Rye v The State of Western Australia - [2021] WASCA 43

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   RYE -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 43
CORAM:   BUSS P
MAZZA JA
VAUGHAN JA

HEARD:   22 DECEMBER 2020
DATE OF FINAL
SUBMISSIONS       :   2 MARCH 2021
DELIVERED          :   11 MARCH 2021
FILE NO/S:   CACR 72 of 2020
BETWEEN:   RYE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram:   LONSDALE DCJ
File Number            :   MI 258 - MI 263 of 2019

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of six historic sex offences against a child under 14 years - Appellant placed on a community based order and fined $1,000 with the fine to be paid to the complainant - Appellant tried before a judge in the Children's Court - Trial judge found that the appellant was aged about 13 years 3 months at the time of the offending - Trial judge failed to make any findings in relation to the appellant's capacity at the material time for the purposes of s 29 of the Criminal Code (WA) - Proper construction and application of s 29 of the Code - Appeal conceded by the State - Whether this court should enter judgments of acquittal or order a new trial - Whether the fine of $1,000 should be repaid to the appellant

Legislation:

Criminal Appeals Act 2004 (WA), s 30(5)
Criminal Code (WA), s 29, s 183 (repealed)

Result:

Appeal allowed
Judgments of conviction set aside
Judgments of acquittal entered
Fine of $1,000 to be repaid to the appellant

Category: A

Representation:

Counsel:

Appellant	:	Ms H E Prince & Ms K Kumar
Respondent	:	Mr J A Scholz

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Anderson v The Queen (1991) 53 A Crim R 421
B v R (1958) 44 Cr App R 1
Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627
Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166
Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572
King v The Queen [1986] HCA 59; (1986) 161 CLR 423
Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494
R v B (an infant) [1979] Qd R 417
R v B [1997] QCA 486
R v Chaulk [1990] 3 SCR 1303
R v EI [2009] QCA 177
R v F; Ex parte Attorney-General [1998] QCA 97; [1999] 2 Qd R 157
R v JJ; Ex parte Attorney-General (Qld) [2005] QCA 153
R v JTB [2009] 1 AC 1310
R v M (1977) 16 SASR 589
R v MacMillan [1966] NZLR 616
R v Porter [1933] HCA 1; (1933) 55 CLR 182
R v T [1996] QCA 258; [1997] 1 Qd R 623
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
R v TT [2009] QCA 199
RP v The Queen [2016] HCA 53; (2016) 259 CLR 641

BUSS P & MAZZA JA:

This is an appeal against conviction.
In 2019 the appellant was charged with six historic offences of unlawful and indecent dealing with a child under 14 years, contrary to s 183 (repealed) of the Criminal Code (WA) (the Code).
The appellant pleaded not guilty.
On 30 and 31 January 2020, the appellant was tried in the Children's Court before Lonsdale DCJ. Her Honour reserved judgment.
On 3 March 2020, the trial judge convicted the appellant of each of the offences.
On 4 May 2020, her Honour imposed a community based order for 12 months in respect of each offence. Her Honour also imposed a fine of $1,000 and ordered that the fine be paid to the complainant.
At the time of the offending, the complainant was aged 7 or 8 years. The complainant gave evidence at the trial that the offending occurred in December 1972. At that time, the appellant was aged about 13 years 3 months. Consequently, the appellant was not criminally responsible for the offending unless the State proved beyond reasonable doubt that at the material time the appellant had the capacity to know that he ought not to do the acts with which he was charged. See s 29 of the Code.
The trial judge did not, in her reasons for judgment, make any findings in relation to the appellant's capacity at the material time. Neither the prosecutor nor defence counsel drew to her Honour's attention the necessity for those findings to be made in the event that any of the offending occurred while the appellant was under the age of 14 years.
The sole ground of appeal alleges, in effect, that her Honour erred in law by entering judgments of conviction without making any findings as to the appellant's capacity.
At the hearing of the appeal and in its written submissions filed and served before the hearing, the State conceded (correctly, in our opinion) that the ground of appeal had been made out, the appeal should be allowed and the judgments of conviction should be set aside.
The primary issue between the parties at the hearing of the appeal was whether this court should enter judgments of acquittal or should order a new trial. A subsidiary issue was whether this court should order that the fine of $1,000 be repaid to the appellant.
At the conclusion of the hearing of the appeal, the court made orders to the following effect:
(1)Appeal allowed.
(2)The judgments of conviction recorded by Lonsdale DCJ on 4 May 2020 in respect of MI 258/2019 to MI 263/2019 (inclusive) are set aside.
(3)By 4.00 pm on 11 January 2021, the appellant may file and serve written submissions as to whether this court should order that the fine of $1,000 be repaid to the appellant.
(4)By 4.00 pm on 18 January 2021, the State may file and serve written submissions in response.
(5)The court will determine on the papers whether to order that the fine of $1,000 be repaid to the appellant.
(6)The court reserves its decision as to whether to enter judgments of acquittal or to order a new trial.
On 12 February 2021, the appellant filed the written submissions referred to at [12(3)] above. On 2 March 2021, the State filed the written submissions referred to at [12(4)] above. The written submissions of the parties reveal that the appellant paid the fine of $1,000 to the Midland Magistrates Court. However, the complainant has not received any of the proceeds of the fine. The parties are agreed that this court should order that the proceeds of the fine be repaid to the appellant pursuant to s 60(6) of the Sentencing Act 1995 (WA).
In our opinion, this court should enter judgments of acquittal rather than order a new trial and should order that the proceeds of the fine of $1,000 be repaid to the appellant.
Our reasons for joining in making the orders that were made at the conclusion of the hearing of the appeal and for deciding that judgments of acquittal should be entered and that the proceeds of the fine should be repaid to the appellant are as follows.

