Williams v Im
[2019] ACTSC 234
•28 August 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Williams v IM |
Citation: | [2019] ACTSC 234 |
Hearing Date: | 21 August 2019 |
DecisionDate: | 28 August 2019 |
Before: | Murrell CJ |
Decision: | Appeal allowed. |
Catchwords: | CRIMINAL LAW – CRIMINAL RESPONSIBILITY – Criminal responsibility of children aged between 10 and 14 – Criminal Code 2002 (ACT) s 26 – Where the child entered pleas of guilty – Where the magistrate accepted the plea – Whether prosecution must discharge “the presumption of doli incapax” – Whether prosecution’s legal burden discharged by plea of guilty |
Legislation Cited: | Criminal Code 1995 (Cth) ss 7.2, 13.1, 13.2, 13.3, dictionary Criminal Code 2002 (ACT) ss 25, 26, 56, 57, 58, 59, 60, 61, dictionary |
Cases Cited: | BC v The Queen [2019] NSWCCA 111 Marshall v Lowndes (1997) 138 FLR 313 RP v The Queen [2016] HCA 53; 259 CLR 641 |
Texts Cited: | Criminal Code Bill 1994 (Cth) Criminal Law Officers Committee, ‘Model Criminal Code Chapter 2: General Principles of Criminal Responsibility’ (Discussion Draft, July 1992) Stephen Odgers, Principles of Federal Criminal Law (Lawbook Co, 3rd ed, 2015) |
Parties: | Rhys Howard Williams (Appellant) IM (Respondent) |
Representation: | Counsel K McCann (Appellant) J Robertson (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Appellant) Sharman Robertson Solicitors (Respondent) | |
File Number: | SCA 25 of 2019 |
Decision under appeal: | Court/Tribunal: ACT Children’s Court Before: Magistrate Cook Date of Decision: 17 April 2019 Case Title: The Police v [I M] Court File Numbers: CH 989 of 2018, CH 990 of 2018, CH 59 of 2019 |
Murrell CJ
The Appeal
The prosecutor in the Children’s Court (the prosecutor) appealed against a decision of Magistrate Cook (the Magistrate) to dismiss charges against the respondent child (the child) because the prosecutor had failed to displace the “presumption of doli incapax”.
On the appeal, the prosecutor contended that the child’s pleas of guilty to the charges had constituted both formal admissions of the elements of the offences and an admission that the child was criminally responsible for the offences.
I consider that the Magistrate’s approach was wrong for a more fundamental reason.
The appeal raised the following issues:
(a)In relation to proof of criminal responsibility, what is the interaction between the burdens of proof imposed by ss 26 and 58 of the Criminal Code 2002 (ACT) (Criminal Code)?
(b)Was any prosecution burden to establish criminal responsibility discharged by the child’s pleas of guilty?
Proceedings in the Children’s Court
The child was charged with committing offences of aggravated robbery and attempted aggravated robbery when he was 12 years old.
21 March 2019
On 21 March 2019, the child appeared before the Children’s Court. He was represented by his current solicitor.
The Magistrate read each charge to the child and asked whether he understood the charge. In relation to each charge, the child responded in the affirmative and then pleaded guilty. The Magistrate noted that pleas of guilty had been entered, and that the consequent convictions would place the child in breach of an existing good behaviour order relating to an earlier offence of aggravated robbery.
An agreed statement of facts and a criminal history were tendered. The proceedings were adjourned for sentence on 15 April 2019.
15 April 2019
On 15 April 2019, the Magistrate inquired as to the prosecutor’s “position on the doli incapax”. The Magistrate said:
So the prosecution, whenever a young person comes before the court who is [10–14 years of age], automatically has the presumption to displace that when it comes to sentencing. If they don’t then I have no evidence upon which I would be satisfied that you are not doli incapax and as a consequence would dismiss the charges on that basis. …
The proceedings were adjourned to 17 April 2019 so that the prosecutor could consider her position.
