensual act on a pornographic tape. It could be being the victim of a sexual assault in a way that was pleasurable or unpleasurable. It could be the fact a friend at school told him that this was something you could do and that you could use a condom. They are all possibilities that are encompassed in the word or the concept of sexualisation and they give rise to different inferences.
In the absence of knowing what it was or what the exposure was, there was no proper basis upon which either the trial judge or the Court of Criminal Appeal could draw any one of those inferences. So it was appropriate for the Court of Criminal Appeal, like the trial judge, to set that evidence aside and it could not be used to support the making, the establishment, the rebuttal of the presumption, nor did it undermine the Crown’s case.
GORDON J: I think it is the last proposition that I have some difficulty with, that it did not undermine it. It is the question raised by the presiding Judge – it is the existence and use of it which itself raises questions which remain unanswered.
MS DOWLING: In my respectful submission, the raising of questions does not mean that the presumption is not rebutted. One looks at the evidence one has and draws the inferences that are properly available from that evidence and then concludes that the presumption is rebutted or it is not.
GORDON J: If you take paragraph [23] of the psychologist’s report where he seems to suggest that it is possible that this young man was “a victim of molestation” does that change your view?
MS DOWLING: In my submission, no, it does not because it does not – for a start it does not refer to what was told to him, what the nature of the molestation was or when it happened because, of course, this report was written seven years after the act in question. It is silent as to whether he was molested - indeed, whether he was at all – but whether that happened when he was 13 after the commission of this offence.
So the fact that there is this suspicion raised in the expert report does not undermine the Crown case. It is an interesting question and it is one which any person reading this evidence, reading these judgments, wonders about, but it was not a matter that undermined the Crown case in terms of whether the presumption was rebutted by reference to the evidence that was available to support it.
KIEFEL J: I take it from what you said before that you accept that there must be an inference from his actions, the child’s actions on the day in relation to count 2, that he has seen something or been exposed in some way to an act of this kind involving the use of condom. He has either seen it, watched it, or actually been exposed to it himself. One does not know the answer to that but it must be one of those things because this is not in the matter of intuition.
MS DOWLING: I think my learned friend suggested that it could be something that he had to come up with on his own.
KIEFEL J: In any event, if one accepts that that is the case, does that not raise a question about whether or not this child might have thought that this is acceptable behaviour and, if that is the case, does not the Crown have to go further then and rebut that possibility in order to achieve the appropriate standard of proof?
MS DOWLING: In my submission, no, it does not. The Crown does not have to go that far because the inferences that are available one cannot tell. The question is whether the evidence is sufficient on its face. The fact that there are things raised and unanswered is not the same as a hypothesis consistent with innocence that means that the presumption has not been rebutted.
KIEFEL J: It is not a perfect analogy because this is not innocence. We are talking about knowledge and the issue is, is it not, whether or not those actions in relation to a child of that age raise a question about what they understand to be acceptable conduct? They have obviously been exposed to something. If there is a question, how can you determine knowledge to the requisite standard without exploring it further?
MS DOWLING: It is knowledge of serious wrongness rather than knowledge of acceptable conduct and that brings into play the observation by his Honour Justice Dixon in Porter, which was itself a charge to the jury in an insanity case. If I can take your Honours briefly to what Justice Dixon, as he then was, said in the context of the M’Naghten rules - it is at 55 CLR 182 at 190. The passage that starts at line 3:
What is meant by “wrong”? What is meant by wrong is wrong having regard to the everyday standards of reasonable people -
and down to the words “very large extent”.
BELL J: You accept that the test is one of the capacity to understand that the conduct was seriously wrong by contrast with conduct that might be described as naughty or mischievous. Is that so?
MS DOWLING: Yes, and that there is an analogue to the M’Naghten rules. The Crown appreciates that your Honour the learned Justice Bell’s point that C v DPP as picked up in BP have introduced the word “seriously” to qualify “wrong” in Stapleton and M and…..refer only to “wrongness” whereas there is an added level that is incorporated by the adjective “seriously”.
BELL J: It is, I think, to draw that distinction on a continuum between behaviour which is naughty and in that sense can answer the description wrong but does not reach the requisite level of wrongness.