Relevant events and evidence at the trial

At the trial, the prosecutor particularised the charges during her opening address as follows:
(a)During the Christmas holiday period in 1973/1974 there were three incidents in which the appellant committed the alleged offences.
(b)On each of the three occasions, the appellant took the complainant under an area beneath the floorboards of the complainant's parents' house.
(c)During the first incident the appellant fondled the complainant's penis, performed fellatio on the complainant and, at the appellant's direction, the complainant performed fellatio on the appellant.
(d)The second incident occurred on a different day shortly after the first incident. On this occasion, the complainant, at the appellant's direction, performed fellatio on the appellant.
(e)During the third incident, the complainant performed fellatio on the appellant. The appellant then placed his penis or a finger between the complainant's buttocks, but did not penetrate his anus.
The complainant gave evidence at the trial that was consistent with the State's case, as particularised by the prosecutor during her opening address, with the exception that the complainant said the incidents occurred during the Christmas holiday period in December 1972, when he was aged 6.
The complainant described in his evidence the location where the three incidents occurred. At his parents' house there was a driveway between the western wall of the house and the boundary fence. An uncle would park his black vehicle in the driveway between the house and the fence. On each of the three occasions, the complainant was playing in the black vehicle. Adjacent to the place where the vehicle was parked was a hole in the wall of the house. The complainant referred to this hole as a manhole. It was about 1 m by 1 m in size and gave access to an area beneath the house in which foundation stumps were visible. The complainant said that the space between the ground and the floorboards was insufficient for the appellant or the complainant to stand upright. However, the complainant could stand if he bent his head. Photographs of the hole in the wall and the area beneath the house were tendered as part of the State's case.
The complainant gave evidence that on each occasion when the offending occurred, the appellant called or gestured for the complainant to follow him through the hole in the wall to the area beneath the house. After each incident, the appellant went through the hole and walked away. There was no evidence that the appellant took the complainant beneath the house on any other occasion. It was not suggested to the complainant in cross‑examination that the appellant took him to the area beneath the house for an innocent purpose.
The complainant said that his sixth birthday was on 18 December 1972. He received a bicycle as a combined birthday and Christmas present. The complainant said that the first incident probably happened just after Christmas when he was aged 6 and after he had received the bicycle. The second and third incidents happened, possibly on consecutive days or 'in the same close proximity of days' (ts 32).
The complainant confirmed that the incidents occurred during the 1972 Christmas holidays, when he was aged 6. He acknowledged that he had previously asserted that the incidents had occurred when he was aged 7, but maintained that his evidence in chief to the effect that he was aged 6 when the incidents occurred was correct (ts 45).
The complainant identified in re-examination a written timeline that he had prepared, which indicated that he had received the bicycle in December 1973.
The prosecutor also called evidence from the complainant's mother, the complainant's former wife and the investigating police officer, Detective Poppy Miller. It is unnecessary to recount their evidence.
The appellant did not give or adduce evidence at the trial.
The prosecutor submitted in her closing address that the trial judge could be satisfied that the offending occurred in 1972 or 1973. According to the prosecutor, the dates were merely particulars and it was not important to resolve the issue.
The trial judge summarised, in her reasons for judgment, the complainant's evidence in which he described the three incidents. Although the complainant gave inconsistent answers as to when he had received the bicycle, her Honour said that the inconsistency was unsurprising, given the passage of time. Her Honour also said that the complainant's expression of some doubt as to his age when the incidents occurred was unsurprising, given the passage of time. Her Honour concluded that the complainant was a reliable and compelling historian who had given his evidence in a thoughtful, measured and even handed manner. Her Honour found that the complainant's description of the incidents was truthful, reliable and compelling.