17 April 2019
On 17 April 2019, the prosecutor submitted that:
The plea of guilty is a formal and conclusive admission of all elements of that charge. When the accused pleads guilty the Crown does not need to lead any evidence to prove that charge … In my submission, the young person has entered a plea of guilty with the assistance of counsel also. If it’s the case that your Honour still rejects that plea, the matter would need to be set down for hearing.
The Magistrate responded:
I don’t reject the plea, the plea stands. If I’m satisfied you have negatived doli incapax then we go to sentencing. It’s not a matter of rejecting the plea. It’s a matter of whether or not you proved an element of the offence that also exists at law, and the authorities say a plea of guilty is not sufficient.
[Emphasis added.]
The Magistrate referred to R v JA [2007] ACTSC 51; 1 ACTLR 126 (JA) and R v B (an infant) [1979] Qd R 417 before concluding:
The plea of guilty remains but that doesn’t mean the presumption is removed and while pleas of guilty are taken … to be an admission … you still have the obligation to negative the presumption.
Ultimately, the Magistrate dismissed both charges, stating:
I referred to the decision of [R v JA at [58]] in relation to a matter where, notwithstanding a plea of guilty had been entered, in the absence of evidence of a special finding that a child had capacity to know that he ought not to have done an act or made an admission to which he is charged, then in the absence of that, proceeding to convict even on pleas of guilty were said by his Honour to be in error. In any event, what I need is evidence to be put before me about the issue of whether or not the young person, 12 years of age at the time of committing the offences … was doli incapax.
The prosecution rests upon the authority that a plea of guilty is taken to be an admission to all elements of the offence and that is all that it says in the matter. Further, it says as a [second] option that if I reject the plea of guilty, as a consequence of that then the matter needs to go to a contested hearing. I indicated to the prosecutor that I am not rejecting the plea of guilty, I am needing to be satisfied that the presumption that the young person, at 12 years of age … was doli incapax and I need evidence of that and the prosecution needs to lead that in order to rebut the presumption.
If the doli incapax then is not maintained or established on the evidence, then the plea of guilty is maintained and the matter is dealt with and proceeds to sentencing. However, where the person is said to be doli incapax, then the plea of guilty notwithstanding, the matter, having regard to the findings which would be made establishing that, would see the charges dismissed because of that position …
The Magistrate referred to a decision of Magistrate Burns (as he then was) in 2003 in relation to what it means for a 10 to 14 year old child to know that their conduct is “wrong”, such that they are criminally responsible. That was not the issue in the present case: the question was where the onus lay in relation to raising and establishing criminal responsibility in the case of a child aged between 10 and 14 years.
The Magistrate continued:
In relation to these matters, having put the prosecutor on notice on Monday of the matter being re-listed today, there is no evidence before me upon which the presumption has been displaced in relation to doli incapax of the 12-year-old child before me.
Although the Magistrate dismissed both charges, his Honour relied on the pleas of guilty to support a finding that the child had breached a good behaviour order previously imposed for an offence of aggravated robbery.
Doli incapax at common law
At common law, there is a presumption that a child under 14 years lacks the capacity to be criminally responsible for his or her acts: RP v The Queen [2016] HCA 53; 259 CLR 641 (RP) at [4]. At [8], Kiefel, Bell, Keane and Gordon JJ observed that:
The rationale for the presumption of doli incapax is the view that a child aged under 14 years is not sufficiently intellectually and morally developed to appreciate the difference between right and wrong and thus lacks the capacity for mens rea. The presumption of doli incapax at common law is irrebuttable in the case of a child aged under seven years. From the age of seven years until attaining the age of 14 years it is rebuttable: the prosecution may adduce evidence to prove that the child is doli capax.
[Footnote omitted.]
At [9], their Honours said:
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.
[Footnote omitted.]
At [32], their Honours stated that the onus was on the prosecution to adduce evidence to rebut the legal “presumption” that a young person is incapable of bearing criminal responsibility for their acts, and to do so “to the criminal standard”.
At [38], Gageler J described the requirements as follows:
Doli incapax – incapacity for crime – is a common law presumption in the same way as innocence is a common law presumption. … 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. That understanding cannot be inferred from the fact that the child engaged in the conduct which constituted the offence; it must be proved by other evidence. That other evidence might be or include evidence of the circumstances or manner of the conduct. That other evidence might also be or include evidence of the development or disposition of the child.
