UD v Bishop
[2021] ACTSCFC 1
•12 November 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
FULL COURT
Case Title: | UD v Bishop |
Citation: | [2021] ACTSCFC 1 |
Hearing Date: | 17 August 2021 |
DecisionDate: | 12 November 2021 |
Before: | Mossop J, Collier J and McWilliam AJ |
Decision: | See [95] |
Catchwords: | CRIMINAL LAW – CRIMINAL RESPONSIBILITY – Criminal responsibility of children aged between 10 and 14 years – whether a child between the ages of 10 and 14 bears an evidential burden under the Criminal Code 2002 (ACT) of denying that they knew their conduct was wrong – interpretation of ss 26 and 58 of the Criminal Code 2002 (ACT) |
Legislation Cited: | Children and Young People Act 1999 (ACT), ss 7, 8, 71 Children and Young People Amendment Act 2000 (ACT) Children and Young People Bill 1999 (ACT), clause 69 Children’s Services Ordinance 1986 (ACT), s 27 Children’s Services Act 1986 (ACT), s 27 Children’s Services Amendment Act 2000 (ACT) Crimes (Sentencing) Act 2005 (ACT), s 17(2)(a) Supreme Court Act 1933 (ACT), s 13 |
Cases Cited: | Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 Baini v The Queen [2012] HCA 59; 246 CLR 469 Williams v IM [2019] ACTSC 234; 14 ACTLR 147 |
Texts Cited: | Criminal Law Officers Committee, Model Criminal Code Chapter 2: General Principles of Criminal Responsibility (Discussion Draft, July 1992) Criminal Law Officers Committee, Model Criminal Code Chapter 2: General Principles of Criminal Responsibility (Final Report, December 1992) Explanatory Statement, Children’s Services Ordinance 1986 (ACT) |
Parties: | UD ( Appellant) Andrew Bishop ( Respondent) |
Representation: | Counsel J White SC ( Appellant) T Hickey ( Respondent) |
| Solicitors Legal Aid ACT ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | SCA 7 of 2021 |
Decision under appeal: | Court: ACT Childrens Court Before: Magistrate Cook Date of Decision: 11 February 2021 Case Title: Bishop v UD Court File Numbers: CH 1072 of 2020; CH 54 of 2021 |
THE COURT
Introduction
The question in this appeal is whether under the Criminal Code 2002 (ACT) (the ACT Code) a defendant aged 10 years or older but under 14 years old bears an evidential burden of denying that he or she knew that his or her conduct, the subject of a criminal charge, was wrong.
The appellant was charged with one count of minor theft in the Children’s Court. He was 13 years old at the time of the alleged offence. He pleaded not guilty. At the hearing a no case submission was made on the basis that a prima facie case that the appellant knew his conduct was wrong had not been established. The submission was put that the ACT Code placed the burden of proving that the appellant knew that his conduct was wrong upon the prosecution and that there was no evidential burden upon the appellant. This submission was contrary to the decision of a single judge in Williams v IM [2019] ACTSC 234; 14 ACTLR 147 (IM).
The accused did not seek to discharge the evidential burden and accepted that the decision in IM was binding upon the magistrate. In those circumstances the magistrate rejected the no case submission. There was no defence case. The magistrate then found that the elements of the offence were established and that the charge was proved beyond reasonable doubt. Notwithstanding the finding of guilt, the charge was dismissed pursuant to s 17(2)(a) of the Crimes (Sentencing) Act 2005 (ACT).
The appellant appealed to the Supreme Court. Because the appeal raised a significant point of statutory interpretation in relation to which there was a challenge to the correctness of the reasoning in a decision of a single judge of the Supreme Court, the appeal was referred to a full court pursuant to s 13 of the Supreme Court Act 1933 (ACT).
Relevant statutory provisions
Whether or not the appellant bore an evidential burden in relation to his denial that he knew that his conduct was wrong depends upon the relationship between s 26 and s 58(2) of the ACT Code. The relevant provisions of the ACT Code are as follows:
Part 2.3Circumstances where there is no criminal responsibility
Division 2.3.1 Lack of capacity—children
25Children under 10
A child under 10 years old is not criminally responsible for an offence.
26Children 10 and over but under 14
(1)A child aged 10 years or older, but under 14 years old, can only be criminally responsible for an offence if the child knows that his or her conduct is wrong.
(2)The question whether a child knows that his or her conduct is wrong is a question of fact.
(3)The burden of proving that a child knows that his or her conduct is wrong is on the prosecution.
…
Part 2.6Proof of criminal responsibility
56Legal burden of proof—prosecution
(1)The prosecution has the legal burden of proving every element of an offence relevant to the guilt of the person charged.
NoteSee s 11 (Elements) on what elements are relevant to a person’s guilt.
(2)The prosecution also has the legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof on the defendant.
(3)In this Act:
legal burden, in relation to a matter, means the burden of proving the existence of the matter.
57 Standard of proof—prosecution
(1)A legal burden of proof on the prosecution must be discharged beyond reasonable doubt.
(2)Subsection (1) does not apply if a law provides for a different standard of proof.
58Evidential burden of proof—defence
(1)Subject to section 59 (Legal burden of proof—defence), a burden of proof that a law imposes on a defendant is an evidential burden only.
(2)A defendant who wishes to deny criminal responsibility by relying on a provision of part 2.3 (Circumstances where there is no criminal responsibility) has an evidential burden in relation to the matter.
…
(5)The defendant no longer has the evidential burden in relation to a matter if evidence sufficient to discharge the burden is presented by the prosecution.
(6)The question whether an evidential burden has been discharged is a question of law.
(7)In this Act:
evidential burden, in relation to a matter, means the burden of presenting or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
The issue that arises is whether the general provision in s 58(2) of the ACT Code, which imposes an evidential burden on a defendant where a provision of Part 2.3 (which includes s 26) is to be relied upon, applies in relation to proof of knowledge that the conduct was wrong, or whether the specific provision in s 26(3) of the ACT Code excludes s 58(2) and hence places the burden of proving that the child knows that his or her conduct is wrong entirely on the prosecution.