The merits of the ground of appeal

Chapter V of the Code is headed 'Criminal responsibility' and comprises s 22 to s 36. Those provisions set out the circumstances in which a person is not criminally responsible for an act or omission.
Section 29 of the Code, as enacted by the Criminal Code Act1902 (WA) and the Criminal Code Act Compilation Act1913 (WA), provided:
A person under the age of seven years is not criminally responsible for any act or omission.
A person under the age of fourteen years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.
A male person under the age of fourteen years is presumed to be incapable of having carnal knowledge.
The age specified in the first paragraph of s 29, as originally enacted, was subsequently amended from seven years to ten years. The third paragraph of s 29, as originally enacted, was subsequently repealed. The second paragraph of s 29, as originally enacted, which is the provision of relevance in this appeal, has never been amended.
Sir Samuel Griffith's notes in his draft Criminal Code state, in relation to the proposed provision subsequently incorporated in s 29 of the Code:
Common law
By that note, Sir Samuel conveyed that in his opinion the proposed provision reflected the common law.
The common law as to the criminal responsibility of children is embodied in three presumptions. The presumptions have been formulated by reference to the chronological age of children.
In R v JTB,[1] Lord Phillips of Worth Matravers (Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood and Lord Mance agreeing) observed that the common law recognises, in the presumption of doli incapax, that the capacity to distinguish between right and wrong is an element of criminal responsibility. His Lordship added:
(a)there is a conclusive presumption that children over the age of 14 years are capable of distinguishing between right and wrong;
(b)there is another conclusive presumption that children under the age of seven years are not so capable; and
(c)for children between those ages there is a prima facie inference or common presumption that they are not capable of distinguishing between right and wrong, but this can be rebutted.
[1] R v JTB [2009] 1 AC 1310 [15].
At common law, the presumption of doli incapax is based on the immaturity of a child under the age of 14 years. As Lamer CJ noted in R v Chaulk,[2] a child under that age has not yet developed 'the basic capacity which justice and fairness require be present in a person who is being measured against the standards of criminal law'. The presumption of doli incapax is predicated on an incapacity for criminal intent and operates as an exemption from criminal responsibility.
[2] R v Chaulk [1990] 3 SCR 1303, 1320.
At common law, a child between the age of seven years and 14 years cannot be convicted of an offence unless the prosecution proves beyond reasonable doubt the elements of the offence and, also, that the child understood that his or her conduct which constituted the offence was seriously wrong or gravely wrong. The existence of that understanding cannot be inferred from the fact that the child committed the acts or made the omissions which constitute the offence. The understanding must be proved by other evidence. See RP v The Queen.[3]
[3] RP v The Queen [2016] HCA 53; (2016) 259 CLR 641 [4], [9] (Kiefel, Bell, Keane & Gordon JJ), [38] (Gageler J).
In RP, Kiefel, Bell, Keane and Gordon JJ explained that:
(a)The rationale for the presumption of doli incapax at common law is the view that a child under the age of 14 years is not sufficiently developed, intellectually and morally, to understand the difference between right and wrong and therefore lacks the capacity for mens rea [8].
(b)The presumption at common law is irrebuttable in the case of a child under the age of seven years [8].
(c)Between the age of seven years and the age of 14 years the presumption at common law is rebuttable and the prosecution may adduce evidence to prove that, at the material time, the child was doli capax [8].
(d)The presumption may be rebutted in relation to a child between the age of seven years and the age of 14 years by evidence that 'the child knew that it was morally wrong to engage in the conduct that constitutes the physical element or elements of the offence'. A child's knowledge of 'the moral wrongness of an act or omission is to be distinguished from the child's awareness that his or her conduct is merely naughty or mischievous'. The distinction may be expressed 'by stating the requirement in terms of proof that the child knew the conduct was "seriously wrong" or "gravely wrong"' [9].
(e)The prosecution must point to evidence from which an inference can be drawn beyond reasonable doubt that the child's development was such that he or she knew that it was morally wrong to engage in the relevant conduct. This directs attention 'to the child's education and the environment in which the child has been raised' [9].
(f)At common law, the presumption ameliorated the harshness of the criminal law [10].
(g)It is not self-evident that the policy embodied in the common law presumption is outmoded in requiring that the prosecution prove beyond reasonable doubt that the child understood the moral wrongness of his or her conduct [10].
(h)The knowledge required to rebut the presumption is knowledge 'of the wrongness of the act as a matter of morality and not law'. Further, the prosecution must prove knowledge 'of serious wrongness as distinct from mere naughtiness' [11].
(i)What is sufficient to rebut the presumption will vary 'according to the nature of the allegation and the child'. A child will 'more readily understand the seriousness of an act if it concerns values of which he or she has direct personal experience' [12]. For example:
Answers given in the course of a police interview may serve to prove the child possessed the requisite knowledge. In other cases, evidence of the child's progress at school and of the child's home life will be required [12].
Rebutting the presumption 'directs attention to the intellectual and moral development of the particular child' [12].
In RP, Gageler J said that to rebut the presumption at common law the prosecution must prove beyond reasonable doubt that 'the child understood that the child's conduct which constituted the offence was seriously wrong by normal adult standards' [38].
Section 29 of the Code, as enacted when the appellant allegedly committed the charged offences (and as currently enacted), provided, relevantly and in effect, that a person of or over the age of 10 but under the age of 14 years 'is not criminally responsible for an act or omission', unless it is proved that at the time of doing the act or making the omission the person 'had capacity to know that he ought not to do the act or make the omission'.
The relevant part of s 29, for the purposes of this appeal, means that a child who is aged at least 10 years but less than 14 years is not liable to punishment for an act or omission and does not commit an offence, unless the child had the requisite capacity. See Fingleton v The Queen.[4]
[4] Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 [32] (Gleeson CJ).
In R v B (an infant),[5] WB Campbell J (Williams J agreeing generally) observed that, pursuant to the Queensland equivalent of s 29, a child aged between seven and 14 years is not criminally responsible unless it is proved that 'at the time of doing the act he had capacity to know that he ought not to do the act'. His Honour then referred to the reasons of Lord Parker LCJ in B v R[6] where his Lordship said that in order to rebut the presumption at common law 'guilty knowledge must be proved' or 'there must be strong and pregnant evidence that [the child] understood what he did'.
[5] R v B (an infant) [1979] Qd R 417, 425.
[6] B v R (1958) 44 Cr App R 1, 3.
In R v T,[7] the appellant, who was a child, was convicted of an offence of arson of a shop. He appealed against his conviction on the ground that the conviction was unsafe or unsatisfactory. At the trial, it was necessary for the prosecution to prove beyond reasonable doubt that the appellant had 'capacity to know that he ought not to do the act' which constituted the offence, within the Queensland equivalent of s 29. Fitzgerald P (Pincus JA relevantly agreeing) said that the Queensland equivalent of s 29 raised an issue concerning 'the appellant's state of mind and the question whether he had the capacity to know that he ought not to "flick" his lighted cigarette onto the paper under the counter' of the shop (626). His Honour said, in resolving that question, that it was 'difficult to comprehend any basis for a submission that the appellant might not have known that it was wrong to "flick" a lighted cigarette onto paper in a shop which he had broken into and from which he was stealing, and he would certainly have known that it was wrong to set fire to the shop' (626). It is apparent that although his Honour formulated the relevant question by reference to whether the appellant had 'the capacity to know', his Honour resolved that question by reference to the appellant's actual knowledge that it was wrong to set fire to the shop.
[7] R v T [1996] QCA 258; [1997] 1 Qd R 623.