Criminal Code
In the ACT, the common law presumption is modified by Div 2.3.1 of the Criminal Code.
Provisions that concern the elements of an offence are located within Part 2.2 of the Criminal Code.
Part 2.3 of the Criminal Code is entitled “Circumstances where there is no criminal responsibility”. It deals with lack of capacity in children, mental impairment, intoxication, mistake and ignorance, “external factors” (including duress and self-defence) and lawful possession by a law enforcement authority.
Division 2.3.1 sits within Part 2.3. It deals with lack of capacity in children. It provides:
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 2.6 of the Criminal Code (ss 56 to 61) is entitled “Proof of criminal responsibility”. Relevantly, it provides:
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.
Note See 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.
57Standard of proof—prosecution
(1)A legal burden of proof on the prosecution must be discharged beyond reasonable doubt.
…
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.
…
(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.
While an “evidential burden” involves “presenting or pointing to evidence that suggests” that something does or does not exist, a “legal burden” involves “proving the existence” of something.
As to the other provisions within Part 2.6, s 59 deals with legal burdens of proof placed on the defence; s 60 provides that, where the defence has a legal burden of proof, the standard of proof is the balance of probabilities; and s 61 deals with the use of averments.
The Commonwealth Code
Section 26 of the Criminal Code finds its equivalent in s 7.2 of the Criminal Code 1995 (Cth) (Commonwealth Code) (located in Chapter 2, Part 2.3 of the Commonwealth Code), and s 58 of the Criminal Code finds its equivalent in s 13.3 of the Commonwealth Code (located in Chapter 2, Part 2.6 of the Commonwealth Code).
As is the case with the Criminal Code, in the Commonwealth Code the provisions that concern the elements of an offence are not located within Part 2.3 but within Part 2.2 of the Commonwealth Code.
Within Part 2.3 of the Commonwealth Code, ss 7 and 13 relevantly provide:
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.
…
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.
…
(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.
The close resemblance between the two codes means that it is helpful to explore the drafting history of their common origin: the Model Criminal Code, which was prepared by the Criminal Law Officers Committee (CLOC).
The Model Criminal Code and the Criminal Code Bill 1994 (Cth)
In July 1992, CLOC released a Discussion Draft on Chapter 2 of the Model Criminal Code (Discussion Draft). Section 301 of the Discussion Draft reads as follows:
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 commentary attaching to that provision states:
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.
[emphasis added.]
Despite the commentary assertion to the contrary, it was not clear that the draft s 301 did cast a burden upon an accused child, evidential or otherwise.
In Part 6 of the Discussion Draft (that eventually became Part 2.6 of the Commonwealth Code), the rules concerning burden of proof were contained in one section:
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 born 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 …
601.1 “Legal burden”, in relation to a matter, is the burden of proving the existence of the matter. “Evidential burden”, in relation to a matter, is the burden of presenting or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
601.2 …
Consequently, while the Discussion Draft seemed to contemplate that, in relation to children aged 10 to 14 years, the accused child would bear an evidential onus, the draft code contained no express statement to that effect. This may have been because CLOC considered that a contention of absence of criminal responsibility was a contention about an “exception, exemption, proviso, excuse or qualification”; draft section 601.3 of the Discussion Draft provided that, in relation to exceptions etc, the accused person bore an evidential burden. That section is retained in both the Commonwealth Code (s 13.3(3)) and the Criminal Code (s 58(3)).
In the CLOC’s Final Report on Chapter 2 of the Model Criminal Code (Final Report) in December 1992, the rules concerning burden of proof were not materially changed. However, s 301.1 was amended to read as follows:
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.
In the commentary, the reference to an evidential burden on the accused was removed. Instead, the commentary stated:
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 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.
[emphasis added.]
The reference to “existing law” was a reference to the common law requirement that the prosecution bear the legal burden of establishing criminal responsibility in the case of children aged 10 to 14 years, regardless of whether the defence raise any issue in that regard.