The arguments of the parties
The submission of the appellant was that to the extent that there was any ambiguity in the operation of s 26 and s 58(2) of the ACT Code, that ambiguity should be resolved by looking to the common law and available extrinsic materials as to how much of the common law the ACT Code was intended to embrace. In the appellant’s submission:
(a)prior to the ACT Code the prosecution bore the onus of proof and the child bore no onus;
(b)the position reached in the December 1992 Final Report of the Crown Law Officers Committee on the Model Criminal Code was that it was for the Crown to establish awareness of wrongdoing beyond reasonable doubt and that codified the existing law;
(c)the introduction in the Criminal Code 1995 (Cth) (the Commonwealth Code) of a provision which placed an evidential onus upon an accused in relation to knowledge of wrongfulness was an afterthought and applicable to provisions in Part 2.3 other than matters involving a lack of capacity;
(d)the Explanatory Memorandum for what became the ACT Code made it clear that s 26 was intended to repeat the existing law and provided that “to establish criminal responsibility in these cases the onus will be on the prosecution to prove beyond a reasonable doubt that the child knew that his or her conduct was wrong”; and
(e)section 26 should be construed as standing on its own, unaffected by s 58(2) of the ACT Code because it was a specific provision which reflected a continuation of the previous law.
The appellant also submitted that the decision in IM was wrong and had failed to have regard to the statements of intention in the Explanatory Memorandum. The appellant also submitted that the decision of the Northern Territory Court of Appeal in KG v Firth [2019] NTCA 5; 278 A Crim R 249 (KG) was consistent with the interpretation for which he contended.
The respondent submitted that IM was correctly decided. It submitted that the construction of the provisions of the ACT Code should begin and end with consideration of the text itself. Historical considerations and extrinsic material could not be relied upon to displace the clear meaning of the text: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 (Alcan) at [47].
10. The respondent submitted that ss 26 and 58 of the ACT Code may operate harmoniously together. The clear meaning of the text of s 58(2) is that the evidential burden must be discharged before the prosecution bears the legal burden of establishing beyond reasonable doubt that the child did not know that the conduct was wrong. There is therefore no ambiguity to resolve. To the extent that the Explanatory Memorandum says that the provision is a continuation of the existing law, then either it should be understood as not having addressed the interaction between the provisions relating to the burden of proof or it is wrong.
11. The respondent pointed to the purpose of Chapter 2 set out in s 6 of the ACT Code and submitted that the intention was that the provisions in Chapter 2 were self-contained and were to be interpreted without the need to bring in the common law. The respondent relied upon statements in the High Court that emphasise the need to focus on the text of the statute before turning to extrinsic materials: Northern Territory v Collins [2008] HCA 49; 235 CLR 619 (Collins) at [99]; Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [33]; Baini v The Queen [2012] HCA 59; 246 CLR 469 (Baini) at [14]. Similarly, the respondent submitted that it is not legitimate to resort to the previous common law to create an ambiguity: Mellifont v Attorney-General (Queensland) (1991) 173 CLR 289 at 309.
The respondent submitted that the appellant’s interpretation would leave s 58(2) with no work to do when it came to s 26.
Legislative context
Common law background
13. At common law there is a presumption that a child under 14 years of age lacks the capacity to be criminally responsible for his or her conduct.
14. In RP v The Queen [2016] HCA 53; 259 CLR 641 at [9] (RP), a majority of the court said:
From the age of 10 years until attaining the age of 14 years, the presumption may be rebutted 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. 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. This distinction may be captured by stating the requirement in terms of proof that the child knew the conduct was "seriously wrong" or "gravely wrong". No matter how obviously wrong the act or acts constituting the offence may be, the presumption cannot be rebutted merely as an inference from the doing of that act or those acts. To the extent that the decision of the Court of Appeal of the Supreme Court of Victoria in R v ALH suggests a contrary approach, it is wrong. The prosecution must point to evidence from which an inference can be drawn beyond reasonable doubt that the child's development is such that he or she knew that it was morally wrong to engage in the conduct. This directs attention to the child's education and the environment in which the child has been raised.
(Footnotes omitted.)
15. The judgment in RP at [11] then referred to the judgment of Bray CJ in R v M (1977) 16 SASR 589 (R v M), where an analogy was made with the “M’Naghten rules” which require knowledge that the act is wrong according to the principles of the reasonable person. The judgment in RP continued at [11] – [12]:
The analogy is apt insofar as the knowledge in each case is of the wrongness of the act as a matter of morality and not law. There is, however, in the case of the child defendant, the further dimension of proof of knowledge of serious wrongness as distinct from mere naughtiness.
What suffices to rebut the presumption that a child defendant is doli incapax will vary according to the nature of the allegation and the child. A child will more readily understand the seriousness of an act if it concerns values of which he or she has direct personal experience. For example, a child is likely better able to understand control of his or her own possessions and the theft of others' property compared to offences such as damaging public property, fare evading, receiving stolen goods, fraud or forgery. Answers given in the course of a police interview may serve to prove the child possessed the requisite knowledge. In other cases, evidence of the child's progress at school and of the child's home life will be required. It has been said that the closer the child defendant is to the age of 10 the stronger must be the evidence to rebut the presumption. Conversely, the nearer the child is to the age of 14, the less strong need the evidence be to rebut the presumption. The difficulty with these statements is that they are apt to suggest that children mature at a uniform rate. The only presumption which the law makes in the case of child defendants is that those aged under 14 are doli incapax. Rebutting that presumption directs attention to the intellectual and moral development of the particular child. Some 10-year-old children will possess the capacity to understand the serious wrongness of their acts while other children aged very nearly 14 years old will not.
(Footnotes omitted.)
16. Gageler J’s concurring reasons in RP were consistent with the majority reasons in that they indicated that the prosecution must prove beyond reasonable doubt that the child understood that child’s conduct which constituted the offence was seriously wrong by normal adult standards. While the understanding cannot be inferred from the fact that the child engaged in the conduct that constituted the offence, the circumstances of the offence or manner of the conduct may be taken into account: RP at [38].