MS DOWLING: Yes, and there are two judgments that touch upon that. The first is the charge to the jury in Porter where his Honour Justice Dixon pointed out that it is not sufficient – it is irrelevant, as it were, “that he reasoned wrongly” or that “he had queer or unsound ideas”. The question is whether he was:
incapable of taking into account the considerations which go to make right or wrong –
Then in M v The Queen his Honour Chief Justice Bray adverts to a similar consideration.
GAGELER J: I am sorry, if we were to turn this into a positive proposition, does that mean that in rebutting the presumption, it was for the Crown to prove beyond reasonable doubt that this child was capable of taking into account the considerations which went to making right and wrong of this action?
MS DOWLING: It is conventionally phrased as a state of knowledge rather than a state of capacity. The Tasmanian Act in fact incorporates a test of capacity. The Tasmanian case that is on my learned friend’s report has adopted the common law in relation to knowledge in applying that test. The concept underpinning it appears to be the ability to make choices between right and wrong, that is the moral issue, and to that extent that is a question of capacity. It appears to be more than just capacity, but a knowledge on the part of the particular offender, and that must require that he turned his mind to it or knew at the time that he was doing it that it was seriously wrong, which is I think slightly different to the capacity to reason that such an act would be wrong.
GAGELER J: So why did you take us to this passage and what do you get out of it?
MS DOWLING: I am sorry, in R v M? I am referring to the passage at 591. In relation to the passage in Porter, what Justice Dixon is saying to the jury is wrong is everyday standards of everyday people. Does he have that ability? Does he have that knowledge, not that he has idiosyncratic ideas that were at play when he committed this particular act, but rather that he, yes, did have the capacity, and when the charge is read as a whole, had the knowledge that it was also wrong at the time that he did it.
GAGELER J: My Latin is not very good, but the incapax is referring to ‑ ‑ ‑
MS DOWLING: Capacity, yes.
GAGELER J: ‑ ‑ ‑ a capacity.
MS DOWLING: Yes. The question - my learned friend gave an example about the child who knows that it is wrong to touch grandma’s vase and may know that that is seriously wrong, and a similar issue was considered by his Honour Chief Justice Bray in R v M at the bottom of page 591. In that case the appellant hit another child on the head with a brick and killed him, and his Honour, in criticising the trial judge’s use of the word “disapprove” in the charge to the jury, said that it was insufficient that the jury thought that he thought it was wrong on a similar basis to not washing your hands or some other sort of convention of that kind, that it has to have, in my submission, a greater moral quality to it. But that is a question of fact to be gleaned from the evidence that is led in support of the rebuttal of the presumption.
Your Honours, if I may just briefly address you on the submission that was made strongly in the written submissions that the act charged involves an analysis of the legal elements of the offence that is ultimately charged. The appellant seems to argue that the only matters that the court can take into account in considering whether the presumption has been rebutted are the elements of the offence which, in this case, are simple and they are the act of intercourse and the age of the complainant.
It is the Crown’s submission that there is no suggestion in the authorities that one must strip down the conduct, the offending conduct, into its constituent legal elements in this way and then inquire as to whether the child understood that each element and their combination was seriously wrong.
BELL J: I do not think the argument has quite been put that way. I think, as I understood it, what is being put is this. Sexual intercourse is not ordinarily, contrary to the provisions of the Crimes Act (NSW) what is proscribed is sexual intercourse with children and when one looks at the capacity to understand the moral wrongness of sexual intercourse with a child, it is necessary to have regard to the child accused’s understanding of that dimension. So it is not that the child has to know the precise ingredients, does not have to know that the averment is of sexual intercourse with a child under 10 but does need to understand that the dimension that is morally wrong is having sexual intercourse with a child.
MS DOWLING: The Crown’s response to that is twofold. The first is that the authorities are clear, in my submission, that one looks to the conduct, not the act charged. The phrase “the act charged” has been used by my learned friend throughout his written submissions. That is first seen in C v DPP and it is also picked up by his Honour Justice Hodgson in BP.