In R v B,[8] the Court of Appeal of Queensland considered that part of the Queensland equivalent of s 29 which concerns proof of the requisite capacity. Pincus JA (Davies JA and de Jersey J agreeing) said (3 ‑ 4):
We were referred to authorities which would if applied, attribute to [the relevant part of s 29] a rather different meaning from that which its language appears to convey. For example, reference was made to B v R (1958) 44 Cr App R, an English case, in which speaking of an accused between the ages of 8 and 14 it was said that in order to rebut the presumption in favour of such a child 'guilty knowledge must be proved and the evidence to that effect must be clear and beyond all possibility of doubt'. It is plain that this is not the law of Queensland. What the Code requires could hardly be more clearly stated: it must be proved that at the relevant time 'the person had capacity' (I emphasise capacity) 'to know that the person ought not to do the act'. This is, of course, different from proving actual knowledge.
[8] R v B [1997] QCA 486.
In R v F; Ex parte Attorney-General,[9] Davies JA (McPherson JA and Shepherdson J agreeing) emphasised that the relevant part of the Queensland equivalent of s 29 is concerned with 'capacity to know rather than, as the common law appears to be, with actual knowledge'. His Honour referred to the reasons of WB Campbell J in R v B (an infant) and said that it was 'perhaps unfortunate' that the passage from Lord Parker's judgment in B v R was cited in R v B (an infant), 'but its citation should not be taken as acceptance of the need for guilty knowledge - the court [in R v B (an infant)] expressly stated that what was necessary was capacity to know' (160).
[9] R v F; Ex parte Attorney-General [1998] QCA 97; [1999] 2 Qd R 157, 160.
In R v JJ; Ex parte Attorney-General (Qld),[10] McPherson JA (Williams JA agreeing and Jerrard JA relevantly agreeing) referred with approval to Pincus JA's observation in R v B that the question under the relevant part of the Queensland equivalent of s 29 'is not whether the accused knew he was doing wrong, but whether he had the capacity to know he ought not to do the act in question'. See also, to similar effect, the comments of McMurdo J (Holmes JA and Applegarth J agreeing) in R v EI[11] and those of Keane JA (Chesterman JA and Wilson J agreeing) in R v TT.[12]
[10] R v JJ; Ex parte Attorney-General (Qld) [2005] QCA 153 [9].
[11] R v EI [2009] QCA 177 [16] ‑ [17].
[12] R v TT [2009] QCA 199 [19] ‑ [20].
In our opinion, it is plain, from the text of s 29 of the Code, that a child who is aged at least 10 years but less than 14 years will not be criminally responsible for an act or omission unless the prosecution proves beyond reasonable doubt that at the time the child did the act or made the omission the child had 'capacity to know' that he or she ought not to do the act or make the omission. In particular, that part of s 29 is concerned with the child's capacity to know as distinct from the child's actual knowledge. Our opinion on this issue is supported by the preponderance of the appellate decisions in Queensland to which we have referred.
We turn to consider what is meant by the child's capacity to know that 'he ought not to do the act or make the omission', within s 29 of the Code.
In R v B, Pincus JA appears to have equated a child's capacity to know that 'he ought not to do the act or make the omission' with a capacity to know that the doing of the act or the making of the omission was 'wrong'. The appellant in that case had been convicted of having unlawfully assaulted the complainant, who was a teacher, by threatening the complainant with a knife. Pincus JA said that '[o]ne would expect a child as old as 12 to have the capacity to know that threatening a teacher with a knife is wrong' (4).
In R v F, Davies JA expressed the view that if the phrase 'ought not to do the act' needs to be paraphrased, and his Honour doubted whether it does, then the phrase enunciated by Bray CJ (Bright JA agreeing) in R v M,[13] namely that the act was 'wrong according to the ordinary principles of reasonable men', should be used (160).
[13] R v M (1977) 16 SASR 589, 591.
In R v EI, McMurdo J referred, with apparent approval, to Pincus JA's formulation of the relevant question in R v B, namely whether the child had the capacity to know that what he or she was doing was 'wrong' [16].
In R v TT, Keane JA said that what the trial judge had to decide in that case was 'whether he was satisfied beyond reasonable doubt that the appellant had the capacity to know that it was wrong to assault another person' (emphasis added). Keane JA elaborated:
Apart from the record of interview and the signed caution, there was the evidence of the complainant, Mrs Geitenbeek and the police as to the appellant’s behaviour when confronted. Even if that behaviour is regarded as equivocal (as his Honour regarded it) as evidence of an ability on the part of the appellant to appreciate that what he did to the complainant was wrong (R v Melrose [1989] 1 Qd R 572), it must be borne in mind that there was no evidence to suggest that the appellant suffered from any disability which would in fact deny him the capacity to know that his assault was wrong [20].