Model Criminal Code July 1992 discussion draft
17. Both the ACT Code and the Commonwealth Code had their genesis in the Model Criminal Code. The Model Criminal Code was the product of a law reform process which started in 1987 with the establishment of the Review of Commonwealth Criminal Law (known as the Gibbs committee). After the Gibbs Committee reported its findings in July 1990, the Standing Committee of Attorneys-General established the Criminal Law Officers Committee which subsequently produced reports on the Model Criminal Code.
18. In July 1992 the Criminal Law Officers Committee of the Standing Committee of Attorneys-General published a discussion draft of its Model Criminal Code which included commentary on the drafted provisions.
19. Section 301 provided as follows:
Part 3 – Circumstances in which there is no criminal responsibility
301. Age of criminal responsibility
A child under the age of 10 years is not criminally responsible for an offence. A child who is 10 years or over but under the age of 14 years can only be criminally responsible for an offence if he or she knows that his or her conduct is wrong.
301.1The question whether a child knows that his or her conduct is wrong is one of fact.
20. The commentary in relation to this provision was as follows:
Provisions on the age of criminal responsibility vary from jurisdiction to jurisdiction. The Committee decided that there should be two ages: one below which criminal responsibility is precluded and a second which sets an age range within which a lack of responsibility may be found, depending on the knowledge of the child involved. In the range of possible responsibility, the section casts an evidential burden upon the accused to raise the issue, whereupon the Crown would have to establish awareness of wrongdoing beyond a reasonable doubt.
21. The provision that dealt with burdens of proof was s 601 which provided:
601. Burden of proof
The prosecution bears the legal burden of proving every element of an offence relevant to the guilt of the person charged, including any element in relation to which the person charged discharged an evidential burden borne by him or her. A burden in relation to a matter imposed by this Code or another Act on a person charged with an offence is an evidential one only unless the provision creating the offence or providing the defence expressly
· imposes a legal burden on the person; or
· makes it a defence for the person to prove the matter; or
· creates a presumption that the matter exists unless proof or evidence to the contrary is given.
22. The section then went on to explain the nature of legal burdens and evidential burdens. In particular, s 601.3 provided:
601.3A defendant who wishes to rely on any exception, exemption, proviso, excuse or qualification provided by the provision creating an offence bears an evidential burden in relation to that matter.
601.3.1 It does not matter whether the exception, exemption, proviso, excuse or qualification does or does not accompany the description of the offence.
23. The commentary to s 601 provided:
Section 601 establishes a presumption that the prosecution bears the legal burden of proving every element of the offence beyond reasonable doubt (ss 601.1, 601.2). Where a burden in relation to an aspect of the offence or a defence is cast on the defendant, that burden is evidential (s 601.1) unless the statute imposes a legal burden on the defendant or requires him or her to prove the matter. The evidential burden on the defendant may be discharged by pointing to evidence in the prosecution case (s 601.3.2). A legal burden on the defendant is on the balance of probabilities (s 601.2).
24. Counsel for the appellant submitted that no weight should be placed upon the commentary in relation to s 301 insofar as it indicated that “the section casts an evidential burden upon the accused” because it was inconsistent with the text.
Model Criminal Code Final Report December 1992
25. In December 1992 the Criminal Law Officers Committee of the Standing Committee of Attorneys-General published a final report on chapter 2 of the Model Criminal Code. Once again, it took the form of draft provisions of the Code along with commentary on those provisions. The final report contained s 301 as follows:
Part 3 – circumstances in which there is no criminal responsibility
301. Age of criminal responsibility
A child under the age of 10 years is not criminally responsible for an offence. A child who is aged 10 years or over but under the age of 14 years can only be criminally responsible for an offence if he or she knows that his or her conduct is wrong.
301.1 The question whether a child knows that his or her conduct is wrong is one of fact. The burden of proving this is on the prosecution.
26. The reference to the burden being on the prosecution in s 301.1 was new.
27. The commentary then provided as follows:
Provisions on the age of criminal responsibility vary from jurisdiction to jurisdiction. The Committee decided that there should be two ages: under 10 criminal responsibility is precluded; between 10 and 14 responsibility may be found, depending on the knowledge of the child involved. In the 10-14 range, section 301.1 provides that the Crown has to establish awareness of wrongdoing beyond a reasonable doubt. This codifies the existing law.
28. Section 601 of the Model Code identified that the prosecution bears the legal burden of proving every element of an offence and a legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof. Section 602 identified that the burden of proof on a defendant is an evidential burden only other than in certain identified circumstances. It identified that the evidential burden “is the burden of presenting or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist”. Section 602.3 related to exceptions, exemptions, provisos, excuses or qualifications and was in the same terms as s 601.3 in the July 1992 draft (see [22] above).
The Commonwealth Code
29. The relevant provisions of the Commonwealth Code remain the same today as when they were enacted. When Commonwealth Code was enacted as a schedule to the Criminal Code Act 1995 (Cth) it provided:
Part 2.3—Circumstances in which there is no criminal responsibility
Note: This Part sets out defences that are generally available. Defences that apply to a more limited class of offences arc dealt with elsewhere in this Code and in other laws.
Division 7—Circumstances involving lack of capacity
7.1 Children under 10
A child under 10 years old is not criminally responsible for an offence.
7.2 Children over 10 but under 14
(1) A child aged 10 years or more but under 14 years old can only be criminally responsible for an offence if the child knows that his or her conduct is wrong.
(2) The question whether a child knows that his or her conduct is wrong is one of fact. The burden of proving this is on the prosecution.
…
13.1 Legal burden of proof—prosecution
(1) The prosecution bears a legal burden of proving every element of an offence relevant to the guilt of the person charged.
Note: See section 3.2 on what elements are relevant to a person's guilt.
(2) The prosecution also bears a legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof imposed on the defendant.
(3) In this Code:
legal burden,in relation to a matter, means the burden of proving the existence of the matter.
13.2 Standard of proof—prosecution
(1) A legal burden of proof on the prosecution must be discharged beyond reasonable doubt.
(2) Subsection (1) does not apply if the law creating the offence specifies a different standard of proof.
13.3 Evidential burden of proof—defence
(1) Subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only.
(2) A defendant who wishes to deny criminal responsibility by relying on a provision of Part 2.3 (other than section 7.3) bears an evidential burden in relation to that matter.