However, the earlier and other and later authorities refer simply to, in the case of Stapleton, what he was doing. In the case of R v M, did he know the act was wrong; what he did in B (An Infant); in Runeckles, what he or she was doing; in Whitty, what she was doing was seriously wrong; and then in C we have the act charged. The act charged is simply shorthand for identifying the conduct that is before the court, not requiring – it is not a reference to the elements of the particular offence.
An illustration of the practical effect of the Crown’s argument is illustrated by the facts that arose for consideration in R v M. In that case, the child hit the victim on the head with a brick. Now, if the victim was only injured a little bit that would be an assault occasioning actual bodily harm. If he was injured severely, it would be assault occasioning grievous bodily harm. If he later died, it could be murder, it could be manslaughter. These are all quite different offences charged, but the inquiry on each of those is going to be the same. Did he know at the time he hit the victim on the head with a brick that that was seriously wrong?
One does not look to the fact – one does not ask whether he understood that his criminal intent would expose him to a different charge or that the consequences of that act, in terms of the injury sustained by the victim, would expose him to a different charge and a different penalty. The inquiry is more simple than that. On a factual level, did he know at the time that what he did was seriously wrong?
BELL J: I think it comes down, unless I misunderstood Mr Dhanji, to the simple proposition that sexual intercourse is not contrary to law.
MS DOWLING: The Crown submits that sexual intercourse is always contrary to law absent consent. The only sexual intercourse that is not wrong is consensual sexual intercourse, whether that be between adults or by reason of the fact that consent is absent because of the age of the complainant. So it is not, in my submission, correct to say that an act of sexual intercourse has a moral quality to it. It cannot be divorced from the question of consent and it is only morally right where there is consent. In this case with a six‑year‑old ‑ ‑ ‑
KIEFEL J: Consent is not relevant to a child – you have said that. That is the difficulty with talking about consent here.
MS DOWLING: I am merely responding to the suggestion put by my learned friend and also by her Honour Justice Bell that there is nothing morally – there is no morality that attaches to an act of sexual intercourse. The Crown contends that there is, that it is in fact only morally acceptable with consent.
KEANE J: Just as an older brother beating up a younger brother is an assault without consent.
MS DOWLING: Yes.
KEANE J: And that happens not infrequently.
MS DOWLING: Sometimes it will be seriously wrong and sometimes it will not. It will depend on the facts of the case and the ‑ ‑ ‑
KEANE J: But the want of consent would rarely be regarded as enough to establish an appreciation of the serious moral wrongness of it – where an 11‑year‑old beats up his younger brother.
MS DOWLING: In the context of an assault, yes. In this case that question does not arise because there was an overt resistance and demonstrated opposition to the act that was happening. So even if, on the appellant’s argument, you do not take into account the question of consent, in this case you had actual – what ostensibly looks like a lack of consent - of course, it cannot be that because he is incapable of consenting. But you have the complainant actively resisting, trying to get away, crying and making his unhappiness known to the appellant which is a highly relevant matter when considering whether the appellant knew that what he was doing was seriously wrong.
KIEFEL J: Is the Court to proceed upon the basis, and should the courts below, that RP knew that he was inflicting pain?
MS DOWLING: That is the inference that was drawn by the trial judge and ‑ ‑ ‑
KIEFEL J: How would he have known that if he had not been exposed it to himself?
MS DOWLING: Because the complainant was crying.
KIEFEL J: He could have been crying because he did not want to be there.
MS DOWLING: Well, he said, “No, no, RP, no”. He tried to - he had been held down. His hand was over his mouth. It hurt him. He was crying. The natural inference, in my respectful submission, is that the appellant knew that he was hurting him and of course it is a forceful penetration of another person’s body. I mean, that is an act that one would imagine that the appellant would know would hurt just regardless of whether he was sexualised or not.
Your Honours, if I can turn to the consideration of the question of unreasonable verdict by the Court of Criminal Appeal. His Honour Justice Davies, with whom Justice Johnson agreed, did identify the correct test, as my learned friend has taken you to, at appeal book 190 and 191 and it is the Crown’s submission that he did independently review the evidence in the way required by authority and came to the conclusion that it did support the rebuttal of the presumption and certainly ‑ I withdraw that.