In our opinion, the word 'ought' in s 29 connotes, in context, duty or rightness. The words 'ought not' in s 29 are the negative form of the word 'ought'. See The Australian Oxford Dictionary (2^nd ed, 2004) 915.
In our opinion, the statement in s 29 of the Code as to a child's capacity to know that 'he ought not to do the act or make the omission' is a reference to the child's capacity, at the material time, to know that doing the act or making the omission was morally wrong. The requisite capacity to know that doing the act or making the omission was morally wrong is not to be equated with capacity to know that the conduct in question was legally wrong or a breach of the criminal law. See, generally, RP [11]. Also, the requisite capacity to know that doing the act or making the omission was morally wrong is not to be equated with capacity to know that the conduct in question was naughty, mischievous or rude. See, generally, RP [9], [11], [33]. A child's capacity to know that 'he ought not to do the act or make the omission' in s 29 is concerned with the child's capacity to know that the relevant act or omission was morally wrong as distinct from legally wrong or a breach of the criminal law or merely naughty, mischievous or rude. It is necessary, however, to connect the concept of moral wrongness within s 29 to community standards which give the concept practical meaning and enable the test to be readily understood and applied by a jury or other fact finding tribunal. In our opinion, a child will have capacity to know that doing the relevant act or making the relevant omission was morally wrong if, at the material time, he or she had capacity to know that the conduct in question was seriously wrong by the ordinary standards of reasonable adults. See, generally, R v Porter;[14] R v MacMillan;[15] R v M (591). So, the question for the jury or other fact finding tribunal where the State must prove beyond reasonable doubt that a child had the requisite capacity is whether, at the material time, the child had capacity to know that the conduct in question was seriously wrong by the ordinary standards of reasonable adults.
[14] R v Porter [1933] HCA 1; (1933) 55 CLR 182, 189 ‑ 190 (Dixon J).
[15] R v MacMillan [1966] NZLR 616, 621 ‑ 622 (Turner J delivering the judgment of the Court of Appeal of New Zealand).
We turn to consider how a child's capacity to know that 'he ought not to do the act or make the omission' may be proved, for the purposes of s 29 of the Code.
In R v F, Davies JA said that 'evidence of surrounding circumstances including conduct closely associated with the act constituting the offence may be considered for the purpose of proving the relevant capacity in relation to that offence' (162). His Honour added that such conduct may include 'asserting a false alibi, rendering a victim incapable of identifying the accused or preventing a victim from summoning assistance during the commission of the offence' (162). His Honour acknowledged that evidence of the accused's age alone cannot rebut the presumption under the Queensland equivalent of s 29, but observed that 'inferences capable of rebutting the presumption can be drawn from the accused's age when considered together with evidence of the accused's education or of the surrounding circumstances of the offence, or with observations of the accused's speech and [demeanour]' (162).
In R v JJ [9], McPherson JA referred, with apparent approval, to those comments of Davies JA in R v F.
In our opinion, where the State must prove beyond reasonable doubt that a child had the requisite capacity, within s 29 of the Code, attention must be focused upon the intellectual and moral development of the particular child at the material time. See RP [12]. A child's education and the environment in which he or she was raised are highly relevant in considering whether the child had capacity to know, at the material time, that the conduct in question was seriously wrong by the ordinary standards of reasonable adults. See RP [9], [12].
In the present case, there was evidence from the complainant to the effect that the six charged offences occurred when the appellant was under the age of 14 years. The trial judge, in her reasons for judgment, accepted, in effect, the complainant's evidence as to when the six charged offences occurred. In those circumstances, the State could not secure convictions for the six charged offences merely by proving beyond reasonable doubt each of the factual elements of the offences. It was also necessary for the State to prove beyond reasonable doubt that at the time of doing the alleged acts the appellant had the capacity referred to in s 29; that is, capacity to know that he ought not to do the acts. As we have mentioned, the issue of the appellant's capacity under s 29 was overlooked by her Honour, the prosecutor and defence counsel. Her Honour was obliged to make findings in relation to that issue. Her Honour's failure to make any findings was a material error of law. A miscarriage of justice occurred.
The ground of appeal has been made out.