(3) A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. The exception, exemption, excuse, qualification or justification need not accompany the description of the offence.
(4) The defendant no longer bears the evidential burden in relation to a matter if evidence sufficient to discharge the burden is adduced by the prosecution or by the court.
(5) The question whether an evidential burden has been discharged is one of law.
(6) In this Code:
evidential burden,in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
…
30. Section 7.3 referred to in s 13.3(2) of the Commonwealth Code creates a presumption that a person was not suffering from a mental impairment which may only be displaced if it is proved on the balance of probabilities (by the prosecution or the defence) that the person was suffering from such a mental impairment. Section 13.3(2) deals with the matters in Part 2.3 separately from exceptions, exemptions, excuses, qualifications or justifications which are addressed in s 13.3(3).
31. The Explanatory Memorandum for the Criminal Code Bill 1994 (Cth) provided in relation to these provisions:
Proposed section 7.1 - Children under 10
Proposed section 7.1 states that a child under 10 is not criminally responsible for an offence. Provisions on the age of criminal responsibility vary from jurisdiction to jurisdiction. Under the common law there is a presumption that no child under 7 years can commit a crime. Tasmania adhers [sic] to the common law. In the Australian Capital Territory it is under 8 years and in other jurisdictions it is under 10 years.
Proposed section 7.2 - Children over 10 but under 14
Proposed subsection 7.2(1) provides that a child aged 10 years or more but under 14 years old can only be criminally responsible for an offence if the child knows that his or her conduct is wrong.
Proposed subsection 7.2(2) provides that the question whether a child knows that his or her conduct is wrong is one of fact and that the burden of proving this is on the prosecution.
(Emphasis added.)
32. The Explanatory Memorandum provided, in relation to proposed section 13.3, as follows:
Proposed Section 13.3 - Evidential burden of proof - defence
Where a burden of proof is cast on the defendant, proposed subsection 13.3(1) provides that it is an evidential burden only. Proposed subsection 13.3(2) provides a defendant who wishes to deny criminal responsibility by relying on a provision of Part 2.3 (age, intoxication, mistake or ignorance, claim of right, and defences such as duress and self-defence) other than section 7.3 (mental impairment) bears an evidential burden in relation to that matter.
(Emphasis added.)
33. This passage is significant because, by the reference in the bracketed description of the provisions of part 2.3, it explicitly recognises that s 13.3(2) applies to a situation in which a defendant is seeking to deny criminal responsibility by relying on a provision of Part 2.3 relating to age.
ACT law prior to the ACT Code
Children Services Act 1986 (ACT)
34. In 1981 the Australian Law Reform Commission published “Report No. 18 Child Welfare” which was a review of child welfare laws in the Australian Capital Territory. The Commission’s report included a draft Child Welfare Ordinance 1981 for the Australian Capital Territory. That draft ordinance formed the basis for the Children’s Services Ordinance 1986 (ACT) which became the Children’s Services Act 1986 (ACT) on self‑government.
35. In its report the Commission explained (at [68]) the doli incapax rule and said “[i]t seems clear that the common law presumption forms part of the present law in the ACT”. The Commission identified that the rule had been criticised on the grounds that courts found difficulty in attaching practical meaning to it and referred to the statement by Bray CJ in R v M at 595 that: “I think it is hard to regard this ancient rule about the capacity of a child … as altogether satisfactory or suited to modern conditions …”
36. The Commission concluded, however, that the reform or abolition of the rule should be undertaken in the context of a thorough-going review of the relevant criminal law principles, preferably on a national basis and that, for the time being, the doli incapax rule should be retained in the ACT. The Commission recommended that in order to remove any doubt about the application of the doli incapax rule in the ACT, the rule should be embodied in the new ordinance. The Commission identified that there was some uncertainty as to the whether the rule should be expressed in terms of the child’s actual knowledge of the wrongness of his or her actions or in terms of the capacity to appreciate their wrongness. In the interests of uniformity as between jurisdictions, the latter approach was recommended.
37. Taking up the recommendations of the Commission, the Children’s Services Ordinance provided:
Age of criminal responsibility
27(1) A child who has not attained the age of 8 years shall, for all purposes, be presumed to be incapable of committing in the Territory an offence against a law in force in the Territory.
(2) There is a rebuttable presumption that a child who has attained the age of 8 years but has not attained the age of 14 years is incapable of committing in the Territory an offence against a law in force in the Territory by reason that the child did not have the capacity to know that the act or omission concerned was wrong.
38. The Explanatory Statement for the Children’s Services Ordinance provided:
Clause 27 deals with the age of criminal responsibility.
ꟷ Sub-clause 1 restates the common law rule that a child under 8 years is incapable of committing an offence.
ꟷ Sub-clause 2 restates the common law presumption that a child between 8 and 14 years cannot commit an offence by reason of his or her incapacity to know that the act or omission was wrong. This presumption can be rebutted by evidence that the child knew that the act or omission was wrong.
39. The Children’s Services Act was amended by the Children’s Services Amendment Act 2000 (ACT) to omit the references to 8 years in s 27(1)-(2) and to replace those references with 10 years. That amendment came into effect on 6 April 2000 and was in force until the repeal of the Children’s Services Act on 10 May 2000.
40. The Explanatory Memorandum for the Children’s Services Amendment Act included the following:
Australia's First Report under Article 44(l)(a) of the United Nations Convention on the Rights of the Child in December 1995 stated that a Model Criminal Code would be developed for application in all jurisdictions. Under the Model Code, the age of criminal responsibility was to be standardised at 10 years or more. The age of 10 years in relation to Federal offences came into effect on 16 September 1995.
In NSW, Qld, Victoria, Western Australia, South Australia and the Northern Territory the age of criminal responsibility is set at 10 years.
The Bill will change the age of criminal responsibility in the Australian Capital Territory from 8 years to 10 years.