Some of the difficulties that arise in this part of the judgment appear to come from the way in which the grounds were pleaded in the Court of Criminal Appeal and also considered. The issue of patent error was not considered first but rather the unreasonable verdict grounds were considered first, which is a matter that I will come back to in relation to the finding on ground 3.
The parties agree that his Honour correctly set out the test for doli and that he then did correctly set out the test that an appellate court should apply when considering whether a verdict is unreasonable and then he went on to consider the evidence that was led in support and that is the evidence to which I have already taken the Court at 194. At 194, point 4 to 195, point 1, Justice Davies met all the criticisms of the individual findings made by the appellant of the trial judge’s finding and also of the inferences that could be drawn from each of the matters relied upon by the Crown.
BELL J: What about the point that is taken against you in paragraph 69, on page 196, going over to 197, where, although the parties agitated the question of the condom before the Court of Criminal Appeal, his Honour appears to have taken the view that it was not open to the court to have regard to that evidence in considering the sufficiency of the evidence to support the verdict?
MS DOWLING: It appears that Justice Davies approached the condom evidence as if it had been excluded by the trial judge and so it was not part of the totality of the evidence before the Court of Criminal Appeal and therefore should not be considered by him. In one regard this is part of – this supports my earlier submission that this problem arose out of the fact that it was being considered under a first limb ground because the question really should have been did the trial judge err in his approach to the evidence of the condom or did the trial judge err in accepting the parties’ concession that it should not form part of his consideration?
Had it been pleaded in that way, then he would have had to consider error and then, if error was made out, the question of miscarriage. But the way that his Honour Justice Davies approached it was, having regard to the evidence that was considered by the trial judge – and his Honour refused to approach this as if it was excluded – then he would not have regard to it.
There is no – the Crown submission is that this was not, in the context of this case, a problem and it should not be a problem in this Court because the evidence of the condom was, as the parties at trial accepted, equivocal, so equivocal that one could not draw an inference that was advantageous to the appellant.
BELL J: But in the way the matter was argued before the Court of Criminal Appeal, the parties accepted that ‑ ‑ ‑
MS DOWLING: Changed the way in which they put it should be used, and the appellant in the Court of Criminal Appeal suggested that the condom should be used in relation to the issue of sexualised behaviour. But that does not advance the matter for the reasons that I have already addressed the Court on. Sexualised behaviour does not cast any light upon knowledge of right or wrong or moral reasoning processes.
The Crown made the same submission that they made at trial, which is that it was an indication of preparation. The same problem applies to that. Preparation for an act of intercourse does not cast any light on whether you think it is right or wrong. There are rapes that are committed full well knowing that they are non‑consensual where condoms are used. It is in that sense not probative of the fact that was in issue here.
So, notwithstanding that the basis – the asserted relevance of the condom changed in the Court of Criminal Appeal, it was still correct for his Honour Justice Davies to have no regard to it in terms of its ability to support the presumption or undermine the evidence of the Crown case that was led in support of that rebuttal. There was a similar submission made in relation to the report of Mr Champion and that is at paragraph 67.
So, it is the Crown’s submission that his Honour Justice Davies understood the legal test – both legal tests – the law of doli incapax and the test to be applied on an unreasonable verdict. He did have regard to all the evidence that was led in the Crown case. He considered the criticisms of that evidence made by the appellant. In relation to those two particular items of evidence, they were appropriately dealt with and then he concluded that the verdicts were supported beyond reasonable doubt in an unobjectionable way.
In relation to ground 3, it is relevant, in my submission, to have regard to the way that that was framed in the Court of Criminal Appeal. The grounds of appeal are at appeal book 178. Ground 3 is an assertion that:
The trial judge erred in finding that, “as a matter of logic” the accused must be guilty of counts 3 and 4.
As my learned friend has characterised it, either a second limb or a third limb error is pleaded there.
The finding of – the relevant finding is a factual finding – that he had a particular state of knowledge and the finding of the trial judge is, in effect, that factual finding A follows factual finding B. So this, in the Crown submission, raises a question of fact and the inquiry for the Court of Criminal Appeal was whether that factual finding – that A follows B – was reasonably open for the trial judge to make.