The position was changed again with the introduction of the Criminal Code Bill 1994 (Cth) (Commonwealth Bill). The Commonwealth Bill introduced what is now s 13.3(2) of the Commonwealth Code, which reverted to a position that the defence had an evidential burden in relation to denial of criminal responsibility.
The Explanatory Memorandum to the Commonwealth Bill stated:
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.
In the context of fluctuating views on whether the common law position should be maintained or changed so as to place an evidential burden on the defence, 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.
The operation and effect of s 13.3(2) upon s 7.2 was explained in Stephen Odgers, Principles of Federal Criminal Law (Lawbook Co, 3rd ed, 2015) at [7.2 160], where the author stated:
The defendant must satisfy the evidential burden of raising the defence as an issue in the trial: s 13.3(2). [The provisions of the Commonwealth Code mean] that the burden on the defendant of adducing or pointing to evidence that suggests a reasonable possibility that the following requirements of the defence exist:
1. The defendant was under 14 years old (but more than 9 years old).
2. The defendant did not know that his or her conduct was wrong.
Once the evidential burden on the defendant is satisfied, the burden of proof will be on the prosecution to “disprove” the defence beyond a reasonable doubt…
At [7.2.170], the author went on to propose that evidence that may be relevant to the issue of knowledge of wrongness would include any admissions made by the child on the issue and the circumstances surrounding the child’s conduct, including any attempts at concealment or escape, and the child’s background, including the child’s education, upbringing, mental capacity and any previous criminal convictions.
What is the interaction between the burdens of proof imposed by ss 26 and 58 of the Criminal Code?
Like the Commonwealth Code, the Criminal Code states that, where an accused person wishes to assert lack of criminal responsibility under Part 2.3, the person bears an evidential burden: s 58(2) of the Criminal Code. In relation to whether a child aged between 10 and 14 years knew that their conduct was “wrong”, the evidential burden may be satisfied by “pointing to evidence” suggesting that the child did not know that their conduct was “wrong”. If the evidential burden is discharged, the prosecution then bears a legal burden of establishing beyond reasonable doubt that the child did know that their conduct was “wrong”: s 56 of the Criminal Code.
The Dictionary to the Commonwealth Code defines “evidence” as “anything that may be used as evidence”. However, the Criminal Code adopts that broad definition of “evidence” only in relation to Chapter 7 of the Criminal Code. It remains to be seen whether in the ACT this difference will, at a practical level, increase the forensic difficulty for the defence in discharging the evidential onus of pointing to evidence suggesting a reasonable possibility that a 10 to 14 year old child lacked criminal responsibility; it may be that, in the ACT, the defence needs to point to actual evidence rather than prospective evidence.
Nevertheless, it is clear that under both the Criminal Code and the Commonwealth Code, the prosecution’s burden of proof arises only after defence has discharged its evidential burden.
Approach to burdens of proof and criminal responsibility in this case
In this case, issues concerning criminal capacity were governed by the Criminal Code, not the common law. The Magistrate erred when he purported to apply the common law by requiring the prosecution to prove beyond reasonable doubt that the child understood that the offending conduct was seriously wrong by normal adult standards.
Had the child wished to raise the issue of capacity, the proper course would have been to enter a plea of not guilty, and then seek to discharge the evidentiary burden in relation to absence of criminal responsibility. Pursuant to s 58(2) of the Criminal Code, the child could have satisfied the evidentiary onus upon him by pointing to evidence suggesting a reasonable possibility that he had not known that his offending conduct was “wrong”.
The child neither entered a plea of not guilty nor sought to discharge the evidentiary burden in relation to absence of criminal responsibility. On the contrary, having obtained legal advice, he ended pleas of guilty. That was not surprising. Common sense suggests that many 12 year old children would understand that conduct comprising aggravated robbery was “wrong”. This child had a history of committing a prior, similar offence; presumably, having committed the earlier offence he had learned that such conduct was “wrong”.