Children and Young People Act 1999 (ACT)
41. The provisions of the Children’s Services Act were replaced by those in the Children and Young People Act 1999 (ACT). Section 71 of the Children and Young People Act 1999 (ACT) was the provision relevant to the criminal responsibility of children. In the Act as notified, s 71 was consistent with the Children’s Services Ordinance in that it referred to a child under the age of 8 years or between the ages of 8 and 14 years. However, the Act as notified had not come into effect by 10 May 2002. On that day the Children and Young People Act 1999 (ACT) commenced along with the Children and Young People Amendment Act 2000 (ACT). The amending Act substituted the references in s 71 to a child aged under 8 years or between the ages of 8 and 14 years with references to a child aged under 10 years or between the ages of 10 and 14 years.
42. As at 2002, s 71 of that Children and Young People Act provided:
71Age of criminal responsibility
(1) A child who is under the age of 10 years is, for all purposes, presumed to be incapable of committing in the ACT an offence against a law in force in the ACT.
(2) There is a rebuttable presumption that a child or young person who is of or over the age of 10 years, but under the age of 14 years, is incapable of committing in the ACT an offence against a law in force in the ACT because the child or young person did not have the capacity to know that the act or omission concerned was wrong.
43. Sections 7 and 8 of the Children and Young People Act defined “child” and “young person” as follows:
7Who is a child?
For this Act, a child is a person who is under 12 years old.
8Who is a young person?
(1)For this Act, a young person is a person who is 12 years old or older, but not yet an adult.
(2)However, in chapter 6 (Young offenders), a reference to a young person includes a reference to a child.
44. The Explanatory Memorandum for the Children and Young People Bill 1999 (ACT) provided:
The Bill does not attempt to reform the law relating to young offenders other than in a few minor areas and for the purposes of bringing terminology in that arena of the law up to date or into line with other usage in the Territory. Chapter 6 of the Bill is therefore almost identical to Parts IV and IVA of the CSA.
45. Clause 69 of the Bill repeated the terms of s 27 of the version of the Children’s Services Act that was in force in July 1999 when the Bill was presented and for that reason clause 69 was not the subject of any specific comment in the Explanatory Memorandum. As noted at [39] above, s 27 of the Children’s Services Act was amended on 6 April 2000, shortly before its repeal, to raise the age of criminal responsibility to 10 years. The same change was made to s 71 of the Children and Young People Act prior to it coming into force: see [41] above.
Criminal Code 2001 (ACT)
46. The Criminal Code 2001 (ACT) was enacted but never came into force. It did not address the issue of the age of criminal responsibility. However, it did contain a number of provisions and a structure which was subsequently repeated in the Criminal Code 2002 (ACT). It contained in Part 2.3 a number of circumstances in which there was no criminal responsibility: mistake or ignorance of fact, mistake or ignorance of statute law, claim of right. Section 25 of the Criminal Code 2001 (ACT) was the equivalent of s 58 of the ACT Code. It provided:
25 Evidential burden of proof—defence
(1) Subject to section 26 (Legal burden of proof—defence), a burden of proof that a law imposes on a defendant is an evidential burden only.
(2) A defendant who wishes to deny criminal responsibility by relying on a provision of part 2.3 (Circumstances where there is no criminal responsibility) has an evidential burden in relation to the matter.
(3) Subject to section 26, a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence (whether or not it accompanies the description of the offence) has an evidential burden in relation to the matter.
(4) The defendant no longer has the evidential burden in relation to a matter if evidence sufficient to discharge the burden is presented by the prosecution.
(5) The question whether an evidential burden has been discharged is a question of law.
(6) In this Act:
evidential burden, in relation to a matter, means the burden of presenting or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
47. When additional matters were proposed to be included in the ACT Code it was thought more appropriate to repeal the Code and pass a new Act in order to avoid “renumbering difficulties that would arise if the 2001 Code were amended section by section”: Explanatory Memorandum for the Criminal Code 2001 (ACT) at 1.
ACT Code
48. The relevant provisions of the ACT Code are in the same form as they were when enacted. They are set out above.
49. The Explanatory Memorandum for the Bill that became the ACT Code provides significant, if not entirely consistent, indications as to the intention of the legislature. In the general outline of the purpose of the Bill, the Explanatory Memorandum referred to the Model Criminal Code developed by the National Model Criminal Code Officers Committee established by the Standing Committee of Attorneys-General. It stated:
The Bill comprises Chapters 1, 2 and 4 of the Model Criminal Code … Chapter 2 incorporates the provisions of the 2001 Code together with the remaining general principles of criminal responsibility recommended in Chapter 2 of the Model Criminal Code …
Chapter 2 of the Bill sets out general principles of criminal responsibility, which will eventually apply to all ACT offences. The principles are contained in Chapter 2 of the Model Criminal Code which has been endorsed by the Standing Committee of Attorneys-General.
…
The Commonwealth was the first Australian jurisdiction to enact Chapter 2 of the Model Criminal Code and the Bill is substantially similar to that passed by the Commonwealth in 1995.
50. In relation to clause 10, which identified provisions that had immediate application, the Explanatory Memorandum made specific reference to the provisions concerning the criminal responsibility of children under the age of 14 years. That was addressed further in the opening explanation of Part 2.3 of the Bill which said:
Since the Code provisions on children and intoxication are essentially a restatement of the current law in the ACT they will take effect immediately from the time the Code comes into force on 1 January 2003.
51. That was contrasted with provisions in relation to mental impairment which required careful consideration to be given to what amendments were required of the current law and hence were subject to the delayed commencement provisions.
52. In relation to the provisions which became ss 25 and 26 of the ACT Code, the Explanatory Memorandum provided:
Division 2.3.1 Lack of capacity – children
Clause 25 Children under 10
This clause provides that a child under the age of 10 lacks criminal responsibility and therefore cannot be convicted of a crime. This is currently the law in the ACT (section 71 of the Children and Young People Act 1999) and is consistent with the position in all jurisdictions in Australia, except Tasmania.
Clause 26 Children 10 and over but under 14
This provision also repeats the law as it currently stands in the ACT and the rest of Australia. It provides that a child aged 10 or more but under 14 is not criminally responsible unless the child knows that his or her conduct is wrong. To establish criminal responsibility in these case [sic] the onus will be on the prosecution to prove beyond a reasonable doubt that the child knew that his or her conduct was wrong. Since this is essentially a question of fact, it will ultimately lie on the jury to determine on the evidence whether the child in fact knew that the conduct was wrong.