A judgment of acquittal or a new trial: the appellant's submissions

Counsel for the appellant submitted that a new trial should not be ordered. Rather, a judgment of acquittal should be entered.
It was submitted that:
(a)the evidence at the trial was incapable of establishing beyond reasonable doubt that at the material time the appellant had the requisite capacity under s 29 of the Code; and
(b)the State should not be given an opportunity of adducing additional evidence in relation to that issue at a new trial.
Counsel also submitted that it was not in the interests of justice (relevantly, the interests of the administration of juvenile criminal justice) for the appellant to be retried. The offences with which the appellant was charged occurred nearly 50 years ago. At the time, the appellant was aged about 13 years 3 months. The administration of justice would not be brought into disrepute if a new trial was not ordered.

A judgment of acquittal or a new trial: the State's submissions

Counsel for the State submitted that a new trial should be ordered.
It was submitted that the evidence at the trial was capable of establishing beyond reasonable doubt that at the material time the appellant had the requisite capacity under s 29 of the Code.
Counsel relied in particular upon the following:
(a)On each of the three occasions on which the offending occurred the appellant gestured to the complainant that the complainant should accompany the appellant to an area beneath the floorboards of the complainant's parents' house.
(b)On the complainant's evidence, the appellant unlawfully and indecently dealt with the complainant on each of the three occasions.
(c)There was no evidence that the appellant went underneath the floorboards of the house with the complainant on any other occasions. It was not put to the complainant during cross‑examination that he ever went underneath the floorboards with the appellant for an innocent purpose.
Counsel accepted that the State relied, in effect, upon the furtive nature of the offending and the secluded place where it occurred to establish beyond reasonable doubt that at the material time the appellant had the requisite capacity.
Counsel acknowledged that there was no other evidence which might bear upon the issue of capacity. For example, no evidence was led as to the appellant's education and social circumstances at the material time or the environment in which he was raised.