The Magistrate wrongly characterised the existence of criminal responsibility as an additional “element of the offence”. Under the Criminal Code, criminal responsibility is not dealt with as an element of an offence. Part 2.2 of the Criminal Code deals with the elements of an offence. On the other hand, Part 2.3 of the Criminal Code deals with circumstances in which there is no criminal responsibility, treating criminal responsibility as a largely independent concept.
Plea of guilty
In relation to each offence, as long as it stood the child’s plea of guilty was an admission of all the essential elements of the offence: Maxwell v The Queen (1995) 184 CLR 501 per Dawson and McHugh JJ at 510. But, as noted above, under the Criminal Code a distinction is drawn between proof of the elements of an offence and proof of criminal responsibility.
The Magistrate relied on the decision of JA, in which Higgins CJ at [82] referred to the “strong presumption against criminal responsibility” and directed himself “that a finding of guilt may be made only if the Crown has displaced that strong presumption”. In JA, an 11-year-old accused had entered a plea of not guilty to charges alleging sexual offences. Higgins CJ referred to s 26 of the Criminal Code, observing that it was clear that the lack of criminal responsibility was presumed unless and until the contrary was proven beyond reasonable doubt: at [32]. It would appear that his Honour was not asked to consider the operation of s 58(2). Given the plea of not guilty, it may well have been agreed that criminal responsibility was in issue.
In Marshall v Lowndes (1997) 138 FLR 313, the plaintiff had been legally represented and had pleaded guilty in the Juvenile Court of the Northern Territory. Subsequently, it was discovered that, at the time of the alleged offences, the plaintiff had been nine years old. Consequently, he had lacked criminal responsibility. Martin CJ refused the plaintiff’s application for an order in the nature of certiorari or, alternatively, mandamus, stating
The effect of the plea is that the plaintiff then admitted against himself all the necessary legal ingredients of the offences charged and that also necessarily included an admission that he did not have an excuse because he was under the age of 10. If he had raised any evidence to indicate that he was not of that age, then it would have been necessary for the prosecutor to prove it beyond reasonable doubt, but there was never any such issue.
Having regard to the observations in RP, it is doubtful whether a plea of guilty “necessarily” includes a concession as to criminal responsibility. However, it would ordinarily be an important consideration, at least where a child was legally represented at the time that the plea was entered.
In Paul Campbell (a pseudonym) v The Queen [2018] NSWCCA 87 (Campbell), the Court of Criminal Appeal considered an appeal against sentence by child who had been 13 years old at the time of the offences. Before considering the grounds of appeal, the Court referred to the common law presumption that children under the age of 14 years lack criminal capacity because they lack sufficient intellectual and moral development to appreciate the difference between right and wrong. After referring to RP, Hamill J (with whom Bathurst CJ and Schmidt J agreed) said at [23] of Campbell:
If the presumption is rebutted, or if the child pleads guilty, he is liable to punishment.
[Emphasis added.]
At [55] of Campbell, Hamill J noted observations by the sentencing judge that the applicant had acknowledged that he had known that the offending was “seriously wrong”. Referring to that acknowledgement, Hamill J continued:
Clearly enough, this was a reference to the fact that, by his plea of guilty, the applicant had eschewed reliance on the “defence” of doli incapax. By his plea of guilty, the applicant acknowledged that he knew that what he was doing was seriously wrong and that his behaviour was at a level far higher than “mere naughtiness”.
[Citation omitted.]
New South Wales is not a code jurisdiction and the common law presumption applies to children between age of 10 and 14: see, e.g. BC v The Queen [2019] NSWCCA 111. Nevertheless, even at common law the Court of Criminal Appeal considered (at least) that a plea of guilty could provide strong evidence rebutting a presumption of lack of criminal responsibility.
In this case, it is not necessary to consider whether the child’s pleas of guilty rebutted the s 26 presumption of lack of criminal responsibility beyond reasonable doubt. The issue of lack of criminal responsibility was not raised by the defence. The evidential burden under s 58(2) of the Criminal Code was not discharged. The Magistrate should not have addressed the matter.
Orders
Appeal allowed.
The Magistrate’s decision is set aside.
The charges are remitted to the Children’s Court to be determined according to law.
| I certify that the preceding sixty-three [63] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
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