(Emphasis added.)
53. So far as s 58 of the ACT Code is concerned the Explanatory Memorandum included:
Clause 58 Evidential burden of proof - defence
This clause explains that the general rule is that where a burden of proof is cast on the defendant, it is an evidential burden only. A defendant who wishes to deny criminal responsibility by relying on a provision of Part 2.3 bears an evidential burden in relation to that matter. The general rule can be displaced, as provided by clause 59, which is explained below.
(Emphasis added).
The decision in IM
54. The issue in IM was whether a child’s pleas of guilty constituted both formal admissions of the elements of the offences and an admission that the child was criminally responsible for the offences. A magistrate had dismissed the charges in the case because, notwithstanding the plea of guilty, he held that the prosecutor had failed to displace the “presumption of doli incapax”.
55. Murrell CJ did not ultimately need to express a conclusion as to whether the child’s plea of guilty “rebutted the s 26 presumption of lack of criminal responsibility beyond reasonable doubt”: IM at [60]. That was because her Honour concluded that there was an evidential burden under s 58(2) of the ACT Code upon the child that had not been discharged. Therefore, the magistrate should not have addressed the matter.
56. This conclusion that there was an evidential burden upon the child was reached by examining the provisions of the ACT Code, the Commonwealth Code, the provisions of the Model Criminal Code released in July 1992 and the Explanatory Memorandum for the Commonwealth Code. Her Honour identified that commentary to the July 1992 draft of the Model Criminal Code made reference to an evidential burden being upon the accused but that this was not present in the commentary in the December 1992 version of the Code. Her Honour identified that when the Commonwealth Code was introduced, it reverted to a position that there was an evidential burden in relation to the denial of criminal responsibility based upon the terms of the Explanatory Memorandum, which made specific reference to denial of criminal responsibility based upon age: see [32] above.
57. Her Honour identified that, having regard to the fluctuating position adopted over time in relation to whether an accused bore an evidentiary burden, “the introduction of s 13.3(2) reflected a deliberate decision to change the common law position and place an evidential onus on the defence”: IM at [43]. Her Honour interpreted the ACT Code as being to the same effect as the Commonwealth Code in that s 58(2) placed an evidential burden upon the child before the prosecution bore the legal burden of establishing beyond reasonable doubt that the child did know that the conduct was wrong: IM at [46].
58. Her Honour pointed out that under the ACT Code criminal responsibility was not dealt with as an element of the offence. Instead, criminal responsibility was treated as “a largely independent concept”: IM at [52].
59. Because the evidential burden was upon the child but had not been discharged, the magistrate should not have addressed the issue and hence was wrong to dismiss the charge in circumstances where there was a plea of guilty.
60. Matters not referred to in the judgment in IM and to which attention was drawn in the present case were:
(a)the state of the law in the Australian Capital Territory prior to the enactment of the ACT Code; and
(b)the terms of the Explanatory Memorandum for the ACT Code.
The decision in KG
61. In the Northern Territory the terms of ss 43AQ and 43BU of the Criminal Code 1983 (NT) are relevantly similar to the terms of ss 26 and 58 of the ACT Code. In KG, there had been significant evidence devoted to the issue of the appellant’s cognitive capacity. There was therefore no issue before the Court of Appeal as to whether the question of the appellant having knowledge that his conduct was wrong had been raised. The issue before the court was the ultimate question of whether the prosecution had proved beyond reasonable doubt that the appellant was not doli incapax. It was in that context that the court discussed the meaning of “wrong” and said that the concept of doli incapax was the same or very similar to that in the common law test articulated in RP. In articulating the burden that was upon the prosecution, the court said (at [27]):
Once the matter was sufficiently raised as an issue in the trial, the burden was on the prosecution to prove beyond reasonable doubt that the appellant did know his conduct was “wrong” in the relevant sense.
(Emphasis added.)
62. Although the issue was not a contentious one in KG, contrary to the submissions of the appellant in this case, the reasons of the court in KG are more consistent with there being an evidential onus upon a defendant. The references to the common law test in RP relate to what is meant by “wrong” rather than to the existence or non‑existence of an evidential onus under the Criminal Code 1983 (NT).
63. In any event, nothing in the case addresses the Australian Capital Territory-specific issue of what the Legislative Assembly intended when enacting the ACT Code. The case is therefore not significant in determining the issue before this court.
Decision
64. Chapter 14 of the Legislation Act 2001 (ACT) provides an appropriate starting point for the interpretation of the provisions of the ACT Code. It provides guidance about the interpretation of Acts but is not intended to be a comprehensive statement of the law relating to the interpretation of Acts and assumes that “common law presumptions” operate in conjunction with its provisions: s 137(2)-(3).
65. Fundamental to the interpretation of any Act is its text. That includes the words used and the structure of the instrument as a whole. Care must be taken to place sufficient emphasis upon the text used when considering the weight to be given to extrinsic indications of the purpose of the Act. This has been emphasised by the High Court: Collins at [99], Alcan at [47] and Baini at [14].
66. The Legislation Act contains specific directions that reinforce or supplement common law principles of interpretation. They include:
(a)the requirement that in “working out the meaning of Act” an interpretation that would “best achieve the purpose of the Act” is to be preferred to any other interpretation: s 139;
(b)the requirement that in “working out the meaning of an Act” particular provisions of an Act must be read in the context of the Act as a whole: s 140;
(c)provisions permitting material not forming part of the Act to be considered in “working out the meaning of an Act” subject to various considerations, including the desirability of being able to rely upon the ordinary meaning of the Act: s 141; and
(d)providing specific permission in “working out the meaning of an Act” to rely upon certain legislative material such as material contained in an authorised version of the Act, explanatory statements and presentation speech for the Bill which became the Act: s 142.
67. Central to the operation of these provisions is the concept of “working out the meaning of an Act” which is defined in s 138 as:
(a) resolving an ambiguous or obscure provision of the Act; or
(b) confirming or displacing the apparent meaning of the Act; or
(c) finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or
(d) finding the meaning of the Act in any other case.
68. Plainly enough, having regard to the terms of paragraph (b) above, the process of “working out the meaning of an Act” extends beyond cases where an ambiguity exists. Legislative purpose is central from the beginning of the interpretive process.