A judgment of acquittal or a new trial: our decision

Section 30(5) of the Criminal Appeals Act 2004 (WA) applies in the case of an appeal against a conviction by an offender. It reads, relevantly:
If the Court of Appeal allows the appeal, it must set aside the conviction of the offence (offence A) and must -
(a)order a trial or a new trial; or
(b)enter a judgment of acquittal of offence A; or
(c)if -
(i)the offender could have been found guilty of some other offence (offence B) instead of offence A; and
(ii)the court is satisfied that the jury must have been satisfied or, in a trial by a judge alone, that the judge must have been satisfied of facts that prove the offender was guilty of offence B,
enter a judgment of conviction for offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A.
In Director of Public Prosecutions (Nauru) v Fowler,[16] Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ noted that the power of an appellate court to grant a new trial is discretionary in character. Where an appellate court quashes a judgment of conviction it must decide whether it is in the interests of justice to order a new trial. Two broad issues arise for consideration in making that decision. First, the court must assess whether the admissible evidence adduced at the original trial was sufficiently cogent to support a conviction. If it was not, a new trial should not be ordered because it would give the prosecution an opportunity to supplement a defective case. Secondly, if the court determines that the admissible evidence adduced at the original trial was sufficiently cogent to support a conviction, the court must take into account 'any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused'.
[16] Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627, 630.
In King v The Queen,[17] Dawson J reiterated that the discretion to order a new trial should not be exercised 'when the evidence in the court below was not sufficiently cogent to justify a conviction or to allow the Crown to supplement a case which has proved to be defective'. His Honour noted, in particular, that 'the Crown should not be given an opportunity to make a new case which was not made at the first trial: R v Wilkes ((1948) 77 CLR 511, at p 518)'. See, to similar effect, the observations of McHugh J in Jiminez v The Queen,[18] where his Honour held that a new trial should not be ordered because 'a second trial would allow the Crown to make a case different from that which it put to the jury at the first trial'. See also Parker v The Queen.[19]
[17] King v The Queen [1986] HCA 59; (1986) 161 CLR 423, 433.
[18] Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572, 590.
[19] Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494, 520 (Dawson, Toohey & McHugh JJ).
In R v Taufahema,[20] Gummow, Hayne, Heydon and Crennan JJ cited, with apparent approval, the observations of Gleeson CJ (Finlay J & Slattery AJ agreeing) in Anderson v The Queen[21] that:
(a)there is a public interest in the due prosecution and conviction of offenders; and
(b)it is desirable, if possible, for the guilt or innocence of an accused to be finally determined by a jury.
[20] R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [49], [51].
[21] Anderson v The Queen (1991) 53 A Crim R 421, 453.
In Taufahema, Gleeson CJ and Callinan J (who with Kirby J dissented in the result) said that the references by Dixon J in R vWilkes,[22] and by Dawson J in King (433), to 'a new case' must be 'to the particulars of the charge, and to the nature of the evidence that will be adduced in support of it, not to the elements of the offence' [35] ‑ [36].
[22] R v Wilkes [1948] HCA 22; (1948) 77 CLR 511, 518.
Gleeson CJ and Callinan J also said in Taufahema that the general rule that 'litigants are bound by the conduct of their counsel, a rule essential to the adversarial system, applies with at least as much force to the prosecution as to the defence' [37]. Their Honours explained [37]:
The considerations identified in Crampton v The Queen ((2000) 206 CLR 161 at 172 - 173 [15] - [20]) as reasons for the rule confining the circumstances in which a new point may be taken in this Court on a criminal appeal by an accused person are relevant in this context also. In particular, the adversarial procedure of criminal justice, which is bound up with notions of judicial independence and impartiality, and according to which the issues at trial are chosen and defined by the parties and their counsel, is at the heart of the matter. It is the executive branch of government that decides whether to prosecute, and what charges to lay. A trial is fought as a contest between the executive government and a citizen. The judge presides neutrally over that contest. Counsel for the respective parties define the issues, decide what witnesses will be called and what questions will be asked, and decide what arguments will be pursued and what will be abandoned.
Gummow, Hayne, Heydon and Crennan JJ, who constituted the majority in Taufahema, reviewed the decisions in Wilkes, King, Jiminez and Parker, and said that these authorities suggest that 'the difference between the case relied on in a first trial and the case to be relied on in a second trial must be substantial if the difference is to stand as a bar to an order for a second trial' [67].
In the present case, as we have mentioned, the appellant did not give or adduce evidence at the trial.
The State's evidence at the trial did not include a recorded interview of the appellant with police.
As we have mentioned, the six charged offences were historic offences. On the complainant's evidence, the alleged offences occurred in December 1972. The appellant was not charged until 2019.
There was no evidence as to the appellant's level of education or social circumstances when he committed the alleged offences or of the environment in which he was raised. There was no evidence as to his intellectual and moral development at the material time.
There was a paucity of evidence concerning the surrounding circumstances of the alleged offending. It was not suggested, for example, that the appellant had restrained the complainant to facilitate the commission of the offences or that the appellant had told consciousness of guilt or any other lies.

As we have mentioned, the evidence at the trial which counsel for the State relied upon before this court in relation to the appellant's capacity at the material time comprised, in essence, evidence as to the furtive nature of the offending and the secluded place where it occurred. See [63] ‑ [64] above.
In our opinion, on the basis of the evidence adduced at the trial, including the appellant's age, it would not be open to a tribunal of fact to be satisfied beyond reasonable doubt that, at the material time, the appellant had capacity to know that the alleged acts of unlawful and indecent dealing charged against him were seriously wrong by the ordinary standards of reasonable adults. The admissible evidence adduced at the trial was not sufficiently cogent to establish that at the material time the appellant had the requisite capacity under s 29 of the Code. A new trial should not be ordered because it would give the State an opportunity to supplement a defective case.

We are satisfied that this court should enter judgments of acquittal.

The repayment to the appellant of the sum of $1,000, being the amount of the fine which the trial judge ordered be paid to the complainant

As we have mentioned, the appellant paid the fine of $1,000 to the Midland Magistrates Court. However, the complainant has not received any of the proceeds of the fine. In the circumstances, we are satisfied that it is appropriate for this court, by order, to give effect to the agreement of the parties that the proceeds of the fine be repaid to the appellant.