It is the Crown’s submission that that is the way that Justice Davies and Justice Johnson approached ground 3. They found no error in that proposition because, as a matter of logic, the factual finding of the appellant’s state of mind in relation to count 3 did follow count 2 for the reasons given by them, namely, that they both involved an act of anal penetration and they occurred in relevantly similar circumstances – that is, when there were no adults around; there was the deliberate sequestration of the complainant by the appellant; there was the use of force; and there was the act of the appellant preventing the complainant from leaving on both occasions.
Of course, highly relevant to whether factual finding A follows factual finding B is the finding that has been made on A, the question of age which is count 2, and the fact that count 3 followed just a few weeks later. That state of mind could be inferred to the point of time when he embarked on count 3.
Count 4 of course does not lend itself to that reasoning and that is why the judges in the CCA did find error in relation to count 4 because it was a qualitatively different act and it did not follow, as a matter of logic, that the factual finding on count 2 necessitated the same factual finding on count 4. In other words, that factual finding was not reasonably open to the trial judge and the appeal judges found that.
It is correct that they did not then embark on a clear consideration of whether miscarriage had ensued but that is because there had already been – I withdraw that. They found that the reason that count 4 did not follow count 2 was in effect a finding that there was no evidence to support the verdict and they allowed the appeal in relation to count 4. So, the fact that there was not a formal engaging of the steps required under second limb or third limb error, does not matter because they jumped to the conclusion that count 4 could not be supported on the evidence and allowed the appeal on that basis.
Even if this Court takes the view that the Court of Criminal Appeal should have found error in relation to 3 following 2, as a matter of logic, and that the CCA should then have turned to inquire into the question of miscarriage, it is the Crown’s submission that that was a task that had been performed in substance in relation to grounds 1 and 2, the unreasonable verdict ground. It would have required the court to have regard to the evidence that was led in the Crown case to support the verdicts.
In this case, because it happened on the record, there was no advantage to the trial judge and the error was not one that affected the admissibility of the evidence or its cogency. So, the inquiry that the court had conducted in relation to unreasonable verdict ground would have been the same for a miscarriage, if the Court is against us and finds that error should have been found in relation to count 3.
Your Honours, it is the position of the Crown in this Court that the trial judge and the Court of Criminal Appeal both correctly identified the correct test for the law of doli incapax and that a requirement – a factual requirement for a finding of serious wrongness was supported in the evidence that was led in support of the rebuttal of the presumption. Also, that the Court of Criminal Appeal correctly identified and applied the correct test for determining an unreasonable verdict in relation to grounds 1 and 2 in that Court. It is the Crown’s submission that the appeal to this Court should be dismissed for those reasons.
KIEFEL J: Thank you. Mr Dhanji, how long will you be in reply?
MR DHANJI: Five minutes, I hope, your Honour. Your Honours, the first point I would make is that it is not our submission that because the appellant had a developmental disability when tested some years later he was not morally responsible for his act. Rather, the Crown was required to prove that the appellant was morally responsible for his act, to the extent that there was any evidence as to his level of function, and such evidence as there was tended to create some doubt.
Similarly, in relation to the use of the condom and the act of intercourse, a submission is made against us. One cannot draw any positive inference as to what the source of that behaviour was. Similarly, there is the same onus‑shifting problem going on because it was never incumbent upon the appellant to adduce evidence from which positive inferences could be drawn.
The reference was made to circumstantial evidence cases and it is not directly analogous but it is not dissimilar to the point made by this Court in Barker v The Queen and that is when one is looking at a circumstantial evidence case it is not necessary to be able to draw the positive inferences to the hypothesis consistent with innocence but rather the question is whether it is left open. So you have these aspects of the evidence ‑ the reports, the act itself, the use of the condom. They are all question raising issues but are certainly not matters upon which the appellant has somehow assumed some onus.
In a similar category is the submission in relation to the fact that he attended a normal school because again it begs the question: how appropriate was that for this appellant? The doubts or the concerns in relation to this principle are discussed in C v DPP and one of the aspects relied upon as to whether this principle should be continued is the idea that there is universal schooling.