69. In addition to these foundational principles of interpretation of Territory legislation is the proposition that what is being interpreted is a code. In interpreting the ACT Code, it is appropriate to have regard to the pre-existing common law but not in a way that seeks “to see if the Code will bear an interpretation which will leave the law unaltered”: Brennan v The King (1936) 55 CLR 253 at 263; Pickett v Western Australia [2020] HCA 20; 94 ALJR 629 at [22]-[23], [92]. Rather, the first loyalty must be to the code itself but that is to be understood in the context of the law that existed previously and interpreted in accordance with the statutory commands in the Legislation Act just referred to.
Text and legislative context
70. In the present case, it is appropriate to start with the text. The relevant text is not simply the text of s 26 and s 58 of the ACT Code but the statute as a whole.
71. There are a number of aspects of the text that require specific consideration.
First, as emphasised by the respondent, the clear language in s 58(2) that indicates that a person wishing to deny criminal responsibility by relying upon a provision of Part 2.3 has an evidential burden in relation to that matter. That clearly covers s 26. It provides a strong textual indication that an evidential burden is borne by the appellant.
Second, in contrast to the Commonwealth Code, there is no exclusion from s 58(2) of the ACT Code in relation to mental impairment, yet that is a provision which contains provisions about the burden of proof inconsistent with the unconstrained application of s 58(2) to it: see the discussion of the provisions in R v Yeaman [2021] ACTSC 252 (Yeaman). This undermines the contention that s 58(2) should be given effect to according to its broad and unequivocal language.
Third, s 26(3) contains a specific provision dealing with the burden of proof in relation to proof of knowledge that the child’s conduct is wrong. The existence of that provision can be seen as putting s 26 in a similar position to s 27 in that it has self-contained provisions dealing with onus which should be interpreted as excluding the undeniably broad language of s 58(2) of the ACT Code.
Fourth, if the respondent’s interpretation of the operation of s 58(2) of the ACT Code is correct then s 26(3) is surplusage. That is because if s 58(2) operates in relation to s 26 then it is s 56(2) that places the legal burden upon the prosecution of disproving the matter where a defendant has discharged the evidential burden. The existence of s 26(3) cannot be explained on the basis that it is necessary in order to place a burden on the prosecution in circumstances where legal capacity of a child is not an element of the offence, because s 56(2) is not limited to elements of the offence, but instead applies wherever an evidential burden of proof has been placed on a defendant and has been discharged. It must, however, be recognised that this surplusage is also reflected in the Commonwealth Code (s 7.2(2)), although not quite so obviously as it is not a separate subsection.
Non-legislative context
76. In this case the most significant non-legislative context is the Explanatory Memorandum. It is clearly a matter to which regard should be had pursuant to s 142, table 142, item 4 of the Legislation Act. The terms of the Explanatory Memorandum require specific consideration to be given to the Commonwealth Code and the pre-existing state of the law at the time when the Bill for the ACT Code was presented because they are referred to in the Explanatory Memorandum to explain the intended effect of the proposed code. The matters which arise from the terms of the Explanatory Memorandum include the following.
77. First, it is clear that, in a general sense, the intention of the legislature was to adopt the provisions of the Model Criminal Code which had been given effect in the Commonwealth Code. That is made clear by the explicit statements emphasised in the quoted passages at [49] above and the heavy reliance upon the terms of the Explanatory Memorandum for the Commonwealth Code in the Explanatory Memorandum for the Bill for the ACT Code.
78. Second, in determining what weight is to be given to the general notion that the ACT Code was mirroring the general provisions of the Commonwealth Code, regard must be had to the difference between the language used in the ACT Code and that in the Commonwealth Code. That minor amendments to the language of the Commonwealth Code can have significant consequences is illustrated by the decision concerning s 28 of the ACT Code in Yeaman at [103]-[123]. In the present case, the provision of the Commonwealth Code which places an evidentiary burden upon a defendant in relation to the provisions of Part 2.3 specifically excludes s 7.3. By doing so, it recognises that s 7.3 of the Commonwealth Code has self-contained onus provisions and hence weakens the argument that s 7.2(2), the provision relating to children between 10 and 14 years, should be seen as an equivalent, self‑contained onus provision. Given the general adoption of the provisions of the Commonwealth Code and the absence of any explanation for the tinkering with this aspect of the drafting, the failure to include the qualification on the applicability of the evidential onus provisions leaves more room for the argument, set out above, that the reference to the burden of proof in s 26(3) of the ACT Code is a self‑contained provision which excludes s 56(2).
79. Third, the terms of the Explanatory Memorandum make it clear that the understanding of the author of the Explanatory Memorandum was that the provision of the ACT Code relating to the age of criminal responsibility reflected the existing law. That is illustrated by:
(a)the statement about the immediate as opposed to delayed commencement of the provisions because they “are essentially a restatement of the current law in the ACT”; and
(b)the explanation that s 26 like s 25 “repeats the law as it currently stands in the ACT and the rest of Australia”.
80. So far as the law stood when the Bill for the ACT Code was presented, s 71 of the Children and Young People Act clearly placed a burden upon the prosecution to rebut the presumption that a person over the age of 10 years but under the age of 14 years was incapable of committing an offence because the person did not have the capacity to know that the act or omission concerned was wrong. This also reflected the common law. However, it did not reflect the Commonwealth Code and hence the statement in the Explanatory Memorandum that s 26 repeated the law in “the rest of Australia” was not completely accurate.
81. While these statements in the Explanatory Memorandum can be seen as strongly supporting the proposition that there was to be no evidential burden upon a child, it is a possible interpretation of the Explanatory Memorandum that the statements about consistency with the existing law related only to the ultimate burden of proof upon the Crown and said nothing about whether or not there was an evidential burden upon a defendant to raise the issue.