Conclusion

For the reasons we have given, at the conclusion of the hearing of the appeal we joined in ordering that the appeal be allowed and the judgments of conviction recorded by the trial judge be set aside.
In our opinion, judgments of acquittal should be entered rather than an order made for a new trial.
The proceeds of the fine of $1,000 should be repaid to the appellant.

VAUGHAN JA:

I have the considerable advantage of having read Buss P and Mazza JA's joint reasons in draft. I agree with their Honours that the issue of the appellant's criminal responsibility, in terms of his capacity in accordance with s 29 of the Code, was not the subject of necessary findings by the primary judge. Regrettably, the question was not raised as one for the primary judge's consideration by either the prosecutor or defence counsel. For the reasons that Buss P and Mazza JA give, the appellant's single ground of appeal was established. I also agree that this court should enter judgments of acquittal on all six counts: the evidence at trial, as summarised in the joint reasons at [63] - [65] above, was incapable of establishing beyond reasonable doubt that the appellant had the necessary capacity in terms of s 29.
Section 29 of the Code relevantly provided at the material time:
A person under the age of seven years is not criminally responsible for any act or omission.
A person under the age of fourteen years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.
Obviously enough, in terms of a child between 7 and 14 years of age, what is required is proof of capacity to know rather than actual knowledge. That is not to say that proof of actual knowledge on the part of such a child that he or she ought not do a particular act or make a particular omission is irrelevant. Forensically, proof of actual knowledge may be an appropriate means of satisfactorily proving capacity to know.
The further question is what is meant by s 29's requirement that it be proved that the child had capacity to know that he or she 'ought not to do the act or make the omission'.
It is in this latter respect that I have a slightly different view to Buss P and Mazza JA. Their Honours state that the relevant statement in s 29 is a reference to a child's capacity, at the material time, to know that doing the act or making the omission was 'morally wrong' (emphasis added) (see [51] above). I accept that the words 'know that [he or she] ought not to do the act or make the omission' should be read and construed as 'know that it is wrong to do the act or make the omission'. There is considerable authority in support of that conclusion.[23]
[23] See eg: R v B [1997] QCA 486, 4; R v F; Ex parte Attorney-General [1998] QCA 97; [1999] 2 Qd R 157, 160; R v EI [2009] QCA 177 [16] - [17], [19]; R v TT [2009] QCA 199 [20].
The plurality in RP v The Queen - a case concerning the presumption of doli incapax at common law - distinguished between a child's knowledge of 'moral wrongness' and awareness that conduct is 'merely naughty or mischievous'. Their Honours stated that the presumption may be rebutted by evidence that the child knew it was morally wrong to engage in the conduct.[24]
[24] RP v The Queen [2016] HCA 53; (2016) 259 CLR 641 [9] (see also [10] - [11], [36]).
The proper approach to the construction of the Code is well-established and requires no development in these reasons.[25] In considering the text, context and purpose of s 29 I would not qualify s 29's requirement of proof of the child's capacity to know that the act or omission was wrong (ie that he or she ought not to do the act or make the omission) in terms of moral wrongness. The relevant purpose or object of s 29 is to stipulate when a child between 7 and 14 years of age has criminal responsibility in the same way as if he or she was an adult. Having regard to that purpose, I prefer the exposition of Davies JA (McPherson JA and Shepherdson J agreeing) in R v F; Ex parte Attorney-General:
It is preferable in my view, if the phrase 'that the person ought not to do the act' needs to be paraphrased, and I doubt if it does, to use the phrase 'that the act was wrong according to the ordinary principles of a reasonable man'.[26] (citations omitted)
[25] See however: Brennan v The King [1936] HCA 24; (1936) 55 CLR 253, 263 (referred to with approval in Pickett v The State of Western Australia [2020] HCA 20 [22]); Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426, 437; Birdsall v The State of Western Australia [2019] WASCA 79; (2019) 54 WAR 418 [103] - [105].
[26] R v F; Ex parte Attorney-General (160).
It may well be that my preference for this formulation over the term 'morally wrong' is a distinction without a difference - especially given how Buss P and Mazza JA go on to explain the concept (see [51] above) and then apply it (see [79] above). Certainly in most cases that will be the position. I, however, favour avoiding the potential for any philosophical sophistry that may arise in seeking proof that a child had capacity to know that an act or omission was morally wrong. It is enough, in my view, that the child has the capacity to know that the act or omission is wrong by the normal adult standards of a reasonable person.
Lest there be any doubt, this does not require that the child be proven to have the capacity to know that an act or omission is legally wrong. I agree with what Buss P and Mazza JA have stated in this respect.
My view as to s 29 does not impact on the reasons given by Buss P and Mazza JA, with which I agree, as to why the appellant's ground of appeal was established (see in particular [56] above) and that there should be verdicts of acquittal (see in particular [76] - [79] above). I agree with their Honours' proposed order providing for judgments of acquittal and also their Honours' order for repayment of the $1,000 fine.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AHM
Research Associate to the Hon President Buss
11 MARCH 2021