The corollary of that of course is there is a source of evidence in relation to persons who have contact with people, but here to simply say he attended a normal school and make no effort to actually ascertain as to whether that was appropriate for this particular individual again has that same quality of shifting the onus.
Submissions were made in relation to the act itself and the circumstances surrounding the act. When one steps back effectively they fall into two different categories – one, the unwillingness of the complainant and the associated distress and, two, importuning the complainant not to tell anyone. The second has been dealt with I think effectively. One simply does not know quite what that says about moral understanding. It is equally consistent with an understanding that he might be in trouble from a parent for reasons he does not fully understand.
The first, this idea that he carried on despite distress and protest, to say, well, one draws an inference from that he must have known what he was doing was wrong, one would, if anything, draw the opposite inference; the idea that he is carrying on, and even if one could make the assumptions which we say one cannot ‑ even if one were to make the assumptions that he knew that the complainant was dreadfully upset by all of this, the fact that he carries on despite that, if anything, tends to prove quite the opposite, that he would do this despite what is going on.
Then, finally, if I can just deal with the points that were made about the legal elements question. It does not assist, in our respectful submission, to say, well, you have got various cases here and none of them suggest the particular point that we make because, as your Honours will appreciate, cases are only authority for the propositions that they decide and it does not appear that it has been necessary to give particular attention in various decided cases to the question. But where you have conduct that has the capacity to contravene various prohibitions, the question clearly arises, so in a case like this if, for example, the offending was covered by the incest provisions, would he be equally guilty of an offence of incest because it is his brother that the act is being committed upon? Is it simply the sexual intercourse without consent or is it an understanding of the age?
But I should also just pause and say this. It is not entirely true to say that the authorities are silent. My friend took you to M v The Queen, if I can just take your Honours briefly back to – R v M 16 SASR, I am sorry, your Honours, the decision of the – the reasons of Chief Justice Bray, and if I can take your Honours to page 593 in the paragraph at about point 5:
Her Honour, however, clearly directed the jury that it was for the Crown to prove beyond reasonable doubt that the appellant had sufficient knowledge of right and wrong and, although she did not tell them that he had to know that it was seriously or gravely wrong to kill or cause grievous bodily harm to the boy Chris, I cannot find any authority for the proposition –
His Honour goes on to deal with the actual complaint as to misdirection. The clear implication in what his Honour is saying there is that what one is talking about in terms of what has to be seriously or gravely wrong is an understanding that it was wrong to kill or cause grievous bodily harm to the ultimate deceased.
In a sense, one can imagine easily enough a case where you have a child who might think it is wrong to assault somebody else but may equally think that if you crush the other person’s skull it is not going to be a problem, they will go to hospital and they will be up and running around tomorrow. And the idea that that person would be responsible for murder does not sit easily, in our submission, with the idea that ultimately what you are doing is seeking to attain a criminal conviction and everything that goes with a criminal conviction in circumstances where there is no capacity to actually understand the nature or the substance of what the conviction relates to.
Then, finally, if I could just take your Honours back to Stapleton, and again it is a brief passing reference in the reasons of the Court. I am sorry, your Honours, 86 CLR, and if I can just quickly take your Honours to page 369. Again, at about point 5 on the page there is a sentence that begins about midway through the text:
It must, in fact, be proved beyond all doubt, that at the time he committed the atrocious act with which he stood charged, he did not consider that murder was a crime against the laws of God and nature.
Now, again, to an extent, I might be falling into the sin that I accused my friends of in that cases are not authorities for things that they do not specifically decide but, nonetheless, there are at least those two examples of an advertence to what it is that is being got at in terms of the moral quality of the act.
So, ultimately, in our submission, whether one approaches this case through the need to prove the various elements or not, the evidence was clearly lacking. But, certainly, in our submission, we make the fundamental point, going back to the idea of moral responsibility and criminal responsibility, and their intersection with children, that there is a need when bringing about this intersection that the child concerned is entitled to the full rigour normally expected by the criminal law, particularly having regard to the potential outcomes. Those are our submissions.
KIEFEL J: Thank you. The Court reserves its decision and will adjourn until 10.15 tomorrow.
AT 12.50 PM THE MATTER WAS ADJOURNED
3
0