Conclusion
In light of these considerations, it is necessary to return to the legislative command that an Act is to be interpreted in a way “that would best achieve the purpose of the Act”. In so far as the purpose of the Act as expressed in its text is concerned, notwithstanding the absence of any qualification in s 58(2) of the ACT Code that addresses mental impairment, on balance, the purpose appears to be to impose an evidential burden upon a defendant to raise an issue under s 26 of the ACT Code. However, the extrinsic material indicates an intention to replicate the existing law which did not impose any evidential burden upon a defendant. While there is a possible reading of the extrinsic material that would be consistent with imposing an evidential burden even though none existed under the pre‑existing law, that would involve reading the Explanatory Memorandum in a way that was not obvious and in a way which would render it misleading to the average legislator.
83. It is not a case in which it can be said that the drafter of the Explanatory Memorandum simply got it wrong: cf Re Bolton Ex parte Beane (1987) 162 CLR 514 at 518. That is because:
(a)it is a structural assumption behind the immediate commencement provisions of the ACT Code that s 26 of the ACT Code reflected the existing law;
(b)in light of the text of ss 26 and 27, the drafting of s 58(2) of the ACT Code is not so clear as to exclude the possibility of the former having self-contained onus provisions; and
(c)the possibility that the Explanatory Memorandum intended to explain that there was continuity in the law as between that which was existing and that which was proposed without regard to a newly introduced evidential burden is at best, not obvious.
84. While it might be possible to place greater or lesser emphasis upon one of the considerations outlined above in order to reach a clear but contestable conclusion as to the appropriate interpretation, it is best resolved by what has become referred to as the principle of legality.
85. The difference between the parties is whether or not the defendant bears an evidential burden in relation to knowledge of wrongfulness. The imposition of such a burden is a qualification on the defendant’s entitlement to have all aspects of the case against him proved by the Crown beyond reasonable doubt. Although a procedural provision, it is, to an extent, a burden upon him which involves a corresponding qualification on a fundamental aspect of the criminal process and hence upon his liberty.
86. The central idea behind the principle of legality is that if the legislature intends to infringe or qualify fundamental principles, rights and freedoms then it should do so in a way that is clear enough to indicate that it takes responsibility for, and hence is politically accountable for, that infringement or qualification. This was explained in R v Home Secretary; Ex parte Simms [2000] 2 AC 115 at 131:
Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights … The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.
87. This explanation of the principle has been cited with approval in judgments in the High Court: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 at [30] (Gleeson CJ); K-Generation Pty Ltd v Liquor Licencing Court [2009] HCA 4; 237 CLR 501 at [47] (French CJ); Lee v NSW Crime Commission [2013] HCA 39; 251 CLR 196 at [311] (Gageler and Keane JJ).
88. The principle has been taken by the High Court to be a working hypothesis known to both legislatures and the courts: see North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; 256 CLR 569 at [11] and the authorities cited therein.
89. The corollary of the need for sufficient clarity is that vague or ambiguous provisions are not to be interpreted in a way that infringes or qualifies fundamental principles, rights or freedoms. The principle accommodates the reality that in the present-day context, statute law which regulates and thereby infringes upon individual liberty is both ubiquitous and necessary for legitimate regulation of a modern complex society. To adopt an approach that requires a legislature to identify with sufficient clarity its purpose, does not involve any judicial resistance to the will of the legislature. Rather, in accordance with the statutory mandate of provisions such as s 139 of the Legislation Act, it is an approach which gives effect to the will of the legislature if it is sufficiently clearly expressed. It is an approach which strengthens democratic institutions by ensuring that those proposing legislation squarely confront potentially difficult issues and bear any political cost of the legislation that addresses those issues.
90. Having regard to what has been said above, it cannot be said that the legislative purpose to impose an evidential burden on an accused in order to give rise to the legal burden on the prosecution to prove knowledge of wrongfulness beyond reasonable doubt has been sufficiently clearly expressed. Rather, that legal burden is at all times on the prosecution.
91. This interpretation is one which gives some effect to each of the statutory provisions and no part of the language in the Act is denied some useful operation: Project Blue Sky Inc v Australian Broadcasting Australia [1998] HCA 28; 194 CLR 355. Section 58(2) of the ACT Code operates in relation to s 26 of the ACT Code, other than on the issue covered by s 26(3). In other words, there is evidential burden on a defendant in relation to a child’s age. However, in relation to the knowledge that the conduct is wrong, the specific provision in s 26(3) applies to the exclusion of s 58(2) and places the burden at all times on the prosecution.
92. Having regard to the conclusion that has been have reached, the approach taken by the magistrate consistent with the decision in IM was wrong and the appeal must be allowed. The magistrate was obliged to consider whether, even though no evidential burden had been discharged by the appellant in relation to knowledge that his conduct was wrong, the Crown had proved beyond reasonable doubt that the appellant knew his conduct was wrong. As pointed out above at [16], while that may not be established merely by reason of the establishment of the elements of the offence, the circumstances of the offending and the facts giving rise to the offending are matters which may be taken into account in determining whether the Crown has discharged its burden of proof.
Disposition
93. There was a further ground of appeal which asserted that the prosecution did not establish a prima facie case. This ground of appeal was put forward on the basis that the Crown bore an onus to prove that the appellant knew that his conduct was wrong and that this onus had not been discharged. Counsel for the appellant relied upon the absence of evidence specifically addressed to that issue. Counsel for the respondent referred to some of the circumstances surrounding the offending which pointed to knowledge of wrongfulness on the part of the appellant. He also referred to a video of the incident which was not before the court.
94. Having regard to the point of principle which was raised by the appeal, the fact that the matter was disposed of by the magistrate by dismissal under s 17(2)(a) of the Crimes (Sentencing) Act and the fact that some of the evidence before the Childrens Court relevant to determining whether an inference that the appellant knew that his conduct was wrong could be drawn from the circumstances of the offending was not before the court, the appropriate course is to simply set aside the verdict and the orders made by the Childrens Court and remit the proceedings to that court. It will be a matter for the Director whether it is appropriate to pursue the matter further in the circumstances.
95. The orders of the Court are:
1. Appeal allowed.
2. The verdict of the Childrens Court and orders made on charge CH2021/54 on 11 February 2021 are set aside and the proceedings are remitted to that court to be determined according to law.
| I certify that the preceding ninety-five [95] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Mossop, Justice Collier and Acting Justice McWilliam. Associate: Date: 12 November 2021 |
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